Alan Gura describes in this post recent efforts to persuade federal courts that people who have lost their firearms rights by virtue of a criminal conviction may be entitled to claim the protections of the Second Amendment. Alan himself has spearheaded this litigation for the Second Amendment Foundation, following up his Supreme Court victories in D.C. v. Heller and McDonald v. Chicago. While successes have to date involved civil rights actions in behalf of people with dated non-violent convictions, these precedents may eventually find their way into felon-in-possession and related prosecutions. They also may portend, like the cases invalidating retroactive registration requirements, a greater willingness by courts to limit the scope of categorical collateral consequences that are considered unreasonable and unfair. Ed.
A second federal court in Pennsylvania has held that the federal felon-in possession statute cannot constitutionally be applied to an individual convicted many years ago of a minor non-violent offense. In Suarez v. Holder, the district court for the Middle District of Pennsylvania held that a man convicted in 1990 of misdemeanor possession of an unregistered handgun and sentenced to probation was “no more dangerous than a typical law-abiding citizen,” and therefore entitled to claim the protection of the Second Amendment. The Suarez court followed the reasoning of the court in Binderup v. Holder, decided in Pennsylvania’s Eastern District in September. The government has appealed the Binderup decision, and the government’s brief is due this month. Read more
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.
A federal district court in Philadelphia has issued the first decision to invalidate the federal felon-in-possession statute on constitutional grounds. The notable as-applied Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014). Perhaps significantly, Binderup is a civil rights suit brought by an individual seeking relief from a minor conviction in his distant past, not one in which a defendant is seeking to avoid prosecution a federal criminal on Second Amendment grounds. Here is an excerpt from the opinion:
As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011).
The Binderup decision is here. Gene Volokh’s comments on the decision from the Volokh Conspiracy are here.
Alan Gura, who represented Mr. Binderup and argued both D.C. v. Heller and McDonald v. City of Chicago in the Supreme Court, promises more Second Amendment fireworks involving people with dated non-violent convictions. Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms after conviction, should keep an eye on this space.