Ruling loosens ban on owning guns after minor convictions

[Dain Bramage]

AP News reports a divided 3rd U.S. Circuit Court has ruled in favor of two men retaining their firearms rights after criminal convictions. Both crimes were considered misdemeanors in their home states, while paradoxically carrying maximum sentences of five years (Pennsylvania) and three years (Maryland). This runs counter to the commonly believed rule of misdemeanors having sentences of less than 1 year. Both men were sentenced to probation and fines for their crimes.

The court addressed this discrepancy and government interest in abrogating 2nd Amendment rights. AP quotes, "The 3rd Circuit majority ruled that the federal gun ownership ban requires the offenses to be considered serious crimes, rather than simply carry state sentences of at least two years or more." U.S. Circuit Judge Thomas Hardiman said ,"The government has presented no evidence that either Binderup or Suarez has been, or would be, dangerous, violent, or irresponsible with firearms."

AP News Link

 

[RX-79G]

This is great news for criminals.

 

[Kendal Black]

This is great news for criminals.

If you read the law closely enough, just about anyone can be made out to be a criminal. This ruling is encouraging in that it brings some light to the question of who should, under the intent of the law, be a prohibited person.

One of the anti-gun tactics I worry about is expanding the list of prohibited persons merely for the sake of doing so. It may well be that the list should be revisited, to include some people that it now does not, and to unlist some it sensibly should not encompass. The court has taken the right approach in asking why, in the first place, we would want to curtail this right.

 

[RX-79G]

According to the Second Amendment, no one should be "prohibited person". It is not a category that exists in the Constitution with regards to arms, voting or anything else.


I'm not sure why it is our best interest to codify infringements better. It is just an admission that we don't believe 2A is not literal, either, and we are cherry picking what it protects. (Which would be fine, except we act like we don't believe that the rest of the time.)

 

[hdwhit]

Here's a link to the actual decision. It is better to read it than rely on the second-hand interpretations of an AP reporter who may or may not have the education or experience to understand what they are reading.

http://www2.ca3.uscourts.gov/opinarch/144549p.pdf

 

[Midwest]

I'd like one Frank or Spats to comment on it.

Having said that, the states can vary greatly on what is a misdemeanor and a felony. The threshold for (shoplifting) felony theft can be anywhere over $950 in California. In Georgia anything over $500 is a felony. Maryland looks like anything over $1000 is a felony could get you 10 years. http://www.criminaldefenselawyer.com/crime-penalties/federal/Petty-Theft.htm


A loaded handgun in your glove compartment in NJ is a felony
http:http://www.breitbart.com/big-govern...g-legally-purchased-gun-in-glove-compartment/

In KY you are allowed to keep a loaded handgun in your glove compartment without a permit. http://www.lrc.ky.gov/Statutes/statute.aspx?id=43448



"A loaded or unloaded firearm or other deadly weapon shall not be deemed
concealed on or about the person if it is located in any enclosed container,
compartment, or storage space installed as original equipment in a motor vehicle by
its manufacturer, including but not limited to a glove compartment, center console,
or seat pocket, regardless of whether said enclosed container, storage space, or
compartment is locked, unlocked, or does not have a locking mechanism.
.

 

[Carl N. Brown]

The offenders in this ruling:

In 1996 Daniel Binderup (41) began a consensual sexual relationship with a female employee (17) over the age of consent (16); he pled guily in 1998 to misdemeanor corrupting a minor, received 3 yrs probation and paid a $300 fine. No subsequent criminal record.

In 1990 Julio Suarez was stopped on suspicion of DWI; police found a revolver and two speedloaders; he had no pistol permit. He later pled guilty to misdemeanor unlawful carry, received a suspended 180 day sentence, 1 yr probation, $500 fine. 1998 he was convicted of misdemeanor DUI. No criminal record since 1998.

Binderup and Suarez successfully petitioned Pennsylvania to restore their gun rights under state law. The Federal government still considered them Prohibited Persons barred from possessing fiearms. Binderup and Suarez appealed. Represented by counsel Alan Gura, Douglas Gould; amicus curiae counsel, Stefan B. Tahmassebi, NRA.

The district courts ruled that they are not the type of person that should be barred from possessing guns. The government had presented no evidence that either Binderup or Suarez has been, or would be, dangerous, violent, or irresponsible with firearms.

