Do non-violent misdemeanants infringe upon their Second Amendment rights?

Bryan Range pled guilty in a Pennsylvania federal district court to one charge of making a false statement on an application to receive food stamp assistance in violation of 62 Pa. C.S. § 481(a). Back in 1995, Range was providing financial support for his wife and three children by mowing lawns which earned him around $300 per week. Range’s wife applied for food stamps, but when she submitted the application form, she did not include her husband’s mowing income. Both spouses signed the application. When a government agency discovered the omission, Mr. Range accepted responsibility for the error. Consequently, he faced a first-degree misdemeanor charge that carried a potential sentence of five years imprisonment. As part of his plea agreement, Range received a three-year probation sentence and was required to pay restitution, fines, and costs amounting to nearly $3,000. Range was not informed that he would be ineligible to own a firearm as a result of his sentencing.

At a later point, Mr. Range attempted to purchase a firearm from a licensed dealer but was denied after failing the background check. The dealer informed Range that the denial was likely due to a computer error. A few years later, Range made another attempt to buy a firearm from a local dealer but once again failed the background check. This prompted Range to investigate the matter where he discovered that his misdemeanor conviction barred him from purchasing firearms. In response, Range filed a lawsuit challenging the restriction on his right to bear arms.

Examining Second Amendment Rights and Misdemeanor Convictions under Binder

The United States District Court for the Eastern District of Pennsylvania grappled with an issue that was left open in the landmark case of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d 637 (2008). In Heller, the Supreme Court concluded that while the Constitution creates an individual right to keep and bear arms apart from any military purposes, States must be free to regulate who can possess firearms based on certain safety concerns. Specifically, the Court discussed longstanding prohibitions on the possession of firearms by felons and the mentally ill. Nonetheless, lower courts have considered whether laws that prohibit the possession of firearms by misdemeanants are also consistent with the Second Amendment.

The District Court first considered whether Mr. Range’s conduct was sufficiently “serious” for Range to lose his Second Amendment rights. Binderup v. Attorney General of the United States of America, 836 F.3d 336, 345 (citing United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). Then, if it finds that the Second Amendment is implicated, it will consider whether the Government has carried its burden of demonstrating that the regulation satisfies heightened scrutiny. Binderup, 836 F.3d at 347.

In determining whether the Second Amendment is implicated, the District Court began and ended its analysis at the first step by looking to a factor test for determining whether the crime is “serious”: (1) whether the conviction was classified as a misdemeanor or a felony; (2) whether the criminal offense involves violence or attempted violence as an element; (3) the sentence imposed; (4) whether there is a cross-jurisdictional consensus as to the seriousness of the crime; and (5) the potential for physical harm to others. Binderup, 836 F.3d at 336.

The Government conceded that Range satisfied four out of the five factors. His conviction was classified as a misdemeanor, the criminal offense does not involve violence or attempted violence as an element, he was not sentenced to any jail time, and the crime involved no potential for physical harm to others. However, the Court concluded that there is a cross-jurisdictional consensus that making a false statement regarding food stamps is serious. Because the Government prevailed in finding that Range’s conduct was sufficiently serious for Range to lose his Second Amendment rights, the Court did not find it necessary to proceed to the second step to consider whether the Government has produced sufficient evidence to withstand heightened scrutiny.

Third Circuit Court Upholds Second Amendment Rights for Non-Violent Misdemeanants

Range timely appealed, and while his appeal was pending, the Supreme Court decided Bruen which rejected the two-step approach as “one step too many.” See New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). After Bruen, courts must determine whether the text of the Second Amendment applies to a person and his proposed conduct. If it does, the Government now bears the burden of affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. Specifically, here, the Government bears the burden of showing that Range’s conviction places him outside the class of people traditionally entitled to Second Amendment rights.

In the Third Circuit Court of Appeals, the Government contends that the Second Amendment does not apply to Range because the right to bear arms has historically been extended to the political community of law abiding, responsible citizens. However, the Court ultimately rules in favor of Range, stating that the term “the people” as referred to throughout the Constitution unambiguously refers to all members of the political community, without any specific subset being excluded. Thus, Bryan Range remains among “the people” despite his 1995 false statement conviction.

Because Range and his proposed conduct are protected, the Court went on to consider whether the Government can strip him of his right to keep and bear arms. Since the Government failed to fulfill its obligation of providing that the statute, as applied to Range, aligns with the historical tradition of firearm regulation in the United States, Bryan Range cannot be deprived of his Second Amendment right to possess a firearm.

How Will This Decision Impact Other Circuits?

In the aftermath of Bruen, it is likely Circuit Courts will encounter factually analogous situations. It is plausible that other Circuits will adopt the Third Circuit’s approach, recognizing that limitations on firearms for non-violent misdemeanors infringes upon an individual’s Second Amendment rights. It is important to note that the Third Circuit is not binding on Ohio state courts. Currently in Ohio the following people may not own or possess a firearm:

• A fugitive from justice;
• A person who is under indictment for or has been convicted of any violent felony offense or has been adjudicated a delinquent child for an offense that would have been a violent felony offense if committed by an adult;
• A person who is under indictment for or has been convicted of any felony drug offense or has been adjudicated a delinquent child for a drug offense that would have been a felony if committed by an adult;
• A person who is drug dependent, in danger of drug dependence, or a chronic alcoholic;
• A person who is under adjudication of mental incompetence has been adjudicated as a mental defective, has been committed to a mental institution, has been found by a court to be a mentally ill person subject to a court order, or is an involuntary patient other than one who is a patient only for purposes of observation.

As of June 2023, the Sixth Circuit (ruling on Ohio cases) has yet to adopt the approach of the Third Circuit and still holds that the limitation on non-violent misdemeanants does not infringe upon their Second Amendment rights.

You can read the case of Range v. AG United States here.

PUBLISHER’S NOTE: I want to thank McKenna Hinkebein for the excellent job she did researching and writing this blog article! McKenna is externing with Holzfaster, Cecil, McKnight & Mues this semester. She will be graduating from the University of Dayton School of Law in May of 2024. Great job McKenna! We are so fortunate to have you as part of our team this semester!