The Volokh Conspiracy

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Second Amendment protects people with old, nonviolent felony convictions


In D.C. v. Heller, the Supreme Court stated that (emphasis added, citations omitted, as usual),

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[Footnote: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

The question, then, is whether this "presumpti[on]" of validity can ever be rebutted—for instance, if a person's felony conviction is many decades in the past, is for a not very serious felony, or both. Today's Suarez v. Holder (M.D. Pa. Feb. 18, 2015) concludes that the presumption was indeed rebutted in this case, where the past felony conviction was in 1990, the claimant's last misdemeanor conviction was in 1998, and the claimant has otherwise shown that he is now a law-abiding citizen (here by, among other things, having gotten a security clearance for his work with Department of Defense clients). And this is so even though the 1990 felony conviction was for illegal carrying of a gun (and the facts showed that he was drunk at the time), and the 1998 misdemeanor conviction was for drunk driving:

Defendants assert that Plaintiff … has not shown that he is no more dangerous than a typical law-abiding citizen and poses no continuing threat to society. First, they emphasize that at the time of Plaintiff's arrest, he was carrying a .357 Magnum handgun and two loaded speed-loaders while intoxicated to the point that he was placed under arrest for driving under the influence. They argue that possessing a firearm while intoxicated poses such a danger that many jurisdictions impose criminal sanctions for doing so. We agree with Defendants that the circumstances of Plaintiff's arrest were dangerous. But the inquiry is whether the challenger, today, not at the time of arrest, is more dangerous than a typical law-abiding citizen or poses a continuing threat.

There are two ways in which a challenger may fail to show he is not dangerous. One, the challenger's conviction is for acts so violent that even after twenty-five years of nonviolent behavior he would continue to be dangerous and to pose a threat to society. This is not that case. Or [two], the facts and circumstances since the conviction show that the challenger remains dangerous. As revealed in our discussion above, we find Plaintiff's background and circumstance establish that, today, he is not dangerous and does not pose a risk to society.

Second, Defendants argue that although Plaintiff's predicate conviction was not violent, empirical studies reveal that those like Plaintiff have a high rate of violent recidivism, and thus Plaintiff continues to be dangerous and pose a societal threat. While we agree that the generalized results of an empirical study are useful to refute a facial challenge and demonstrate that a statute survives some sort of means-end scrutiny, we do not find that generalized conclusions are particularly useful in as-applied challenges to demonstrate whether Plaintiff, himself, is dangerous or poses a continuing threat. Accordingly, we find the studies of little moment and decline to rely on them to find that Plaintiff is dangerous.

For other cases that reach similar results, see Binderup v. Holder (M.D. Pa. 2014) (Second Amendment), Britt v. State, 681 S.E.2d 320 (N.C. 2009) (state constitutional right to bear arms), and Baysden v. State, 718 S.E.2d 699 (N.C. Ct. App. 2011) (state constitutional right to bear arms). For federal opinions that say that people can regain their Second Amendment rights in such situations (though without holding that the particular claimant regained those rights), see United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012); United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011); United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); United States v. Duckett, 406 Fed. Appx. 185, 187 (9th Cir. 2010) (Ikuta, J., concurring); United States v. McCane, 573 F.3d 1037, 1049-50 (10th Cir. 2009) (Tymkovich, J., concurring). Congratulations to Alan Gura, who won this case and Binderup (as well as, of course, Heller and McDonald in the Supreme Court, and other lower court Second Amendment cases as well).

(Note that Suarez's 1990 conviction was labeled a "misdemeanor" under Maryland law, but the district court held—correctly, I think—that the conviction was treated as a felony under federal law, because the maximum punishment was three years in prison, above the two-year cutoff that the federal statute uses as the misdemeanor/felony line in such cases.)

The government has appealed the Binderup case, and is thus likely to appeal this one. But I expect both Binderup and this case will stand up on appeal, given the Third Circuit's Barton precedent; and I doubt that the U.S. Supreme Court would agree to hear the case.