Daniel Binderup v. Attorney General United States

FUENTES, Circuit Judge, filed an opinion in concurring part, in dissenting part, and dissenting judgments, from the McKEE, in which Judge, Chief VANASKIE, SHWARTZ, KRAUSE, RESTREPO, ROTH, and Judges, Circuit joined. HARDIMAN, Mizer, Judge, Benjamin Circuit filed Esquire, Principal C. General, opinion an in Deputy Attorney concurring part Assistant and Zane D. Memeger, Esquire, concurring judgments, United States At- which Stern, torney, FISHER, CHAGARES, Mark B. Esquire, JORDAN, Michael S. and Raab, Nemeroff, Esquire, NYGAARD, Patrick Esquire Judges, joined. Circuit * Judges Nygaard and Roth sat April for the consoli- but assumed inactive status argument participated dated but as members rehearing filing before en banc and the only of the en banc Court in Nos. and 14-4549 opinion. Judge of this Fuentes assumed senior pursuant 14-4550 to 3d Cir. I.O.P. 9.6.4. 18, 2016, July rehearing status on after en Judge participated panel argu- Sloviter in the filing opinion. banc but before the of this ment and conference in Nos. 15-1975 and 15- generally prohibits pos- law OF THE COURT Federal

OPINION by any person of firearms convict- session AMBRO, Judge, announced Circuit of a punishable court “crime ed the Court and delivered judgments for a one imprisonment exceeding term with for a unanimous Court opinion Excluded year.” 922(g)(1). 18 U.S.C. II, with opinion I an to Parts and respect prohibition “any offense from the State III.C.l, III.B, III.A, to Parts respect by the as a classified laws of the State III.C.3.a, III.C.2, and in which punishable by and a term of misdemeanor SMITH, GREENAWAY, Jr., FUENTES, of two or less.” Id. imprisonment years ROTH, VANASKIE, KRAUSE, and 921(a)(20)(B). And is also an ex- there joined, opinion Judges, Circuit “[a]ny which has emption conviction IV, III.C.3.b, III.D, to Parts respect expunged, or set or for which a GREENAWAY, Jr., been aside which SMITH pardoned civil has been or has had Judges, joined. person Circuit restored,” of relief rights grant where the TABLE OF CONTENTS expressly preserve the firearms does not 921(a)(20). bar. Id. Background... I. 340 Statutory Argu- Challengers’ II. The In States Marzzarella we United v. . ment. .341 deciding a framework facial adopted for as-applied Second Amendment chal- and Ar- Challengers’ III. The Constitutional (3d 2010). 85 Then in lenges. 614 F.3d . .343 gument. v. we held that the United States Barton .343 A. The Second Amendment.. violate prohibition does not Sec- As-Applied B. The Framework for face, Amendment on its but we the Second Challenges... 345 ond Amendment subject that it remains stated the Marzzarella Step (3d One C. challenges. constitutional Framework.. .347 Challengers Presumptively Lack 1. The challenges. two In us are such Before Rights... Amendment Second them, we how a crimi- deciding determine Deny- for 2. The Traditional Justification presump- offender rebut the nal law Right to Arms... 348

ing Felons lacks that he tion Second majority In a Challengers’ rights. particular, 3. The Circumstances... Marzzarella, whose concludes that Court Distinguishing Historically Barred a. today, drives the two-step test we reaffirm Class...349 Meanwhile, majority separate a analysis.1 Application Challengers... to the b. challenges the two as-applied holds that Two the Marzzarella Step D. opinion us succeed. Part IV of this before .356 Framework.. cases, how, purposes for of future sets out sense of our fractured vote. to make IV. Conclusion... 356 analysis, but do preserve the Second Amendment III.A-C.3.a trols 1. Parts Marzzarella deciding they reject framework join any of Part III because challenges aspects Barton that and overrule can be that the framework notion Marzzarella Judges join with it. are inconsistent Seven any aspect as- with of Barton's reconciled expressly. Judge McKee and Parts Chief those analysis, which applied Second Amendment Judge Restrepo, join Judges who Shwartz they entirely. would overrule agree opinion, con- Fuentes’s that Marzzarella Background security I. clearance connection with job his for a government as a consultant Binderup began In a 1996 Daniel con- contractor. relationship 17-year- sensual sexual bakery. his employee old female Binder- Pennsylvania disqualified law Binderup up years was 41 at the time and old was (collectively, “Challeng- Suarez minor, employee aware that his was a ers”) possessing firearms due to their though legal age she was over con- convictions, they but in 2009 successfully (16). later, Pennsylvania years sent in Two Pennsylvania petitioned the courts to re- Binderup pled guilty Pennsylvania law, prohibition. move that Federal howev- minor, state court corrupting misde- continues to bar them from er, possessing subject possible imprisonment meanor firearms because their convictions have not Pa. up years. to five Cons. Stat. aside, expunged been or set have not 6301(a)(l)(I), this, §§ Despite Binder- pardoned, been and their civil have up’s colloquial slap sentence was the on the not been restored. See 18 U.S.C. (three years) probation wrist: and a $300 921(a)(20); States, Logan United fine plus court costs restitution. His 23, 37, 169 L.Ed.2d 432 subsequent criminal record no shows of- (2007). Attorney Nor has the Ceneral fenses. granted them relief under 18 U.S.C. police stopped Julio Suarez on 925(c), which allows her to remove the suspicion of driving while intoxicated. Dur- prohibition case-by-case a basis “if it on ing stop, police the noticed that Suarez established to satisfaction” that a [her] Magnum was carrying handgun, as .357 barred not likely individual “will be to act (devices well “speed as loaders” two in a dangerous public safety manner allow one to chambers of a load all revolv- and that granting the the relief would mechanically er than inserting rather bul- not be the contrary public interest.” one-by-one). lets no permit He had for the Binderup and Suarez want to obtain gun. He later in a pled guilty Maryland guns to defend themselves and their fami- unlawfully state court to carrying a hand- homes, lies within their but have not gun license, a without a misdemeanor sub- attempted for to do so fear of violating ject possible imprisonment for “not less result, § 922(g)(1). As a each filed a com- days than 30 [more and not than] three plaint federal Court (Binderup District years or a fine less than of not and $250 in the Pennsylvania, Eastern District of $2,500 not or both.” Md. [more than] Code Suarez in District Pennsyl- the Middle (1990) (now 27, 36B(b) § Ann. art. codified vania) seeking declaratory injunctive and §4-203). at Md. Code Ann. Crim. Law They relief. statutory claim as matter of Suarez suspended nonetheless received a 922(g)(1) § construction that does not apply days’ imprisonment sentence of 180 and a and, does, to their if it convictions the fine, year aby probation followed $500 applied. statute is as unconstitutional The that he completed successfully. Eight lawsuits, Government the opposed and the later, years again he was convicted in a parties in both filed cases cross-motions court, Maryland state this time for the summary judgment. state-law of driving misdemeanor under rejected The District the Courts Chal- the Only influence of alcohol. the first of lengers’ statutory but subject argument § the held that 922(g)(1). convictions was § 922(g)(1) Pennsylvania applied. is unconstitutional as Suarez now lives in and since 1998 has The United District Court led a life free run-ins with the States for the law. He govern- Pennsylvania holds “Secret” federal Eastern District of ruled ap- severity imposes. as of the it is unconstitutional burden Id. - n.9, 2015 at *7 Binderup he “distin- WL 685889 n.9. plied to because individuals guished himself those appealed summary The Government pri- traditionally disarmed as the result Challengers’ and judgments, cross-ap- conduct or criminal and demonstrated interpretations the District pealed Courts’ greater of future poses no threat that he dispossession The statute. District average activity criminal than the violent jurisdiction had under 28 Courts U.S.C. Holder, v. law-abiding Binderup citizen.” 1331, 1343, 1346, 2201, §§ We 13-cv-6750, 4764424, at *1 2014 WL No. jurisdiction appellate have under 28 U.S.C. (E.D. 25, 2014). The did Sept. Pa. Court 1292(a)(1). constitutionality analyze panels appeals, Separate heard under form of means-ends sponte sua consolidated Court them it scrutiny, meaning did not evaluate rehearing plena en banc. review is Our purpose its law to assess whether —the InterVest, L.P., Inc. ry. Bloomberg, (cid:127) sought appropriately end —matches (3d 144, 158 at *20-21. means chosen achieve it. Id. importance Depending on Statutory Challengers’ II. The and the nature of the burden involved Argument them, only purpose may a law’s need to be noted, 922(g)(1), does not Section cov- it and the to achieve legitimate means “punishable er state misdemeanors (called scrutiny); the rational rational basis imprisonment years term of of two important need to be purpose 921(a)(20)(B). less.” 18 U.S.C. Chal- substantially achieve it related means to lengers argue exception that the includes (called scrutiny); pur- or the intermediate that, theirs, like any state misdemeanor be and the pose may compelling need to punished than have been less two could tailored, narrowly to achieve means years’ imprisonment. (called is, least strict scruti- restrictive to collec- ny). The latter two tests we refer disagree. exception The in We tively heightened scrutiny distinguish as 921(a)(20)(B) that any § crime can covers easily rational basis them from the met years’ two punished by more than not be test. It cover crime imprisonment. does not than punished by that can be more two

