UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 21-2835 ______________

BRYAN DAVID RANGE, Appellant

v. ATTORNEY GENERAL UNITED STATES OF AMERICA; REGINA LOMBARDO, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives

______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5:20-CV-03488) District Judge: Honorable Gene E.K. Pratter ______________

Argued before Merits Panel on September 19, 2022 Argued En Banc on February 15, 2023 ______________

Before: CHAGARES, Chief Judge, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, ROTH,* and AMBRO,** Circuit Judges.

(Filed: June 6, 2023) William V. Bergstrom Peter A. Patterson [Argued] David H. Thompson Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036 Michael P. Gottlieb Vangrossi & Recchuiti 319 Swede Street Norristown, PA 19401

Counsel for the Appellant Joseph G. S. Greenlee Firearms Policy Coalition Action 5550 Painted Mirage Road Suite 320 Las Vegas, NV 89149

* Judge Roth is participating as a member of the en banc court pursuant to 3d Cir. I.O.P. 9.6.4. ** Judge Ambro assumed senior status on February 6, 2023 and elected to continue participating as a member of the en banc court pursuant to 3d Cir. I.O.P. 9.6.4.

2 Counsel for Amici Curiae FPC Action Foundation and Firearms Policy Coalition, Inc. in Support of Appellant Lisa B. Freeland Renee Pietropaolo Eleni Kousoulis K. Anthony Thomas Helen A. Marino Heidi R. Freese Matthew Campbell Office of Federal Public Defender 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222

Counsel for Amicus Curiae Federal Public & Community Defender Organization of the Third Circuit in Support of Appellant Brian M. Boynton Jacqueline C. Romero Mark B. Stern Michael S. Raab Abby C. Wright Kevin B. Soter [Argued] United States Department of Justice Civil Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Counsel for the Appellees

3 Janet Carter Everytown Law 450 Lexington Avenue P.O. Box 4148 New York, NY 10017

Counsel for Amicus Curiae Everytown for Gun Safety in Support of Appellees

______________

OPINION OF THE COURT ______________

HARDIMAN, Circuit Judge, with whom CHAGARES, Chief Judge, and JORDAN, GREENAWAY, JR., BIBAS, PORTER, MATEY, PHIPPS, and FREEMAN, Circuit Judges, join.

Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in- possession” law—18 U.S.C. § 922(g)(1)—violates his Second Amendment right to keep and bear arms. We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.

4 I

A

The material facts are undisputed. In 1995, Range pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain food stamps in violation of Pennsylvania law. See 62 Pa. Stat. Ann. § 481(a). In those days, Range was earning between $9.00 and $9.50 an hour as he and his wife struggled to raise three young children on $300 per week. Range’s wife prepared an application for food stamps that understated Range’s income, whi