Binderup v. Attorney Gen. U.S.

• Decision Date: 07 September 2016
• Docket Number: 15-1976,Nos. 14-4549 &amp,Nos. 15-1975 &amp,14-4550,s. 14-4549 &amp,s. 15-1975 &amp
• Citation: 836 F.3d 336
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Daniel Binderup, Appellant (No. 14-4550), v. Attorney General United States of America; Director Bureau of Alcohol Tobacco Firearms & Explosives, Appellants (No. 14-4549). Julio Suarez, Appellant (No. 15-1976), v. Attorney General United States of America; Director Bureau of Alcohol Tobacco Firearms & Explosives, Appellants (No. 15-1975).

836 F.3d 336

Daniel Binderup, Appellant (No. 14-4550),

v.Attorney General United States of America; Director Bureau of Alcohol Tobacco Firearms & Explosives, Appellants (No. 14-4549).

Julio Suarez, Appellant (No. 15-1976),

v.Attorney General United States of America; Director Bureau of Alcohol Tobacco Firearms & Explosives, Appellants (No. 15-1975).

Nos. 14-4549 &

14-4550

Nos. 15-1975 &

15-1976

United States Court of Appeals, Third Circuit.

Argued June 1, 2016

Opinion filed: September 7, 2016

Benjamin C. Mizer, Esquire, Principal Deputy Assistant Attorney General, Zane D. Memeger, Esquire, United States Attorney, Mark B. Stern, Esquire, Michael S. Raab, Esquire, Patrick Nemeroff, Esquire (Argued), Abby C. Wright, Esquire, United States Department of Justice, Civil Division, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Counsel for Appellants/Cross-Appellees, Attorney General United States of America; Director Bureau of Alcohol Tobacco Firearms & Explosives.

Alan Gura, Esquire (Argued), Gura & Possessky, PLLC, 916 Prince Street, Suite 107, Alexandria, VA 22314, Douglas Gould, Esquire, 925 Glenbrook Avenue, Bryn Mawr, PA 19010, Counsel for Appellees/Cross-Appellants, Daniel Binderup, Julio Suarez.

Stefan B. Tahmassebi, Esquire, National Rifle Association of America, 11250 Waples Mill Road, Fairfax, VA 22309, Amicus Curiae Counsel, National Rifle Association of America.

Before: McKEE, Chief Judge, AMBRO, FUENTES^* , SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, SHWARTZ, KRAUSE, RESTREPO, NYGAARD^*, and ROTH^*, Circuit Judges

FUENTES, Circuit Judge, filed an opinion concurring in part, dissenting in part, and dissenting from the judgments, in which McKEE, Chief Judge, VANASKIE, SHWARTZ, KRAUSE, RESTREPO, and ROTH, Circuit Judges, joined. HARDIMAN, Circuit Judge, filed an opinion concurring in part and concurring in the judgments, in which FISHER, CHAGARES, JORDAN, and NYGAARD, Circuit Judges, joined.

OPINION OF THE COURT

AMBRO, Circuit Judge, announced the judgments of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, an opinion with respect to Parts III.A, III.B, III.C.1, III.C.2, and III.C.3.a, in which FUENTES, SMITH, GREENAWAY, Jr., VANASKIE, KRAUSE, and ROTH, Circuit Judges, joined, and an opinion with respect to Parts III.C.3.b, III.D, and IV, in which SMITH and GREENAWAY, Jr., Circuit Judges, joined.

TABLE OF CONTENTS

I. Background...340

II. The Challengers' Statutory Argument...341

III. The Challengers' Constitutional Argument...343

A. The Second Amendment...343

B. The Framework for As-Applied Second Amendment Challenges...345

C. Step One of the Marzzarella Framework...347

1. The Challengers Presumptively Lack Second Amendment Rights...347

2. The Traditional Justification for Denying Felons the Right to Arms...348

3. The Challengers' Circumstances...349

a. Distinguishing the Historically Barred Class...349

b. Application to the Challengers...350

D. Step Two of the Marzzarella Framework...353

IV. Conclusion...356

Federal law generally prohibits the possession of firearms by any person convicted in any court of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Excluded from the prohibition is “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.” Id. § 921(a)(20)(B). And there is also an exemption for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored,” where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).

In United States v. Marzzarella we adopted a framework for deciding facial and as-applied Second Amendment challenges. 614 F.3d 85 (3d Cir. 2010). Then in United States v. Barton we held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but we stated that it remains subject to as-applied constitutional challenges. 633 F.3d 168 (3d Cir. 2011).

Before us are two such challenges. In deciding them, we determine how a criminal law offender may rebut the presumption that he lacks Second Amendment rights. In particular, a majority of the Court concludes that Marzzarella , whose two-step test we reaffirm today, drives the analysis.¹ Meanwhile, a separate majority holds that the two as-applied challenges before us succeed. Part IV of this opinion sets out how, for purposes of future cases, to make sense of our fractured vote.

