The Supreme Court’s Search for a More Attractive Gun Rights Case

When the Supreme Court heard arguments this month on whether the Second Amendment allows the government to disarm domestic abusers, Justice Amy Coney Barrett made a cryptic reference that puzzled many in the courtroom. She asked, according to the court’s official transcript, about “the range issue.”

Sentencing range? Firing range? She was, it turned out, referring to a person, Bryan Range, who has challenged a federal law prohibiting people who have been convicted of felonies from owning guns.

Mr. Range is a far more sympathetic figure than the defendant in the domestic violence case, Zackey Rahimi. According to court records, Mr. Rahimi threatened women with firearms and was involved in five shootings in a two-month stretch.

Justice Barrett and several of her colleagues seemed to think that Mr. Rahimi was a menace, and they appeared inclined to reject his Second Amendment challenge to a federal law that prohibits people subject to domestic violence restraining orders from having guns.

Mr. Range, by contrast, pleaded guilty to a nonviolent crime decades ago while he was struggling to feed his three young children. He admitted in state court in Pennsylvania in 1995 that he had made a false statement to get food stamps.

That was a misdemeanor, but it was subject to a maximum sentence of five years, which was enough to make it count as the equivalent of a felony under the federal gun law.

Mr. Range served three years of probation, and the only blemishes on his criminal record since then were for minor traffic and parking violations and for fishing without a license.

Justice Barrett’s reference to Mr. Range’s case suggested that she considered it a more attractive vehicle for making general pronouncements about the larger question presented in the Rahimi case: the role history should play in assessing gun laws.

Solicitor General Elizabeth B. Prelogar, who represents the Biden administration in both cases, certainly understood Justice Barrett’s reference to “the range issue.”

“We think that there are additional arguments that can be made to defend felon disarmament,” Ms. Prelogar said, adding that “we would hope to have the opportunity to present those arguments.”

Justice Barrett liked the idea. “In that case, perhaps,” she said, referring to the one involving Mr. Range. The justices considered whether to hear the administration’s appeal in the case, Garland v. Range, No. 23-374, at their private conference on Friday.

A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit, in Philadelphia, ruled against Mr. Range last year, saying that the government had satisfied the history-based test announced by the Supreme Court last year in New York State Rifle and Pistol Association v. Bruen.

“Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community,” the panel’s unsigned opinion said. “He has committed an offense evincing disrespect for the rule of law. As such, his disarmament under” the federal law barring felons from having guns “is consistent with the nation’s history and tradition of firearm regulation.”

But the full Third Circuit reheard the case and ruled for Mr. Range.

“Because the government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms,” Judge Thomas M. Hardiman wrote for the majority, the challenged law “cannot constitutionally strip him of his Second Amendment rights.”

In dissent, Judge Cheryl Ann Krause wrote that the ruling was a recipe for chaos in which “our citizenry will be left reeling from the consequences.”

She urged the justices to intervene. “The sooner the Supreme Court takes up this issue,” she wrote, “the safer our Republic will be.”

In its petition seeking review, the Biden administration told the justices that the Third Circuit had “opened the courthouse doors to an untold number of future challenges by other felons based on their own particular offenses, histories and personal circumstances.”

The administration did not ask the Supreme Court to hear the case right away, urging it instead to decide the domestic violence case, United States v. Rahimi, No. 22-915, and then consider Mr. Range’s case.

Mr. Range’s lawyers, in an unusual move, agreed the court should hear the case even though their client had won below. But they said there was no reason for delay and that the court should consider both cases in its current term, which ends in June.

They offered a theory for why the administration “is interested in keeping Rahimi alone as the singular Second Amendment case before the court this term.”

“It is hard not to suspect,” the brief said, that “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.”