The States District Court for United words, prison. other years “a Pennsylvania applied District of Middle 921(a)(20)(B)’s “punishable by” § use of test for two[-]prong Second “subject penalty means a maximum of.” case law. challenges” derived from our — -, explicitly have defined Holder, Although we never F.Supp.3d v. Suarez relied way, we at least twice on -, 1:14-CV-968, it this have No. 2015 WL 2015). (M.D. 18, interpreting the re understanding It at *6-7 Pa. Feb. that 921(a)(20)(B) lationship § between and that Suarez has Amend found first Essig, § con v. rights notwithstanding 922(g)(1). his 1990 See United States ment (3d 1993) (relying “he he that 969-71 Cir. viction because demonstrated understanding law- re dangerous typical “punishable” than a of is no more -, potential maximum Id. 2015 WL fers to whether abiding citizen.” for a exceeds applied at *10. Then sentence state misdemeanor the Court (in case, a lesser sentence scrutiny years, strict two whether means-ends States imposed); § v. scrutiny) might and determined that be United (3d Schoolcraft, him 879 F.2d 69-70 Cir. applied unconstitutional as due 1989) face trigger gun “misdemeanor would not bar on (explaining years in [by] up pris- to seven punishable possession. Accordingly, “subject ato max- subject was “not a misdemeanor to a on” possible imum of’ is penalty the best read- less”). or years The sentence two D.C. ing by” phrase “punishable as used opinion Circuit’s in Schrader Holder 921(a)(20)(B). §in decision, as it supports distinguishes our interpretation Our also makes sense carrying crimes a maximum term of im- light language similar the United years than two prisonment more Sentencing They pro- States Guidelines. “punishable by imprison- term of those probation vide three grades distinct or less” years two under A, supervised 921(a)(20)(B). (D.C. release violations—Grades 704 F.3d B, 2013). A Court C—with Grade violations treated Supreme And the drew'a Logan. distinction in See 552 severely severely. similar U.S. most C least and Grade (“[Section] 7B1.4(a). §§7Bl.l(a), See U.S.S.G. 921(a)(20)(B) places ... within Challengers’ interpretation phrase 922(g)(l)’s] reach [§ state misdemeanor “punishable by” would erode those distinc- by punishable convictions more than two applies only tions. Since C Grade to of- added)). imprisonment.” (emphasis years’ by “punishable fenses a term of imprison- dictum, Although is a language this “we less,” year ment of one U.S.S.G. idly ignore” should not its inclusion in the 7Bl.l(a)(3), Challengers’ interpreta- thorough Court’s discussion of tion punishable would offenses render 921(a)(20)(B). McDonald, In re (Grade B), year more than a as well as (3d 606, 612 even more offenses serious described as writing Even if we were on a blank A, eligible Grade C for Grade treatment. slate, reject Challengers’ we would This would be an result. absurd interpretation. considering When a crime’s effort, In a last-ditch the Challengers potential punishment, ordinarily we refer 921(a)(20)(B)’s argue “pun use of only punishment to the maximum a court ishable” application merits the rule of may impose. As the District Court in Sua (that lenity ambiguous criminal laws be observed, perceptively rez when a crime defendants) construed in favor of or the possible maximum pun has and minimum (that ishments, constitutional doctrine being “punisha we describe it avoidance am specific range; ble” biguous statutory language when a be construed only crime references maximum punish doubts). to avoid constitutional serious ment, ordinarily identify only “we up the Both of principles require ambiguity these per boundary” range, of that as lower “[a]ll in the statute. Voisine v. See United possible imprisonment terms of are includ States, U.S. -, 2272, 579 S.Ct. 2282 136 — by at -, implication.” F.Supp.3d ed n.6, (2016). 195 L.Ed.2d 736 As there isn’t 685889, 2015 WL at That why *3. is we here, any they plausible no give defense. not carrying would describe a crime a sum, Challengers’ argument the specified imprisonment term of of up to their fall convictions within years by three as “punishable one a term 921(a)(20)(B)’s exception § 922(g)(1) to imprisonment years of By of two or less.” has no traction. Their misdemeanor convic- contrast, a carrying ceiling misdemeanor a by tions punishable were more than two 18 imprisonment proper of months’ would years’ imprisonment. they Hence cannot ly be described in the criminal law context 921(a)(20)(B) refuge seek in “punishable by as crime a term im and are sub- of prisonment ject of years 922(g)(1). two less” and on to the bar its of

343 Heller, 626, Challengers’ at The Constitutional ited.” 554 U.S. 128 III. S.Ct. Argument 2783; Huitron-Guizar, see v. United States 1164, 2012); 678 F.3d 1166 Eu The Amendment A. Volokh, gene Implementing Right the that, Challengers contend notwith Keep and Bear Arms An for Self-Defense: statutory standing how we rule on their Analytical Framework and a Research is unconstitutional as argument, 1443, Agenda, 56 L. Rev. 1443 UCLA to them. The Second Amendment applied (2009).2 catalogued Heller non-exhaustive Militia, regulated being “A well states: lawful “presumptively regulatory list of State, necessary security the of a free historically measures” that have con the and bear right people keep the the scope right. strained the 554 U.S. at Const, Arms, infringed.” shall not be U.S. 2783; n.26, 626-27 & 128 Marzza S.Ct. see v. II. In Columbia Hel amend. District of rella, (treating “pre 614 at 91 the F.3d ler, the law Supreme Court invalidated sumptively regulatory lawful measures” handgun “totally possession ban[ned] “exceptions right in listed Heller “require[d] and in the home” arms”). include, They to bear are but not lawful firearm the home be disassem to, “longstanding prohibitions limited on trigger at bled or bound lock all felons firearms times, rendering it inoperable.” 554 U.S. ill, mentally forbidding [] laws 628, 2783, 570, 171 L.Ed.2d 637 places of firearms in carrying sensitive (2008). In held doing, so Court government such as buildings, schools protects an individu Second Amendment imposing qualifi laws conditions and [and] right, possess a firearm “unconnect al’s on 582, cations the commercial sale arms.” ed with militia service.” Id. at 128 626-27, Heller, 2783; at 128 U.S. S.Ct. 2783. At the “core” of the Second S.Ct. McDonald, 786, see at right is the U.S. S.Ct. “law-abiding, Amendment comport responsible citizens to use arms defense 3020. These measures 634-35, of hearth and home.” Id. at 128 Second Amendment because affect 2783; Barton, 170-71; at unprotected by S.Ct. individuals or conduct Marzzarella, years at Two Heller, arms. keep bear See Heller, City after 631, 635, McDonald Chica (sug 128 S.Ct. 2783 go, the Court held that the Fourteenth “disqualified gesting that one “incorporates the Second rights” if exercise Second Amendment Heller, right recognized “insane”). example, he is “a felon” or For “our because “fundamental” “weapons typically possessed on bans system liberty.” of ordered 561 U.S. by law-abiding purposes, citizens for lawful S.Ct. 177 L.Ed.2d shotguns,” per such as short-barreled (2010). weapоns fall because those out missible “scope right.” the historical Id. Although guar- side Second Amendment 2783; States v. right, antees an individual is “not unlim- S.Ct. see United alcohol, pos- possible parks, or taxonomy of serve or in bans 2. Professor Volokh's regulations gun sessing public housing projects), them [guns] divides into in (such [(4)] storage restrictions as "how” (1) (such [ restrictions as bans on T'what” (5) regulations), "when” [ ] restrictions guns, weapons,” machine so-called "assault (such [(6)] waiting periods), as "who [(2)] unpersonalized handguns), or "who” (such licensing regulations (such knows” or possession by restrictions felons, as bans on (7) noncitizens, misdemeanants, registration requirements), [ ] taxes [ju- [(3)] veniles]), (such expenses. and other "where” restrictions Volokh, carrying public, places 56 L. Rev. at 1443. as bans on in in that UCLA 344 (1) and, Armory alternative,

One Palmetto State PA-15 in the scrutiny strict to Receiver/Frame, 922(k)’s Machinegun Unknown prohibition on possession any LW001801/., Caliber Serial No. 822 F.3d firearm destroyed number); with a serial (3d 136, 2016); Marzzarella, 141-44 Cir. Williams, United v. 685, States 616 F.3d (7th 614 2010) F.3d at 91-93. 692-93 (applying Cir. intermedi scrutiny ate 922(g)(1)); to United States As involving to cases burdens on Second (9th Chovan, 1127, 1141-42 v. F.3d 735 Cir. rights, Amendment Heller did not an- 2013) (same respect 922(g)(9)’s with to scrutiny applies nounce level of which but disarmament of domestic-violence misde- challenges cautioned that on based those meanant); Chester, United States v. rights beaten are not back Govern- (4th 673, 2010) F.3d (same); 682-83 Cir. ment supplying a rational for limiting basis Reese, 792, United v. States 627 F.3d 802- n.27, them. 554 at U.S. 128 S.Ct. 2783 (10th 2010) (same Cir. respect with to (“If required all that was to overcome the § 922(g)(8)’s dispossession per of certain right to keep and bear was a rational arms subject sons restraining domestic or basis, the Second Amendment would be der); Tyler Cty. v. Hillsdale separate redundant with the constitutional Sheriff’s 308, (6th 2014) Dep’t, 775 F.3d 326-29 Cir. laws, prohibitions on irrational and would (applying effect.”). scrutiny 922(g)(4)’s strict have no dispossession any person “who has been Judge Some judges including Hardi- — institution”), committed a mental reh’g (cid:127)man colleagues join and those who his granted, 21, en banc opinion (Apr. vacated opinion concurring judgments —and have interpreted commentators Heller to That any mean individuals with that law Second Amend barring with ment rights may Second be rights possess from nonetheless denied hardly firearm ing illogical. is lawful firearms the home even for It is unconstitutional; no different than per saying is self-defense se is, may prevent Government scrutiny no an individual needed. See Hardiman with Op. 13-19; First rights engag Typescript Heller District Amendment, (D.C. ing in Columbia, 1244, First 670 F.3d conduct—even 1272-73 2011) conduct J., Cir. at the core of (Kavanaugh, the First Amend dissenting); Vo lokh, ment —if 1462; it makes the showing necessary L. Joseph UCLA Rev. at Blocher, heightened See, Categoricalism scrutiny. surmount e.g., Balancing FEC v. Right Life, 449, First Wis. 551 U.S. Analysis, Second Amendment 464-65, 2652, (2009); N.Y.U. L. Rev. S.Ct. 168 L.Ed.2d 329 see (2007) McCane, also strict (applying scrutiny States v. a statute United 2009) prohibiting political speech (Tymkovich, 1047-50 core of Amendment); J., the First Pub. concurring). But United Work neither Mitchell, 75, 102-03, ers Court Am. v. nor court of appeals has held (1947) (uphold 91 L.Ed. 754 burdening laws Second Amendment ing constitutionality rights prohibitions on scrutiny. evade constitutional Rath er, certain political when activities federal faced em ployees Amendment challenge, they agree notwithstanding the First Amend ment). some form heightened scrutiny Thus burdens on appro Second Amend priate rights after it has subject scrutiny been determined that the law in question much the protected way burdens con burdens First See, Marzzarella, e.g., Filko, duct. 614 F.3d at Amendment are. Drake v. (3d 97-101 (applying 2013); scrutiny intermediate 434-36 see NRA

