Counsel for a Delaware man and the U.S. Justice Department presented oral arguments at the Third Circuit on Wednesday for the third time in as many years, as the court seeks to determine whether a nonviolent felon can own a gun.

In 1995, Bryan Range pleaded guilty to welfare fraud after making a false statement to obtain $2,458 worth of food stamps. While Range was sentenced only to probation, because the crime was punishable by over a year in prison federal law dictates he cannot possess a firearm.

Range filed an as-applied challenge in federal court against the U.S. Attorney General and Bureau of Alcohol, Tobacco, Firearms and Explosives director in 2020. The court dismissed his complaint and Range appealed.

In 2022, the Third Circuit affirmed, finding the government had shown that the nation’s historical tradition of firearm regulation justified barring Range from Second Amendment right entitlements.

However, Range successfully petitioned for an en banc rehearing and in 2023, the Third Circuit reversed the lower court’s decision. The en banc panel found the government failed to establish any historical tradition of firearm regulation that would bar Range from owning a firearm.

However, the U.S. Supreme Court vacated that judgment following United States v. Rahimi, in which justices ruled 8-1 to allow for the temporary restriction of gun possession for individuals deemed to be a physical threat. Because Rahimi’s decision emphasized that courts need only find “relevantly similar” past legal principles to prove historical tradition, Range would have to again present his argument for rearmament.

During Range’s oral argument, U.S. Circuit Judge Marjorie O. Rendell, a Bill Clinton appointee, noted that Rahimi suggested a more serious historical punishment could, in theory, justify a lesser modern one, adding that counterfeiting theft was once punishable by death in the early United States.

In response, Range’s attorney Peter Patterson sought to draw a line between Range’s case and Rahimi, emphasizing that his client’s crimes were strictly nonviolent, while Rahimi had been disarmed due to a civil domestic violence restraining order.

“What the court said is that if someone could be put in prison on account for their threat of violence to another person, we can take the relatively lesser step of disarming them,” Patterson said. “What they didn’t say is that if someone was put in any prison for any reason, we can disarm them.”

Patterson said there would be “startling consequences” for citizens’ individual rights if that notion were extended to nonviolent offenders.

“There would be nothing limiting that to the Second Amendment,” he said. “(If) they commit an offense analogous to a capital offense at the (nation’s) founding, then presumably, you could strip them of their First Amendment rights, their Fourth Amendment rights, and everything — for life. And, surely, that cannot be correct.”

Patterson also took aim at the government’s position that individuals who have committed a “serious offense” can be disarmed, instead drawing the line at offenders who have committed violent acts or threats.

“If it’s someone who’s committed an offense, whether it’s serious or not…but it’s wholly disconnected from any danger of violence to anyone, it makes no sense to say, somehow, that person has forfeited their basic right to self-defense,” Patterson said.

Representing the government, attorney Kevin Soter contested Patterson’s claim, suggesting any and all felonies constitute “serious crimes” that could justify disarmament.

However, Soter’s position appeared to find little acceptance from the bench. One judge after another hammered Soter with growing irritation as they sought his definition of a “credible threat” to others’ physical safety — the threshold under Rahimi to justify disarmament.

“Let’s say that Pennsylvania decided that jaywalking or failing to return library books is a felony,” U.S. Circuit Judge David J. Porter, a Donald Trump appointee, said. “Would those offenders be permanently disarmed under Rahimi?”

Soter said that while that offender would be disarmed upon conviction, they could seek mechanisms such as expungement or a pardon to regain their Second Amendment rights later.

“That’s a very steep hill to climb,” one judge muttered.

Later, U.S. Circuit Judge Thomas M. Hardiman asked Soter to point out any evidence in the record suggesting Range poses a credible threat of physical violence.

As Soter began to explain that Congress has treated Range’s crimes as worthy of disarmament, Hardiman interrupted to again ask plainly where the record indicates a credible threat of physical violence.

Soter continued, briefly mentioning Range’s criminal history before being again interrupted by an exasperated Hardiman.

“I’m not asking you to describe the record,” Hardiman, a George W. Bush appointee, snapped. “I’m asking you to cite in the record. Where in the record does he show himself to pose a credible threat to the physical safety of another?”

“By being convicted of a crime punishable by more than one year,” Soter replied before Hardiman interrupted him for the third consecutive time.

“So everybody who is convicted of a crime that’s punishable by a year and a day or more, ipso facto follows that that person poses a credible threat to the physical safety of others?” Hardiman asked. “That’s your argument?”

Soter’s reply again focused on congressional categorization of felons as “dangerous enough to be disarmed,” prompting U.S. Circuit Judge Kent A. Jordan to prod the attorney as well.

“I would really like a straight answer to the question, too,” the George W. Bush appointee said. “Is it the government’s position that…by virtue of being convicted of that crime where the punishment is possibly a year and a day in prison, you are ipso facto a danger — a physical danger — to the community? Is that the government’s position?”

Once again, Soter was almost immediately interrupted by the bench.

“That’s just a yes or a no,” Jordan said. “That’s actually a yes or a no. You can say, ‘That’s not our position,’ and clarify it, or you can say, ‘That is our position,’ and clarify it. But you ought to start with a yes or a no.”

“I think the answer to that is that person is a member of a group that Congress can disarm,” Soter said shortly before his argument time had concluded.