Not All Bad News Today From SCOTUS

It wasn’t all bad news on gun rights from the US Supreme Court today. Despite the negative ruling on certiorari for the Peruta case, we did get a win today when the court denied the government’s appeal in Sessions et al v. Binderup et al. Justices Ginsburg and Sotomayor would have granted certiorari to the government.

The case involved the loss of gun rights for individuals convicted of non-serious misdemeanors. The 3rd Circuit Court of Appeals had ruled that it violated the Second Amendment to deny such individuals their right to possess and purchase firearms. The Justice Department under former AG Loretta Lynch appealed that ruling. For some unknown reason, they didn’t move to dismiss the case under AG Jeff Sessions.

By refusing to grant certiorari, the court preserved the ruling of the 3rd Circuit. The Second Amendment Foundation which represented the plaintiffs in this case released the following statement on their win:

BELLEVUE, WA – The Supreme Court of the United States has declined to review an important Second Amendment Foundation case involving firearms rights for individuals convicted of certain non- violent misdemeanor crimes .

The decision allows an earlier favorable en banc ruling for SAF by the Third U.S. Circuit Court of Appeals in Pennsylvania to stand . In the case of Binderup v. the U.S. Attorney General , the appeals court ruled that individuals convicted of certain non-serious misdemeanor crimes do not lose their fundamental rights under the Second Amendment for life . After SAF won at the appeals court level, the Obama Justice Department sought Supreme Court review .

The case involve d a man named Daniel Binderup , who pleaded guilty in 1996 to a misdemeanor charge related to a consensual relationship he had with a 17-year-old female employee . He received three years’ probation and a $300 fine. However, because the crime could have resulted in jail time of more than one year for which the federal gun law blocks firearms possession , Binderup sought protection of his rights via the courts .

“While we were confident that our case would once again prevail before the Supreme Court, we’re delighted at the high court’s decision that allows our victory in the Third Circuit to stand,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “We establish ed the principle that people who are convicted of certain misdemeanor crimes cannot be stripped of their fundamental right to keep and bear arms for life. ”

The Third Circuit Court’s favorable ruling combined Binderup’s case with another SAF case involving a man named Julio Suarez . He was stopped in 1990 on suspicion of driving while intoxicated. At the time he was carrying a handgun and spare ammunition without a permit. He pleaded guilty in Maryland state court to the charge and received a 180-day s uspended sentence and $500 fine . As a result, he also lost his gun rights because the crime could have resulted in jail time of more than one year . Neither man was ever incarcerated.

“We cannot allow government to simply deny constitutionally-delineated rights on such flimsy grounds,” Gottlieb said. “While SAF’s goal is winning firearms freedom one lawsuit at a time, this time we won two!”

Big Win In The 3rd Circuit

Alan Gura won a big one in the 3rd Circuit Court of Appeals for the Second Amendment. In an 8-7 en banc decision, the court found that some people who had non-violent misdemeanors and/or felonies could get their Second Amendment rights restored. The court combined the cases of Binderup v. Attorney General and Suarez v. Attorney General for their hearing.

Only three judges agreed on the court’s rationale for restoring the gun rights of  Mr Binderup and Mr. Suarez. Another five judges concurred in the outcome but for different reason while seven judges dissented. The court’s governing opinion found:

Binderup and Suarez have presented unrebutted
evidence that their offenses were nonviolent and now decades
old, and that they present no threat to society, which places
them within the class persons who have a right to keep and
bear arms. Accordingly, 18 U.S.C. § 922(g)(1) is
unconstitutional as applied to them.

The court’s opinion, concurrences, and dissent total 178 pages of somewhat confusing logic as to the restoration of gun rights. Professor Eugene Volokh presents a good summary of it here.

The Second Amendment Foundation is very pleased with the result. It is a good win going into the Gun Rights Policy Conference later this month.

BELLEVUE, WA – The Third U.S. Circuit Court of Appeals has ruled that individuals convicted of certain non-serious misdemeanor crimes do not lose their fundamental rights under the Second Amendment in a decision involving two separate cases brought by the Second Amendment Foundation.

The unanimous ruling came from an en banc panel in the combined cases of Binderup v. the U.S. Attorney General and Suarez v. the U.S. Attorney General.

In 1990, Julio Suarez was stopped on suspicion of driving while intoxicated. At the time he was carrying a handgun and spare ammunition without a permit. He pleaded guilty in Maryland state court to the charge and received a 180-day suspended sentence and $500 fine. Daniel Binderup pleaded guilty in 1996 to a misdemeanor charge related to a consensual relationship he had with a 17-year-old female employee and received three years’ probation and a $300 fine. Neither man was ever incarcerated.