I. Background

In 1996 Daniel Binderup began a consensual sexual relationship with a 17-year-old female employee at his bakery. Binderup was 41 years old at the time and was aware that his employee was a minor, though she was over the legal age of consent in Pennsylvania (16). Two years later, Binderup pled guilty in a Pennsylvania state court to corrupting a minor, a misdemeanor subject to possible imprisonment for up to five years. 18 Pa. Cons. Stat. §§ 6301(a)(1)(I), 1104. Despite this, Binderup's sentence was the colloquial slap on the wrist: probation (three years) and a $300 fine plus court costs and restitution. His criminal record shows no subsequent offenses.

In 1990 police stopped Julio Suarez on suspicion of driving while intoxicated. During the stop, police noticed that Suarez was carrying a .357 Magnum handgun, as well as two “speed loaders” (devices that allow one to load all chambers of a revolver mechanically rather than inserting bullets one-by-one). He had no permit for the gun. He later pled guilty in a Maryland state court to unlawfully carrying a handgun without a license, a misdemeanor subject to possible imprisonment for “not less than 30 days and not [more than] three years or a fine of not less than $250 and not [more than] $2,500 or both.” Md. Code Ann. art. 27, § 36B(b) (1990) (now codified at Md. Code Ann. Crim. Law § 4–203 ). Suarez nonetheless received a suspended sentence of 180 days' imprisonment and a $500 fine, followed by a year of probation that he completed successfully. Eight years later, he was convicted again in a Maryland state court, this time for the state-law misdemeanor of driving under the influence of alcohol. Only the first of the convictions was subject to § 922(g)(1). Suarez now lives in Pennsylvania and since 1998 has led a life free of run-ins with the law. He holds a “Secret” federal government security clearance in connection with his job as a consultant for a government contractor.

Pennsylvania law disqualified Binderup and Suarez (collectively, the “Challengers”) from possessing firearms due to their convictions, but in 2009 they successfully petitioned the Pennsylvania courts to remove that prohibition. Federal law, however, 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. See 18 U.S.C. § 921(a)(20) ; Logan v. United States , 552 U.S. 23, 37, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007). Nor has the Attorney General granted them relief under 18 U.S.C. § 925(c), which allows her to remove the prohibition on a case-by-case basis “if it is established to [her] satisfaction” that a barred individual “will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”

Binderup and Suarez want to obtain guns to defend themselves and their families within their homes, but they have not attempted to do so for fear of violating § 922(g)(1). As a result, each filed a complaint in federal District Court (Binderup in the Eastern District of Pennsylvania, Suarez in the Middle District of Pennsylvania) seeking declaratory and injunctive relief. They claim as a matter of statutory construction that § 922(g)(1) does not apply to their convictions and, if it does, the statute is unconstitutional as applied. The Government opposed the lawsuits, and the parties in both cases filed cross-motions for summary judgment.

The District Courts rejected the Challengers' statutory argument but held that § 922(g)(1) is unconstitutional as applied. The United States District Court for the Eastern District of Pennsylvania ruled that § 922(g)(1) is unconstitutional as applied to Binderup because he “distinguishe [d] himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrate[d] that he poses no greater threat of future violent criminal activity than the average law-abiding citizen.” Binderup v. Holder , No. 13–cv–6750, 2014 WL 4764424, at *1 (E.D. Pa. Sept. 25, 2014). The Court did not analyze the constitutionality of § 922(g)(1) under any form of means-ends scrutiny, meaning it did not evaluate the law to assess whether its purpose—the end sought—matches appropriately the means chosen to achieve it. Id. at *20–21. Depending on the importance of the rights involved and the nature of the burden on them, a law's purpose may need to be only legitimate and the means to achieve it rational (called rational basis scrutiny); the purpose may need to be important and the means to achieve it substantially related (called intermediate scrutiny); or the purpose may need to be compelling and the means to achieve it narrowly tailored, that is, the least restrictive (called strict scrutiny). The latter two tests we refer to collectively as heightened scrutiny to distinguish them from the easily met rational basis test.

The United States District Court for the Middle District of Pennsylvania applied “a two[-]prong test for Second Amendment challenges” derived from our case law. Suarez v. Holder , ––– F.Supp.3d ––––, –––– – ––––, No. 1:14–CV–968, 2015 WL 685889, at *6–7 (M.D. Pa. Feb. 18, 2015). It found first that Suarez has Second Amendment rights notwithstanding his 1990 conviction because he demonstrated that “he is no more dangerous than a typical law-abiding citizen.” Id. at ––––, 2015 WL 685889 at *10. Then the Court...