Second Amendment

Revisiting Restrictions on the Right to Bear Arms

Does conviction for a crime mean a permanent ban?

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You can't legally own a gun if you have been convicted of most felonies with a potential sentence of more than one year of imprisonment (or, if it's a misdemeanor, more than two years). Federal law, at 922(g)(1) of the U.S. Code, makes that clear. But some offenders who were banned from possessing firearms have succeeded in getting lower courts and a federal appeals court to agree that the statute can, in certain applications, violate people's Second Amendment rights.

In January, the federal government applied for certiorari to the Supreme Court in Binderup v. Holder, which consolidates two such cases.

One of the plaintiffs is Daniel Binderup, who had a consensual but illegal sexual relationship with a 17-year-old in 1998. He was sentenced to probation for three years under a misdemeanor conviction. The federal government believes this bars him from legal gun ownership forever, as it was a crime for which he could have been (though he wasn't) given over two years' incarceration.

The other plaintiff is Julio Suarez, who was found with a gun in his car in Maryland without a carry license. He was given 180 days of prison in a suspended sentence, plus a fine and probation.

Attorney Alan Gura, who won two previous Supreme Court cases for Second Amendment rights—Heller in 2008 and McDonald in 2010—is one of Binderup's lawyers. At issue, he says, is whether 922(g)(1) should cover people whose crimes present no evidence of danger to the public, now that gun ownership has been recognized by the Heller decision as an individual constitutional right.

One of the court filings from Binderup's legal team 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."

In a complicated September 2016 decision, an en banc panel of the 3rd Circuit Court of Appeals declared that Binderup's and Suarez's convictions "were not serious enough to strip them of their Second Amendment rights." Reasons given included that the offenses were nonviolent and earned light sentences.

The government hopes the Supreme Court will reconsider, and its certiorari petition spells out what's at stake from its perspective: "Section 922(g)(1) is by far the most frequently applied…firearms disqualification, forming the basis for thousands of criminal prosecutions and tens of thousands of firearm-purchase denials each year."

Gura already has other 922(g)(1) challenges in process and indicates many more could be waiting in the wings.

NEXT: Brickbat: Fishing Expedition

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  1. Start with striking down all the laws that are clearly violating the Constitution and see federal power and spending melt away.

    II Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    It does not say, …right of the people to keep and bear Arms, shall not be infringed… except when Congress feels that it should or judges feel you should not have guns.

    The government not cherry picking what rights you can have and cannot have is the whole point of the Constitution.

    1. Nor does the 2A say that this right is granted by the Constitution. It recognizes a natural right. That’s why the term “Constitutional right” bugs the living hell out of me. It implies that the right is granted by the government, which is absolute bullshit.

      1. Nor does the 2A say that this right is granted by the Constitution. It recognizes a natural right.

        More specifically, it clarifies and makes explicit that the Constitution does not grant the government the power to restrict gun carrying or ownership. That is, none of the Constitution ever grants any rights to the people; what it does is grant selected, limited powers to the government.

        People would get a whole lot less confused about the Constitution if they thought of it as a Contract with their gardener: “You shall maintain my front yard and my backyard, and I give you a budget every year and tell you what to do.” The Bill of Rights clarifies: “Just to be sure we understand each other: this contract doesn’t authorize you to clean my house, maintain my car, or hold wild parties in my yard. I shouldn’t have to say this, but yard maintenance companies apparently frequently get confused about this point. You only got hired to do the yard, nothing more..”

    2. If someone is too dangerous to own/possess a gun – what are they doing walking around loose? Are they also banned from owning baseball bats? Knives? Swords? Kitchen chemicals? Poisons? Rope? Automobiles?

      Ironically, it seems the only prohibition imposed on convicted felons is on the subject of a Constitutionally-protected right – the Right to Keep and Bear Arms.

      Government is not only force, but often insanity. As loveconstitution1789 points out, striking unconstitutional laws and precedents would see a radical reduction in federal costs and power. I estimate that 85% to 90% of ALL federal spending is unconstitutional. Begin with the decision in Wickard v. Filburn and go from there. Virtually all federal edicts regarding the states draw their “authority” from that case… and it’s BUNK! Read it yourself and consider that based on it’s result, the Feds figure they have jurisdiction over everything the moves in interstate commerce, or does not move in interstate commerce! https://en.wikipedia.org/wiki/Wickard_v._Filburn

  2. Binderup vs. Holder sounds like an argument I heard at a BDSM party.

    1. i’d expect and appreciate nothing less from u. the comment, i mean

    2. Brilliant!

  3. “The other plaintiff is Julio Suarez, who was found with a gun in his car in Maryland without a carry license. ”
    That law is unconstitutional.
    Do I need a permit to exercise my fifth amendment rights? Do I need a permit to go to church under the first amendment? Do I need a fourth amendment permit to avoid a warrentless search? (OK, outside of an airport, govt building etc)
    How can I be constitutionally be required to have a permit to exercise my second amendment rights?

