Second Amendment

Federal Government Files for Certiorari to Supreme Court Over Its Loss in Second Amendment Case Binderup

The consolidated case overturned the application of U.S. Code 922(g)(1) in two cases where the convicted criminals' crimes were not serious enough to deny them Second Amendment rights, according to the 3rd Circuit Court of Appeals.

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Federal law states, at 18 USC 922(g)(1), that anyone convicted of most crimes with punishment of more than one year imprisonment (or, if a misdemeanor, more than two years) can't legally own a gun.

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The Justice Department last week filed for certiorari to the Supreme Court in an attempt to overturn a loss they suffered in September 2016 in the 3rd District Court of Appeals in a case that is now known as Lynch v. Binderup.

Binderup consolidated two cases, in each of which a plaintiff who felt his Second Amendment rights had been violated by the specific application of 922(g)(1) won in both district court and in an en banc opinion of the 3rd District Court of Appeals.

Daniel Binderup, for whom the case is now named, had a consensual sexual relationship with a 17-year-old in 1998. He was sentenced to probation for three years under a misdemeanor conviction in Pennsylvania for corruption of a minor. The federal government believes this barred him from legal gun ownership forever, as it was a misdemeanor for which he could have been (though was not) given over two years' incarceration. (Julio Suarez, the other person challenging the government in the cases now consolidated, was convicted of possessing a handgun in a car without a permit license to carry in Maryland in 1990.)

The complicated issues that arise over whether "punishable" means what punishment could have been applied or what actually was applied is explored at length in the 3rd Circuit opinion, which ultimately concludes, to the detriment of Binderup's legal team which tried to rely on the fact that he did not in fact receive over two years' incarceration on his misdemeanor, that "'subject to a maximum possible penalty of' is the best reading of the phrase 'punishable by.'"

Alan Gura, who won two previous Supreme Court cases for Second Amendment rights, Heller (2008) and McDonald (2010), is one of Binderup's lawyers. The constitutional issue being argued was whether that 922(g)(1) prohibition should cover people whose crimes present no evidence of danger to the public, especially given the post-Heller environment in which gun ownership is recognized as a core constitutional right.

In that complicated September 2016 decision from an en banc panel of the 3rd Circuit Court of Appeals (in which different elements were signed on to by different batches of judges), the Court declared that the offenses of Binderup and Suarez:

were not serious enough to strip them of their Second Amendment rights. For starters, though the Challengers' crimes meet the generic definition of a felony and Congress's definition of a felony for purposes of § 922(g)(1), the Pennsylvania and Maryland legislatures enacted them as misdemeanors. Misdemeanors are, and traditionally have been, considered less serious than felonies…Congress tried to ensure that only serious crimes would trigger disarmament under § 922(g)(1) by exempting from the ban any state-law misdemeanant whose crime was punishable by less than two years' imprisonment….

But we believe that accommodation still paints with too broad a brush, for a state legislature's classification of an offense as a misdemeanor is a powerful expression of its belief that the offense is not serious enough to be disqualifying. This is not to say that state misdemeanors cannot be serious…..Other considerations, however, confirm our belief that the Challengers' crimes were not serious…neither Challenger's offense had the use or attempted use of force as an element….

Also important is that each Challenger received a minor sentence by any measure…punishments are selected by judges who have firsthand knowledge of the facts and circumstances of the cases and who likely have the benefit of pre-sentence reports prepared by trained professionals. With not a single day of jail time, the punishments here reflect the sentencing judges' assessment of how minor the violations were. Finally, there is no cross-jurisdictional consensus regarding the seriousness of the Challengers' crimes….

Judge Thomas Ambro in the 3rd Circuit also believed that the "intermediate scrutiny" under which laws impacting the Second Amendment should be judged invalidated the statute as applied to Binderup and Suarez:

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.

The Justice Department doesn't wish to let this precedent stand and has asked the Supreme Court to reconsider the case.

Core to the arguments in the government's certiorari petition:

The DOJ claims to believe that certain criminals just give up their Second Amendment rights, and that's all there is to it, so there can be no particularized exceptions to 922(g)(1); DOJ insists the 3rd Circuit in this case is the first court to ever find any.