345 2010) Skoien, 638, bur- 645 Cir. (asserting Br. 13-15 that Amicus at (en banc) Amendment on core Second (noting dens that disarmament under scrutiny). subject to Far should be strict ordinarily “perpetual” is be Amendment to subjecting from Second exceptions cause of similar to those under “entirely body of rules than an different , § 922(g)(1)); 735 F.3d at 1138 Chovan Rights guarantees,” Bill of Mc- the other (same). Donald, 561 U.S. S.Ct. say 922(g)(1) per To that is se uncon- opinion), this view uses “the (plurality anyone applied stitutional as with Sec- of First doctrine structure Amendment .rights notwithstanding ond Amendment of Second analysis inform our [to] escape bridge hatches a too the statute’s is Amendment,” Marzzarella, 614 F.3d at 89 starters, For far. would condemn (“Heller n.4; in- repeatedly see id. itself regulations all exception without laws and establishing vokes the First Amendment containing preconditions for the governing principles the Second Amend- Second firearms individuals with ment.”). reasoning, any rights. By “completely Even if a law that evis an prohibiting possess- law individual from right” cerates handgun passes physical unless he a ing per se unconstitutional under would be (to capable examination show he is han- Heller, Op. Typescript Hardiman dling safely) completes a firearm or fire- § 922(g)(1) Notwithstanding is no such law. (to training arm show he knows how to (and noted), already provision per as safely) similarly handle a firearm would be disqualifying convicted of offenses sons unconstitutional, per-se even if it possess under some circumstances achieving a com- least restrictive means (1) if their convictions are ex handguns government There no pelling interest. aside, (2) they par or receive punged set prеcedent crippling for Government’s (3) dons, they their civil rights have 921(a)(20). ability regulate gun ownership in this And restored. U.S.C. were 925(c), guarantee absolutely to fund 18 manner. And to Congress U.S.C. lift Attorney ask the General to ability could and even cases keep bear arms Though their cases. some particular ban in height- disarmament would survive where statutory of these avenues for relief are departure a radical scrutiny ened would be Suarez, Binderup closed to see jurisprudence infra our post-Heller n Part III.D, remaining opportunities commonplace con- undermining many risk starkly them to overcome the ban contrast regulations. gun stitutional with the District of Columbia law Heller carry unregis made a crime to an As-Applied B. The Framework Sec- prohibited entirely firearm tered Challenges ond Amendment individuals; registration handguns challenge, Unlike facial nothing was Mr. Heller could do to there challenge not contend that law is “does lawfully possess handgun while outside ap- as written but that its unconstitutional special his job a District of Columbia plication particular person par- to a under police officer Judicial guarding Federal person deprived ticular circumstances (in words, guarded Center other he States v. right.” a constitutional United 574,128 judges). See 554 U.S. at S.Ct. 2783 (3d 2011) Mitchell, F.3d Cir. 7-2501.01(12), (citing §§ D.C. 7- Code Marcavage, 609 (quoting United States v. 2502.01(a), 7-2502.02(a)(4) (2001)); Parker (3d 2010)); Ayotte v. see Columbia, F.3d 373- District (D.C. 2007); England, N. New States v. Planned Parenthood United cf. 346 320, 329, 961, 1136-37;

546 U.S. 735 at F.3d Nat’l Ass’n Rifle (2006) (“It Am., Alcohol, Tobacco, L.Ed.2d 812 axiomatic that a v. Inc. Bureau of n Firearms, to applied 185, statute be invalid one Explosives, & 700 F.3d yet applied (5th state of facts and valid as to 2012); 194-96 GeorgiaCarry.org, Cir. (internal Inc., quotation another.” marks omit- 1244, Georgia, 687 F.3d 1260 n.34 ted)). Accordingly, our review of Binder- (11th 2012); Greeno, Cir. United States v. up’s as-applied challenges Suarez’s (6th 2012); Heller, 679 F.3d Cir. requires par- us to consider whether their 1252-53; City at F.3d Ezell v. Chica- ticular circumstances remove from them 2011); go, 651 F.3d 701-04 §of sweep 922(g)(1). the constitutional Chester, 680-83; Reese, at Indeed, F.3d at 800-05. has escaped it precedents Two of our —Marzzarella disparagement by any circuit court. guided and Barton —have we ap- how proach as-applied Amendment Second. A year after Marzzarella we decided challenges. The former as-ap- involved an Barton, which involved felon convicted 922(k), plied challenge to 18 U.S.C. which provision under now before us— the possession bars firearm with an § 922(g)(1). Barton raised facial and as- obliterated serial It number. derived from applied Second Amendment challenges “two-pronged approach Heller to Second the firearm ban. dispensing After with his challenges” Amendment firearm restric- facial challenge confirming the avail- tions. F.3d at 89. We first consider ability of as-applied challenges under the imposes “whether challenged law Amendment, Second we ruled that “the falling scope burden conduct within the keep common law and bear arms Second Amendment’s guarantee.” did not extend likely to those who were not, If Id. challenged law must stand. commit violent offenses.” 633 F.3d at 173. if protected conduct, But the law burdens Because prior pos- Barton’s convictions for proper course is to “evaluate the law session of cocaine with intent distribute scrutiny,” under some form of means-end (as receipt and for of a stolen firearm well being id. form Marzzarella inter- illegal post-conviction as his sale of a fire- scrutiny, mediate id. “If the law number) arm with an obliterated serial passes [ap- muster under standard [the] “closely crime,” were related violent we fails, plied], it If is constitutional. it is concluded he lacked Second Amend- 922(k), invalid.” Id. at 89. As to we held another, rights. way, Id. at 174. Put law withstood intermediate scruti- Barton present did not him- “facts about ny “even if it protected con- burden[ed] background self and his that distin- by fitting reasonably duct” impor- with the guish[ed] his circumstances those tant “law enforcement interest in enabling persons historically barred from Second tracing via weapons their serial protections,” so id. he was (We numbers.” Id. also noted in “disqualified from the exercise a dictum that the law would survive strict rights,” id. at 174 (quoting scrutiny, test, were because the Heller, 2783), 554 U.S. at S.Ct. provision serves a compelling interest as-applied challenge his could not suc- through the least-restrictive means. Id. at ceed. 99-lba.)

Nearly every together, Read Marzzarella and appeals court of has cited See, lay Barton out favorably. e.g., deciding Marzzarella N.Y. a framework for State Ass’n, Cuomo, & Pistol Inc. v. challenges gun regulations. Rifle (2d 2015); Chovan, 254 n.49 At step one of the Marzzarella decision Barton, chal- tree, prove, per as-applied an Second Amendment challenger a must regulation lawful bur- presumptively a lenge presumptively regulatory that a lawful to rights. This his Amendment dens Second § like Barton 922(g)(1). measure identifies to two hurdles: challenger a clear requires pre- the that an two hurdles individual (1) justifi- the traditional identify must he lack sumed to Second Amendment Amend- excluding for Second cations presumption must rebut the overcome to which he protections the class of ment step at one of the Marzzarella framework.3 member, at a id. appears to be Rebutting permits testing it the law or (2) facts about himself present then regulation heightened scrutiny at under background distinguish his circum- his step understanding, Marz- two. With this persons the his- from those of stances wholly are dis- zarella and Barton neither class, torically id. at 174. barred incompatible. tinct nor challenger prevail No cannot doubt say-so. the merely on his Courts must find Step . of C. One Marzzarella he to whether has ade- facts determine Framework distinguished his circumstances quately Lack Challengers Presumptively 1. The historically of excluded from those Rights Amendment Second Not protections. from Second to only challenger is the on the burden “longstanding prohi- Heller teaches presumptive lawfulness of rebut by bitions on the of firearms one, step at Marzzarella’s but exclusion “presumptively felons” are lawful.” showing must be challenger’s also n.26, 626 & 627 128 S.Ct. 2783. U.S. at And strong. That’s no small task. in cases Traditionally, people who have “felons” only its terms burdens by statute where pun- crime “that is been convicted of individuals, conduct, weap- {e.g., matters imprisonment more by ishable death or for ons) arms, scope to outside LaFave, Wayne R. Sub- year.” than one challeng- impossible one. But if it is (2d 2015); § Law 1.6 stantive Criminal ed. one, at the burden shifts step er succeeds Holder, 560 U.S. Carachuri-Rosendo cf. the Government to demonstrate that 563, 567, 2577, 177 L.Ed.2d 68 height- satisfies some form regulation (2010) 3559(a)). § (quoting 18 U.S.C. below, at scrutiny, further ened discussed possession of Section bars the analysis. two step of Marzzarella of “a by anyone convicted crime firearms Challengers, the District Court a term by imprisonment for punishable Binderwp, colleagues and some our exceeding year.” one This means its set claim that Marzzarella and Barton anyone extends to convicted prohibition types as-applied for standards different meeting a crime the traditional definition challenges Second Congress any- felony, excluded though challenges only Barton controls classified one convicted of a “State offense 922(g)(1); has no role in the Marzzarella as a misdemean- by the laws of the State that, perti- least in analysis. view is Our than by it is more punishable for or” unless part, complements each the other nent and, extension, future) defines Though types crime in Barton clarifies the of show- may broadly who step too the class offenders ings challenger must make one framework, bring Amend- too successful defines of Marzzarella {i.e., why challenges it allows justification narrowly the traditional regain destroy people of serious crimes to right to convicted a criminal conviction arms). (i.e., only See Parts IIL.C.l- their arms it limits felon disarmament infra likely to a violent 3.a. those criminals commit years’ imprisonment. Original Meaning two 18 U.S.C. and the the Second 921(a)(20)(B). Amendment, L. 82 Mich. Rev. (1983). Several of our sister circuits en- Binderup and Suarez were each convict- citizen”'justification dorse the “virtuous subject of a 922(g)(1): ed misdemeanor excluding felon-equivalents felons and was Binderup’s punishable up to five See, from the years’ Second Amendment’s ambit. imprisonment; by up Suarez’s years Pennsylvania three The prison. e.g., Carpio-Leon, United States v. 701 Maryland legislatures classify (4th (“[Fjelons their 974, 2012) F.3d 979-80 Cir. respective offenses as misdemeanors. right were excluded from to the arms be- However, possi- based their maximum (in- they cause were deemed unvirtuous.” punishments, they ble meet traditional omitted)); quotation Yancey, ternal marks felony, Congress definition of a treats 684-85; 621 F.3d at v. United States purposes them as felonies for (9th 1111, Vongxay, 594 F.3d 1118 Cir. result, § 922(g)(1).As a Binderup and Sua- 2010) (“[T]he right to arms bear does not subject is, rez are to firearm ban that preclude disarming laws ... unvirtuous ', per “presumptively Heller lawful.” (i.e., criminals).” Kates, (quoting citizens Jr., 146)); Contemp Law 49 & Probs. at 2. The Traditional Justification E., 8, United States v. Rene 15 583 F.3d Denying Felons the for (1st (“In 2009) parlance Cir. of the Right to Arms republican politics time, these limi- one, to Turning step the first hurdle expressed tations were sometimes as ef- we look justification historical ”). forts to disarm the ‘unvirtuous.’ felons, stripping including those convicted meeting offenses the traditional defini- People who have committed or are felony, tion of a their Second Amend- likely to commit “violent offenses”—crimes rights. “[M]ost scholars the Sec- (actual “in which violence or attempted) is agree right ond Amendment offense,” Skoien, an element of the 614 was concept bear arms to the of a tied 642; Voisine, F.3d at see 136 S.Ct. at that, citizenry virtuous accordingly, undoubtedly qualify as “unvirtuous 2280— government could disarm ‘unvirtuous citizens” who lack Second Amendment Yancey, citizens.’” United States 621 Barton, 173-74; rights. at F.3d see (7th 681, 2010); see, e.g., 684-85 Cir. Bena, 1180, United States v. 664 F.3d DeDino, Saul Cornell & Nathan A Well (8th 2011) (recognizing “a common-law Regulated Right: The Early American Or- tradition that right to bear arms is Control, igins Gun 78 Fordham L. Rev. citizens”); peaceable limited or virtuous 487, (2004); Cornell, 491-92 Saul “Don’t Marshall, Why C. Kevin Can’t Martha Know Much History”: about The Current Gun?, A Stewart Have 32 Harv. J.L. & Crisis in Scholarship, Second Amendment (2009). Pol’y 695, Pub. But 727-28 Heller 657, LKy. (2002); 29 N. Rev. David recognized “longstanding prohibitions on Yassky, The Second Amendment: Struc- felons,” firearms not ture, History, and Change, Constitutional just 626, violent felons. 554 U.S. at 588, (2000); 99 Mich. L. Rev. 626-27 Glenn category S.Ct. 2783. The of “unvirtuous Reynolds, Harlan A Critical Guide than citizens” thus broader violent crimi Amendment, 461, Second Tenn. L. Rev. nals; any person it covers who commit has (1995); Kates, Jr., Don B. The Second offense, ted a serious criminal violent or Dialogue, Amendment: A Law & Con- Probs., temp. Skoien, 640-41; 146; nonviolent. See Winter 614 F.3d Kates, Jr., B. Don Handgun Everist, Prohibition United States v. 2004); Clayton Challengers’ B. Kates & E. Circumstances Don Cramer, Amendment Limitations Historically Distinguishing a. Considerations, 60 Criminological Has- & Barred Class (2009); see also L.J. 1363-64

