Gun Rights and Punishment

For much of this nation’s history, people convicted (and often merely charged) with crimes were denied rights afforded “people” under the Constitution. To a surprisingly large extent in retrospect, this was uncontroversial and mostly taken for granted. Obviously, commit a felony, go to prison, lose your rights. Lose your right to vote. Lose your right to live near a school. Lose your right to engage in licensed occupations. Lose your right to move freely without notifying the police. Lose your right to possess a gun.

With regard to the right to keep and bear arms, the question of what was meant by Scalia’s unprincipled and unjustified errant paragraph in Heller has been a source of consternation. To add insult to injury, the Court’s latest effort to reduce the Second Amendment to untenable incoherence, Bruen, where the scope of the right to keep and bear arms would not be premised on a discernable principle, but on “history and tradition,” a standard which makes the “reasonable person” standard seem informative.

The question then presented to the Third Circuit, Sam Alito’s old bench, in Range v. Attorney General was what about people convicted of felonies?

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a). He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.
2111 (2022).

There are, of course, some issues raised here that didn’t exist at the time of founding. We have a few more felonies now than then. Many of the felonies now are malum prohibitum, which are just as much against the law but lack the moral culpability aspect of malum in se crimes. Would somebody catching a few undersized fish lose their musket in 1789? Was there such a thing as an “undersized” fish back then? Do we need to keep weapons out of the hands of undersized fish catchers? The Third Circuit says “you bet!”

We disagree. Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition. Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government.

Phrases like “law-abiding, responsible citizens” are useful when the details aren’t in issue. But when, as here, a strong argument can be made that nobody truly fits the description, or that the description is so vague as to be meaningless, it contributes little rational thought to the ruling. Is welfare fraud of the same nature of demonstrated disregard for the rule of law as, say, fomenting or participating in an armed insurrection?

Our Court’s own review of the historical record supports the Supreme Court’s understanding: Those whose criminal records evince disrespect for the law are outside the
community of law-abiding citizens entitled to keep and bear arms. Our previous decisions, endorsed by several sister courts of appeals, have expressed a related view in terms of the theory of “civic virtue.”

Does one shed one’s “civic virtue” by catching three undersized fish?

The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms. Amici contend that these restrictions affected individuals outside the political community and so cannot serve as analogues to contemporary restraints on citizens like Range. But even accepting Amici’s
argument, colonial history furnishes numerous examples in which full-fledged members of the political community as it then existed—i.e., free, Christian, white men—were disarmed
due to conduct evincing inadequate faithfulness to the sovereign and its laws.

In other words, if one wants to take Bruen‘s history and tradition test seriously, there is a broad expanse of individuals we today recognize as “people” who were stripped of their right to keep and bear arms not for the perpetration of violence crimes against others, but for believing in the wrong religion, having the wrong skin color, and being in the debt of a master until the service was paid off.

Was that the history and tradition that Justice Clarence Thomas was talking about in Bruen when he tried to thread the needle of Scalia’s errant paragraph that sought to leave in place the widely accepted restrictions on gun possession and ownership that made no logical sense in light of the opinion otherwise?

As ideological swings push the Supreme Court to recognize or reject fundamental constitutional rights, the simplistic assumption that it only affects the nuts and bolts of the right in issue and wont have collateral, often unintended, consequences that ripple across the nation and law tends to prevail. We know that these huge decisions will cause massive shifts in the law, but judges fudge their way through decisions seemingly oblivious to the myriad untenable problems their vague rhetoric will almost certainly cause. History and tradition, indeed.

But as we see almost every time a right is resurrected or killed, the efforts to spin the way around the right’s edges, whether for or against, gives rise to a flurry of unprincipled and usually unsound rulings where people love or hate the outcome, but can’t provide any rational basis for the decision and the consequential damage it will cause. What a mess.

8 thoughts on “Gun Rights and Punishment

  1. Gregory Smith

    I’m all for gun control, but not for dishonest mechanisms for achieving it. By the time they exclude “felons”, those with “domestic violence” convictions (felony or misdemeanours) under a definition so broad more than half the population readily admits to committing an act defined as “DV” in the law, people who use cannabis, and people deemed to have “mental health” issues under red flag laws, you’ve taken the right of gun ownership away from 95%+ of the population and the “right to bear arms” is reduced to an abstract, theoretical concept with nearly everyone excluded in practice. It’s particularly dishonest in its use of scare words like “felon” (as you point out) or “domestic abuser” when 90% of the people who legally meet that definition have not committed any acts that the public thinks of when they hear the terms.