    1. Because guns are scary. The racists in government also did not want black people to have guns.

      1. funny channel

  4. “The federal government believes this bars him from legal gun ownership forever, as it was a crime for which he could have been (though he wasn’t) given over two years’ incarceration.”
    If he can be denied his constitutional rights based on a possibility, then all current and future politicians MIGHT take a bribe sometime, and should be impeached, and imprisoned.
    These guys are nuts.

    1. These jack booted thugs are using systematic methods to ignore the constitution and yet keep people just content enough to pay taxes and their $174,000 + benefits salaries in Congress.

    2. No. To suggest that they are crazy excuses them. They sincerely believe that they are suited by Higher Authority to tell the rest of us hat to do, and an armed populace makes them uncomfortable. After all, an armed populace might tell them to go climb a tree, and that would be Really Awful.

      1. They do The Will of The People, which is simply The Divine Right of The King with different costumes.

        1. They are actually worse than the old Kings. The Kings thought themselves appointed to rule by God. So that gave some of them a sense of humility and duty. These assholes think they are entitled to rule by merit. That is much worse since believing you are entitled to rule by virtue or your own superiority, rather than that given to you by God or some outside force, leaves no possibility of humility or feeling of duty to anyone but yourself.

          1. And to make matters worse, the merit they believe entitles them to rule is largely bushwa.

            1. You don’t think an Ivy League degree gives you the wisdom to rule your fellow men ?

      2. After all, an armed populace might tell them to go climb a tree,

        Nope. We can get them up in a tree just fine- and we”ll even use a rope to lower them…

        @Preet Bharara

    3. If he can be denied his constitutional rights based on a possibility, then all current and future politicians MIGHT take a bribe sometime, and should be impeached, and imprisoned.

      Hell, I’d even settle for just the guilty ones.

  5. It shouldn’t mean a ban at all. The person has served their debt to society. More importantly, the same reasons why gun bans that apply to the general public don’t make anyone safer apply here. If the person wants a gun and wants to do harm with it, no government ban will stop them. This is true whether the person is a convicted felon or a Baptist Minister.

    These bans accomplish nothing except take away the constitutional rights of people who should have served their debt to society and be getting a fresh start and give police and DA’s an excuse to make people into recidivist criminals.

    1. There is no such “debt to society”. An aggressor only has a debt to those he aggressed against. Also, if the victim decides to accept something other than full repayment for the debt, that is their right and no third party has any right to say the aggressor must pay more.

      Justice is best understood as debt, not as “punishment” or “protecting society” or any other such claptrap.

      1. He has a debt to society. His actions didn’t just affect the person he attacked. They affected everyone by making soceity less safe

        Also, if the victim decides to accept something other than full repayment for the debt,

        What the hell exactly is that debt? How is that determined if not via a court system? Does the victim get to determine it? How is it collected? If you beat someone up in a bar fight and they demand your head as payment of the debt is that what should happen? Is it up the victim right?

        That is just fucking nonsense. Really, complete fucking nonsnse.

        1. The primary debt any criminal owes is to the person or organization he (or she) victimized. Reparations should be a normal part of every sentence to whatever extent they can be determined. Additional fines or incarceration should be commensurate with the threat the criminal poses to other members of society.

        2. They affected everyone by making soceity less safe

          So me planting wheat for my own land does indeed affect interstate commerce?

          You can’t have it both ways, John, either you’re a collectivist (as you’ve argued here) or an individualist.

          If a child takes a dollar from his brother, how much does he owe everybody else? Answer: nothing. He owes his brother a dollar.

          What the hell exactly is that debt?

          A dollar for a dollar. An eye for an eye. A life for life.

          How is that determined if not via a court system?

          A court doesn’t imply a government.

          Does the victim get to determine it?

          The sentence is justice (jury trial). If the victim and aggressor can work something else out, that’s up to them.

          How is it collected?

          The victim. The militia, if you will.

          That is just fucking nonsense.

          No, it’s justice. We’ve just forgotten what the word means. Saying the aggressor owes someone other than the victim something is total nonsense.

  6. Will Reason ever turn its back on the 2A?

    1. CATO did during the last election. One of its writers, Dorhety did as well, though I am not sure he ever supported the 2nd Amendment in the first place.

      I doubt they will ever turn their backs on the second amendment. I fear that some of the staff will continue to treat it as an embarrassing bastard step child.

      1. This is sadly true. I seriously lost almost all respect for CATO after that post.

  7. http://www.dailytelegraph.com……91b6a1f41c

    Meet Sarrah LeMarquand. She believes all parents should be slaves to the state. No kidding. She wants to make it illegal for any parent of a school-age child to not work. I think she wins the prize for most hideous human being in the media so far this year.

