Third Circuit Makes Unusual Move in 2A ‘Prohibited Person’ Case

For the second time in recent months, the Third Circuit Court of Appeals is taking the unusual step of hearing Second Amendment litigation en banc before a three-judge panel has handed down its ruling. The first cases were the multiple challenges to New Jersey’s ban on “assault weapons” and “large capacity” magazines, and the most recent case revolves around a Pennsylvania man who lost his ability to legally possess a firearm after being convicted in 2005 of the misdemeanor crime of driving under the influence; an offense punishable at the time by up to five years in prison. 

Edward Williams challenged Section 922(g)(1)’s ban on gun ownership for those convicted of crimes punishable by more than a year in prison, and a district court agreed with him, while noting, “[i]n no way does the Court dispute the dangerousness of drunk driving or of combining firearm use and alcohol consumption, and it acknowledges that Plaintiff’s offenses were serious and his conduct during his convictions in 2004 and 2005 dangerous.”

 However, that legislatures have historically labelled certain groups and conduct dangerous for the purposes of disarmament does not, in of itself, create a historical analogue to the present-day prohibition on firearm possession by those convicted of DUIs. The Range Court had rejected the argument that status based restrictions on ‘dangerous’ groups identified as such by the legislature would constitute an appropriate analogy to Section 922(g)(1) today. see also Bruen, 142 S. Ct. at2134 (noting that legislatures are not empowered to “eviscerate the general right to publicly carry arms for self-defense” with over broad categorizations). Historical regulations on persons deemed dangerous do not present a sufficient historical analogue without showing that the regulated conduct itself is analogous to Plaintiff’s.

Joe Biden’s DOJ appealed that decision to the Third Circuit, and Donald Trump’s DOJ defended Section 922(g)(1) in oral arguments before a three-judge panel in July of this year.

So why did a majority of judges on the Third Circuit just vote do rehear the case before an en banc panel of all active judges on the appellate court? Well, enough time has passed that a draft opinion from the three-judge panel may already have been circulated, and a majority of judges didn’t like what they saw. 

The current makeup of the Third Circuit is seen to have a good grasp on the fundamental importance of the Second Amendment. In Range v. Garland the court declared 922(g)(1) unconstitutional as it applied to a Pennsylvania man who pled guilty to the misdemeanor crime of falsifying a food stamp application. In Paris v. SAF, the Third Circuit held that Pennsylvania violated the Second Amendment rights of 18-to-20-year-olds by prohibiting them from carrying openly during a state of emergency and (more generally) carrying concealed at all; statutes that resulted in a complete prohibition on the ability of young adults to bear arms when the state enacted a rolling number of consecutive emergency declarations lasting for well over a year. 

After oral arguments were recently held in the New Jersey gun and mag ban cases, the consensus among court watchers is that the Third Circuit is likely to strike down the gun control laws. 

All of which is to say that while we don’t know the reason why the Third Circuit is taking Williams en banc, there’s good reason to believe it’s to deliver another ruling in support of our Second Amendment rights. 

It’s about time we have a circuit going as hard for the 2A as others do to undermine it. https://t.co/uBURtjYVo8

— Kostas Moros (@MorosKostas) October 31, 2025

In his order, Third Circuit Court of Appeals Chief Judge Michael A. Chagares (who, incidentally, was also part of the three-judge panel that originally heard Williams instructed both parties that they can “submit briefs addressing whether a court may consider evidence beyond an individual’s predicate conviction(s), including, for example, other criminal convictions or conduct post-dating the predicate conviction, when a court evaluates whether 18 U.S.C. § 922(g)(1) is constitutional as applied to an individual seeking declaratory relief.”

Those briefs are due on or before November 21. Chagares’s order doesn’t mention any date for oral arguments, and its unclear whether the en banc panel will rely solely on briefing to make their decision or if attorneys on both sides will have another round of arguments in front of the judges. 

From my non-lawyerly perspective, I think the answer has to be “no”; the court cannot consider evidence beyond an individual’s predicate convictions. 

If Section 922(g(1) requires an individualized assessment of dangerousness before someone can lose (or in the case of Edward Williams, regain) their Second Amendment rights, then it would unfairly punish and burden individuals like Williams versus someone who’s only recently been convicted of a crime punishable by more than a year in prison. Williams and individuals like Bryan Range would (and can, it should be noted) point to decades of law-abiding behavior to prove their rights were violated. The newly-convicted, though, would only have to demonstrate their lack of dangerousness in the weeks or months since their conviction, or, at most, their arrest on the charges that led to their conviction or guilty plea. 

Maybe that doesn’t matter from a legal standpoint, but it doesn’t make a lot of sense to me. Edward Williams lost his right to keep and bear arms under Section 922(g)(1) because of his misdemeanor conviction for recidivist driving under the influence; not for any of his behavior since. And ultimately, the challenges to 922(g)(1) aren’t just about restoring rights that have been lost. They’re also about whether these rights should be lost in the first place, and again, that puts an undue burden on folks trying to restore their rights versus those trying to maintain them. 

It’s an interesting question, though, and I’m looking forward to hearing what both sides have to say about the issue. More importantly, though, I’m cautiously optimistic that the Third Circuit will soon be issuing another decision that treats the Second Amendment as a first-class right. 

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