However, in both cases, the crimes could have resulted in jail time for which the federal gun law blocks firearms possession. Binderup and Suarez petitioned the Pennsylvania court in 2009 to remove the state prohibition against firearms possession, but federal law “continues to bar them from possessing firearms because their convictions have not been expunged or set aside, they have not been pardoned, and their civil rights have not been restored,” the court noted.

“Where the Second Amendment’s guarantees apply, as they do for Binderup and Suarez, ‘certain policy choices’ are ‘necessarily’ taken ‘off the table.’ Forever prohibiting them from possessing any firearm is one of those policy choices,” the appeals court said in today’s ruling.

“Today’s victory confirms that the government can’t simply disarm anyone it wishes,” stated SAF attorney Alan Gura. “At an absolute minimum, people convicted of non-serious crimes, who pose no threat to anyone, retain their fundamental rights. That this is even controversial is a matter of some concern.”

SAF founder and Executive Vice President Alan Gottlieb cheered the ruling, adding that, “In an era where government officials want to disqualify as many people as possible from gun ownership, this ruling is monumental. This case will lead to the restoration of people’s civil and constitutional right to own a firearm that is long overdue.”

Gottlieb noted that today’s victory once again reinforces SAF’s long-stated mission of “Winning firearms freedom, one case at a time.”

Professor Volokh is of the opinion that if the Department of Justice decides to appeal the case it will most likely be taken up by the Supreme Court. If they do, it will be interesting to see where the Court’s liberals who are anti-gun come down on this. While they are anti-gun, they tend to be more supportive of rights for those who have broken the law in the past. Given that both Mr. Binderup and Mr. Suarez were convicted of non-violent misdemeanors for which they served no actual jail time and that they kept their noses clean after that, saying that there is a strong governmental interest in prohibiting them from possessing firearms would be a stretch.

Off To The 2014 Gun Rights Policy Conference

I leave in a couple of hours for my flight to Chicago to attend the Gun Rights Policy Conference. It has been a momentous week leading up to the conference.

First, Atlantic County Prosecutor Jim McClain said he would be recommending pre-trial intervention for Shaneen Allen. This comes after the Attorney General John J. Hoffman “clarified” his directive to prosecutors regarding the prosecution of legally licensed visitors to the State of NJ who ran afoul of their onerous laws. And it formally happened yesterday as Ms. Allen stood before NJ Superior Court Judge Michael Donio “who formally put on record that she had been entered into PTI, and that all motions have been withdrawn and all pending court dates — including an Oct. 20 trial — suspended.”

As for Ms. Allen herself, she had this to say:

“I have no words for how I feel,” Shaneen Allen said outside the courtroom. “I won’t be going to jail and can stay home with my kids and get back to my life.”

That includes finding work after losing her three jobs as a result of a felony charge hanging over her head.

Now, she wants to head to nursing school — a plan detoured after she was arrested and jailed for 46 days after she was stopped on the Atlantic City Expressway with her gun.

Frankly, I don’t think this would have been the outcome if she hadn’t been such a sympathetic figure AND if Ray Rice hadn’t gotten a slap on the wrist after brutally knocking out his wife-to-be. It also goes to show that politicians can find ways to act correctly if the heat is high enough.

Second, Alan Gura chalks up another win for the Second Amendment with a case from Pennsylvania.  Binderup v. Holder involved a guy who lost his Second Amendment rights for sleeping with the wrong woman. Dan Binderup had pled guilty to a the misdemeanor crime of “corruption of a minor” which could have carried a five-year sentence. He got a fine and probation. However, under Federal law, you lose your Second Amendment rights if the crime could carry a penalty of more than a year. Dave Hardy give a good explanation of that here. It is a shame that Jefferson Schrader didn’t live long enough to see this decision.

Finally, Eric Holder resigned as Attorney General of the United States. I was so busy with work yesterday I didn’t know about this until the Complementary Spouse came home and told me. As the editorial headline from Investor’s Business Daily said, “Holder’s Exit Not Fast Or Furious Enough”.

In a just world, Eric Holder would be headed to prison. As it is, he’ll become just another Obama Administration alumnus getting his multi-million dollar payday from some business or law firm that wants an “in” with Obama.

More will be written about Holder’s departure in the coming days but right now it is my own departure for Chicago that is more pressing.

UPDATE: After having my first flight cancelled at 8:45 this morning, going to the airport (5 minute drive) and waiting a half hour for a United ticket agent, getting rebooked out of Greenville-Spartanburg, driving to GSP, waiting 3 hours, and then having my second flight cancelled at 4:00 pm, attending this year’s Gun Rights Policy Conference will be nothing more than a fond dream. It sucks but it also is a good lesson in the fragility of technology. Who would have thought one suicidal man could have wreaked so much havoc?