  2. DaveL

    To be fair, the conception of the Second Amendment favored by law profs in the 20th century was no more coherent, even if it was much easier for trial courts to apply in practice. A “right” that any government may restrict at any time in any way they deem appropriate is not a right at all – not even a “collective” one .

  3. Hal

    Perhaps it’s facile to reduce the question to who should be denied the right to defend themself (and when and where this right can reasonably be restricted), but this needs to be considered.

    There’s an ill founded belief that having a firearm is likely to lead people to engage in violence. A firearm has no agency, it exerts no evil influence over someone who comes into contact w/ it (nor, despite the belief of some gun owners does it serve as a talisman to ward off evil). Florida adapted a “shall issue” methodology over thirty years ago, have issued nearly two million permits, and have revoked less than 0.1% for any reason. This is a substantial body of evidence that suggests people w/ no history of violence are unlikely to engage in violence simply because they have permit.

    I can’t get my head around Bruen, but it seems that it’s supposed to be somehow even stricter than strict scrutiny. I can’t help thinking of it as “double secret strict scrutiny”.

    If strict scrutiny were the appropriate standard of review there would have to be a “compelling gov’t need” addressed by the law. JMO, but I think public safety meets this requirement. The law would have to be “narrowly tailored” to meet this need. I’m not certain that a blanket prohibition against felons is “narrowly tailored”. Unless, there’s evidence that someone has a demonstrated propensity/ proclivity for violence I’m not convinced their right to defend themselves should be legally limited.

    It may well be that someone who’s engaged in fraud, embezzled from their employer, or been busted sev’l times for narcotics possession is more likely to engage in violence, but w/o evidence to support this contention I remain skeptical.

  4. Skink

    “But as we see almost every time a right is resurrected or killed, the efforts to spin the way around the right’s edges, whether for or against, gives rise to a flurry of unprincipled and usually unsound rulings where people love or hate the outcome, but can’t provide any rational basis for the decision and the consequential damage it will cause. What a mess.”

    A mess, indeed, and not in the least limited to fuzzy felony fibs. Any lawyer dealing with constitutional issues comes upon the parade of error emanating from loose language in an opinion, which when sprinkled with wholesale mischief, becomes a “rule.” That the “rule” never was the rule gets buried in fallout. I see this regularly in my cases. Some long-ago language was used by some long-dead lawyer to recreate something an appellate court never held. A DC judge buys in, then another and another. Over time, the “rule” becomes a rule.

    About the only way this stuff gets corrected is when the “rule” leads to an absurd result. Within the last month, I got two opinions back from the circuit. In both, smart lawyers made rule arguments in the DC and briefs. Citations were to all the usual cases and from both DCs and the circuit. Certainly they were right–the decisions piled up like letters to Santa piled in front of Judge Harper in “Miracle on 34th Street.” The decisions were new and old; indeed, the founding of one “rule” came from a circuit decision of more than 40-years vintage. But the absurdity of the application in my cases was that it created a right to a narrow set of people and no others. That impossible result caused the panels, at considerable length, to finally explain, “that ain’t what we said.” With that, 40 erroneous years were wiped out, except that a few thousand parties got bad rulings.

    I’d hope the miscount of three fish would be sufficiently absurd, but I guess I’m absurdity-impaired. In time, maybe an almost-felony might be absurd enough. But unraveling what the Court means when it comes to the 2nd Amendment is going to be littered with crap decisions over decades, especially since the Court literally invited lawyers to encourage courts to make the law up in every case.

  5. Carlyle Moulton

    When true artificial intelligence arrives on this planet it will be time to turn the law over to it for detailed examination and determination of where the most perverse and discriminatory “unintended consequences” lie.

    What is currently referred to as “AI” may not be true artificial intelligence rather machine learning trained on large data sets selected by humans and therefore contaminated by human prejudices.

    If you think that I am exceptionally skeptical of the law I agree but then IANAL.

  6. grberry

    The Pennsylvania and Virginia examples on pages 33-35 are particularly disturbing. The principle that refusal to swear an oath of allegiance is enough for disarmament would allow for denial of the right to bear arms from any who refuse to say the Pledge of Allegiance or sing the national anthem. Refusing the national anthem has been a thing lately, refusing the pledge was an issue a couple generations ago.


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