Tuesday, September 20, 2016

Third Circuit grants as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(1).

It may be time to dust off those Second Amendment challenges to felon-in-possession prosecutions. In Binderup v. Attorney General United States, Nos. 14-4549 & 14-4550 (3d Cir. Sept. 7, 2016),  the Third Circuit granted as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), holding that two challengers could not be forever prohibited from possessing firearms based on prior convictions for non-violent misdemeanors (punishable by more than one year’ imprisonment) that never resulted in any jail time.

Binderup was based on D.C. v. Heller, 554 U.S. 570 (2008) (establishing the personal right to possess firearms under the Second Amendment) in which the Supreme Court explained that firearms prohibitions like those for “felons and the mentally ill” were presumptively lawful regulatory measures. Id. at 627 n. 26 . In Binderup, the Third Circuit explained that because the lawfulness of a ban on possession of firearms by felons is just a presumption, this means the presumption can be rebutted. Slip op., at 28.
In granting the as-applied challenges, the court explained:
The Challengers’ isolated, decades-old, non-violent misdemeanors do not permit the inference that disarming people like them will promote the responsible use of firearms. Nor is there any evidence in the record to show why people like them remain potentially irresponsible after many years of apparently responsible behavior. Without more, there is not a substantial fit between the continuing disarmament of the Challengers and an important government interest. Thus, § 922(g)(1) is unconstitutional as applied to them.
Slip op., at 39. The court heard the case en banc, and the 184-page opinion was highly fractured.
Lyle Dennison explains that this is the first time a federal appeals court has granted a Second Amendment challenge when the person was plainly prohibited from possessing firearms under 18 U.S.C. § 922(g). He also explains that the Supreme Court has not taken an as-applied challenge under the Second Amendment post-Heller, leading to a possibility that this could be the case.
Importantly, a bloc of five judges in the majority concluded that 18 U.S.C. § 922(g)(1) is unconstitutional when used against anyone whose crime did not involve violence or any other signs that it was a serious offense. Thus, under this rationale, if a defendant does not have a prior violent crime in their past, then there is an argument that 18 U.S.C. § 922(g) cannot permanently prohibit the defendant from exercising their Second Amendment rights.

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