    But it’s time for a serious rethink of this kid-glove approach to women of child-bearing and child-rearing age. Holding us less accountable when it comes to our employment responsibilities is not doing anyone any favours. Not children, not fathers, not bosses ? and certainly not women.

    Only when the female half of the population is expected to hold down a job and earn money to pay the bills in the same way that men are routinely expected to do will we see things change for the better for either gender.

    Only when it becomes the norm for all families to have both parents in paid employment, and sharing the stress of the work-home juggle, will we finally have a serious conversation about how to achieve a more balanced modern workplace.

    Only when the tiresome and completely unfounded claim that “feminism is about choice” is dead and buried (it’s not about choice, it’s about equality) will we consign restrictive gender stereotypes to history.

    1. Christ, what an asshole.

      1. In a media environment full of assholes, LMarquand manages to be a standout asshole. She is so bad even the nanny state loving Brits are killing her in the comments.

    2. the long term goal seems to be to force both parents into working by either taxation or eventually force in order to get total control of the children for indoctrination from cradle to grave.

    3. That’s a dude.

  8. Note that about a year ago, when Clarence Thomas shocked everyone by actually asking a question during oral argument, it was on this very issue: https://reason.com/blog/2016/03…..permanentl

    1. I don’t see how a blanket ban on anyone with a felony conviction owning a gun is defensible anymore. I think the government could at least make a reasonable, though to me at least unconvincing case, that it can ban those convicted of violent crimes from owning guns. But there is not even a rational case for banning people convicted of nonviolent crimes from owning a gun.

      What is the rational case for saying someone who is convicted of insider trading or child porn possession no longer has any second amendment rights? I don’t see one other than “guns are icky and we want to criminalize them at every excuse.”

      1. Better yet, felonies should be limited to crimes worthy of banning someone from owning a gun.

        1. I agree with that. But something like big time fraud or white collar theft should definitely be a felony. But I don’t see why that should prevent the person convicted of that from owning a gun once they are out of jail.

        2. Also, there is no reason that crimes should not be automatically expunged from your record once punishment is served. Or at least an amount of time equal to the statute of limitations for your crime has passed.

          Why do we forgive people for crimes they were never caught committing or charged with, but we will hold it against you forever if you actually get punished?

      2. I propose a simple rule; anyone who can vote can own and carry gun. You can legally vote? Then you may own a gun, and carry it nearly everywhere. If you ay not vote, but that can be changed by petitioning a court, then said petition also covers returning your right to bear arms.

        1. That’s a good rule, but corrupt politicians will always want to deny dissidents BOTH the right to vote and the right to keep and bear arms and will happily charge dissidents with false felonies to try to lend an air of legitimacy to their corruption.

          If the right to vote and the right to keep and bear arms are tied together, it makes it a bit easier for the corrupt politicians to shut down dissidents. I think both rights MUST be defended but kept separate for this reason.

          1. Tie them together and it makes it pretty damn clear that politicians should not be allowed to mess with either, and why.

        2. To a lib: “You want to license guns? Fine. The only acceptable form of voter ID is a gun license!”

  9. The gun banners always talk about “reasonable” regulation. So if you said ban gun possession for violent felons for , say, 10 years after you serve your sentence. Or if you are going to have a license scheme, make Sanchez’s violation of merely having the gun a fine. Or have national CCW reciprocity with clear rules around it. But instead they always over reach. Life time bans. Obscure gotcha travel rules. I mean, I can open carry in New Hampshire, but just having a handgun with me in Massachusetts is a major crime. Is that reasonable ? If you want reasonable regulation, then be reasonable.

    1. Expunge criminal records after a time equal to the statute of limitations for the crime you were convicted of.

      If you were convicted of multiple crimes in a single trial, identify the *one* crime with the longest statute of limitations, and set the automatic record purge to the same amount of years. No cumulative stacking of time allowed.

      We forgive people who were not caught after a while, why should it be different for people who took their punishment? Obviously it would be more fair to forgive people the moment they are done with their punishment, but at least the above might have a chance of making sense to people.

  10. If you’ve done the time you should get all your rights back otherwise you really have never completed your sentence.

  11. When the law was written a typical felon was someone like John Dillinger. Today a typical felon is someone like Martha Stewart.

    1. still was bullshit for john dillinger

  12. Much depends on exactly what the law says, but it seems reasonable that someone whose sentence wasn’t long enough to qualify should be punished on that basis, not on the basis of what he could have gotten. In addition, restoration of voting rights should carry with it restoration of Second Amendment rights. But that’s properly a matter of passing good laws.

    1. fuck off slaver! If the sentence wasn’t long enough too fucking bad!

  13. If every gun law in existence were suddenly wiped from the statutes it would have no effect whatsoever on the crime rate. The ONLY people who obey these stupid, unconstitutional laws are law-abiding people. Criminals don’t obey laws. That’s what makes them criminals.

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