"The right to bear arms is analogous," the government's cert petition insists, "to other civic rights that have historically been subject to forfeiture by individuals convicted of crimes, including the right to vote…the right to serve on a jury…and the right to hold public office."

DOJ considers Judge Ambro's principles in the 3rd Circuit opinion too vague; "Judge Ambro's approach would require courts to identify some ill-defined subset of those offenses as insufficient to trigger a firearms disability—and to do so using a test with no foundation in this Court's decisions or the history of the right to bear arms."

Further, the government insists at any rate that "Section 922(g)(1) is valid in all of its applications because it is reasonably tailored to serve the government's compelling interest in public safety."

What of Ambro's insistence that the particular crimes committed by Binderup and Suarez seem to raise no public safety issues regarding their ownership of guns? It is, the filing claims:

inconsistent with the entire premise of evaluating a statute under intermediate scrutiny. That standard demands that "the fit between the challenged regulation and the asserted objective be reasonable, not perfect." (Marzarella)….It necessarily follows that "the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in a particular case." (Ward v. Rock Against Racism)

The government fears the result of letting the 3rd Circuit's judgment stand:

Section 922(g)(1) is by far the most frequently applied of Section 922(g)'s firearms disqualifications, forming the basis for thousands of criminal prosecutions and tens of thousands of firearm-purchase denials each year…If left undisturbed, the court of appeals' conclusion that Section 922(g)(1) and other felon-in-possession laws are subject to individualized as-applied challenges would pose serious problems of public safety and judicial administration.

As the Obama Justice Department clearly fears, many, many other cases of the government denying people Second Amendment rights without posing any reasonable threat might need to be reconsidered if they don't take this case to the Supreme Court, and win.

Interestingly, one Judge on the 3rd Circuit Court of Appeals panel had an even more radical vision about the proper application of 922(g)(1) than Judge Ambro, as explained in the cert petition:

Judge Hardiman….disagreed with the plurality's conclusion that individuals who commit "serious"crimes forfeit their Second Amendment rights. Instead, he stated that the Second Amendment excludes only those who "have demonstrated that they are likely to commit violent crimes."…Judge Hardiman stated that Section 922(g)(1) is "categorically" unconstitutional as applied to individuals outside that class, even if it would survive heightened scrutiny…And he concluded that Section 922(g)(1) is unconstitutional as applied to respondents because, in his view, the government had not introduced evidence that respondents "ha[d] been, or would be, dangerous, violent, or irresponsible with firearms."

The application of 922(g)(1) is being fought by Gura in more cases than just Binderup. Gura is also fighting Baginsky v. Lynch, currently at the District Court for D.C. and awaiting a decision on a federal motion to dismiss. Baginsky's sole conviction barring gun ownership was a DUI conviction in Massachusetts, where that crime is potentially punishable for two and a half years imprisonment (though he actually got less than two).

One of the Binderup team's court filings sums up the relevant issue well: "not one word of the Government's brief discusses the critical issue in this as-applied Second Amendment challenge: whether Daniel Binderup's possession of firearms would be in any way dangerous." Whether or not the Supreme Court chooses to take up Binderup, as long as the government keeps applying 922(g)(1) to people with no demonstrated risk of harm to others, the issue will not go away.

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  1. I wish I could have Alan Gura’s children. Hearties.

  2. 1. Instead, he stated that the Second Amendment excludes only those who “have demonstrated that they are likely to commit violent crimes.”
    Where did he get his copy of the constitution??? Mine has NO exclusions in the second amendment.

    2. Julio Suarez, the other person challenging the government in the cases now consolidated, was convicted of possessing a handgun without a permit in Maryland in 1990.
    Which is a conviction under an unconstitutional law, and invalid.

    I sure hope all of Trump’s nominations to the Supreme Court are literate.

    1. 2. Julio Suarez, the other person challenging the government in the cases now consolidated, was convicted of possessing a handgun without a permit in Maryland in 1990.
      Which is a conviction under an unconstitutional law, and invalid.

      This stuck out to me like a sore thumb. I’ve lived in Maryland for thirty years and own several firearms, including handguns. To the best of my knowledge, there has never been a requirement for a permit to possess a handgun. It would be unconstitutional, and even in this yellow-dog state such a law would be challenged immediately.

