Mr. Binderup and Mr. Suarez were two likable enough guys who just happened to have slightly sordid pasts. Mr. Binderup had a 17 year-old girlfriend when he was 41, in 1996, and Mr. Suarez illegally possessed a speed-loader in 1990 and got a DUI in 1998. These were all misdemeanors under state law, although federal law considered them felonies. Other than these indiscretions both men went straight and decided that they wanted to be allowed to possess firearms.

Predictably, the feds said no way. You guys can never have guns. Get out of town.

Both guys sued the government, and after about three years of litigation won.

Legally, the Third Circuit did a lot but pretended it didn’t. The Court had already decided United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), which had adopted a framework for deciding facial and as-applied Second Amendment challenges, and had pretty much set the gold standard for these types of cases in all the circuits. But that decision was intentionally vague on some important details. Notably, no one really knew exactly who could win an as-applied challenge and based on what level of constitutional scrutiny.

This case finally settled it, sort of. Instead of this wishy-washy fact-intensive inquiry that had been used in Marzzarella, a majority of the Third Circuit has turned to a presumption of unconstitutionality, at least in some cases.

First, under the new test, you have to show that, despite the operation of current federal law, you actually would have had the right to bear arms when the Second Amendment was written. There are two opinions here, one with three judges one with five. Both are pretty close on the first step. Under this view, even though felons were “historically disenfranchised,” if you aren’t a violent felon or are felon in name only, at the founding they wouldn’t have considered you a felon, so you actually still have Second Amendment rights.

Interestingly, for all of the judges in the majority, this is a categorical inquiry. What this means is that the individual defendant’s personal history is irrelevant. Instead the only thing that matters is whether someone who committed the elements of a particular crime, e.g. DUI, would have been barred from owing a gun in colonial times. These two plaintiffs fit this because their crimes were actually minor misdemeanors, and the framers apparently didn’t have a problem with having 17 year-old girlfriends and DUI wasn’t really a thing then.

Next, there is a bit of a split in the opinions. For five judges, this would be the end. Once you show you would have had gun rights historically, you get them back now, no matter what kind of person you are. Your individual characteristics are irrelevant.

Three judges, in what is probably the controlling opinion, decided that, assuming you convince the court you would have historically had Second Amendment rights, the focus switches to you as an individual. Applying intermediate scrutiny, can the government convince the court to make an exception for you? This means the government has to show that as a minor criminal you are such a personal menace that you still must be disarmed. These two plaintiffs seemed like fine enough people, so they win.

The takeaway is complex. I believe that the three-judge lead opinion will control because it is the least radical opinion that supports the outcome. I would also imagine, though, that people in other circuits, particularly gun-loving ones, might see if they could get their court to adopt the more radical view of the five other judges in the majority.

Assuming the narrow view prevails, this prevents a new avenue to restoration of gun rights. For people who, like these two, want to get a court order before they posses a gun, as long as they have relatively minor convictions from their past and a decent law-abiding history they can probably win. If the broad view takes hold, this class is going to get larger.

With this opinion, some criminal defendants will also certainly try to argue that their prosecutions under 18 U.S.C. Section 922 are now unconstitutional. Viewing this case in the narrow sense, these defendants will mostly lose. Rest assured that most of these defendants won’t be nearly as squeaky clean as the two in this case and will almost certainly lose their as-applied challenges. I do think there is a large segment of the population who might technically meet the requirements for prosecution under 922(g) who could prevail on a challenge to a prosecution based on this decision. But, I don’t know a lot of AUSAs who will bring such charges on minor criminals, at least as stand-alone charges.

Of course, if the five-judge categorical view wins, either in the Third Circuit or elsewhere, then a whole class of Section 922(g) prosecutions will be off the table regardless of the individual defendants’ characteristics. That would be big. Expect lots of attempts to get other circuits to take that view.

All in all, any decision where the government loses its ability to prosecute you or take away your rights is something I can get behind.

Daniel Binderup v. Attorney General United States (3d Cir. 2016) (en banc)

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