“…[H]aving arms for their defence, suitable to their condition and degree, and such as are allowed by law . . . is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” This well-known quote from Blackstone’s Commentaries is the opening line of a “natural rights” concurring opinion in a recent Second Amendment decision from the Third Circuit. I want to discuss and unpack it here. I am devout in my faith, so naturally the idea of “natural law” appeals to me. Even so, I am unsure how it translates, or should translate, into statutes, regulations, and jurisprudence in a diverse democratic republic, as opposed to a utopian theocracy or the Messianic Kingdom. Moreover, even if natural law should inform decisions of lawmakers and judges, it is worth discussing the proper approach to such a subject. Merely invoking “natural law” or “natural rights” does not automatically make a legal decision correct, much less properly explained. I worry that we cheapen or trivialize natural law, or God’s law, when we bring it up simply to shut down opposing arguments, or to short-circuit legitimate discussion about a point where people disagree in good faith. It is easy to find examples in history and the present day of overbearing or controlling individuals to invoke natural law abusively – to assert flatly, “The universe speaketh and it says that I am completely right.”
After the Supreme Court’s 2022 decision in NYSRPA v. Bruen, hundreds of convicted felons have brought Second Amendment challenges to the federal law prohibiting convicted felons from having firearms 18 U.S.C. § 922(g)(1). These challenges continued after the Court’s 2024 decision in United States v. Rahimi. So far, no federal court of appeals has agreed that the statute is unconstitutional on its face. Instead, they have been consistent in rejecting such arguments, and an opinion by Justice Kavanaugh and Justice Roberts in Bruen preemptively staked out such a position. On the other hand, federal circuit courts have split on whether the statute could be unconstitutional as applied to certain individuals (legal experts call these “as applied” challenges), even if the law is constitutional at least on its face.
Before proceeding with our discussion, it is worth noting that these challenges have arisen through different procedural pathways, and the procedural posture of the case impacts a court’s consideration of a constitutional challenge to a statute. Most of the Second Amendment challenges to the felon-in-possession law have been brought by defendants who failed to raise the issue at trial or preserve it for appeal. In many cases, the defendant pleaded guilty to the charges, without reservations, and later (once in prison) changed his mind and wanted to contest the charges by challenging the statute. Courts apply a “plain error” standard of review in cases where the defendant has forfeited the challenge initially, and in practice this means the defendant will almost certainly lose, even if his arguments have some merit. In other words, most Second Amendment challenges to § 922(g)(1) so far were not viable from the outset, due to the procedural status of the case. Far fewer cases have given appellate courts an occasion to consider such challenges at a point when the constitutional issue is still alive.
Range v. Attorney General is one such case. Range is an as-applied Second Amendment challenge to § 922(g)(1), and the Third Circuit just decided the case for the third time. The original decision of a three-judge panel was reversed after a rehearing en banc. After Rahimi, the Supreme Court vacated and remanded the en banc decision in Range. In the latest round, which I will dub Range III, the majority (again en banc) mostly reiterated the same position it had taken before,that the statute is indeed unconstitutional as applied to Range.
The backstory: around thirty years ago, Mr. Range pleaded guilty to making a false statement on an application for food stamps; he had a brief period of probation (no jail time) and paid some penalties and fines. This old conviction became the sole basis for his disqualification to own a firearm. Few, if any, of the other challenges to the statute have involved an individual as seemingly harmless as Mr. Range. Most of the challengers to date have had prior convictions for violent crimes, such as assault, or for crimes commonly associated with gratuitous violence, such as drug trafficking. If Congress had not defunded the ATF’s administering relief petitions under 19 U.S.C. §925(c), Mr. Range would have had his gun rights restored years ago – he would have been the ideal candidate for such reprieve. Or, if the district court had applied the absurdity doctrine, a traditional canon of statutory construction, it could easily have found that applying the federal firearms ban to Mr. Range was an absurd result and therefore outside of Congress’ intent.
The Range case is also unusual in being a preemptive lawsuit asking for a declaratory judgment that the statute is unconstitutional as applied to him. Mr. Range never faced charges of being a felon in possession of a firearm. I have found only two other federal as-applied challenges to this law since Bruen in which the challenger was not facing criminal charges for violating the statute, or trying to overturn a conviction for violating it – Atkinson v. Garland in the Seventh Circuit and Vincent v. Garland in the Tenth Circuit. Both are still pending on remand. In contrast, hundreds of these challenges (more than a thousand, I think) have come from criminal defendants seeking dismissal of their charges or reversal of their convictions.
My focus in the discussion that follows is one of the concurring opinions in Range III, but I should note from the start that I disagree with the Third Circuit’s majority opinion in this case. I set forth a number of argument in favor of keeping § 922(g)(1) in a 2022 law review article, which some of the Third Circuit judges cited in earlier rounds in this case. I mostly agree with Judge Shwartz’s dissent in the latest Range decision (Range III), which was joined by Judge Restrepo. In addition, Judge Krause’s concurring opinion in Range III also takes a plausible approach.
