When does the Second Amendment protect a convicted person’s right to bear arms?

GUNSEarlier this month eight judges of the Court of Appeals for the Third Circuit blocked enforcement of a federal gun control law in two cases involving Pennsylvanians convicted of non-violent misdemeanors many years ago, invoking the Second Amendment’s right to bear arms.  The appeals court affirmed lower court decisions upholding the constitutional right of Daniel Binderup and Julio Suarez to possess firearms despite the fact that they are barred by federal statute from doing so.  Seven other judges of the appeals court thought the Second Amendment should never be applied on a case-by-case basis to convicted individuals, and proposed that the federal statutory bar should determine the constitutional issue.  The 174-page appellate decision in Binderup v. Holder has been widely reported but only in the most general terms, and not always entirely accurately.

Other as-applied Second Amendment challenges to firearms dispossession statutes are percolating through the courts.  For example, Hamilton v. Palozzi will be argued next month in the Fourth Circuit, offering another opportunity for a court to hold that people convicted of non-violent crimes should not lose their firearms rights, there under a state dispossession statute rather than a federal one.  Because the constitutional issues may shortly be before the Supreme Court for resolution, it seemed worth taking a closer look at the Binderup holding.

Mssrs Binderup and Suarez had asked the court to find the federal firearms statute unconstitutional as applied to them, both of whom had been convicted of dated nonviolent misdemeanors that nonetheless triggered dispossession under 18 U.S.C. 922(g)(1).  The five judges in the Binderup plurality thought that the two petitioners could not constitutionally be dispossessed by the federal statute because the crimes involved presented no public safety risk.

The plurality’s vision of the scope of Second Amendment protection is thus substantially broader than the one proposed by the three concurring judges, who opined that the Second Amendment protects only the “virtuous,” a category that excludes anyone convicted of a “serious” crime.  Whether a crime is “serious” depends to some extent on legislative judgments about applicable punishment, and the concurring judges were persuaded that the crimes that trigger application of 18 U.S.C. 922(g)(1) include some that are not “serious” in a constitutional sense.  Thus the parameters of Second Amendment protection are not fixed, but depend on legislative judgments about how a crime is labeled and what punishment is authorized.  Considerations determining seriousness may include whether the crime involves violence, though that is not the only relevant consideration.

The three concurring judges joined the plurality to hold that Mssrs Binderup and Suarez could not constitutionally be deprived of their firearms rights because their crimes were not “serious” ones, judging by their categorization as misdemeanors whose authorized punishment did not include a prison term.  Accordingly, in extending its prohibition to Mssrs Suarez and Binderup, the federal firearms statute sweeps too broadly.

Because neither petitioner ever lost the right to bear arms in the first place, their rehabilitation is irrelevant. That is, the case is not about restoration of rights but about loss of rights ab initio.

The seven dissenters share some of the concurring judges’ interpretation of the Second Amendment, subscribing to the concept of constitutional virtuousness and rejecting the violent v. nonviolent dichotomy proposed by the plurality.  However, the dissenters would let 922(g)(1) define the parameters of virtue, not some freestanding concept of seriousness. Thus they believe that the statutory definition of a disqualifying crime is coextensive with the scope of constitutional protection.  In a word, anyone dispossessed by 922(g)(1) is by definition outside the protection of the Second Amendment.

The dissenters’ position gives no independent effect to the Second Amendment, allowing the legislature to define its parameters where a person has been convicted of a crime. That position is bound to lead to differing interpretations of the constitutional right from jurisdiction to jurisdiction, which may give rise to a special unfairness in cases like Hamilton v. Pallozzi, where one jurisdiction (Maryland) imposes its restrictions based on a conviction from another jurisdiction (Virginia).  The dissenters seem less than convinced that the Second Amendment affords protection to private gun ownership.  The logic of their position is that the constitutional right to bear arms is effective only when and if the legislature says it is.

The position of the plurality (that public safety determines the scope of protection afforded by the Second Amendment) is more satisfying as a matter of constitutional doctrine, but it takes far too big a bite out of modern firearms laws to be politically or practically acceptable. If the dissenters defer too little to the notion that there is a constitutional right to bear arms, the plurality judges seek too much for it, giving it a utilitarian gloss that virtually eliminates a role for the legislature.  If nondangerous people can never be deprived of firearms rights, this implies that dangerous people may regain rights if they become nondangerous with the passage of time.   This makes a lot of restoration work for the courts (though statutes give them this responsibility in many states).   The plurality’s position also plays havoc with other categories of people deprived of gun rights by federal law who may or may not pose a public safety risk.

In the end, the position of the three concurring judges seems the closest thing to a practical application of the constitutional right to bear arms announced in Heller — though one may quarrel with the narrowness of their definition of a “serious” crime.  In this regard, the Hamilton case in the Fourth Circuit may test the significance of the “misdemeanor” label. If the definition excludes a substantial number of people from Second Amendment protection at the outset, their situation can be addressed through provisions for relief that mitigate the harshness of the statutory bar, including constitutional relief in the form of pardon.

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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