Can the federal felon-in-possession ban violate the Second Amendment?

In District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation.  But the Court was careful to limit that right.  It did not invalidate, the Court explained, restrictions on the commercial sale of firearms, or on possession in sensitive public places, or of “dangerous and unusual weapons.”  Nor did the Second Amendment cast doubt on “longstanding prohibitions” on possession by “felons and the mentally ill.”  Yet, this week, the United States Court of Appeals for the Third Circuit held that in some limited circumstances, as applied, the federal felon-in-possession ban is unconstitutional under the Second Amendment.  The opinion in Binderup v. Attorney General is here.

It is a remarkable holding – no federal court has previously held the felon-in-possession ban unconstitutional – and a deeply divided one.  The en banc court split 8-7, with 3 judges writing the lead opinion and 5 judges in the majority writing separately.  The slip opinions total 174 pages.  Eugene Volokh has a good breakdown of the case here, helpfully discussing the rationales of the different voting blocs.

The case involved two lead plaintiffs who challenged the constitutionality of 18 U.S.C. 922(g)(1), the so called “felon-in-possession” law that makes it a crime for a person to possess a firearm where that person has been convicted of a crime that is punishable by at least a year in prison.  There are some exceptions, such as if a state law punishes the crime by 2 years or less and classifies it as a misdemeanor, or where the conviction has been expunged, or set aside, or where the person received a pardon, or where the person’s civil rights had been restored by law.  See 18 U.S.C. 921(a)(20).

To summarize, according to the court’s description of these cases, Daniel Binderup had a consensual sexual relationship with a 17-year-old co-worker (Binderup was 41).  Although the girl was over the legal age of consent for sex in Pennsylvania, Binderup was nonetheless convicted of the misdemeanor of corrupting a minor.  That offense is punishable by up to five years imprisonment in Pennsylvania.  Binderup, though, received three months probation and a $300 fine.  He has no other criminal history.

Julio Suarez had a previous conviction in Maryland for carrying without a license.  That offense was a misdemeanor, punishable by no more than 3 years.  Suarez received a year of probation, a suspended jail term, and a $500 fine.  He now lives in Pennsylvania, and is a government contractor with a “Secret” security clearance.

Both men are now allowed to possess guns under Pennsylvania law, having successfully petitioned for restoration of their gun rights.  But 922(g)(1) still bars them from possessing guns as a matter of federal law, because none of the statutory exceptions applies to them and the Attorney General did not grant them relief.  So they challenged the validity of 922(g)(1) as applied to them, saying that the ban prohibits them from purchasing firearms for self-defense.  They each prevailed in their respective district courts on their Second Amendment claims, and the cases were consolidated at the Third Circuit.

The entire set of opinions is worth reading, but here is the summary of what is now the law of the Third Circuit, found at page 40 of the lead opinion.  According to the court, first, as-applied challenges to the felon-in-possession ban, under the Second Amendment, are still reviewed under the two-step framework from the court’s earlier decision in United States v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010).  Second, as to the first step, the challenger must prove that the challenged law imposes a burden on his Second Amendment rights.  Third, the challenger must have no convictions involving a serious crime.  Fourth, rehabilitation or likelihood of recidivism is irrelevant.  Fifth, the “considerations discussed above” will determine whether the underlying crimes are serious ones.  And sixth, once the challenger has satisfied step one, then the Government bears the burden of showing that the law survives intermediate scrutiny (a substantial relationship to an important government interest).

Because of the nature of this holding, and its significance to many convicted persons who may wish to own a firearm but are unable to do so, I suspect this may finally be a case in which the Supreme Court has some interest.  I have noted before that the Court’s failure to take any cases since Heller has created substantial confusion among lower courts as to the proper standards to apply in a Second Amendment challenge.  This case has many of the ingredients that should appeal to the Court: it breaks with other federal circuits, was decided by a fractured en banc court, involves a matter of federal constitutional law, and concerns a matter of substantial public importance.

But before we get too excited about this case receiving a cert grant, a caveat is in order.  This holding would not apply, it appears, to felons.  Binderup and Suarez are misdemeanants, not felons, because that is the label that state law gave to their offenses.  As the lead opinion noted, the “misdemeanor” label generally conveys a lack of seriousness, but the same cannot be said of offenses labeled as a “felony,” even if the available term of imprisonment is comparatively short.  This case, then, does not protect those offenders whose crimes of conviction are presumptively serious (as “felonies”), though note 6 of the lead opinion states that such a challenge may at least be theoretically possible after Heller (though the same note also explains that the challenger’s burden in such a case would be “extraordinarily high – and perhaps even insurmountable”).  As to what constitutes “seriousness” (point 5 of the lead opinion’s summary of the law of the circuit), though there was disagreement on the court, the lead opinion also looked to whether the crime was violent or involved force or the threat of force, whether the ultimate sentence was comparatively minor, and whether there is some “cross-jurisdictional consensus” about the seriousness of the underlying conduct.

So the question is open: when, if ever, can a person with a felony conviction have a Second Amendment right to possess a firearm?  That is, which previous crimes are so serious as to warrant the conclusion that the person is not a virtuous enough citizen to be entrusted with the possession of a firearm?

An equally interesting scenario, though perhaps highly unlikely, would exist if Congress considered amending the statute to either more narrowly define the types of offenses that qualify for the ban, or to at least exclude misdemeanors of a certain kind (e.g., those that do not involve force or violence).  One might imagine that a Congress protective of gun rights, and of a broad interpretation of the Second Amendment, might be inclined to narrow the scope of federal gun control laws – and there are few federal gun control laws with more prosecutorial potency than the felony-in-possession statute.  But I suspect that congressional tinkering with the gun possession statutes will not happen, even in this Congress, particularly if Congress feels that federal courts are now in the business of narrowing the reach of the statute through constitutional litigation.

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