tings justifi- Having identified the traditional (“[Fjelons at 1115 are Vongxay, 594 F.3d denying criminal cation some offenders the individuals categorically different from right they arms —that are “unvirtu- to bear a fundamental who have they committed ous” because serious arms.”). suggests Barton To extent turn crimes—-we to how other criminal crimes people who commit serious may distinguish their offenders circum- regain their Second Amendment retain people stances from those of who histori- likely if to commit a cally keep lacked the and bear crime, 633 F.3d at over- violent ways satisfy two suggests arms. Barton Part ruled. See III.C.3.a. infra step first this second of one: the is' hurdle that challenger that a show he never anyone a The that who commits view rights lost his Second Amendment because right keep to serious crime loses crime; he was not convicted of a serious founding to era. bear arms dates back our challenger is that a once the second who ‘highly “Heller ... as a influen- identified rights by his Second Amendment com- lost Amendment ‘precursor’ tial’ to Second mitting may regain a crime them if serious of the Address and Reasons of Dissent is his “crime of conviction decades-old” and Minority of the State of of Convention “poses no continuing court finds he Pennsylvania Their to Constituents.” society.” at threat Skoien, Heller, (quoting 614 F.3d at 640 U.S. at That agree only with Barton insofar We per- proposi that citizens have it stands for the unremarkable report “asserted not person tion that a who did commit right to bear arms ‘unless for crimes sonal his serious crime retains Second Amend committed, public danger inju- or real ” rights. what makes a Setting aside' added) (quoting Ber- ry.’ (emphasis Id. crime “serious” the Second Amendment Schwartz, A Rights: The Bill Doc- nard § 922(g)(1) context and whether covers (1971)). History umentary non-serious crimes—issues we address “[Cjrimes committed”—violent or not— is on which there dis Part III.C.3.b and ground for ex- independent were thus an Op. Typescript at agreement, see Fuentes keep right and bear clusion of a non-serious being convicted 19-20— is to believe that arms. And there reason not lack “vir crime does demonstrate has roots that are even felon disarmament from ex disqualifies offender tue” Kates, Jr., L. more ancient. See 82 Mich. ercising rights.' those (“Felons simply did not fall Rev. of the common law within the benefits with Barton agreement But our arms.”). right possess reject claim that the ends there. We its evidence of rehabilita

passage of time or takeaway: who have Second Amendment will restore the tion forfeit the committed serious crimes committed serious rights people who way they possess firearms much the from Barton’s crimes. That view stems liberties, including step fun “forfeit other civil Marzzarella’s one misplaced focus at Barton, rights.” recidivism and probability constitutional on the of violent damental justification with the true inconsistent 633 F.3d at people time, society period the disarmament of who commit threat to for a it is they are “unvirtuous.” See serious crimes: overruled. A

supra challenger’s Part III.C.2. risk nothing us violent recidivism tells about Application Challengers b. to the he was convicted of a serious whether We now'consider whether the Challeng- crime, purport- and the seriousness of the ers shown have that their crimes are not edly disqualifying offense is our sole focus matter, a preliminary serious. As we note throughout step. first Marzzarella’s Fuentes, Judge join- colleagues those support There is no historical for the ing his opinion dissenting judg- from the passage view that the of time or evidence ment, deny possi- Government rehabilitation can restore Second bility of successful Second rights Amendment that were forfeited. To See, challenges 922(g)(1). remedy affords such a Congress extent 14; Binderup e.g., Gov’t Br. at Gov’t Sua- 921(a)(20) in 18 U.S.C. or 18 U.S.C. 15; Op. rez Br. at Typescript Fuentes § 925(c), legislative is a matter of view, § In their 922(g)(1), 18-40. at least in grace; the does form, its current in all constitutional its require that those who commit serious applications because it does not burden the given an opportunity regain crimes be Second Amendment of felons or fel- keep their bear arms who, on-equivalents because of their con- Indeed, fashion. the Court and victions, lack rights. Second Amendment our recognized Court have in the Second way, they Put another beliеve all Amendment context the Judicial subject crimes 922(g)(1) to are disqualify- “institutionally Branch is not equipped” to ing possible pun- because their maximum neutral, investiga- conduct “a wide-ranging proof they ishments are conclusive are ser- post-conviction tion” into assertions of re- ious. predict particu- habilitation or to whether But view puts the rabbit in the hat likely lar offenders are to commit violent by concluding that all felons and misde- crimes the future. v. United States Bean, 71, 77, potential punishments past meanants 537 U.S. 123 154 S.Ct. (2002); 483 a certain threshold lack to right keep L.Ed.2d see Pontarelli v. the U.S. when, Dep’t Treasury, 285 and bear despite F.3d arms 230- their maxi- of (3d (en 2002) banc); 31 Rep. Cir. possible punishment, S. 102- mum some offenses cf. (1992) 353, at 19 (doubting that even the be “so tame technical as to be grant Executive Branch feasibly could in- justify insufficient the ban.” United exceptions dividualized to 922(g)(1)based Torres-Rosario, States v. F.3d 658 on an supposed offender’s (1st rehabilitation 113 Heller confirms such a doing very because so is “a difficult and showing possible, prohibi- is as it describes subjective task” that “could have devastat- tions on the of firearms fel- ing consequences for innocent if citizens only “presumptively ons as lawful.” 554 made”). wrong decision is n.26, at U.S. 626-27 & 128 S.Ct. 2783. irrebutable, flagged Unless presump- as short, only the seriousness of the Barton, tions are rebuttable. See 633 F.3d purportedly disqualifying offense deter- 173; Williams, Indeed, at 616 at mines the sweep constitutional of statutes under approach Judge like step at Fuentes and one. To extent colleagues join Barton holds that those his people opinion convicted of seri- who dis- may regain ous crimes senting judgments, their lost from the Second the Govern- posing after not ment could make end-run around the kinds of hawks” or and undermine certain “invocates upshot in contraven is that “exclu- keep spirits”). and bear arms wicked possible A maximum tion Heller. crime’s not mirror that were on sions need limits legisla punishment “purely matter comport in 1791” to with the the books Estelle, 445 Rummel v. prerogative,” Skoien, tive 614 F.3d Second Amendment. 263, 274, 100 63 L.Ed.2d S.Ct. Rather, presume judgment we will (1980), subject only “constitutional and treat legislature correct laws,” Heller, on irrational prohibitions subject disqualify- crime 2783; n.27, 128 see U.S. at S.Ct. United ing strong is a reason to unless there do (3d Walker, 71, 79 v. States otherwise. 2007). Yet Heller that the teaches Govern Here, upon close examination of “to more than a rational basis ment needs Challengers’ apparently disqualifying keep and bear overcome the convictions, we conclude that their offenses n.27, 2783; S.Ct. arms.” 554 U.S. enough strip were not serious them of Marzzarella, There 614 F.3d at 95-96. see rights. their Second Amendment For start fore, Challeng to determine whether the ers, though Challengers’ crimes meet Second Amendment ers are shorn their felony and Con generic definition requires us to consider the rights, Heller felony of a gress’s purposes definition but not to possible punishment maximum Pennsylvania Mary § 922(g)(1), to it. blindly defer them as misde legislatures land enacted time, At the there are no same are, Misdemeanors and tradition meanors. determining whether fixed criteria been, ally have considered less serious enough destroy Sec crimes serious felonies; York, than See Baldwin New Unlike the “histor rights. ond Amendment 66, 70, 1886, L.Ed.2d 399 U.S. unprotected categories of ically speech” (1970); misdemeanor, Black’s Law exceptions that are First Amendment LaFave, 2014); 1 Sub Dictionary ed. bar,” “long familiar to the United States Congress 1.6. stantive Criminal Law 468, Stevens, 460, 470, 559 U.S. 130 S.Ct. only serious crimes tried to ensure (2010), 1577, the category 176 L.Ed.2d 435 trigger disarmament under would changes as of serious crimes over time any 922(g)(1)by exempting from the ban judgments virtue legislative regarding crime was state-law misdemeanant whose only example, though For a few evolve. by years’ impris than punishable less two crimes exceedingly serious were “felonies” 921(a)(20)(B). But 18 we onment. U.S.C. law, early by time our at common of paints still believe accommodation “many country’s new felonies founding brush, legisla a state with too broad a 1 by statute.” Whar English were added a of an offense as mis ture’s classification 2015); § 17 ton’s Criminal Law ed. of its expression is a powerful demeanor see, Blackstone, 4 Commen e.g., William is not serious the offense belief (“[N]o *18 less than hundred a[] taries enough disqualifying. to be by sixty have been declared [actions] and say misdemean This is not that state parliament be act of felonies without “some cannot be serious. No doubt ors words, or, clergy; of to be benefit other offenses,” ... misdemeanors are ‘serious’ Bacon, death.”); worthy of instant Francis Baldwin, and the Union Laws Preparation of conduct “numerous misdemeanors involve Scotland, in 2 The England and Works of felonies,” Ten dangerous many than Bacon, more Eng Chancellor Francis Lord 1, 14, Garner, (1841) 471 U.S. S.Ct. nessee v. (listing of felo land 163-64 dozens (1985). “[wjhere nies, See Johnson v. man 85 L.Ed.2d including a stealeth 133, 149-50, States, pre-sentence fit reports prepared 559 U.S. United (2010) (Alito, J., professionals. single 176 L.Ed.2d trained not a S.Ct. With (“At many- time, ... dissenting) day jail punishments common law here crimes, kidnapping as very sentеncing judges’ serious such reflect the assessment assault with the intent to murder or and minor the were. how violations categorized as rape, were misdemean- Finally, is cross-jurisdictional there no ors.”). maximum possible punish- And the regarding consensus the seriousness of certainly probative of a misde- crimes. Challengers’ Some states treat Congress may But meanor’s seriousness. relationships sexual between 41 consensual the misdemeanor generally not overlook so crimes, year as see olds serious label, which, in the n.4, Binderup Br. at 17-19 but the Gov’t & context, important. is also not, majority Asaph do see vast states considerations, however, confirm Other at., A Statutory Rape: Glosser et Guide to Challengers’ our crimes belief Reporting Requirements State Laws above, explained were not As vio serious. (Dec. 15, 2004), https:// 6-7 available at criminal meaning a lent crime aspe.hhs.gov/sites/defaulVfiles/pdf/75531/ conduct— (actual “in or attempted) which violence (last report.pdf Aug. visited offense,” Skoien, an element of the 614 Binderup’s arguably conduct would have 642; Voisine, at' see S.Ct. criminal in few been a other states because disqualifying. See Part III.C.2. 2280 — is 17-year-old em- partner his sexual was his Challenger’s But offense had the neither ployee, yet it still have legal would been attempted use or use of force as an elem many Similarly, though states. some states Though, explained, possible ent.4 it is punish unlicensed of a con- carrying serious, for non-violent crimes be crime, weapon cealed as a serious see Gov’t lack of a violence element is relevant n.5, Suarez Br. at 16-17 than half more consideration. prescribe maximum sentence that does not meet the threshold a traditional Challenger important Also is that each (more felony year than one in prison) and a minor sentence measure: received specific do not cre- require others even Binderup years’ was sentenced to three carry weapon, dential to see (a concealed probation of which condition was to Reuters, Survey: Right Thomson 50 State employee) avoid contact with his and a (Statutes) Carry Weapon a Concealed restitution, fine plus court costs $300 (October 2015); Accountability U.S. Gov’t a suspended while Suarez received sen- Off., Requirements States’ Laws and of days’ imprisonment tence 180 and a Vary Carry Concealed Permits Across punish- fine. That is because severe $500 (2012), http:// Nation 73-74 available at typically ments are reserved serious (last Additionally, www.gao.gov/assets/600/592552.pdf crimes. are punishments se- 25, 2016); Aug. visited Law Ctr. to by judges lected who have firsthand Prevent Violence, of Gun knowledge Weapons the facts and circumstances Concealed Permit- likely of ting, http://smartgunlaws.org/gun-laws/ the cases and who have the bene- Though only relationship seventeen-year-old we look to a crime's elements with his em- way actually rather than to was the commit- ployee” engaged any or "that he even vio- ted, we an note as aside that the District threatening lent or 2014 WL conduct.” "[tjhere explained Binderup Court in 4764424, Similarly, *22. the District at Court simply nothing in the record here which described Suarez's misdemeanor as Suarez support would inference that a reasonable - F.Supp.3d "minor and non-violent.” at violence, force, [Binderup] used or threat -, 685889, WL *9. at force of to initiate or maintain the sexual record, it does No applied. On this not. pofiey-areas/fireams-in-public-places/ (last visited concealed-weapons-permitting/ is intended to further the doubt 25, Challengers un- the Aug. Were promoting of government public interest many consider states able show so “preventing mayhem,” armed safety by non-serious, it would be crimes to be their Skoien, 642, an interest 614 F.3d at carry at them to their burden difficult for But important compelling. both wheth they have shown But because step one. scrutiny or apply er we intermediate strict regarding no the there is consensus the scrutiny we continue follow —and crimes, showing of their their seriousness lead Marzzarella in choosing intermedi of compelling.5 that much more step at one is scrutiny, ate 97—the Govern sum, Challengers have carried proof on the bears the- burden showing that their misde- burden of their employs the means it appropriateness of despite offenses meanors were serious See, e.g., Bd. of Trs. of further its interest. punishment.6 This possible maximum their Fox, State N.Y. Univ. of 492 U.S. Binderup and to conclude that leads us 109 S.Ct. 106 L.Ed.2d 388 their circum- distinguished have Suarez California, Johnson v. (1989); historically stances from those 499, 505, n.1, That, in to arms. from excluded (2005). L.Ed.2d 949 turn, to meet requires the Government falls well short of Here Government scrutiny heightened form of some its under satisfying burden —even interme- Marzzarella framework. step second scrutiny. The record before con- diate us Step Two the Marzzarella D. Challengers’ about sists of evidence

