Is a SCOTUS Prohibited Persons Two-for-One Special in the Works?

AP Photo/Patrick Semansky, File

We’re less than three weeks away from the Supreme Court hearing oral arguments in U.S. v. Rahimi, the case dealing with the federal prohibition on firearm possession for those subject to a domestic violence restraining order. That’s not the only case coming before the Court that revolves around prohibited persons, however, and attorneys for a Pennsylvania man trying to regain access to his Second Amendment rights are arguing that the Court should hear both cases at the same time.

Bryan Range pleaded guilty almost 30 years ago to a misdemeanor charge of welfare fraud involving falsifying his income on food stamp application. Though Range was sentenced to probation and fines for the crime, because the criminal charge carried the possibility of five years in prison, Range has been prohibited from legally possessing a firearm ever since. Range sued to regain his rights in 2020, and while a trial court judge and a three-judge panel of the Third Circuit Court of Appeals ruled against him, an en banc panel of Third Circuit judges overruled those decisions, finding that “people like Range” cannot be stripped of their Second Amendment rights, and that the federal statute in question is not “consistent with the Nation’s historical tradition of firearm regulation.”

The DOJ appealed the en banc decision to the Supreme Court, but requested that the Court hold off on any deliberations until after the Rahimi case has been decided. This week Range’s attorneys submitted their own brief to the Court asking for review as well, but also imploring the justices to hear Range alongside Rahimi. 

Respondent is in the unusual position of agreeing with the government that this case is worthy of certiorari. Indeed, there is little doubt, given the enduring division of authority, the importance of the federal statute being challenged, and the well-developed historical record on which to decide the issue that this Court would agree, with or without Respondent’s input. Respondent diverges with the government, however, to the extent that the government asks that this petition not be acted on until this Court has decided Rahimi. The government claims that “[t]his case substantially overlaps with Rahimi” since both cases “concern Congress’s authority to prohibit a category of individuals from possessing firearms” and both require application of the standard this Court announced in Bruen. Rather than counseling in favor of holding this case, these similarities provide good reasons to hear both cases this term.

… even if history “demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” “dangerous people” “is a category simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” This case and Rahimi separately present the two halves of this dichotomy. The question in Rahimi is whether, or how, the government can preclude a dangerous person without a predicate conviction from possessing a firearm. This case asks the complementary question: can the government always preclude a person (even a nondangerous one) from possessing a firearm just because he has a predicate conviction? Neither question is likely to supply a definitive answer for the other, and the judiciary will be significantly helped by dispositive answers to both from this Court.

Range’s attorneys argue that despite their similarities, Rahimi isn’t going to answer the question posed in Range, and scoffed at the notion presented by DOJ that a “better vehicle” to decide that question may come along in the future. The Justice Department seized upon a comment by one of the en banc judges that Range may not even have standing to sue because “because he had failed to plead that the particular firearms he wishes to possess satisfy Section 922(g)(1)’s interstate-commerce element,” but Range’s attorneys call that a “fig leaf” mean to obfuscate the issue at hand… and one rejected by virtually every other judge on the panel.

That the government would ventilate such a baseless objection underscores the degree to which it is interested in keeping Rahimi alone as the singular Second Amendment case before the Court this term. Whatever the reason for that—it is hard not to suspect it is because the government views Rahimi as a much less sympathetic target for its arguments in favor of firearm prohibition than Range, a person who not even the government alleges is a danger to anyone— the government’s position is incompatible with this Court’s oft-repeated assurance that the Second Amendment does not enshrine a “second-class right.”

Range’s attorneys point out that it’s not uncommon for the Court to hear multiple cases dealing with the same broad topic in a single term, noting that in 2013 SCOTUS heard four First Amendment cases.

There is no reason why the Second Amendment should not receive as much attention. In fact, given the unsettled nature of so many areas of Second Amendment law there is good reason it should receive more. That this Court has already granted review in Rahimi is not a reason not to grant review here as well.

It’s true that Bryan Range is an infinitely more sympathetic figure than Zachey Rahimi, and I have no doubt that DOJ would prefer SCOTUS look solely at Rahimi when considering the scope of “the people” who possess the right to keep and bear arms. Range’s attorneys are right, however, that the questions posed in both cases complement one another, and it makes sense for the Court to hear both cases alongside one another. Ideally, the Court would hear a third prohibited persons case in addition to Rahimi and Range. In U.S. v. Daniels, the question is whether Section 922(g)’s prohibition on “unlawful” users of drugs possessing guns is constitutional, but while DOJ has asked the Court to grant cert in that case, the plaintiff’s reply brief isn’t due until November 9th… two days after oral arguments in Rahimi are supposed to take place.

SCOTUS could still grant cert in Daniels and hold off on issuing any opinions in the three cases until they’ve all been fully briefed and argued, and maybe Patrick Darnell Daniels’ attorneys will ask the Court to do just that in a couple of weeks. At the very least, however, the request to hear Rahimi and Range concurrently is an eminently reasonable one to make… and one that SCOTUS should accept at the first opportunity.