IV. Conclusion [of Court of Appeals for the Third Circuit]

When sorting out a fractured decision of the Court, the goal is “to find a single legal standard” that “produce results with which a majority of the [Court] in the case articulating the standard would agree.” United States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), modified on other grounds, 505 U.S. 833 (1992)). We have at times “looked to the votes of dissenting [judges] if they, combined with votes from plurality or concurring opinions, establish a majority view on the relevant issue.” Id. And when no single rationale explaining the result enjoys the support of a majority of the Court, its holding “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 69 n.15 (1976) (plurality opinion)).

Applying those interpretive tools here, the following is the law of our Circuit: (1) the two-step Marzzarella framework controls all Second Amendment challenges, including as-applied challenges to § 922(g)(1); (2) a challenger will satisfy the first step of that framework only if he proves that the law or regulation at issue burdens conduct protected by the Second Amendment; (3) to satisfy step one in the context of an as-applied challenge to § 922(g)(1), a challenger must prove that he was not previously convicted of a serious crime; (4) evidence of a challenger’s rehabilitation or his likelihood of recidivism is not relevant to the step-one analysis; (5) as the narrowest ground supporting the Court’s judgments for Binderup and Suarez, the considerations discussed above will determine whether crimes are serious (i.e., disqualifying) at step one; and (6) if a challenger makes the necessary step-one showing, the burden shifts to the Government at step two to prove that the regulation at issue survives intermediate scrutiny.

In the cases before us, though Binderup and Suarez fail to show that their misdemeanor offenses are not subject to § 922(g)(1), they have rebutted the presumption that they lack Second Amendment rights by distinguishing their crimes of conviction from those that historically led to exclusion from Second Amendment protections. This meets the first-step test of Marzzarella. At step two, the Government has failed to present sufficient evidence to demonstrate under even intermediate scrutiny that it may, consistent with the Second Amendment, apply § 922(g)(1) to bar Binderup and Suarez from possessing a firearm in their homes. Accordingly, we affirm the judgments of the District Courts.

The Third Circuit relied heavily on the writings of UCLA Professor Eugene Volokh for Second Amendment history. Historically convictions must show that the individual has been or would be dangerous, violent, or irresponsible with firearms to trigger exclusion of Second Amendment protections. Only recently (in the history of 2A) has the trend been to use minor nonviolent crimes as an exclusion trigger.

Eugene Volokh, "Can some people who have finished their felony sentences recover their Second Amendment rights?", The Volokh Conspiracy, Opinion, Washington Post, 7 Sep 2016.
https://www.washingtonpost.com/news...tences-recover-their-second-amendment-rights/

ADDED: the vote was 8 yea 7 nay of 15.

 

[Frank Ettin]

Here's a link to the actual decision. It is better to read it than rely on the second-hand interpretations of an AP reporter who may or may not have the education or experience to understand what they are reading.

http://www2.ca3.uscourts.gov/opinarch/144549p.pdf]Here's a link to the actual decision. It is better to read it than rely on the second-hand interpretations of an AP reporter who may or may not have the education or experience to understand what they are reading.

http://www2.ca3.uscourts.gov/opinarch/144549p.pdf

Thank you.

Yes, by all means, folks should read the opinion. We can't know what the court said without reading the opinion, and we can't rely on news articles.

The only way to have a productive discussion of the decision is to start by reading the opinion.

 

[Jeff H]

Glad this wasn't in the 9th Circuit. Somehow I think the decision would be different. :banghead::banghead::banghead:

 

[RX-79G]

I am still reading the decision. There's a lot of meat - especially for anyone who wants to understand the historical basis of limitations on the BoR.


However, I have not yet read it cover to cover, and it what I have read appears to be a declaration that, while rights should be restored for certain criminals, it is functionally unworkable because it requires a court to make a judgment about each particular person's crime and post conviction history.

So the ruling is interesting, but doesn't create a rule that can be directly applied to anything.

 

[230RN]

Sorry for my vagueness, but didn't Mr. Ettin or one of our attorneys offer some citations recently that suggested that the misdemeanor disqualification only applied to the States where the misdemeanor occurred? < Don't take that as gospel until a qualified attorney responds.

Terry

 

[RX-79G]

That would be a little strange, considering local misdemeanors is what the Federal law is referencing, and Federal laws apply equally to all states.

 

[hdwhit]

The opinion heavily cites to the 3rd Circuit's earlier decision in U.S. v. Michael Marzzarella, so looking at it may also be helpful in understanding the context of the decision.

http://www2.ca3.uscourts.gov/opinarch/093185p.pdf

 

[Frank Ettin]

...but didn't Mr. Ettin or one of our attorneys offer some citations recently that suggested that the misdemeanor disqualification only applied to the States where the misdemeanor occurred?...