Framework including time that has backgrounds, last It passed since broke law.

Next, we consider whether survives, explaining why scrutiny contains no evidence ban- heightened 1, 9, States, Judge colleagues 360 U.S. S.Ct. L.Ed.2d Fuentes and those who (Fifth (1959) Amendment). dissenting judg- join opinion his approach this is not ments caution that extraordinary "places an ad- "workable” the cases before 6. Our decision is limited to courts,” us, ministrative burden district which involve state-law misdemeanants 2, 71, Op. Typescript at the crite- but bringing as-applied Fuentes Second Amendment chal- important ria we use to the seriousness of be- lenges 922(g)(1). assess This is § 922(g)(1) ele- subject legislature misdemeanor chooses to call a when cause —the sentence, misdemeanor, offense, we ments the actual have indication crime a opts easily lacking the state of the law—are administrable. that is when it non-seriousness felony We objective label. are not These indications seriousness instead to use the as-applied Sec- judgment with whether an well within the ambit of exercised confronted challenge where daily judges. well can succeed Courts are also suited to ond Amendment disqualifying purportedly offense is con- identifying in the serious crimes task context, authority felony by the that created sidered a as in other con- hand, possible to On the one it is Judicial Branch is the crime. stitutional contexts the open possibility, how- charged discerning “objective read Heller leave criteria remote, as-applied chal- society ever of a successful reflecting the with which seriousness Baldwin, of- lenge by convicted of such an regards 399 U.S. at someone offense.” [an] so, time, 68, see, 1886; even if that were e.g., City v. fense. At the same Blanton 90 S.Ct. of 538, 543-44, be extraordi- individual’s burden would Vegas, U.S. 109 North Las 489 (1989) (Sixth narily high perhaps even insurmounta- 103 550 S.Ct. L.Ed.2d —and event, Wisconsin, Challeng- Amendment); given that neither ble. In v. U.S. Welsh 740, 753, description, we need not decide er fits that L.Ed.2d 732 Amendment); (1985) (Fourth question. Smith United (ie., ning people prison. like them their from people who reoffend after release ago committed similar misde- decades Challengers The were not incarcerated meanors) pro- from firearms possessing law; they and are not felons under state safety. motes The Government public spent no state-law misdemeanants who “partic- claims that someone like Suarez is jail. in time The Government cannot draw ularly likely to misuse firearms” because any reasonable conclusions about the risk category “potentially he to a of belongs posed by possession of from their firearms irresponsible persons,” Gov’t Br. at Suarez obviously such It distinguishable studies. 27-28, Binderup and that like someone is that placed pro- claims even criminals on likely to “particularly commit additional bation rather than a prison sent have future,” Binderwp in the crimes Gov’t Br. recidivism, heightened risk of but “present it meaning- at 35. But must some that, study it “[generally, cites found evidence, assertions, not mere to justify ful highest risk of during recidivism was predictive conclusory] judg- its here [and year probation,” first after admission to Heller, ments.” F.3d at 1259. In these prisoners pro- that released “[a]s cases evidence in neither the the record age, they bationers tend to exhibit lower common nor supports sense those' asser- of & rates recidivism.” Iowa Div. Crim. tions. Planning, Juvenile Justice Recidivism on a Government relies number of Among 2005), (July Iowa Probationers off-point argue that statistical studies http://publications.iowa.gov/ available at Challengers reasonable to disarm the (last Aug. visited Binder- 15032/ because of their convictions. It notes that up’s and Suarez’s offenses are 20 and 26 generally felons commit violent crimes old, years study so respectively, tells nonfelons, frequently more than see Bu- little, us if anything, about the risk of Statistics, reau Dep’t of Justice recidivism these cases.7 Justice, Recidivism Prisoners Released The Government also claims to have (2002), at and that the “denial of particular studies of relevance to each handgun purchases [to convicted felons] is Challenger’s situation, argument but this with a reduction risk for associated later Binderup, too misses the mark. As to activity criminal of approximately 20- Government cites studies from several 30%,” al, Wright A. Mona et Effectiveness classify states it contends would him Handgun Denial Purchase to Per- as a his sex offender account of criminal High sons Believed to Be at Risk Fire- 33-34; ‍​​​‌‌​​‌‌​‌​​​‌​​‌‌​​‌​​‌​​‌‌‌​‌‌​‌​​‌‌‌​‌​​​​‌‌‍Binderup conduct. See Br. at Violence, Gov’t arm 89 Am. J. of Pub. Health (1999). (citing Pennsylvania see id. But also at n.8 these studies estimate the study showing likelihood incarcerated felons will individuals convicted discussed, separating 7. As evidence how al individuals those who have Second lines— committing have lived their lives since crimes those do who not—at step, is irrelevant under first Marzzarella's step two we must ask whether Govern- support there is no historical for rehabilita- enough strong ment has made a case for being tion determining consideration in disarming person step after one be found someone has Second whether eligible challenge. assert This However, rights. step analysis two of the part turns on the likelihoоd the Chal- question longer is no whether the Chal- lengers will commit crimes in future. lengers fall within Second Amendment’s Thus, pas- under the circumstances the protections. They do. Our task now is to de- sage of time since a can conviction be cide whether the Government can disarm assessing relevant consideration in recidivism protections. despite them these Whereas our risks. obligation step one to draw constitution- Parties use challenges. may have a 50-60% offenses certain sexual people to that who commit years of statistics show within three of rearrest chance low) (or high likeli- unsurpris- certain crimes have Binderup prison). from release (or hood that warrants does label. need not of recidivism that We ingly disputes warrant) disarmament, here, as, even much like not decades into the weeds delve cases, above, empirical after a conviction. In these discussed general studies the more an appro- focus on studies could have demonstrated specific studies the sex-offender priate Challengers’ is fit total It not between were incarcerated. people who promotion of public disarmament and inferences about use- helpful to draw safety from those if contained reliable statistical disarming Binderup fulness of people Challengers’ evidence that off-point studies. likely more to misuse backgrounds were Suarez, empha- the Government As irresponsible or firearms were otherwise “weapons arrested for sizes simply pre- dangerous. or The Government rates, high are rearrested at offenses” no such sented evidence.8 (citing Br. & nn.10-11 Suarez at 30 Gov’t studies), study indicating and relies on Additionally, law gives federal purchasers handgun that California opportunities to es Binderup and Suarez convictions for nonviolent prior “who had does not save cape the effect of carrying firearm-related offenses such unconstitutionality under the statute from public, firearms in but none for starters, concealed For several the circumstances. offenses,” likely than violent were more are to them avenues closed altogether: no criminal histories be people with they may apply for relief under crime, with a violent see charged later 925(c) provision because that has been al, et Prior Misde- Garen J. Wintemute years, Logan, see unfunded Factor meanor as Risk Convictions 475; n.1, ineligi is and Suarez and Firearm-Related Crimi- Later Violent expungement ble for the restoration Purchas- Activity Among nal Authorized Code, P., rights, Md. Crim. his civil see Handguns, 280 Am. Med. Ass’n ers 10-105; 31-32, Logan, 552 U.S. (1998). only study ad- Yet open avenues that remain S.Ct. 475. Those within 15 dresses the risk of recidivism satisfy intermediate do not even them unspecified years of a conviction for an Binderup’s record be ex scrutiny. ].” firearm-related Id. offense[ “nonviolent (or age is only he reaches punged after tells that recidi- at 2086. sense us Common years), three 18 Pa. Cons. Stat. dead for change passage with the vism rates would 9122(b), there is no evidence but as (Suarez years an was con- additional Binderup it is to ban showing reasonable vary ago) and on the years victed 26 based today, is a firearm there possessing from prior circumstances of the conviction. is certainly no evidence show place until keep that ban reasonable say empirical This not to studies op- only remaining The birthday. his 70th irrelevant scrutiny heightened colleagues form it is Judge who either Fuentes and those prove that the re- dissenting judg- burden join opinion Government’s his prob- appropriately heightened scrutiny tailored. suggest striction ments that our asking is that because Govern- analysis Challengers lem in our cases down to the boils sweeps broadly, it does evidence so they will not firearms ment’s us to trust that misuse the restriction serves predictive judg- not establish that make because we cannot people applied to Challeng- important interest even as ments the need to disarm the about Challeng- Challengers, let to the degree like the alone Fuentes ers "with confidence.” Op. disagree. We ers themselves. Typescript at 55. Under 356 if Binderup [judges] they, is for and Suarez to receive from

