Usually we are on the cutting edge of reporting decisions that impact Pennsylvania Law Abiding Citizens (PennLAGOs). But we have to admit that this most recent Third Circuit case Daniel Binderup v. Attorney General; and Julio Suarez v. Attorney General gave us some pause. We wanted to put our collective heads together and get several nights sleep to unpack it all as there is a lot of information within the 174 pages written by the Third Circuit Court of Appeals. We here in Pennsylvania are governed by the Third Circuit so it is important to get this right.

Well, we can start in the background to understand why this case is worth talking about in the first place.

Background

As we have written before is that in Pennsylvania a conviction of a misdemeanor of the first degree will bar someone from their rights to keep and bear arms even in the house for self-defense. This was due to federal restrictions found in 18 USC §921(g)(1) (“It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”) as further explained by 18 USC §921(a)(20)(B). 18 USC §921(a)(20)(B) reads:

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

…

(B)

any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Sadly this is a fact that most criminal defense attorneys do not know as we wrote in our blog entitled

A primer on collateral consequences for criminal convictions in PA, gun ownership, transfer, and LTCF

What can be a m1 conviction that can make me lose my gun rights?

Here is a list of some crimes in Pennsylvania that can be graded as misdemeanors of the first degree (depending on the facts present or a person’s prior record, these listed offenses can be graded lower than a m1 or even as a felony) (these are abbreviated titles):

• Unlawf. action by athlete agent-prior to eligibility expired
• Possessing instruments of crime
• Prohibited offensive weapons
• Using electric incapacitation device
• Possessing electric incapacitation device
• Possession of weapon on school property
• Simple assault-attempt/cause BI (against child ‹12 by adult ›=18)
• Terroristuc threats
• Stalking
• Assault on sports official
• Neglect of care-dependent person (causes BI)
• Threat to use weapon of mass destruction
• Unlawful restraint
• Criminal coercion
• Luring child into motor vehicle/structure
• Indecent assault-forcible compulsion
• Unlawful dissemination of intimate image
• Arson-failure to control/report
• Agricultural vandalism (›$1,000)
• Criminal trespass-defiant (communication/leave school grounds)
• All manners of Theft (‹=$2,000/from indiv./by threat/breach)
• Library Theft (1st/2nd off & ›=$150)
• Forgery-altered writing (other)
• Simulating objects of antiquity
• Tampering w/records or identification
• Bad checks-issues/passes check ($1,000-‹$75,000)
• Access device fraud-altered/counterfeit device ($50-‹$500)
• Deceptive business practices
• Unlawful use of recording device in movie theater (1st off)
• Trademark counterfeiting-mfr.
• Identity theft (‹$2,000)
• Concealing death of child
• Endangering welfare of children
• False alarms to agency of public safety
• Fail to comply w/ SVP outpatient review/counseling
• Retaliation against prosecutor/judicial official-general
• Weapons/implements for escape-possession by inmate
• Contraband-provide other contraband to inmate
• Recruiting criminal gang member-solicit/cause/attempt cause (recruitee ‹16 yrs)
• Desecration of venerated objects-historic burial lots
• Cruelty to animals-poison dog/cat (1st off)
• Gambling devices
• Lotteries
• Obscene materials-disseminate via elec. comm. (1st off & not for resale)
• Firearms-persons not to possess: convicted of enumerated misd.
• Firearms-persons not to possess: fail to relinquish w/PFA
• Firearms-possession by minor
• Corruption of minors
• Scattering rubbish-deposit trash on street (2nd/subsq off)
• Administer drugs to race horses
• Incendiary devices
• Unlawful coercion in contracting insurance
• Buying/exchanging food stamps (‹$1,000)
• Greyhound racing-for remuneration
• Drive w/ susp. lic. & BAC ›=0.02%/or under influence of controlled subst. (3rd/subsq off)
• Accident involving death/personal injury-failure to stop (injury)
• DUI-general impairment/incapable of safe driving (minor occupant),
• DUI second offense within 10 years with BAC greater than 0.16
• DUI second offense within 10 years with drugs
• BUI third or subsequent offense within 10 years (except for general impairment or BAC less than 0.10)
• BUI second offense within 10 years with BAC greater than 0.16
• BUI second offense within 10 years with drugs
• BUI third or subsequent offense within 10 years (except for general impairment or BAC less than 0.10)
• Deal in titles/plates for stolen vehicles
• False application for title or registration
• Altered/forged/counterfeit title/plates

Also a second lifetime conviction for Unlawful Possession of a Controlled Substance [35 P.S. § 780-113(a)(16)] carries a maximum potential sentence of three years. So it too would be a disqualifier.

So, as you can see, we here in PA have a lot of misdemeanor crimes that can disqualify someone from ever lawfully possessing, owning, using or transferring a firearm of any kind. Most people are shocked to learn that a second offense DUI within 10 years with a BAC greater than 0.16 can disqualify someone for life for ever lawfully possessing, owning, using or transferring a firearm of any kind.

