Second Amendment challenges to felon-in-possession laws
Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms. Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago.
Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation. This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller.
Alan Gura, who represents Mr. Binderup and argued both Heller and McDonald v. City of Chicago in the Supreme Court, has promised to give us a comment about the Binderup appeal and other pending Second Amendment challenges to felony dispossession laws involving people with dated non-violent convictions. The tricky and fascinating question presented by these as-applied challenges is what criteria should be used to test whether an individual with a criminal conviction is within the class “historically barred barred from Second Amendment protections” or is “no more dangerous than a typical law-abiding citizen.” U.S. v. Barton, 633 F.3d 168, 174 (3d Cir. 2011).
(Note from ML: I was told several years ago that a substantial percentage of the requests for presidential pardon pending in the Justice Department — perhaps as many as half — are from people seeking restoration of firearms privileges. Judging from my own clientele, this seems about right. It strikes me as exceedingly strange that people with dated non-violent federal convictions should have to petition the president himself to regain what we may soon learn are their constitutional rights, but that is the situation the Supreme Court left us with its dubious 1995 decision in Beecham v. U.S. and its equally dubious decision 13 years later in Heller. He should hope the courts will relieve him of this burden, and instruct his Attorney General to stand down on Binderup.)
2:36. Firearms restrictions— Second Amendment challenges to felony dispossession laws
In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment confers a personal, fundamental right to possess a firearm, thus opening an entirely new basis for defending against the application of statutes making it a crime for convicted felons to possess firearms. Heller itself anticipated and sought to deflect constitutional challenges to conviction-based firearms restrictions by declaring them to be “longstanding” and “presumptively lawful” but some lower courts have characterized this statement as dictum, and scholars have questioned its historical accuracy.
While every federal court to have considered the issue post-Heller has rejected a Second Amendment challenge to the federal statute barring convicted felons from possessing firearms, three federal courts of appeal have suggested that categorical firearms bans may not survive rational basis review as applied to individuals convicted of nonviolent felonies.
In U.S. v. Barton, the Third Circuit noted that a successful “as applied” challenger
must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.
The first case to sustain an as-applied challenge to the federal felon-in-possession statute relied upon this language from Barton in finding that an individual convicted of a non-violent sex offense and sentenced to probation sixteen years before could not be prosecuted under it. Earlier, the North Carolina Supreme Court relied upon the “right to bear arms” provision of its state constitution in refusing to apply a newly enacted categorical dispossession statute to an individual whose conviction was decades old, whose firearms rights had been restored under an earlier law, and who had long since demonstrated his rehabilitation.
 District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
 Cf. §3:11 (Substantive challenges based on rights guaranteed by the Constitution—Right to bear arms).
 See Heller, 554 U.S. at 626-27 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”). But see id. at 722 (Breyer, J., dissenting) (noting that there is no factual basis for the assertion that such prohibitions are “longstanding”).
 See Alexander C. Barrett, Taking Aim at Felony Possession, 93 B.U.L. Rev. 163, 194-196 (2013)(“even if some felons were historically understood to be barred from possessing firearms, the common law term ‘felony’ applied to only a few select categories of serious crimes at the time the Second Amendment was ratified, while in modern times, vast categories of ‘non-dangerous’ activities qualify as felonious”); ; Nelson Lund, Two Faces of Judicial Restraint (or Are There More?) in McDonald v. City of Chicago, 63 Fla. L. Rev. 487, 502 (2011) (observing that the dictum was “casually tossed off by Justice Scalia” and has “no basis in prior Supreme Court case law and [was] not supported by evidence of the original meaning of the Second Amendment”); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 696, 699 (2009) (observing that “a lifetime ban on any felon possessing any firearm is not ‘‘longstanding’’ in America”); Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374 (2009) (“[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms.”); Adam Winkler, Heller’s Catch 22, 56 UCLA L. Rev. 1551, 1561, 1563 (2009) (“Bans on ex-felons possessing firearms were first adopted in the 1920s and 1930s, almost a century and a half after the Founding.”).
 18 U.S.C.A. §922(g).
 See U.S. v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012), cert. denied, 133 S. Ct. 962, 184 L. Ed. 2d 747 (2013) (dispossession would be improper if a litigant could demonstrate that he fell within “the scope of Second Amendment protections for ‘law-abiding responsible citizens to use arms in defense of hearth and home’”); U.S. v. Barton, 633 F.3d 168, 173 (3d Cir. 2011)(“As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge.”); U.S. v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (“[T]here must exist the possibility that [a firearm] ban could be unconstitutional in the face of an as-applied challenge.”); see also U.S. v. McCane, 573 F.3d 1037, 1049 (10th Cir. 2009) (Tymkovich, J., concurring) (“Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons.”). But see U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674, 179 L. Ed. 2d 645 (2011) (en banc) (explaining why §922(g) may constitutionally be applied to an individual repeatedly convicted of misdemeanor domestic violence).
 U.S. v. Barton, 633 F.3d at 174.
 See Binderup v. Holder, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa. 2014). Perhaps significantly, this successful as-applied challenge to 18 U.S.C. § 922(g)(1) was brought as a civil rights action under the Declaratory Judgment Act, rather than raised as a defense to a criminal prosecution.
 See Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009). Following the Britt decision, North Carolina amended its firearms law to permit individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, to petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights. N.C. Gen Stat. § 14-415.4.
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