tion combined votes Pennsylva pardons plurality from the Governors of concurring opinions, or establish (Pardons Maryland, respectively. nia and majority a view on the Id. relevant issue.” are, noted, already independent an as single explaining And. when no rationale ground for the firearm disabili relief from enjoys majority the result the of a support §in ty 922(g)(1), Binderup and must re Court, “may holding the its be viewed as pardon rights. a to his civil ceive restore that position taken those Members who 4502(a)(3).) 42 Pa. Cons. See Stat. But judgments concurred the on the narrow- Government presented has no evidence States, grounds.” est Marks v. United 430 explanation why as a Governor’s 188, 193, 990, 51 U.S. 97 S.Ct. L.Ed.2d 260 pardons decisions about classic exam (1977) —“a (quoting Gregg Georgia, v. 428 U.S. discretion,” ple unreviewable executive 153, n.15, 2909, 49 169 L.Ed.2d Quinn, Bowens v. 561 F.3d (1976) (plurality opinion)). 2009) reasonably Cir. related to the — are here, Applying interpretive those tools posed by Challengers’ possession risk (1) following is the law of our Circuit: Though pardon of firearms. would reflect two-step con- Marzzarella framework Suarez, Binderup on is hardly well and challenges, trols all Second Amendment par reasonable to treat the absence including as-applied challenges by any adequate don—rare measure —as (2) satisfy § 922(g)(1); challenger will proof continuing of a need to disarm them step first of that if only framework he indefinitely. proves that regulation the law or issue at isolated, Challengers’ decades-old, protected by burdens conduct the Second permit non-violent misdemeanors do (3) Amendment; step to satisfy one in the disarming the inference that people like context challenge will promote responsible them use of § 922(g)(1)', challenger prove must is firearms. Nor there evidence not previously he was of a seri- convicted why record to show people like them re- (4) crime; challenger’s ous evidence aof potentially main irresponsible many after rehabilitation or his likelihood of recidi- years responsible of apparently behavior. vism not step-one analy- is relevant to the more, Without there not a substantial fit (5) sis; as ground supporting the narrowest continuing between the disarmament of judgments the Court’s Binderup Challengers important govern- and an Suarez, the above considerations discussed Thus, ment interest. uncon- will determine whether crimes are serious applied stitutional them. (i.e., (6) one; disqualifying) step if a challenger necessary step-one makes

IV. Conclusion the burden showing, shifts the Govern- sorting When out a fractured decision of ment step prove regula- two to that the Court, goal single legal is “to find a tion at issue survives intermediate scruti- “produce[s] standard” that results with ny. majority which a in the [Court] case us, though Binderup the cases before articulating the agree.” standard would fail Suarez to show that their misde- Donovan, United v. States (3d 2011) subject meanor are not offenses (quoting Planned Par- § 922(g)(1), they pre- have rebutted the enthood Pa. Casey, Southeastern (3d 1991), sumption lack Amend- , modified grounds, rights by distinguishing their crimes other S.Ct. (1992)). historically 120 L.Ed.2d 674 of conviction from those that We have at times dissenting “looked the votes of led to exclusion Second Amendment “presump- as dispossession of felon test ization first-step This meets protections. Heller, in we held United tively lawful” two, step the Govern- At Marzzarella. prohibition that this does v. Barton evi- States sufficient present failed to ment has Amend- on its face violate Second interme- not under even to demonstrate dence (3d doing ment. 633 F.3d 168 with may, it consistent scrutiny that diate 922(g)(1) § remains sub- Amendment, so stated that 922(g)(1) § we apply the Second challenges. constitutional ject possess- from and Suarez Binderup to bar appeals at 172-75. These consolidated Accordingly, Id. homes. in their ing a firearm Bind- challenges. such Daniel present two of the District judgments we affirm permanently erup and Julio Suarez —each Courts. firearms because possessing from barred HARDIMAN, concurring Judge, Circuit misdemeanor convictions—contend prior judgments, in the concurring part and ap- § unconstitutional as 922(g)(1) that is CHAGARES, FISHER, joined by plied to them. NYGAARD, JORDAN, Circuit and can that cogent principle The most It is. Judges. limitations on from traditional be drawn indi- secures an Amendment The Second is that keep and bear arms keep “right people” vidual likely to use firearms dangerous persons in the to service arms unconnected bear not understood to purposes illicit were for Heller, 554 Columbia militia. District by the Amendment. protected be Second 570, 595, 171 L.Ed.2d 128 S.Ct. have and Suarez Binderup And because (2008). right was “pre-existing” This crimes of convic- that their demonstrated Rights light Bill in the included person- and that their tion were nonviolent experienced under the colonists troubles from distinguishable al circumstances are apprecia- and the Founders’ British rule enjoy do not Second who those power that was considerable tion of the dem- of their because govern- new federal to the transferred violence, judg- for proclivity onstrated in our specific guarantee ment. Without af- must be District Courts ments of the charter, that it was feared fundamental firmed. day be disarmed. might one people” “the I 598-99, 2783. At id.

See time, understood the Founders same colleagues with all our agree We Amend- everyone possessed to disar- subject Binderup and Suarez require us rights. appeals These of 18 U.S.C. plain terms mament under people” “the enti- among count decide who Judges agree 922(g)(1).1 We also arms. and bear keep tled to Smith, Greenaway that Ambro, held correctly Court prohibit District States The laws of the United applied unconstitutional misdemeanants felons and certain perceive we Suarez. But Binderup 922(g)(1). firearms. 18 U.S.C. possessing opinion.2 Judge Ambro’s flaws eharacter- Court’s Guided unconstitutionally vague un- 'being agreement declared universal 1. Given the Court's Dissent Process Clause. See der the Due unambiguous whom it as to appli- simply certain Our view is 71-74. criminalizes, trou- we have and what it covers might be un- pellucid statute of this cations fears that comprehending the Dissent's ble constitutional. assessing as- approach the statute’s our constitutionality the Second applied under joins two Although majority of the Court (set infra) puts at risk of forth plu- opinion and Judge Ambro’s portions of with, begin To our colleagues misappre- possess a firearm unconnected to justifications hend the traditional underly- militia, service in a and to weapon use that ing dispossession, felon substituting a traditionally lawful purposes, such as vague requirement “virtue” that is belied self-defense within the home. 554 U.S. at Then, by the historical record. under the 595, 128 S.Ct. 2783. The Second Amend- guise “reaffirm[ing]” the two-step test ment “elevates above all other interests Marzzarella, of United States v. Ambro right of law-abiding, responsible citi- 6,Op. they actually expand that test—and zens to use in arms defense of hearth and it, along judicial with power. For our right home”—a that is at the “core” of the colleagues hold that respect even with 635, Second Amendment. Id. at 128 S.Ct. persons entitled to Second Amendment added). (emphasis 2783’ years Two after rights, judges may pick and choose whom Heller, in City McDonald v. Chicago, the government may permanently disarm the Court held the Fourteenth Amend- judges if the approve of the legislature’s ment “incorporates the Second Amend- balancing. interest Despite Binderup’s and right recognized Heller,” in explain- today, Suarez’s success our colleagues ing that right is “fundamental” to “our have power retained “the to decide on a system liberty.” 742, of ordered 561 U.S. case-by-ease basis whether the [Second 778, 3020, 130 S.Ct. 177 L.Ed.2d 894 right really Amendment] is worth insisting (2010). upon.” Heller, 634, U.S. 128 S.Ct. Although the Second Amendment is an by 2783. This is demonstrated the fact that enumerated right, fundamental it is “not all but three of our dissenting colleagues— Heller, unlimited.” 554 U.S. at who have concluded that all as-applied S.Ct. 2783. “No fundamental right —not challenges 922(g)(1) join must fail— even the First Amendment—is absolute.” Judge bulk of Ambro’s constitutional McDonald, 561 U.S. at 130 S.Ct. 3020 analysis. By contrast, we would hold—con- (Scalia, J., concurring). “who,” A range of sistent with Heller —that non-dangerous “what,” “where,” “when,” and “how” re- persons convicted of offenses unassociated relating strictions permit- firearms are violence presumed rebut the con- many based on scope of the Sec- stitutionality ted' — as-applied on an ond Amendment and others based on their basis, and that when a law eviscerates the satisfaction of some level heightened core of the Second right scrutiny. Volokh, Eugene See Implement- (as keep and bear arms does ing Right Keep and Bear Arms criminalizing right exercise of the entire- An Analytical ly), it Framework categorically unconstitutional. Self-Defense:

and A Agenda, Research 56 UCLA L. A (2009) Rev. (distinguishing be- “ (such tween ‘what’restrictions as bans The on Second provides: “A guns, machine Militia, well so-called ‘assault regulated weapons,’ being necessary to or State, unpersonalized the security handguns), of a free ‘who’ restric- right of (such people Arms, tions as keep and bear bans on shall fel- Const, ons, misdemeanants, not be infringed.” noncitizens, amend. II. or 18-to- Heller, (such the Supreme 20-year-olds), Court held the ‘where’ restrictions as Second Amendment protects an individual bans on carrying public, in places that others, rality joins the outcome-determinative portion indicate whether the relevant thereof supported by only judges. sections are three by majority was backed or not where neces- confusion,