I don't recall saying that, and I'm not sure there's a definitive answer.

There are two issues: (1) whether the conviction is a disqualification under federal law; and (2) whether the conviction is a disqualification under state law.

Under federal law, the disqualifying condition (except in the case of a crime of domestic violence which is covered elsewhere) is set out thusly at 18 USC 922(g)(1):

...convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;...

That is clarified with this definition at 18 USC 921(a)(20), emphasis added:

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) 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, or

(B) 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.​

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Two things to note in the federal law:

• State classification of the crime as a misdemeanor of felony doesn't count. What matters is whether the crimes could be punished under state law by a term of imprisonment of more than one year.
  
  
• The actual sentence received isn't itself material. What matters is the sentence that could have been imposed.

Then some States have their own laws regarding conditions disqualifying one from possessing a gun or ammunition, which could include convictions for crimes which would not be disqualifying conditions under federal law. So could State A consider a conviction in State B of a crime to be a disqualifying condition if that conviction would not be under federal law, but would be under the laws of State A had the conviction been in State A?

As usual when these questions come up, the answer is: It depends on the laws of State A, both the statutory law and case law.

So how does the law of State A define the disqualifying crime? For example, in California certain disqualifying conditions are defined as violations of specific California statutes. Obviously, another State could not convict someone of a violation of a California statute.

But let's say the laws of State A define certain disqualifying criminal convictions in general terms which could include a particular conviction in State B. Now we need to look at case law in State A to see if there's some guidance available from an appellate court.

Of course State A thus recognizing a State B conviction might also raise constitutional issues, so we'd want to do some research in that area as well. But see Section 1 of Article IV of the Constitution:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

So State A may accept the convict of the court in State B as establishing that the defendant did, in fact, commit the acts which constitute the crime he was convicted of.

And of course this reminds us of the issue raised by Midwest in post 6: state laws vary. That is a natural consequence of federalism.

Since the Constitutional Convention there has been constant tension between the scope of federal authority on one hand and state sovereignty on the other. Limiting federal power necessarily promotes state-to-state inconsistent laws.

Of course States can voluntarily decide to adopt consistent, or reasonably consistent, law; and the have done so in a number of areas. But the only way to guarantee consistency is to increase federal power.

 

[230RN]

Thanks for that clarification.

Terry

 

[230RN]

Gee whiz, something else just popped into my mind. According to your citation (A) above:

Quote from the statutory exceptions:
(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) 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, or...

Thus it would appear that the famous remark, "Gee, I feel so much safer now that Martha Stewart cannot possess a firearm" and its variants is not a true statement, since, as I understand it, her conviction was related to business practices such as described therein.

I've been guilty of bandying that about myself for the purpose of illustrating the differences between violent versus nonviolent felonious activities and how ridiculous it might be to remove one's 2A rights in cases of nonviolent felonies. (I put aside for now the matter of creeping escalation of relatively minor offenses to felonies.)

So, in the interests of accuracy, in your opinion, is Ms. Stewart possibly "off the hook" in terms of possessing firearms?

And is, therefore, the conundrum about "Gee, I feel so much safer now that Martha Stewart cannot possess a firearm" basically inaccurate?

Respectfully submitted,

Terry, 230RN

 

[Arizona_Mike]

Actually Martha Stewart's offense (and in hindsight only crime) was lying to the FBI over something that was not illegal and colluding with others to lie and conceal evidence. Her convictions were conspiracy, obstruction of justice, and two counts of making false statements to a federal investigator.

Except in the case of a Tender Offer, you have to have a fiduciary relationship with a company to be an "insider". The person telling you inside information may have committed a crime but in general it is not a crime for you to act on it.

I suspect she has a gun disability for these offenses.

Mike

 

[Carl N. Brown]

Citing CNN, Wikipedia states "After a highly publicized six-week jury trial, Stewart was found guilty in March 2004 of felony charges of conspiracy, obstruction of an agency proceeding, and making false statements to federal investigators...."

In otherwords, the penalty for her cover-up was greater than any penalty she faced for her original offense (selling the stock because the friend said it was gonna go under).

 

[Frank Ettin]

Actually Martha Stewart's offense (and in hindsight only crime) was lying to the FBI over something that was not illegal and colluding with others to lie and conceal evidence. Her convictions were conspiracy, obstruction of justice, and two counts of making false statements to a federal investigator....

Thank you. That is correct.

