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3RD CIRCUIT CALLS FOR EN BANC REHEARING ON WHETHER FELON-IN-POSSESSION IS CONSTITUTIONAL
On November 16, 2022, the 3rd Circuit upheld the constitutionality of the 18 USC § 922(g)(1) felon-in-possession statute. That ruling has just been vacated (and may be in jeopardy).
Bryan Range, who had been sentenced to probation a quarter century ago for $2,500 in food stamp fraud, had sued the Attorney General for the right to buy a gun, arguing that after last June’s Supreme Court decision in New York State Rifle & Pistol Ass’n v Bruen, § 922(g)(1)’s denial of his right to own a gun because of a prior felony conviction was a 2nd Amendment violation.
In November, a three-judge panel denied Bryan’s claim in a per curiam opinion. This normally suggests the panel found the holding was so unremarkable as not to require a signed decision. In this case, however, the panel said it was so issued to “reflect both its unanimity and the highly collaborative nature of its preparation.”
The lengthy order held that Bryan’s 25-year-old “conviction places him outside the class of people traditionally entitled to 2nd Amendment rights.”
Last Friday, the Circuit granted Bryan’s petition and ordered rehearing in front of all 14 of the appellate court’s judges on February 15th.
The speed with which the full Court ordered rehearing – just three days after Bryan filed his petition – suggests a majority of the judges on the Circuit are very motivated by the issue. Ohio State University law professor Doug Berman, writing yesterday in his Sentencing Law and Policy blog, observed, “I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration. But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.”
If the Court ultimately reverses the per curiam decision, the Circuit would be the first to declare § 922(g) unconstitutional after the Bruen decision.
Order Granting Rehearing, Range v. Attorney General, Case No 21-2835, 2022 U.S. App. LEXIS 36088 (3d Cir., January 6, 2023)
Sentencing Law and Policy, En banc Third Circuit to reconsider constitutionality of § 922(g)(1)’s felon-in-possession gun prohibition after Bruen (January 9, 2023)
– Thomas L. Root