What this case doesn’t mean?

1. This is a case that is limited to the particular facts of the case. While there are guidelines and good ideas how to frame future arguments, this case does not say that ALL state misdemeanants who were convicted can get their Second Amendment rights back.
2. I have read blogs that report that anyone who has lived a good life but has a Pennsylvania misdemeanor of the first degree conviction can file a lawsuit to have their Second Amendment rights restored. This is false. The Court plainly wrote: “To the extent Barton suggests that people who commit serious crimes retain or regain their Second Amendment rights if they are not likely to commit a violent crime… it is overruled.”
3. It also does not mean that even if you mount a challenge and you win that you will have all of your firearms rights restored. In this case, as you will read below, the challenge was narrowly tailored only to deal with possession in the home for self-defense and lawful defense of other purposes.

Why did this case give us pause?

The facts gave us pause. It is a really odd case. It was brilliantly lawyered, but its scope and impact may be very narrow. Exceedingly so for folks in Pennsylvania as we will see below. The facts of this case are very important to understand so you can determine for yourself why this case does not mean that anyone with a Pennsylvania M1 conviction can absolutely have his or her gun rights restored by suing in federal court.

The facts of Daniel Binderup v. Attorney General; and Julio Suarez v. Attorney General :

1. In 1998, Binderup plead guilty to M1 corruption of minors offense which as a misdemeanor of the first degree has a maximum sentence of 5 years imprisonment. He received 3 years probation.
2. In 1990, Suarez plead guilty to misdemeanor in Maryland (unlawfully carrying a handgun without a license) which carried with it a maximum sentence of 3 years imprisonment. He received suspended sentence of 180 days probation and a year of probation. He re-offended in 1998 with a Maryland misdemeanor DWI.
3. Both Binderup and Suarez moved to Pennsylvania.
4. They were both barred from owning, using, possessing or transferring a firearm. Binderup was barred under 18 USC §921(g)(1) (“It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”) as modified by 18 USC §921(a)(20)(B) [see above definition]. And Suarez was denied for the guilty plea to misdemeanor in Maryland (unlawfully carrying a handgun without a license) under 18 USC §921(g)(1) as modified by 18 USC §921(a)(20)(B).
5. In 2009, both Binderup and Suarez successfully petitioned the Pennsylvania courts to have their prohibitions set aside. There was no pardon or expungement. But still the federal government stood in their way. Federal law barred them from possessing firearms.
6. Their stated claim for ownership and possession was “to defend themselves and their families within their homes.” [And not as several have reported. It has anything to do with hunting or shooting sports or carry outside of the home.]
7. They claimed that the federal law as specifically applied to them was unconstitutional.
8. They won at the District Court (trial court level) and the government appealed.

What the case means

Let me try to distill all 174 pages it down to its core:

1. The Second Amendment is not an unlimited right. The 3rd Circuit pointed to District of Columbia v. Heller, 554 U.S. 570 (2008) and stated that Second Amendment rights are not unlimited. The Court specifically noted with some degree of approval to the historical prohibition on certain classes of people like felons and the mentally ill as well as certain sensitive places such as carrying firearms in schools and government buildings per Heller. It also noted with approval laws imposing conditions and qualifications on the commercial sale of arms. It also recognized the notion that “bans on ‘weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,’ are permissible because those weapons fall outside the historical ‘scope of the right.'” As such, the Court held that Section 922(g)(1) is not per se unconstitutional.
2. As the Second Amendment is not an unlimited right, the challengers (Binderup and Suarez) had to prove that the federal law as applied to them in their individual personal circumstances created an unconstitutional result. (This is called an as-applied challenge).
   1. This is achieved by the challengers proving that the challenged law imposes a burden on the conduct falling within the scope of the Second Amendment’s guarantee. If not, they do not prove it, and the challenged law must stand. But if the law burdens protected conduct, the proper course is to evaluate the law under some form of means-end scrutiny (intermediate scrutiny here). If it passes, then it is constitutional. If it fails, than the law is invalid. [Blogger’s note: This is why it was crucial to make this challenge very narrow and limited to core 2nd Amendment conduct which is self-defense and defense of others in the home. To go outside of that core area to include shooting sports, open carry out of the house, concealed carry out of the house or the like would make for a more difficult case.]
   2. The Court looked to US v Marzzarella and US v Barton for the framework for this as-applied challenge. In brief, these cases held that if the underlying conviction was “closely related to violent crime,” then the as-applied challenge fails. They also held that the Second Amendment did not extend to those who were likely to commit violent offenses. Barton had prior convictions for possession of cocaine with the intent to distribute and for receipt of a firearm and sale of a firearm with its serial number obliterated. Most importantly to note about the Barton case perhaps is that he did not present facts about himself and his background that distinguished his circumstances from those of persons historically barred form second amendment protections. As such, he was disqualified from the exercise of his Second Amendment rights and his as-applied challenge could not succeed.
   3. The Court will then use two steps to determine the as-applied challenge.
      1. In step one, the challenger must prove that a presumptively lawful regulation burdens his Second Amendment rights. To do so, he must identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member.
      2. He then must present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class. The Court must find facts to determine whether he has adequately distinguished his circumstance from those of persons historically excluded from Second Amendment protections, and this showing must be strong. It has to be more than the challenger just saying so. [Interestingly enough in footnote six the Court seems to leave open an as-applied challenge even to felony convictions when it involves core Second Amendment rights.]
      3. Once this is done then the burden is on the government to show how its interest in disarming this person it satisfies its legitimate aim.

