Category: Firearms

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.

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Misdemeanants win challenge to federal firearms law

The Third Circuit has held that the federal bar to gun possession by convicted individuals cannot constitutionally be applied to two misdemeanants convicted years ago who were not sentenced to prison.  In a fractured opinion, the Third Circuit sitting en banc ruled that the two challengers never lost their Second Amendment rights, and that the government offered no persuasive justification for depriving them of the right to bear arms.  Five concurring judges thought the ruling too narrow, and would have limited this collateral consequence to individuals posing a public safety risk.  Seven judges would not allow any “as applied” Second Amendment challenges to the federal bar to gun possession by convicted individuals.

We plan to post analyses of the opinion in coming days.  In the meantime, here is Gene Volokh’s analysis from the Washington Post:

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Restoration of firearms rights: 50-state surveys

We have recently converted the 50-state surveys that are part of the Restoration of Rights Resource from PDF to HTML format.  Two of these surveys deal with loss and restoration of firearms privileges as a result of a criminal conviction:  Chart # 1 is titled “Loss and restoration of civil rights and firearms privileges,” and Chart # 2 is “State law relief from federal firearms disabilities.”   Chart # 1 is a straightforward description of the relevant provisions of each state’s laws, showing when firearms rights are lost based upon a felony conviction (or in some cases misdemeanor crimes of violence) and how firearms rights may be regained.  Chart # 1 also describes for each state when conviction results in loss of basic civil rights (voting, eligibility for public office and jury service), and how those rights are regained — a matter that is frequently relevant for avoiding the independent penalties under federal firearms dispossession laws.

Chart # 2 attempts the more complex analysis of when criminal conviction results in exposure to federal prosecution as a “felon in possession” under 18 U.S.C. § 922(g). Regaining firearms rights under state law does not automatically result in avoiding the federal bar, which generally depends upon an additional measure of state relief such as a pardon or expungement, or restoration of civil rights.  (The courts have generally held that automatic restoration counts.)  Surprisingly, the law is not entirely clear as to when a state conviction will trigger the federal penalty, and when state relief removes it.  Chart # 2 therefore emphasizes the importance of seeking legal counsel to avoid liability.

For those with a federal conviction, the only way to avoid liability under § 922(g) and regain the right to possess a firearm is through a presidential pardon (which would also relieve any state law liability).  The administrative restoration provision in 18 U.S.C. § 925 has not been funded for 25 years.  As reported by Alan Gura in a post on this site last winter, a few individuals with dated nonviolent federal convictions have been successful in regaining firearms rights through the courts.

The 50-state charts will remain available for download in PDF form.

 

President plans “aggressive” use of pardon power to commute drug sentences but perhaps not to relieve collateral consequences

HUFFFor the third time in six weeks, President Obama has spoken on the record about his intention to make more “aggressive” use of his pardon power in the final months of his term to commute long drug sentences.   It appears he really means it — and the only thing that may stop him from setting a modern record (perhaps even more impressive than the drug commutations of John Kennedy and Lyndon Johnson) is the pace of recommendations coming from the Justice Department via Clemency Project 2014.  (Comments on his other recent statements are here and here.)

Hopefully the President will grant more full pardons as well, though his comments on that score have been less encouraging.

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NH Supreme Court takes aim at federal felon-in-possession statute

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In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20).  In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury).  In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States.

While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20).

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Putting teeth in Heller’s promise for people with a conviction: Second Amendment litigation round-up

1024px-Statue_in_Minute_Man_National_Historical_ParkAlan 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.

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Another court invalidates federal felon-in-possession statute on Second Amendment grounds

GUNSA 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

Appeals court finds federal firearms law constitutionally flawed

GUNSIn a major victory for Second Amendment advocates, the Sixth Circuit court of appeals has sustained an as-applied constitutional challenge to the federal firearms dispossession law, 18 U.S.C. § 922(g).  While the particular provision of that law at issue in Tyler v. Hillsdale County Sheriffs Department is § 922(g)(4), the subsection prohibiting firearms possession by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution,” the court’s broad holding and analytical approach will be of considerable interest to those watching developments under the felon-in-possession subsection of the law, § 922(g)(1).

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Second Amendment challenges to felon-in-possession laws

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Collat_ConsequencesConsequences 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.

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Collateral consequences and the curious case of Mark Wahlberg

Actor-producer Mark Wahlberg has filed an application for pardon with the Governor of Massachusetts, seeking forgiveness for a 25-year old assault conviction that occurred when he was 16 years old.   The “onetime ruffian from Dorchester”  bases his request for pardon on his rehabilitation and contributions to society since his conviction.  He also specifies his desire to avoid certain legal restrictions that he claims are impeding his business endeavors and civic activities.

By his own account, Mr. Wahlberg was a troubled teen who had a history of scrapes with the law by the time of the 1988 assault. He states in his pardon application that, if he
had not turned his life around with the help of “faith, hard work, and guidance from some incredible mentors,” he “would likely have ended up like so many of my childhood friends from Dorchester: dead or in prison for a prolonged period of time.”   He expresses remorse for his actions on the night of the assault, as well as “any lasting damage that I may have caused the victims.” He does not specify what that damage might have been, though news reports indicate that it was serious and possibly permanent.

As to his reasons for seeking a pardon, he claims that “my prior record can potentially be the basis to deny me a concessionaire’s license in California and elsewhere, “an important consideration given my personal involvement in various restaurant ventures,” presumably a reference to the fast-expanding chain of Wahlburgers.   He believes that, if pardoned, “I could not be denied a concessionaire’s license on the basis of my prior record,” which may or may not be the case.*

Wahlberg also proposes that a pardon would enable him to become “more active in law enfor
cement activities, including those that assist at-risk individuals.”  He states that only a full and unconditional pardon would, under California law, enable him to “obtain a position as a parole or probation officer.”  True enough, but an improbable ambition for an A-List movie star.  He disavows in his application any immediate interest in obtaining a firearms permit — leading this writer to wonder if one is required on location.

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