....I suspect she has a gun disability for these offenses.

And I agree.

Martha Stewart's crimes could not be considered violations of laws regulating business practices within the 921(a)(20) exception. Indeed the 921(a)(20) exception is likely to be construed and applied very narrowly. The subject came up a few years ago and wojownik provided some interesting and useful background in this post:

...

The types of offenses excluded under 921(a)(20) depend on whether they have an effect upon commercial competition (as noted in Dreher v. US 1997). That is, most financial crimes - mail fraud, embezzlement, etc. - are not "offenses" that are excluded from the section 921(a)(20) definition of "crimes punishable by imprisonment for a term exceeding one year."

So, how the heck did such a narrow exemption for anti-trust and anti-competitive offenses make its way onto to books? This dates from before the 1968 GCA 68. Back then, a major U.S. company with a substantial ammunition business got convicted of felony antitrust violations. So Senator Tom Dodd (the father of Sen Chris Dodd from CT) inserted this language as amendment so the corporation wouldn't have to divest its ammo business. The amendment was passed, and is now a matter of law. The company is suggested to have been Olin-Mathieson, which happened to have a plant in CT. FWIW, Sen. Dodd was known to have close ties to each of the big five firearms firms (back then), most or all of which had a manufacturing presence in CT.

So, now, back to the narrow interpretation of 921(a)(20). The 1997 Dreher ruling narrowed (or at least clarified) the range of offenses that are "similar offenses". So, it was ruled that the mail fraud offense in Dreher had nothing to do with the regulation of business practices (or anti-competitive offenses).

And again in Stanko v. US (2005), the courts maintained the narrow interpretation of 921(a)(20), in a case where Stanko was convicted of selling meat in violation of Federal law. The court ruled against Stanko, but there is an interesting dissent from Judge Bright who pointedly complains that the law can be seen as unacceptably ambiguous.

Let's look at how the 5th Circuit explained things in Dreher v. US, 115 F. 3d 330 (5th Circuit, 1997, at 332 -- 333):

....the plain meaning of the term “offenses” in the context of the statute is the charged violation of law, not the facts underlying the violation of law.... Thus, the statute excludes from the applicable crimes “(A) any Federal or State [violations of law] pertaining to antitrust violations ․ or other similar [violations of law] relating to the regulation of business, or (B) any State [violation of law] classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.”  Id. To define the term “offenses” as Dreher has suggested makes little sense within the context of the statutory scheme.3* See, e.g., United States v. Meldish, 722 F.2d 26, 28 (2d Cir.1983) (looking to the elements of the conviction only to determine whether the “offense” has an anti-competitive effect);  United States v. McLemore, 792 F.Supp. 96, 98 (S.D.Ala.1992) (noting that “[t]he government must live with its decision to prosecute Mr. McLemore's odometer rollback activity as a Title 15 trade offense [which is defined as an unfair trade practice], rather than as Title 18 mail fraud or wire fraud offense [which is not an unfair trade practice].”).

The “offenses” (or violations of law) of which Dreher was convicted are conspiracy to commit mail fraud and mail fraud, pursuant to 18 U.S.C. §§ 371, 1341.   To prove conspiracy under § 371, the government must show:  (1) an agreement between two or more persons to commit an unlawful act and (2) an overt act by one of the conspirators in furtherance of the agreement.   See United States v. Schmick, 904 F.2d 936, 941 (5th Cir.1990).   To convict under § 1341, the government must prove (1) a scheme to defraud;  (2) intent to defraud;  and (3) use of the mails in furtherance of the scheme.   See United States v. Nguyen, 28 F.3d 477, 481 (5th Cir.1994).

Because violations of §§ 371 & 1341 in no way depend on whether they have an effect upon competition, they are not “offenses” that are excluded from the § 921(a)(20) definition of “crimes punishable by imprisonment for a term exceeding one year.” ....

...Except in the case of a Tender Offer, you have to have a fiduciary relationship with a company to be an "insider". The person telling you inside information may have committed a crime but in general it is not a crime for you to act on it....

Although outside the scope of the discussion in this thread, I need to point out that this is not accurate. Insider trading is a good deal more complicated, and someone acting on inside information may well be a crime. As outlined by the SEC here (emphasis added):

....Illegal insider trading refers generally to buying or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, nonpublic information about the security. Insider trading violations may also include "tipping" such information, securities trading by the person "tipped," and securities trading by those who misappropriate such information.

Examples of insider trading cases that have been brought by the SEC are cases against:....