      We do have a “Handgun Qualification License” which gets pretty close. You’re prohibited from buying, renting, transferring, or receiving a handgun without one. Basically you get fingerprinted, the state police run a background check, and you have to take a 4-hour training course taught by an approved instructor, usually at a gun shop or a firing range. This doesn’t apply to guns you legally owned prior to 2013 or obviously to guns you build. I believe there’s an exemption for guns you inherit as well, and the training is waived if you already own a “regulated” firearm.

      Point being, either the article’s wrong about the conviction or he was convicted of something that is no longer a crime.

    2. Well, as much as I like the idea of an “absolute” right to arms, the thinking at the time it was written probably didn’t go that far –

      “Similarly, the proposals adopted by the Pennsylvania minority included the following:
      That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals….[53](p.27)”

      http://www.guncite.com/journals/haladopt.html

      That said, I do believe that if you can’t be trusted with a gun, then you should be in jail. Or at the very least once you done your time, finished parole, and/or whatever other “punishment” the people deem appropriate your right to arms should automatically be restored.

  3. Guys—Indeed, though I was confused by the 3rd Circuit’s own opinion using both the terms “permit” and “license” regarding Suarez’s crime on page 7, it was a license and not a permit that he was convicted of. Been amended if you refresh.

  4. I’m glad I live in a state where I can participate in a hundred man gang bang of a 16 year old and not lose my right to bear arms!

    1. Not a bad haul for a teenage prostitute, if she priced it right.

      1. I noticed IceTrey didn’t specify the 16 year old as being a “she”.

        1. But then, I failed to notice the phrase “intermediate scrutiny” or “compelling Government interest” in my copy of the constitution.
          I’m sure the founding fathers would have let the British do whatever they wanted, if they had simply said the words, “compelling interest”, instead of FYTW, right?

  5. Got to live how the DoJ”s own petition goes right to the flaw in the law as it says felon in possession while discussing misdemeanor crimes.

    1. I read that as, states can make their own laws and classify at their whimsy. However, is federalists will decide classification as we see fit and at any time after conviction.

      I also read the rest of that as an indictment of the overly large maximum sentences as it seems to be working against us…again.

  6. What I bring away from this is that the gun-grabbers are fighting a rear-guard action … and losing. Oh, there are going to be gun-control victories. They could even turn the whole trend around. But right now they are losing ground steadily. In the 1970’s, when I first started to pay attention to this, the notion that a court might rule against the government taking somebody’s second amendment rights away would have been unthinkable.

    What I would LIKE to see (and won’t) is a general principle that if you may vote, then you have all the rights of an adult citizen, including the right to bear arms and the right to drink. The trend toward the State permitting things like drinking or smoking a little bit at a time annoys me. “Oh, sure; you can vote, get drafted, and sign contracts that will limit you to a life of penury, but don’t drink and don’t smoke or mama spank” and then we wonder why so many 18 year-olds do what they damn please anyway.

    Would saying that as long as your right to vote hasn’t been taken away allow dangerous people to have guns that they shouldn’t? Possibly, but I am far more worried by the idea that the Government (an organization that has difficulty remembering to tie its shoes) has the right to decide who gets to bear arms and who doesn’t.

    1. What I would LIKE to see (and won’t) is a general principle that if you may vote, then you have all the rights of an adult citizen, including the right to bear arms and the right to drink.

      And on the flip side, if you have had any civil right (including gun ownership) revoked, you may no longer hold any public office, from dog catcher to President of the United States. Suddenly you’ll see civil rights expansion become the unrelenting focus of every politician.

      1. Or see every effort made by politicians like Shrillary to get their opponents arrested on specious charges and have their citizenship revoked, only to be slowly returned AFTER the election.

  7. “because it is reasonably tailored to serve the government’s compelling interest in public safety.”

    So that would mean that it shouldn’t apply to felons such as Martha Stewart, which is what I have said for years. I fully agree with Judge Hardiman that it should only apply to violent offenders.

    1. Violent offenders like no-knock loving cops?

    2. It is codified, at the code linked to on phrase “more than two years” in first graf, that it does not apply to “any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices…” But as I recall all Martha’s convictions were “coverup and not the crime” so I don’t know how that would apply to her. Likely not an out.

      1. but should be. Her “crime” was non violent, harmed no one, was the result of some “sleight of hand” nonsensee by gummint working very hard to find a culprit to nail. They did not like her political views, and made her pay. Crime?

