Moral Reasoning in the Third Circuit

Posted on by JAF

After a hiatus, Ius & Iustitium is happy to resume publishing pieces on law and the classical legal tradition. Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. Jamie G. McWilliam is a former law clerk on the Court of Appeals for the Ninth Circuit, and the author of multiple articles on the Second Amendment.

–The Editors

Jamie G. McWilliam

If one were to open the federal reporter and find references to “those ‘certain primary truths, or first principles, upon which all subsequent reasonings must depend,’”[1] he would be forgiven for thinking he was reading a volume from the Marshall-era. In those days, such appeals to the natural law foundations of law were commonplace.[2] But this style of reasoning was lost to the courts during the twentieth century. Today, appeals to anything beyond text and history are widely considered indecorous if not wholly outside the judicial power.

Judge Matey, of the United States Court of Appeals for the Third Circuit, bucked that convention in a recent concurrence. The case of Range v. Attorney General involved a man who was disarmed under a federal statute prohibiting firearm possession by anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”[3] Bryan Range was convicted of welfare fraud in 1995 after misstating his income on an application for food stamps.[4] At the time, he and his wife were struggling to earn enough to raise three young children.[5] The crime was a misdemeanor for which Range received a sentence of only three years’ probation.[6] But because the crime was eligible for a sentence of up to five years’ imprisonment, federal law deemed Range permanently ineligible to possess a firearm.[7]

The en banc court held that Range’s permanent disarmament violated his Second Amendment rights.[8] While the majority opinion focused on applying the framework put forth in Bruen, Judge Matey wrote separately “to explain why that conclusion follows classical principles respecting the natural rights that inform ‘our regulatory tradition.’”[9] In doing so, Judge Matey returns to an older conception of fundamental rights that might be unfamiliar to those steeped in libertarian rights theories. Within the classical tradition that the Founders inherited from Western thought, fundamental act to secure the common good.[10] Their exercise must therefore be oriented to the common good.[11]

Judge Matey’s concurrence provides a clear template for determining the proper scope of rights using classical principles. He begins by examining the natural right “to defend oneself with arms.”[12] This right was recognized by Roman statesman Cicero as a law “not written, but born with us . . . ; a law which we were not taught, but to which we were made.”[13] Nonetheless, the right—as developed through the work of Aquinas and later thinkers—can only be exercised with the intent to preserve one’s own life.[14] It does not extend to taking the life of innocents or engaging in sedition, as these actions harm the common good.[15] As Judge Matey explains:

These elementary sources teach that persons have a fundamental right to use arms to preserve innocent life, or to rebel against a just government. Taken together, these principles instruct that the natural right of self-preservation does not extend to bearing arms in a manner that undermines the common good.[16]

Judge Matey’s appeal to first principles is a stark break from modern originalist thinking, but it is not insensitive to history. In the classical tradition, positive law—like the Second Amendment—acts to apply natural law principles in a manner sensitive to local conditions and customs.[17] Determining how positive law should be applied therefore requires an understanding of the historical tradition in which it was adopted—not to use that history as the sole touchstone of interpretation, but to ascertain the role that the law plays in the continuing development of natural law principles over time.

Starting with the English Bill of Rights, Judge Matey traces out the tradition that the Colonies inherited. This tradition preserved “the natural right of resistance and self-preservation.”[18] But like the natural law it applied, the traditional English right could not be exercised “to intentionally harm the life or safety of another, or to rebel against a just government.”[19] The Second Amendment determined the natural right of self-defense against the backdrop of the English tradition. And as the United States began to establish its own tradition, it built and expanded upon the ancient one it inherited. The likes of James Wilson and Joseph Story often appealed to “the great natural law of self-preservation,”[20] but as the American tradition developed, it continued to impose arms restrictions designed to secure the common good.

An early style of law carried over from England forbid citizens to go “offensively armed, in Terror of the People.”[21] These laws mirrored the classical requirement that the right to bear arms not be exercised to abuse innocents and therefore harm the common good.[22] Other laws reflected a need to secure the community against seditious behavior. During the Revolutionary War, for example, loyalists were disarmed to preserve colonial safety.[23] This type of law implemented the classical goal of preserving the common good through stable governance.