Here is how the Court looked at the analysis in these specific as-applied challenges:

1. Step one, they looked to the historical justification for stripping felons of their Second Amendment rights. The Court wrote that most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm unvirtuous citizens. People who have committed (or attempted to commit) or are likely to commit violent offenses undoubtedly qualify as unvirtuous citizens. Unvirtuousness also includes any person who has committed a serious criminal offense, violent or non-violent. People who have committed serious crimes forfeit the right to possess firearms.
2. To distinguish himself or herself, the challenger may show that he never lost his Second Amendment rights because he was not convicted of a serious crime. If it is not a serious crime, then he retains his Second Amendment rights because there is no lack of virtue. If it is a serious crime, then he is unvirtuous and has forfeited his second amendment rights.
3. Under Barton there was an additional possibility that he or she can show that his crime of conviction is “decades-old” and the Court found that he or she possessed no continuing threat to society. This new case specifically rejected that notion in writing: “We reject its claim that the passage of time or evidence of rehabilitation will restore the Second Amendment rights of people who committed serious crimes.” And further the Court wrote: “To the extent Barton holds that people convicted of serious crimes may regain their lost Second Amendment rights after not posing a threat to society for a period of time, it is overruled.”

The Court wrote that there are no fixed criteria for determining whether or not a crime is serious enough to destroy a person’s Second Amendment rights. Criteria that help in the analysis of the seriousness of the offense are:

1. How does the State legislature classify the crime? (e.g., Do they classify the crime as a misdemeanor?);
2. What are the elements of offense? (e.g., Is it violent? Although they say that they do not look at the circumstances of the offense itself, in both of these cases, they clearly did.);
3. What was the actual sentence received? (e.g., jail versus probation and length of sentence);
4. And what is the general state of the law? (e.g., How do other states classify this crime? Is there a consensus across all or most states that the crime is serious?).

Evidence of how individuals have lived their lives since committing crimes is irrelevant at step one as there is no historical support for rehabilitation being a consideration in determining whether someone has Second Amendment rights. However, at step two, we are no longer asking whether the challengers fall within the Second Amendment’s protections, they already showed that they do. At step two, the task is to decide whether the government can disarm them despite these protections. The key question that must be asked is whether the government has made a strong enough case for disarming a person found, after step one, to be eligible to assert an as-applied challenge. This turns in part on the likelihood that the challengers will commit crimes in the future.

In this case the Court looked at the challengers’ backgrounds and the time that had passed since they had last broke the law. On this record, there is no evidence explaining why banning people like them from possessing firearms promotes public safety. If the government wants to do so, the government must present meaningful evidence, not just mere assertions, to justify its predictions that they may commit more crimes in the future.

The Third Circuit Court held that the other opportunities that are available to obtain their Second Amendment rights back (e.g., a pardon) does not save the statute from unconstitutionality as-applied to them.

[As an aside, Judge Hardiman, Fisher, Chagares, Jordan and Nygaard all wrote that any restriction that bans the possession of firearms in the home for self-defense is unconstitutional as a categorical rule.]

Conclusion

So, as you can see if you have a misdemeanor (and as suggested in footnote 6 maybe even some sort of minor felony even) that prohibits your firearms rights under federal law, you may (that’s the keyword “may”) be able to fight to get your rights restored. And it will be a fight. Look how long this case went on for.

But it will not be all of your firearm rights. It will be only as to the core area of the Second Amendment which is self-defense and defense of others in the home. If you are a disqualified state convicted misdemeanant and want to open carry outside of the home, enjoy the shooting sports, hunt or carry concealed outside the home, then this case does not speak directly on your type of challenge.

The best candidates for having similar success to Binderup and Suarez will have the following features:

1. People who do not have felonies and only have a disabling state misdemeanor conviction (such as one of those listed above),
2. Where the elements of the crime do not involve actual or attempted violence and are “closely related to violent crime,”
3. Where the sentence imposed did not involve a jail sentence, but instead probation or just a fine,
4. Where the conviction was long ago and there has been no recidivism or violations of probation,
5. Where the underlying facts of the conviction are not appalling,
6. And perhaps most importantly only people who only want to possess firearms in their homes for self-defense purposes and nowhere else and for no other reason.

If you can answer yes to all 6 above, then this case really speaks to you.