        Yeah, and so is perjury, swearing that a falsehood is true…. viz Nancy Pelosi swearing to Barack Obama’s eligibility to serve as president. SHE knew he is not, yet swore anyway. That level perjury is a felony offence… no guns, no vote, no holding pubic office. Want to clean up that part of the swamp? Charge her with that crime.

      2. That seems to show an intent to exempt nonviolent “felons.”

  8. Conservatives who have never read the Libertarian platform swear that it indiscriminately beckons in “terrists.” The LP platform actually SAYS: “However, we support control over the entry into our country of foreign nationals who pose a credible threat to security, health or property.”
    This reads a lot like Judge Hardiman’s consistent-with-integrity statement that all may pack except they who “have demonstrated that they are likely to commit violent crimes.” Partaking of plants is hardly violent, but shooting abortion doctors is definitely violent. God’s Own Prohibitionists’ hate planks collection is five times longer than the LP platform (which can be read aloud in half an hour).

  9. This is the part that really got me …

    “The right to bear arms is analogous,” the government’s cert petition insists, “to other civic rights that have historically been subject to forfeiture by individuals convicted of crimes, including the right to vote…the right to serve on a jury…and the right to hold public office.”

    Civic right? “Civic!!!” Analogous to voting???

    That bit of bull needs to be knocked down hard and fast.

    1. Yeah, I don’t see myself as having a right to serve on a jury. I see the defendant as having the right of my service.

      “We can deny the 2nd Amendment because we deny the 1st!”

      I have a solution for that. End voting bans.

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  11. Let’s just cut the bullshit and call it what it is. Somewhere along this sherade someone assumed the second amendment is a privilege not a right, and everyone else ran with it. Otherwise we wouldn’t be splitting hairs over whether or not 1+1=2

  12. RE: Federal Government Files for Certiorari to Supreme Court Over Its Loss in Second Amendment Case Binderup

    Gee, I wonder if Souter, Sotomeyer, and Ginsburg will rule in favor of gun confiscation?
    Nah, that’ll never happen any more than the sun will rise in the east in the morning and set in the west in the evening.

  13. Is Sessions going to go forward with this cert petition if he is confirmed?

  14. Isn’t 18 USC 922(g)(1), bedrocked in the Gun Control Act of 1968 (GCA-68), and that a strong case could be made that GCA-68, under the Heller Doctrine, has parts that are blatently unconstitutional?
    If so, and IIRC since GCA-68 does not contain a Severability Clause, the entire act should be thrown out.

    1. Every federal gun law and regulation is unconstitutional.

      Unless there is something in there that facilitates interstate trade.

  15. Seems the kinyun’s DOJ is hell bent upon removing every firearm possible from every hand possible for the longest time possible and on the flimsiest excuse possible.

    Don’t these idiots realise (OK, I admit, idiots don’t THINK…..) that if either of these two plaintiffs were dangerous, they”d not be sitting quietly in a courtroom while cubic dollars’ worth of lawyer time are spent on their bahalf. No, if they were violent they’d each have gotten their hands on a gun somehow and be singing that old song “Daddy’s Gone a Huntin'”.. looking for bear. government bear. The fact neither have done that means neither are dangerous.

    What’s the “age of consent” for sex in Maryland at the time of conviction? Most states put that at 16 After all a woman can marry at 16 in most states, with parental consent. that means SHE can consent to sex at that age…. I’d also be curious to know how long after his 18th birthday when caught. Funny laws we have, where HE can be 17 and SHE be 16 and its all legal and such, but on his 18th birthday he suddenly turns into a criminal for the same thing. Stupid or what?
    Were I on a jury hearing that case, as long as I’d heard HER testimony in the courtroom and thought she was freely involved with him, I’d return a Not Guilty verdict. NO WAY can his happening to have passed his 18th birthday make him a criminal. I’d find that law no law at all, and set him free. And I’d do it if their ages were reversed, too.

    1. somehow you can legally have sex but still corrupt her morals. the problem is they don’t challenge the underlying conviction itself, which was never a conviction at all- it was just probation. Sometimes people make deals to satisfy varying demands without really giving up anything- it’s called life, or compromise in society.

