For the Defense - Vol. 8, Issue 4 - 7

B
ias, prejudice, and stereotypes are issues
familiar to criminal defense lawyers. Exposure
to such issues and the challenges that they bring
may be more frequent and personal as a criminal
defense
lawyer
than
the
general
population.
Ironically, however, the unrelatable, caricaturelike
impression of the " gun nut " often prompts
criminal defense lawyers to overlook the Second
Amendment and the right to bear arms. One may
struggle to find commonalities between an RFEL
(Repeat Felony 1 and Felony 2 Offender) and an
elderly rural farmer at a Second Amendment rally.
But considering the recent holdings in Bruen and
Range, a criminal defense lawyer who overlooks
the Second Amendment does so at the peril of his
or her client.
Just six short years ago, Justice Clarence Thomas
admonished his fellow justices, noting that the
Court had not heard a single Second Amendment
case since 2010, yet since that time heard " roughly
35 cases where the question presented turned
on the meaning of the First Amendment and 25
cases that turned on the meaning of the Fourth
Amendment. " 1
He wrote: " The Court's decision
to deny certiorari in this case reflects a distressing
trend: the treatment of the Second Amendment as
a disfavored right. " 2
In 2022, the Supreme Court of the United States
decided New York State Rifle and Pistol Association
v. Bruen, and Justice Thomas delivered the opinion
of the Court. The case tackled the constitutionality
of New York's broad firearms possessory offenses,
with the fundamental inquiry being whether the
Second Amendment protects the right to bear arms
in public.3
The abundance of controversy regarding the
Second Amendment's interpretation since 1934
is palpable. Despite such lack of consensus, there
are few examples of Supreme Court jurisprudence
to provide clarification since the first major federal
firearms legislation, the National Firearms Act of
1934 (NFA), was enacted.
In United States v. Miller, the Court rejected a
constitutional challenge to the NFA, reasoning that
there was no evidence to show that a short-barreled
shotgun " has some reasonable relationship to
the preservation or efficiency of a well-regulated
militia. . . it is not within judicial notice that
this weapon is any part of the ordinary military
equipment, or that its use could contribute to the
common defense. " 4
Curiously, the holding suggests
that only weapons of war are protected under the
Second Amendment.
The next Second Amendment case considered by
the Supreme Court was not until 2008, District of
Columbia v. Heller. Curiously, the Court held that
the Second Amendment applies to weapons that
are in common use and protects an individual's right
to possess a firearm in the home for self-defense.5
Two issues that were not directly addressed in
Heller were 1) whether the Second Amendment
protects an individual's right to bear arms outside the home,
and 2) how courts should analyze Second Amendment
challenges generally. Instead, jurists on either side of the issue
were left clinging to one sentence in the opinion that did not
affect the holding:
Although we do not undertake an exhaustive
historical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill,
or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms.6
Bruen resolved the former inquiry, striking down New York's
requirement to " demonstrate a special need for self-protection
distinguishable from that of the general community in order to
carry arms in public. " 7
In doing so, the Court addressed the second inquiry on a
surface level, utilizing " a test rooted in the Second Amendment's
text, as informed by history. " 8
Instead of a means end scrutiny
test, " the government must affirmatively prove that its firearms
regulation is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms. " 9
Long before Bruen, as-applied challenges have made their
way through the federal courts. In these cases, the plaintiff
is typically an individual who is prohibited from possessing
firearms under federal law. For the purposes of this article,
we will focus on the prohibition of 18 U.S.C. § 922(g)(1) which
makes it unlawful for any person to possess a firearm " who
has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . . "
The plaintiff sues the Attorney General of the United States
claiming that they cannot be constitutionally prohibited from
possessing firearms based upon their particular conviction. These
cases have resulted in circuit splits, and highly particularized
decisions based upon specific crimes. In Binderup, for example,
the Third Circuit held that a prohibition based upon corruption
of minors (for consensual sexual relations with an underage
companion) was unconstitutional.10
In the companion case,
In
Suarez, the Third Circuit held that a prohibition based upon
carrying a firearm without a license was unconstitutional.11
Holloway, however, the Third Circuit held that prohibition based
upon a DUI: Second offense, highest rate, was constitutional.12
In Folajtar, the Third Circuit held that a prohibition based upon
felony tax fraud was constitutional.13
But these cases were decided based upon a pre-Bruen
interpretation of the Second Amendment, utilizing a
multi-step framework. In Bruen, the Supreme Court noted
that a two-step framework is " one step too many. " 14
In Range v. Attorney General of the United States, the
from
challenge. Bryan Range was prohibited
The crime for
Third Circuit issued its first holding, en banc, for a post-Bruen
as-applied
possessing firearms due to his 1995 conviction for " making
a false statement to obtain food stamps in violation of
Pennsylvania law " under 62 Pa.C.S. § 481(a).15
which he was convicted is a misdemeanor of the first degree,
and under Pennsylvania law, carries a maximum possible
sentence of 5 years imprisonment.16
Vol. 8, Issue 4 l For The Defense 7
For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4