To minimize we will refer to the sary. opinion "Judge opinion” as Ambro's and will they fall outside the shotguns,” is that bans on alcohol, parks, or serve “scope right” historical housing pro [guns] public possessing —not or com- yields important to some right (such storage as ‘how1restrictions jects), Heller, 554 government interest. pelling (such “when’restrictions regulations), [and] 2783; see also United U.S. at States v. United waiting periods)”); (3d Marzzarella, States Huitron-Guizar, 1164, 1166 heuristic). 2012) the same (applying yet has not heard Court instance, “not a For Amendment chal- weapon whatsoever carry any keep lawful ban on lenge presumptively to a for whatever whatsoever and any manner But that fact makes possession. firearms 626,128 Heller, S.Ct. 554 U.S. purpose.” binding McDonald no less Heller and Likewise, has Supreme Court inquiry here. our tradition of acknowledged the “historical dangerous and carrying the of prohibiting B (internal quotation Id. weapons.” unusual omitted). addition, cata- Heller marks 1 “presump- of non-exhaustive list logued a pertain to Binder- Two of our decisions that measures” tively regulatory lawful in as-applied challenges up’s and Suarez’s parame- the historically constrained have v. Marzzarel appeals. these United States n.26, 128 S.Ct. Id. at 627 right. of the ters as-applied challenge la involved prohibi- “longstanding These include 922(k), which conviction under 18 U.S.C. by fel- of firearms possession the tions on handgun with possession prohibits ill, ... laws forbid- mentally ons and “what” re serial number —a an obliterated in sensitive carrying of firearms ding the of a certain limiting possession striction government and such as schools places at Be of firearms. 614 F.3d category imposing conditions buildings, laws [and] not included Hel cause this statute was the commercial sale qualifications on and lawful firearm presumptively list of ler’s 626-27, at 128 S.Ct. 2783. arms.”3 Id. gleaned from Heller regulations, we go restrictions Critically, such “traditional Amend approach to Second “two-pronged lack right, not its scope to show first con challenges.” Id. at 89. We McDonald, 561 character.” of fundamental challenged imposes law “whether the sider (Scalia, J., 802, 3020 falling within a burden on conduct added). reason, concurring) (emphasis guaran Amendment’s scope of the Second example, that the Second lies outside Id. If the conduct tee.” typi- not does weapons scope, those protect “does not Amendment’s must challenged law law-abiding apply citizens for and the by not cally possessed protected But if the law burdens stand. such as short-barreled purposes, lawful the Court's portion Heller limits this has charac- of our sister courts 3. At least one possession firearms law-abid- opinion to "presumptively lawful” terized Heller s list of individuals, dicta.”). qualified it is not ing v. United States regulations as dicta. See Moreover, 2010). on this (5th doubled down the Court Cir. Scroggins, F.3d U.S. at language in McDonald. See 561 scope of their often limit "[c]ourts But Hence, concluded we have integral S.Ct. 3020. holdings, and such limitations a limitation on the constitutes Vongxay, that Hellers list holdings.” United States those qualify 2010) holding (9th scope and does (treating of its Hel- Cir. 171; Barton, United 633 F.3d language dicta. See as bind- "presumptively lawful” ler's (3d Huet, Rozier, 665 F.3d States v. ing); United States v. see also ("|T]o 2010) the extent 922(k) conduct, fied in proper we determined statute at issue —the (and appeals) Barton pre- the law these was a is to “evaluate under some course sumptively “who” lawful restriction that scrutiny.” “If of means-end Id. form prohibits people possessing certain standard, passes law muster under guns membership because their in a fails, it constitutional. If it is invalid.” Id. is criminal was a had class. Barton felon who 922(k)’s §to Applying that test ban on possessing been convicted of firearms possession of firearms obliterated § 922(g)(1). ammunition in violation of Bar- numbers, we held the law serial ton, readily 633 F.3d at 169.We concluded pass constitutional muster even if it “would challenge light that his facial “must fail” in protected conduct.” Id. at 95. In burdens presumptively Heller's list of lawful fire- words, skipped step we the first other arm regulations. Id. at 172. We reasoned apply scrutiny. means-ends proceeded challenge requires since a facial scrutiny4 chose intermediate We because showing challenged that the law “is uncon- burden the law imposed does not “[t]he applications,” stitutional all of its Heller severely limit possession firearms” challenge foreclosed a facial to 922(g)(1) and does not bar of an entire lawful,” “presumptively because it is mean- class of firearms. at 97. Under that Id. that, ing circumstances, “under most [it] standard, concluded that the law we regulatefs] which unprotected conduct it fits reasonably constitutional because by the Second Amendment.” Id. important the substantial or “law en- appeals Most relevant these our to is enabling tracing forcement interest the analysis as-applied of Barton’s challenge weapons via of their serial numbers.” Id. § 922(g)(1). regard, In that we first deter- 98. that opined at We also the law would mined that “Heller’s statement regarding pass scrutiny5 strict because serves a validity the presumptive gun of felon dis- compelling government interest through possession does not statutes foreclose” the “least-restrictive” means. Id. at 100. as-applied challenge. Id. 173. We rea- year A after we Marzzarella decided soned “[b]y describing that the felon disar- Barton, as-ap- which involved facial and lawful, mament ban the presumptively as plied challenges very question law in the Supreme implied that presump- Court the § 922(g)(1). (internal the law at here: Unlike issue in tion Id. at be rebutted.”6 173 omitted). Marzzarella —the “what” restriction citation quotation codi- and marks scrutiny "require[s] suggest Intermediate 4. the assert- Court not did that the stat- governmental ed just end to be more than subject ute be nonetheless could to a success- ‘substantial,’ legitimate, 'significant,' either (in- or as-applied ful challenge.” constitutional ” 'important/' requires and “the fit between omitted)); Binderup ternal Br. citation Gov’t regulation objective the reasonable, asserted the be (same, verbatim). The Government retreat- Marzzarella, perfect.” proposition ed from that somewhat at oral (citations omitted). at 98 F.3d argument, reframing position objec- its as an merely rely as-applied challenges tion scrutiny "Strict asks whether the law is is individualized review whether a law narrowly compelling gov- tailored to serve light challenger's unconstitutiоnal of the Marzzarella, ernment interest.” 614 F.3d at 96 particular degree But circumstances. some n.14 part parcel assessment is individualized See, challenges. times, as-applied e.g., of all United reject At the seems to Government (3d Marcavage, States v. 609 F.3d as-applied possibility even the anof Second 2010) (explaining as-applied Cir. that an chal- challenge presumptively law- See, lenge regulation. that a law e.g., Gov’t Suarez "does not contend is uncon- ful Br. 15 ("In application recognizing ‘pre- stitutional as written but that its section as a ],’ sumptively regulatory particular particular person lawful the to a under cir- measure! whom, required right depends “upon to Amendment (cid:127)Next, what was explained we as-applied Second mount a successful (em- protect”) . was intended to 922(g)(1). challenge to We original). analysis Our revealed phasis pedigree” looked to the “historical although persons convicted violent “whether the to ascertain tradition- statute pos- have been barred from firearm crimes underlying sup- the statute justifications al thirty it wasn’t until session since disability in port finding permanent years Congress dispossessed later Id,.; see also id. (noting at 175 case.” this felons. Id. at 173. The historical nonviolent felon constitutionality dis- demonstrated that “the statute under the Second record common Amendment) person scope step- deprived that of a constir Second cumstances added)). right” (emphases (means-end tutional question scrutiny). two Its conclu determination in Barton that And our under sion that former is correct as-applied challenges subject standing long of Heller that “these meant by no means an outlier. Several of our exceptions standing limitations accepted either or allowed sister courts have Marzzarella, right to 614 F.3d at bear arms.” possibility Amend- 91. Bartons characterization mirrored Marz regu- challenges presumptively lawful longstand it stated that a "lawful” zarella's: See, Williams, e.g., v. lations. United States ing regulation "regulates 'fall[ing conduct- (7th 2010) Cir. {‘‘Heller scope of the Second Amend outside] only to felon disarmament bans referred ” Barton, guarantee.’ ment’s 633 F.3d at 172 lawful,’ which, 'presumptively by implication, Marzzarella, (quoting 614 F.3d at But possibility means that there must exist the any prec neither nor other of our Marzzarella in the that the ban could' be unconstitutional implied edents has ever that Heller's incom as-applied challenge.”); United face of an plete "presumptively list of lawful” firearm (4th Carpio-Leon, States v. 701 F.3d " regulations 'under and all circumstances 2012) ("The holding Heller Court’s ” do not offend the Second Amendment.' Dis to bear arms law- defines core Rozier, (quoting United sent at 384 States responsible pre- abiding, citizens does not 2010) add determination that clude some future ing ignore the emphasis). To so hold would might nonetheless who commit some offenses protected ‘law-abiding, meaning "presumption.” pre A remain in the class of of the word Holder, responsible’ persons.”); Schrader sumption constitutionality presump “is 980, 2013) (D.C. (indicating 704 F.3d ... the existence of factual condi [about] tion willingness as-applied Second to consider an legislation. supporting the As such it is a tions challenge 922(g)(1) Amendment but con- presumption.” Farm Prod rebuttable Borden’s cluding properly). it had not been raised Baldwin, 209, 55 ucts Co. v. 293 U.S. Although conclusion on the Dissent rests its (1934) (emphasis add S.Ct. 79 L.Ed. 281 all covered its determination that ed). disagree that Heller Court We do not the scope fall outside the Sec- "presumptively lawful” lan included this Amendment, expresses ond it too doubt as to guage provide that its "assurance[ ]” some availability as-applied constitutional provide "did not a basis for future decision challenges "presumptively to this lawful" stat- litigants upend any and all restrictions (stating that ute. See Dissent at 388 Marzzarel- right at 394-95. to bear arms.” Dissent reading’ 'better of Hel- la "concluded Indeed, we have concluded that presumptively lawful] ler list of [the was Barton, facially very See valid for this reason. complete ‘exceptions measures were Supreme at 172. But we doubt Marzzarella, ”) right (quoting to bear arms’ its first definitive characteriza Court couched adding emphasis). F.3d at 91 and Marzza- of the Second Amendment tion of nature (indeed, thing it did not rella held no such completely right as to immunize this stat so challenge pre- of the even involve a to one challenge whatso ute constitutional regulations sumptively longstanding lawful simply, take the Court ever. Put we Rather, Heller). examination identified its dispossession “pre that felon at its word geared determining list was toward of Heller’s Heller, sumptively lawful.” 554 U.S. at 627 "presumptive- regulations were whether such added). n.26, (the (emphasis step-one question 128 S.Ct. 2783 ly on the lawful” based keep reasons, law and bear arms did not For rejected those we Barton’s likely extend to those who were commit challenge because he had failed violent Accordingly, offenses.” Id. we de- “to demonstrate that his circumstances termined that the exclusion of felons and place him outside the intended scope of other scope criminals from the of the Sec- 922(g)(1).” Id.

ond protections Amendment’s was teth-

ered to the practice keep- time-honored ing firearms out of the hands of those Our decisions in Marzzarella and Bar likely to commit violent crimes. Id. ton show that question the threshold in a challenge is one of discussed,