      Then the Feds come along 26 years later and try to draw a negative inference. I intensely dislike Donald Trump but I wonder if the Almighty has used even that “jawbone of an ass” to restore some balance in this country, starting with appointments of federal Judges and supreme Court.

  16. “Further, the government insists at any rate that “Section 922(g)(1) is valid in all of its applications because it is reasonably tailored to serve the government’s compelling interest in public safety.”

    I love how they argue “reasonably tailored”, when the standard is “narrowly tailored” which is exactly NOT.

    1. …IT is exactly NOT.

  17. Judge Thomas Ambro in the 3rd Circuit also believed that the “intermediate scrutiny” under which laws impacting the Second Amendment should be judged invalidated the statute as applied to Binderup and Suarez

    A judge is finally admitting the 2nd Amendment is deserving of strict scrutiny and NOT be treated like a bastard child among the Bill of Rights? Pigs are flying, mass hysteria, hell froze over, etc …

  18. These challengers are just consistently missing the ball on the question of undefined “convictions” so they have to get in by the back door. “Punishable by up to” is not a reference to the general range of possibilities.

    Case in point: in Pennsylvania all offenses are subject to MANDATORY sentencing guidelines; sentences shall not exceed those standards. So the ‘general range’ is irrelevant to anything. Nothing is punishable by ‘up to’ it is punishable by ‘no more than’.

    And completed probation is NOT a conviction. Every conviction includes a sentence it has to be something more than a verdict. But probation is INSTEAD of a sentence. No one gets ‘sentenced to probation’.

  19. Here’s a Challenge: what has interstate commerce got to do with the right to privately keep firearms? These are all supply side regulations that apply to a privilege.

    Submit- “possession” means INVENTORY. like “possession with intent to distribute”. It can’t be separated from possession, manufacturer, distribute, transport, receive, sell etc

    This is like arguing I have the right to travel by Greyhound even though I’m prohibited from operating the service. Interstate commerce does not apply to consumers. Possession means INVENTORY.

  20. But if the government feels that they might be dangerous, because all felons are dangerous, then they lose their right to bear arms. And we all know that we commit at least 3 felonies per day, even if we just stay in bed, so on this basis, no one should be allowed to bear arms.

  21. There is a federal law on the books, that makes it a crime punishable by a year in federal prison for someone to violate a constitutional, civil or statutory right under color of law. Almost every ‘bad cop’ video you see on YouTube contains at least one violation of this law by the officer. If the rights violation involves more than one person working together to violate rights, or a lone individual who threatens the use of a dangerous weapon (or both) the sentence increases to a maximum of ten years in federal prison. If a death occurs as a result of the rights violation — even a case of the victim killing the criminal — then the maximum sentence becomes life without parole or even execution.

    When was the last time you saw a police officer who was unarmed while on duty? When was the last time you saw one operating with no available backup whatsoever? When was the last time you saw that backup arrive and immediately take any side other than that of the first officer on the scene, no questions asked?

    So there we have countless police officers caught on video committing crimes that under the DoJ’s view of Section 922, would disqualify them from being police officers ever again if they were tried fairly in a court of law. But somehow, the DoJ, which is in charge of making arrests and prosecuting crimes of that nature by police, never seems to see any wrongdoing in those videos.

  22. There is a federal law on the books, that makes it a crime punishable by a year in federal prison for someone to violate a constitutional, civil or statutory right under color of law. Almost every ‘bad cop’ video you see on YouTube contains at least one violation of this law by the officer. If the rights violation involves more than one person working together to violate rights, or a lone individual who threatens the use of a dangerous weapon (or both) the sentence increases to a maximum of ten years in federal prison. If a death occurs as a result of the rights violation — even a case of the victim killing the criminal — then the maximum sentence becomes life without parole or even execution.

    When was the last time you saw a police officer who was unarmed while on duty? When was the last time you saw one operating with no available backup whatsoever? When was the last time you saw that backup arrive and immediately take any side other than that of the first officer on the scene, no questions asked?

    So there we have countless police officers caught on video committing crimes that under the DoJ’s view of Section 922, would disqualify them from being police officers ever again if they were tried fairly in a court of law. But somehow, the DoJ, which is in charge of making arrests and prosecuting crimes of that nature by police, never seems to see any wrongdoing in those videos.

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