Are individuals convicted of non-violent felonies (or misdemeanors in some cases) still a part of “the people” who possess the right to keep and bear arms? The Biden administration says no, and a three judge panel on the Eighth Circuit Court of Appeals has agreed, but a Third Circuit decision rejecting the DOJ’s argument has led to a circuit split and could result in the Supreme Court soon weighing in on the issue.

We recently reported on the Third Circuit’s en banc decision in Range v. Garland, which ruled that Bryan Range’s decades-old misdemeanor conviction for underreporting his income on an application for food stamps should not result in a lifetime prohibition on his ability to lawfully own a firearm. A majority of the Third Circuit flatly rejected the Justice Department’s argument that the Second Amendment only protects “law abiding citizens”, ruling instead that “the people” whose rights shall not be infringed applies to Mr. Range at the very least.

First, the criminal histories of the plaintiffs in Heller, McDonald, and Bruen were not at issue in those cases. So their references to “law-abiding, responsible citizens” were dicta. And while we heed that phrase, we are careful not to overread it as we and other circuits did with Heller’s statement that the District of Columbia firearm law would fail under any form of heightened scrutiny.

Second, other Constitutional provisions reference “the people.” It mentions “the people” twice with respect to voting for Congress, and “the people” are recognized as having rights to assemble peaceably, to petition the government for redress, and to be protected against unreasonable searches and seizures. Unless the meaning of the phrase “the people” varies from provision to provision—and the Supreme Court in Heller suggested it does not—to conclude that Range is not among “the people” for Second Amendment purposes would exclude him from those rights as well. And we see no reason to adopt an inconsistent reading of “the people.”

Third, as the plurality stated in Binderup: “That individuals with Second Amendment rights may nonetheless be denied possession of a firearm is hardly illogical.”  That statement tracks then-Judge Barrett’s dissenting opinion in Kanter v. Barr, in which she persuasively explained that “all people have the right to keep and bear arms,” though the legislature may constitutionally “strip certain groups of that right.” We agree with that statement in Binderup and then-Judge Barrett’s reasoning.

Fourth, the phrase “law-abiding, responsible citizens” is as expansive as it is vague. Who are “law-abiding” citizens in this context? Does it exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine? No. We are confident that the Supreme Court’s references to “law-abiding, responsible citizens” do not mean that every American who gets a traffic ticket is no longer among “the people” protected by the Second Amendment. Perhaps, then, the category refers only to those who commit “real crimes” like felonies or felony-equivalents? At English common law, felonies were so serious they were punishable by estate forfeiture and even death. But today, felonies include a wide swath of crimes, some of which seem minor. And some misdemeanors seem serious. As the Supreme Court noted recently: “a felon is not always more dangerous than a misdemeanant.”  (cleaned up). As for the modifier “responsible,” it serves only to undermine the Government’s argument because it renders the category hopelessly vague. In our Republic of over 330 million people, Americans have widely divergent ideas about what is required for one to be considered a “responsible” citizen.

But the Eighth Circuit has bought into the DOJ’s arguments, ruling in two different cases over the past couple of weeks that the status quo is just fine. According to the three-judge panel, even if a conviction is for a non-violent offense, the person convicted is “not a law-abiding citizen, and history supports the authority of Congress to prohibit possession of firearms by persons who have demonstrated disrespect for legal norms of society.”

In the prior 8th Cir case (Jackson), Judge Colloton, who wrote today's op too, upheld the law even against a def't whose underlying convictions were for tradit'lly nonviolent offenses (drugs). Here too the underlying offenses were DUI & unlawful gun poss.https://t.co/J8Vr4X9R88

— Jake Charles (@JacobDCharles) June 13, 2023

As law professor Jake Charles noted, the Eight Circuit decision was met with that “cryptic” dissent suggesting an en banc review is on tap. If that takes place, it’s possible that the split in the appellate courts will be resolved in favor of the plaintiffs, but there’s no guarantee of that outcome, and for the moment the differing views of the appellate courts give SCOTUS a live issue to address at the first opportunity.

Ultimately the issue here isn’t whether or not a non-violent misdemeanor crime punishable by more than a year in prison or a non-violent felony are disqualifying factors for gun ownership, but whether any violation of any law, no matter how minor, could lead to an individual losing their Second Amendment rights for the rest of their lives. While the left is generally all in favor of restoring a felon’s right to vote (sometimes while they’re still serving their sentences), many progressives take a very re-gressive approach to restoring Second Amendment rights or protecting those rights from being stripped away in the first place.

Megan Walsh is the director of the Gun Violence Prevention Clinic at the University of Minnesota School of Law, and like other anti-gun activists/academics, has embraced the Biden administration’s position that virtually any violation of the law could result in the loss of Second Amendment rights without coming into conflict with the Constitution.

I think it is constitutional under 2A for Gov to make a policy choice to prohibit felons categorically. If the fed govt chose not to prohibit nonviolent felons in similar circumstances as Range, I wouldn’t put effort toward repealing that law. I think the 8th got the law right.

— Megan Walsh (@MeganWalshGVP) June 14, 2023

These cases aren’t the only ones that the Supreme Court will soon have a chance to review. In fact, they’re not even the top of the list. SCOTUS is already set to consider another case in conference this month called U.S. v. Rahimi, which deals with the federal prohibition on gun ownership for those subject to a domestic violence restraining order. Rahimi was found guilty in district court, but the Fifth Circuit reversed that decision after the Bruen decision was handed down, ruling that while Rahimi was “hardly a model citizen,” he was not a “convicted felon” or otherwise excluded from the Second Amendment’s protections.

While the Court could use any one of these cases to issue a broad ruling that would impact all categories of prohibited persons, I don’t think that’s likely to happen. It’s not even clear if SCOTUS will grant cert to Rahimi, but if they do I expect that their decision would be a narrow one dealing exclusively with Section 922(g)(8), leaving the challenges to Section 922(g)(1) for another day. That day might not be long off, however, with the Third Circuit’s en banc decision likely to wind up in conference in just a few months, and I don’t think we’ll have to wait another decade or more before SCOTUS wades in once again to the tumultuous debate over our Second Amendment rights, as we did between the McDonald and Bruen decisions.