Today, the Third Circuit Court of Appeals issued its decision in the consolidated cases of Binderup and Suarez v. Attorney General of the U.S., et al., which provides that individuals who do not “commit serious crime[s]” do not lose their Second Amendment Rights, while acknowledging that “there are no fixed criteria for determining whether crimes are serious enough to destroy Second Amendment rights” and that “the category of serious crimes changes over time as legislative judgments regarding virtue evolve.”
In reviewing Binderup’s conviction for corruption of a minor and Suarez’s carrying of firearm in Maryland without proper licensing, the Third Circuit explained
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. 18 U.S.C. § 921(a)(20)(B). 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.
The court then went on to explain that while “it is possible for non-violent crimes to be serious,” one of the major considerations is whether an element of the crime includes “violence” and acknowledged that “neither Challenger’s offense had the use or attempted use of force as an element.” The court also found the actual sentence imposed to be a significant factor, in finding both to be “minor sentences.” In Binderup’s case, he received 3 years probation, while Suarez received a suspended sentence of 180 days imprisonment. In fact, the court declared:
Additionally, 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.
While the court did not decide whether Second Amendment as-applied challenges exist for felony convictions, the court did state:
We are not confronted with whether an as-applied Second Amendment challenge can succeed where the purportedly disqualifying offense is considered a felony by the authority that created the crime. On the one hand, it is possible to read Heller to leave open the possibility, however remote, of a successful as-applied challenge by someone convicted of such an offense. At the same time, even if that were so, the individual’s burden would be extraordinarily high—and perhaps even insurmountable. In any event, given that neither Challenger fits that description, we need not decide the question.
Accordingly, if you are prohibited as a result of a non-violent misdemeanor crime (or even potentially a non-violent felony crime), you have the ability to file a Second Amendment as-applied challenge in the federal district court to challenge your prohibition; however, if you read the decision, you will quickly see how intensive the analysis of any situation is and you must be able to show that historically your crime was not a “serious crime.”
Some of our viewers may remember that recently we were successful in having the Middle District of Pennsylvania find that the prohibition on possessing and purchasing firearms and ammunition in relation to a single, isolated mental health commitment was unconstitutional under a Second Amendment as-applied challenge. The Third Circuit’s decision, although not addressing mental health commitments, further supports the Middle District’s analysis and conclusion.
We at Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., are here to help you restore your Second Amendment Rights. If you want to discuss your past prohibiting offense and whether to file a federal challenge, contact us today!