Long-Range Analogizing After Bruen: How to Resolve the Circuit Split on the Federal Felon-in-Possession Ban 

April 1, 2024

In 2023, over the course of one week, two U.S. courts of appeals ruled on Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting firearm possession for those convicted of felonies.  Both courts applied the U.S. Supreme Court’s “history and tradition” test from New York State Rifle & Pistol Ass’n v. Bruen.  In the U.S. Court of Appeals for the Eighth Circuit, criminal defendant Edell Jackson did not succeed.  There, the court found that the nation’s history and tradition supported the validity of a law banning firearm possession by felons, regardless of the details of their felony or propensity for violence.  In the U.S. Court of Appeals for the Third Circuit, Bryan Range, who was convicted of welfare fraud in 1995, brought a civil suit seeking injunctive relief so that he could again lawfully possess firearms.  The Third Circuit ruled for Range and held that the nation’s history and tradition did not support disarming someone like Range.  The circuit thus held that Range’s entire disarmament under § 922(g)(1), including at the time of his 1995 conviction, was unconstitutional.

This Note proposes that the U.S. Supreme Court resolve this split on § 922(g)(1) by ruling that history and tradition support § 922(g)(1)’s categorical disarmament of felons.  In particular, this Note argues that the Eighth Circuit more accurately applied step two of Bruen, which asks whether a challenged firearm law is sufficiently analogous to, and thus supported by, firearm laws from earlier periods in American history.  This is particularly noteworthy as both courts considered and decided their cases with the same historical examples of disarmament in mind.  Next, this Note argues that § 922(g)(1)’s validity under Bruen supports closing off Second Amendment challenges to § 922(g)(1) in criminal proceedings, but that courts can permit such challenges to seek prospective, declaratory relief in civil proceedings.  This Note concludes by arguing that structuring the relief in this way appropriately permits rearmament only for those who can demonstrate their law-abiding, responsible status.

April 2024

No. 5