In this post, however, I am focusing on the concurring opinion by Judge Paul Matey, which was unusual in that it relied heavily on a “natural rights” or “natural law” argument. As he explains in his opening paragraph, “I write separately to explain why that conclusion follows classical principles respecting the natural rights that inform ‘our regulatory tradition.’” His core idea here is that individuals have a fundamental right to use arms for self-defense – that is, to preserve innocent human life. At the same time, he claims that this liberty is not a license to use offensive lethal force against another human, or to rebel against a just government.
Overall, Judge Matey claims that this natural rights framework provides a workable, consistent tradition for understanding the Second Amendment. In his view, “These traditions follow the classical principles of self-preservation, disallowance of public harm, and the elementary view that because government exists for the common good of the community, it may defend its own existence.” In contrast, Matey argues that argues that modern, broad felon-in-possession laws, imposing a lifetime ban on gun possession by all convicted felons, veer off course from this tradition. In particular, he thinks it violates natural rights to disarm an individual who poses no apparent threat to the safety of others or to the legitimate government.
I agree with Judge Matey’s interpretation of that quote from Blackstone – that English common law recognized both self-defense as a right and possessing some weapons for this purpose as a right, subject to important qualifications and restrictions. It was not an absolute, unfettered right. Blackstone suggests that the government may legitimately disarm certain dangerous individuals and groups, and that it can impose some restrictions on time, place, and manner of bearing arms.
I also agree with Judge Matey that many of the settler-colonists in North America believed this notion that owning weapons generally, including a firearm, was a “natural right,” with the important caveat that this was mostly true outside the large Quaker and Mennonite areas of Pennsylvania, Rhode Island, and New Jersey. Some of the Founders wrote that they believed this.
I think it is a stretch, however, to claim that Blackstone or other older English common-law sources were primarily thinking of firearms when they referred to “arms,” as opposed to swords, pikes, maces, and other non-mechanical weapons. Furthermore, many law and economics scholars, like Richard Posner, have argued convincingly that English common law placed heavy emphasis on the individual’s duty to avoid externalized costs (i.e., taking responsibility for indirect collateral consequences of one’s choices). It is hard for me to imagine the old common law judges would have said there was a natural right to own an unlimited number of semiautomatic handguns, much less stockpile AR-style rifles with a large capacity magazines – weapons that too easily enable any person who is enraged, intoxicated, or confused to mete out instant death to a dozen people in a few seconds, including innocent bystanders hundreds of yards away.
I also object to Judge Matey’s assertion that the First Congress, or most of the ratifying public, intended Second Amendment itself to “codify” the common law of individual self-defense. The Congressional debates about what became the Second Amendment never once mentioned individual gun ownership or individual self-defense, as I have detailed elsewhere. The entire debate, over the course of two days, centered around state militias, the prospect of a federal standing army, and conscientious objectors (religious pacifists). Of course, a few subsequent commentators (whose writings survive) (re)interpreted the Second Amendment to apply to individual self-defense as well. Jurists in later generations also decided that “due process” required law enforcement to inform an arrestee of his Miranda rights before asking any questions, and that the Origination Clause in the constitution is unenforceable. It is not surprising to me that some state legislators wanted to add a sentence about disarming some categories of people, which I assume arose from concerns about rogue militias as wanting to leave those people vulnerable to a personal assailant, and politicians representing settlers moving onto Indian territories would want to guarantee that they have weapons to repel reprisals from the original inhabitants of those lands.
Regarding the “natural rights” discussion, I found it striking that Judge Matey skipped straight from Cicero (d. 43 B.C.E.) to Thomas Aquinas (d. 1274), conveniently omitting any discussion of self-defense as a “natural right” in the Bible or the first half of church history. It seems strange to omit any mention of the sacred Scriptures that had shaped notions of natural law for nearly millennium before Aquinas throughout all of Europe. Of course, there are some Biblical passages that one could read as endorsing forceful for self-defense in certain circumstances, but also passages that seem to discourage or forbid Christians from using weapons or practicing self-defense, such as the Sermon on the Mount or 2 Corinthians 10:4. Perhaps this uncomfortable ambiguity led Judge Matey to base his natural law argument on a pre-Christian pagan source and then jump to a medieval neo-Aristotelian philosopher like Aquinas. For me, his omission highlights a perennial problem with discussions of natural law and natural rights – what happens when two devoutly religious people have mutually exclusive ideas about what nature or God directs? Who has the right to decide? There is no consensus in the Western Christian tradition about the right of self-defense or how that relates to use of lethal force. If natural rights exist and are knowable to federal judges, why are such rights not obvious to everyone, or even most people? Why should an ancient Roman philosopher be a more reliable source for natural law than the divinely revealed Scriptures? Why should a medieval philosopher be a more reliable source about this than Francis of Assisi, from one generation before him?
