Cited in a 3rd Circuit Court of Appeals Decision

Binderup v. ATTORNEY GENERAL UNITED STATES OF AMERICA;DIRECTOR BUREAU OF ALCOHOL TOBACCOFIREARMS & EXPLOSIVES (3rd Cir. 2016, en banc).  The question this case involves is whether convictions fore minor offenses create lifetime firearms disability.

Federal law generally prohibits the possession of firearms by any person convicted in any court of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Excluded from the prohibition is “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.” Id. § 921(a)(20)(B). And there is also an exemption for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored,” where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).

Both of the plaintiffs seeking relief from firearms disability had been convicted of misdemeanors without pardon or state court restoration of rights.  The heavily splintered decision found that some misdemeanors were punished so lightly that they are not justification for firearms disability.

People who have committed or are likely to commit “violent offenses”—crimes “in which violence (actual or attempted) is an element of the offense,” Skoien, 614 F.3d at 642; see Voisine, 136 S. Ct. at 2280—undoubtedly qualify as “unvirtuous citizens” who lack Second Amendment rights. Barton, 633 F.3d at 173–74; see United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (recognizing “a common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens”); C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 727– 28 (2009). But Heller recognized “longstanding prohibitions on the possession of firearms by felons,” not just violent felons. 554 U.S. at 626. The category of “unvirtuous citizens” is thus broader than violent criminals; it covers any person who has committed a serious criminal offense, violent or nonviolent. See Skoien, 614 F.3d at 640–41; United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004); Don B. Kates & 25 Clayton E. Cramer, Second Amendment Limitations & Criminological Considerations, 60 Hastings L.J. 1339, 1363– 64 (2009); see also Vongxay, 594 F.3d at 1115 (“[F]elons are categorically different from the individuals who have a fundamental right to bear arms.”). 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, 633 F.3d at 174, it is overruled. See infra Part III.C.3.a

The view that anyone who commits a serious crime loses the right to keep and bear arms dates back to our founding era. “Heller identified . . . as a ‘highly influential’ ‘precursor’ to the Second Amendment the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents.” Skoien, 614 F.3d at 640 (quoting Heller, 554 U.S. at 604). That report “asserted that citizens have a personal right to bear arms ‘unless for crimes committed, or real danger of public injury.’” Id. (emphasis added) (quoting 2 Bernard Schwartz, The Bill of Rights: A Documentary History 662, 665 (1971)). “[C]rimes committed”—violent or not—were thus an independent ground for exclusion from the right to keep and bear arms. And there is reason to believe that felon disarmament has roots that are even more ancient. See Kates, Jr., 82 Mich. L. Rev. at 266 (“Felons simply did not fall within the benefits of the common law right to possess arms.”).