Through this history, Judge Matey shows how the classical natural law principle of self-defense was applied and developed through English and early American law. With that principle and its role in the American tradition in mind, he concluded that the Second Amendment secures the right of self-defense.[24] At the same time, “the right to bear arms is not a license to physically harm another.”[25] And “an individual cannot exercise that right to rebel against a just government ordered for the common good.”[26] These principles, which “run continuous throughout history from cicero to Founding-era America,” “are the hallmark of our Nation’s firearm regulations.”[27]

Range did not commit a violent crime or otherwise “exhibit behavior intentionally threatening the life or safety of another.”[28] Nor did he “threaten[] the government’s existence with sedition or treason.”[29] Under a classical interpretation of the Second Amendment, Range therefore did not forfeit his right to bear arms through abuse.

Judge Matey’s concurrence is an exemplary application of classical moral reasoning. Though his opinion was limited to the disarmament of nonviolent criminals, the same principles could be appealed to in order to resolve cases involving concealed carry restrictions, bans on types of arms, and other pressing Second Amendment issues.[30] And the larger classical framework can provide concrete resolution to any case. Simply open a case from the early nineteenth century to see how to this moral reasoning can be applied consistently with this Nation’s historical tradition. With Judge Matey’s example, perhaps other judges will pick up the torch of classical interpretation and return us to our natural law roots.

  1. Range v. Attorney General,  No. 21-2835, at 6 (3d Cir. 2024) (en banc) (Matey, J., concurring). ↑
  2. See Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of Natural Law 25 (2010) (“The Founders saw nothing particularly strange, or insuperable, in the task of appealing to those laws of reason . . . .”). ↑
  3. 18 U.S.C. § 922(g)(1). ↑
  4. Range, No. 21-2835, at 5. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. at 6. ↑
  8. Id. at 25. ↑
  9. Range, No. 21-2835, at 1 (Matey, J., concurring). ↑
  10. See Michael Foran, Rights, Common Good, and the Separation of Powers, 86 Mod. L. Rev. 599, 609 (2023) (“[I]t is better to conceive of the common good and the natural law (including fundamental rights) as co-constitutive; the common good sets boundaries on and helps to define the limits of rights, but the common good is itself defined partly by reference to the natural rights of individual members of a civic community.”). ↑
  11. Range, No. 21-2835, at 2 (Matey, J., concurring) (“But the fundamental rights that predate America are not unlimited, and like any law, never license acting contrary to the common good.”). ↑
  12. Id. at 9. ↑
  13. Marcus Tullius Cicero, Speech in Defense of Titus Annius Milo (c. 52 B.C.), in 3 Orations of Marcus Tullius Cicero 390, 394 (C.D. Yonge trans., 1913). ↑
  14. Range, No. 21-2835, at 10 (Matey, J., concurring) ↑
  15. Id. at 10–11. ↑
  16. Id. at 11. ↑
  17. See, e.g., Adrian Vermeule, Deference and Determination, Ius & Iustitium (Dec. 2, 2020), https://iusetiustitium.com/deference-and-determination (“The positive law . . . was understood as a set of rational ordinances promulgated . . . in order to give more specific content to the general principles of the natural law. . . . [T]he public authority fits the general precepts of natural law to varying local circumstances . . . .”). ↑
  18. Range, No. 21-2835, at 12 (Matey, J., concurring) ↑
  19. Id. at 13. ↑
  20. Id. at 21 ↑
  21. Id. at 21–22. ↑
  22. Id. at 23. ↑
  23. Id. at 24. ↑
  24. Id. at 27. ↑
  25. Id. ↑
  26. Id. ↑
  27. Id. ↑
  28. Id. at 30. ↑
  29. Id. ↑
  30. For examples of how to apply classical reasoning to other Second Amendment issues, see, e.g., Jamie G. McWilliam, Second Amendment Principles, 33 Wm. & Mary Bill Rts. J. (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4988614; Jame G. McWilliam, A Classical Legal Interpretation of the Second Amendment, 28 Tex. Rev. L. & Pol. 125 (2024); Jamie G. McWilliam, What Cruikshank Really Means for the Second Amendment, 2024 U. Ill. L. Rev. Online 20 (2024); Jamie G. McWilliam, Refining the Dangerousness Standard in Felon Disarmament, 108 Minn. L. Rev. Headnotes 315 (2024). ↑

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