Judge Matey’s concurrence also overlooks another natural law idea: moral deservedness. Instead, he focuses solely on rough, overbroad notions of dangerousness. What if the person’s nonviolent felonies involved exploiting unwitting children to generate child pornography? What if the felon spent years defrauding and exploiting the elderly, orphans, or other especially vulnerable people? An odd feature of discourse about natural rights and natural law is how quickly the conversation turns from deontology to banal utilitarianism. After quoting Cicero’s gynomorphic reference to “nature herself,” Judge Matey slides into an essentially utilitarian discussion about potential harms inflicted on others. Lost along this journey is any notion that the government can serve the common good – or can pursue deontological goodness – by imposing various lifelong deprivations as punishment on those who deserve it, including those whose wrongdoing was not violent. Food stamp fraud, for example, seems like a victimless crime to those not familiar with the program. As a legal aid lawyer after law school, I sometimes represented indigent or homeless people rejected from the food stamp program. It was a shock at first to see the daunting hurdles imposed on people in dire poverty to get basic necessities like food – all because of a few cheaters, people who lied and claimed to have no income when they did, in order to get a free handout they did not deserve. This “victimless crime” comes at a significant, widespread cost to the most vulnerable, impoverished people in our society. I found it puzzling to read in this judicial opinion that welfare fraudsters deserve to have all the guns they want, because nature hath decreed it.
Natural law can also incorporate notions of moral hazard and adverse selection. For firearms, this means the concern that being armed with lethal weapons – more lethal than anything the ancients had – is likely to make people subconsciously more likely to take unnecessary risks, get in avoidable confrontations with others, and so on. Adverse selection is the natural recognition that those engaged in criminal activity – including nonviolent crimes – are disproportionately likely to want to arm themselves for when victims retaliate or rivals in the criminal underworld escalate their competitiveness with threats or brandishing weapons. In addition, natural law is compatible with concerns about reciprocity and escalation or rebound effects – people arming themselves more for self-defense means that assailants are also more likely to arm themselves, and so on.
Another frustrating aspect of Judge Matey’s discussion of self-defense as a natural right was the way he seemed to ignore the very real problem of personal, subjective variations in perceptions of when self-defense is necessary or required, or how much force is required. Many people think that being attacked automatically gives them an excuse to use disproportionate force in response – if we have a right to preserve our own safety, why settle for fending off an assailant who could return, instead of eliminating the assailant once and for all? Wouldn’t an overreaction in terms of force or lethality serve as a deterrent to other potential assailants?
Whenever I read discussions about self-defense as a “right,” I wonder how people think this applies to preemptive strikes. It is very common for hostile nations to engage in preemptive strikes and claim it was “self-defense.” It is all too common for an armed individual who feels he has received a credible threat against himself or his family to hunt down the person making the threat and eliminate them first, or at least brandish a weapon in someone’s face. Judge Matey simply sidesteps all these real-world problems with his theory of natural rights, even though preemptive shootings and retaliatory shootings occur every day in our communities, with the shooters believing that the moral imperative of self-defense justifies preemptive strikes and retaliatory strikes.
On a more practical note, I think Judge Matey’s insistence on individualized danger assessments is unworkable as constitutional jurisprudence. Constitutional law is supposed to consist of broad, foundational rules, and it undermines the constitutional system and structure to determine natural rights on such an individualized basis. All statutes, because they are finite sets of verbiage that stay in effect for many years, are inherently overinclusive and underinclusive at the margins. Some technical violations will occur that the legislature obviously would not want to punish, and some wrongdoers will inevitably slip through loopholes in the statutory language. Common-law courts addressed this problem with the absurdity canon, interpreting the statute in such a way that it avoided an absurd result. They did not disrupt the constitutional structure or negotiate fundamental rights in these cases. By the end of Judge Matey’s concurrence, it seemed like he really thought that lifelong disarmament was an absurd application of the statute in Mr. Range’s case, but he instead tries to weld absurdity analysis onto the Second Amendment itself. It would have made more sense to argue that applying §922(g)(1) to Mr. Range would be absurd, and therefore could not possibly be consistent with Congress’ intent. After all, Congress originally added another section to the Gun Control Act, § 925(c), to allow non-dangerous felons just like Mr. Range to have their gun rights restored. Congress has since nullified this relief valve in the statute via a recurring budget rider, but if the majority party in both chambers truly cared about gun rights, it could revive the provision in the next round of appropriations. In addition, the common law courts also had a practice of avoiding constitutional issues in a case if the matter could easily be decided using a canon of statutory interpretation, such as the absurdity doctrine. This would have been a better route for Judge Matey to uphold his convictions about Mr. Range’s natural rights.