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Third Circuit holds that federal felon in possession statute is unconstitutional as applied to defendant with nonviolent felony

Range v. Attorney General, 69 F.4th 96 (3rd Cir. 2023).

In a case highlighting the changed legal landscape for firearm regulation, an en banc panel of the Third Circuit Court of Appeals concludes that the federal government cannot ban a nonviolent felon from lawfully possessing a firearm.

For a great recap of this case that this writer will not attempt to outdo, we strongly encourage our readers to check out Stephen Halbrook’s synopsis available at the Volokh Conspiracy. In essence, the Third Circuit Court of Appeals has now concluded–in an 11-4 en banc defense win–that a federal law categorically banning felons from possessing firearms is unconstitutional as-applied to at least this nonviolent felon, whose prior qualifying conviction was for slightly misstating his income on a benefits application roughly 30 years ago. Crucial to the court’s holding is its surgical deployment of Justice Thomas’ new test for assessing the constitutionality of a firearm regulation announced in New York State Rifle & Pistol Association, Inc., v. Bruen, which compels government lawyers to toil through colonial history in order to prove that a challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” The overwhelming majority of the panel–which includes a former public defender–holds that the government is simply incapable of bearing that burden under the facts of this case.

As the Volokh Conspiracy also points out (the first rule of good lawyering is to never do your own work unless you have no other option available), Bruen has also now led another federal court judge to hold that a prior violent felon cannot have his rights stripped away, thereby implicating the entire framework of felon-in-possession firearm regulation in a spicy, and very long, written decision.

Obviously, we are a long ways away from Justice Scalia’s assurance in District of Columbia v. Heller that, by reinvigorating a strong conceptualization of the right to bear arms, the Court had no intention of undermining “longstanding prohibitions on the possession of firearms by felons.” Heller was not reliant on Justice Thomas’ new Bruen test; ergo, it seems like such “longstanding prohibitions” might now be ripe for challenge.

Which brings us to Wisconsin law. In 2021, the Wisconsin Supreme Court rejected a challenge to Wisconsin’s felon in possession statute in State v. Roundtree. Roundtree’s prior qualifying convictions were for failure to pay child support and, as a result, Roundtree made arguments very similar to those raised in RangeNotably, however, Bruen’s colossal shift in 2nd Amendment jurisprudence was not yet anticipated. As a result, a majority of SCOW had no trouble in brushing aside Roundtree’s as-applied challenge. Arguably, because Roundtree did not utilize Bruen’s method of historical analysis, the precedential force of that opinion is now called into question. What this means is that lawyers in Wisconsin can no longer presume, as the Roundtree Court did, that felon-in-possession laws will stand up to Second Amendment scrutiny, at least under the legal reality we all now live in. Readers should therefore stay tuned to future developments in this area of law and, when feasible, keep preserving those constitutional challenges!

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