For the reasons we concluded scope: whether the Second Amendment “[t]o raise successful as-applied protects the person, the weapon, or the challenge, present must [one] facts about activity in place. the first requires This himself and background his that distin- inquiry Heller, into “text history.” guish his circumstances from those of per- 128 S.Ct. 2783. historically sons “Constitutional barred from Second rights are enshrined with protections.” scope they Id. at 174. We were explained understood to people further: have when the them, adopted whether or not legis future instance, For a felon convicted of a mi- or (yes) latures even nor, judges future think nonviolent crime might show that scope 634-35, too broad.” Id. at he is no dangerous more than a typical S.Ct. 2783. The “critical law-abiding tool of constitu Similarly, citizen. a court tional might interpretation” find that a felon this area is “exam whose crime of conviction ination poses variety is decades-old of a of legal no con- and other tinuing society. threat to sources to public determine the under standing of legal text in period after (internal omitted). Id. citation its enactment or ratification.” Id. at We had no trouble concluding that Bar- (emphasis in original); see ton failed to make showing this because he also City Ezell v. Chicago, 651 F.3d could not demonstrate that he was “no 2011) (“Heller suggests likely more than typical citizen to com- gun some federal will laws survive Second mit with, a crime of begin violence.” Id. To Amendment challenge they regu because prior his disqualifying convictions were for activity late falling scope outside the possession of cocaine with intent to distrib- publicly understood when Bill ute receipt and for of a stolen firearm. Id. ratified; Rights of was McDonald confirms “[cjourts explained, As we in have held a that if the claim concerns a state or local number of contexts that relating offenses law, the ‘scope’ question asks how the drug to trafficking receiving stolen publicly was understood when the weapons closely related to violent Fourteenth proposed Amendment was again, the relevant justi- historical crime”-— ratified.”). Hence, scope the of the right fication for excluding the class of which discerned with reference Barton to the “historical was member from the Second justifications” protections. underlying Amendment’s traditional Id. The limits record right’s Heller, also on the coverage. indicated that Barton had not been 554 U.S. at 635, 128 rehabilitated such that he S.Ct. 2783. The was “no more test we enunciated dangerous than a typical law-abiding citi- in Barton was directed at this very ques Indeed, zen.” Id. recently Barton, (“[T]o he had tion. admitted See 633 F.3d at 173 selling to a firearm with an obliterated evaluate as-applied challenge [an] [to serial number a police ], informant. Id. 922(g)(1) we look to ped- historical [its] in- the home be rendered tradi- firearms within whether the determine ... igree it unconstitutional without operable, the statute was underlying justifications tional disability governmental support- interests permanent regard finding support case.”). “fit” the the law or their overall with ing in this Heller, 629-30, 554 U.S. at regulation. See scope speaks Barton fact that 128 S.Ct. 2783. the mean, colleagues and as our does not insist, applica- requires Specif- that it this out. reasoning Hellers bears Government scrutiny it is deter- once the District of Co- ically, respect tion of means-end regula- lawful presumptively that a all firearms in requirement mined lumbia’s times,” who falls someone dispossessed tion has at all “kept inoperable the home be “[tjhis the Second protection the impossible within makes it said: Court typically that courts It is true Amendment. the core lawful for citizens to use them for scrutiny to of means-end apply some form and is- hence un- purpose of self-defense it has been de- challenges once as-applied 128 S.Ct. 2783 constitutional.” Id. added). burdens question that the law termined Conspicuously absent (emphasis when, But these conduct. protected analysis any from the Court’s mention to an chal- Instead, it comes appeals, scrutiny. means-end Court regulation (1) lawful presumptively to a lenge regulation categorically: reasoned from ex- entirely challenger bars entirely protected persons from deprives the core Second ercising exercising the core of the Second Amend- (cid:127) scrutiny is (2) means-end any resort to right, unconstitu- right; ment it’s therefore it has been determined once inappropriate The same went for the District tional. circumstances distin- challenger’s concluding that the handgun ban. After Columbia’s justifications historical him from the guish includes the Second This is because regulation. supporting mince words: handguns, the Court didn’t ap- invalid as categorically laws are “[wjhatever reason, such handguns are the Amend- to Second entitled plied weapon chosen Americans popular most scope. matter of protection home, a com- in the for self-defense —a use is invalid.” plete prohibition of their on Heller itself. principle is based This add- (emphasis Id. at 128 S.Ct. municipal law invalidated That decision ed). quoted century authority A nineteenth in the handgun that banned paragraph Supreme Court by required any lawful home and firearm eliminate this conclusion should preceding by trig- and bound kept be disassembled categori- regarding the Court’s doubt times, rendering inopera- at all ger lock which, “A statute under approach: cal Heller, ble.7 554 U.S. to a de- regulating, amounts pretence ap- significant for these Especially requires right, or which struction scru- eschewed means-end peals, the Court as to render them to be so borne arms constitutionality of assessing tiny defence, wholly purpose useless for the precluded indi- Because the law the ban. Id. clearly unconstitutional.” would be important class possessing viduals from Reid, 612, 1 616-617 v. Ala. (quoting State self- in the home even for of firearms (1840)) added); also Bliss v. (emphases see (the “core” of the right at the defense (1822) Amendment) Com., 90, (suggesting Ky. 91 that all required Second ban, re- Chicago subsequently lifted the ban and handgun involved a similar 7. McDonald analysis incor ordinance. See placed its to the it with a less restrictive but the Court limited Ezell, the case. poration question and remanded at 689. 651 F.3d City 3020. The U.S. at (strict regulation “import[s] pelling an government entire de- interest scruti- right struction of the citizens to bear ny) substantially related to impor- arms in defense of themselves and the (intermediate government tant interest unconstitutional). state” would plainly be scrutiny). Supreme If the Court had Hence, arms, persons, a law that burdens tests, meant adopt one of those it could protected or conduct the Second have said so in Heller and measured does so the and that handgun against D.C.’s ban the relevant right effect that the core of the is eviscer- so; standard. But the Court did not do ated is unconstitutional.8 instead that handguns determined had not recognize We are not first to this traditionally been banned and were categorical rule. As Seventh Circuit common thus use—and that D.C.’s hand- explained, has Heller and Mc “[b]oth gun unconstitutional.”); ban was Peruta v. broadly suggest prohibitory Donald Cnty. Diego, San the core restricting laws Second Amend (9th 2014) (“[T]he Cir. rare law that ‘de- right handgun ment bans at is stroys’ —like [core Amendment] cases, prohibited sue those which hand right” requires “Heller-style per se invali- gun possession even the home—are dation.”) (O’Scannlain, J.), rev’d on reh’g Ezell, categorically unconstitutional.” (9th Cir.2016). banc, en 824 F.3d 919 703; Joseph Blocher, F.3d at see also Cat Although suspect we that most firearm egoricalism Balancing in First and regulations probably will trigger not this Analysis, Second Amendment 84 N.Y.U. rule, categorical § 922(g)(1) certainly does. (2009) (“Rather L. Rev. than applied As who someone falls within the adopting one of the First Amendment’s protective scope of the Second Amend many Frankfurter-inspired balancing ap ment, § 922(g)(1) goes even further than proaches, majority endorsed a cate the “severe restriction” struck down in gorical test under which some types of completely Heller: it eviscerates the Sec arms-usage protected ‘Arms’ and are ab ond Amendment right.9 United States solutely from bans and some Cf. types of McCane, 573 F.3d people ‘Arms’ and entirely excluded 2009) J., (Tymkovich, concurring) (recog coverage.”); from constitutional Heller v. nizing scope that “the broad of 18 D.C., (D.C. U.S.C. 1272-73 2011) J., (“As 'permanently disquali (Kavanaugh, dissenting) —which fies all possessing felons from the ban on ... firearms— handguns[,] Court in would Heller never asked whether conflict with ‘core’ self-defense narrowly law was tailored serve a com- embodied the Second Amendment” 8. The Heller Court declined to detail rights which burden Second Amendment only must might apply scrutiny form of ‘reasonable, in cases involv- perfect,’ have a fit with an ing less severe burdens on Second Amend- important government interest.” Gov't Br. 26 but cautioned rational basis n.27, Marzzarella, (quoting 614 F.3d at scrutiny apply. would never Id. at 629 agrees scrutiny Dissent that intermediate required 128 S.Ct. 2783. all that was "If appropriate standard here. See Dissent at keep overcome and bear arms applied 396-98. But intermediate Marzzarella basis,” explained, was rational the Court (before scrutiny going apply on to strict scru "the Second Amendment would be redundant case) tiny, just in because the law under at separate prohibitions with the constitutional tack did not even "come close” ato ban on laws, on irrational and would have no effect.” in the of firearms home. Marz Id. zarella, 614 F.3d at 97. wrongly 9. The Government asserts that we recognized have actually that "even laws that presumptive validity аpplies, its When the Second Amendment its extent the attach) in (emphasis original). guarantee does not core be withdrawn by cannot Indeed, contention that the Government’s legislature away by the or balanced the protective the scope one can fall within Rather, very courts.10 enumeration “[t]he yet the Amendment nevertheless right the hands takes out of the permanently deprived right of the be Branch government the Third —even it means to possess transforms what power Government —the to decide on a essence, “right.” down to its the Boiled case-by-case right whether the basis position goes something Government’s like really worth Id. at 634, insisting upon.” right keep this: bear ‘You have 128 S.Ct. 2783.11 arms, never you may but exercise that right supplied have good because we rea- understanding sons.” the Second This Barton alone stated, For reasons parsimonious is too a view provides for an standard right “right”

a constitutional because a challenge pre- to a Second Amendment to nothing its holder whatso- entitles (like sumptively measure guarantee regulatory ever lawful “is no constitutional at all.” Heller, 922(g)(1)) at 554 U.S. S.Ct. 2783. that denies a core Second Washington, unavailing. handgun 10. See 541 U.S. ban disassem- Crawford 67-68, bly S.Ct. 158 L.Ed.2d 177 ordinance struck down in that case like (2004) categorical ("By replacing exceptions abstractly wise had that could be constitu open-ended balancing precedent” framed as guarantees with "conditions exercise tional tests, right: handgun of the Second Amendment design. Vague to their we do violence exception subject ban was to an manipulable... standards are one-year handgun Chief of Police could issue disassembly licenses discretion and the his Judges deny Ambro and Fuentes keep ordinance allowed residents to lawful § 922(g)(1) keep eviscerates the they long firearms the home so as were view, Judge arms. In Ambro’s because bear Heller, inoperable. rendered See "persons disqualifying convicted of offenses 574-75, 2783. But the S.Ct. (1) handguns possess if their convictions licensing excep Court did not understand aside, (2) expunged they or set receive handgun precedent tion as condition (3) pardons, or have their civil possession disassembly rule as a mere restored,” the statute is akin to run-of-the-mill precondition keeping on firearms regulations imposing “preconditions” to fire- home; it as viewed these carve-outs “minor possession arm individuals with Second exceptions” down both and struck ordinances rights, safety training such as as destructions of Sec unconstitutional requirements. Op. 17-18. Ambro Far from it. n.1, 629-30, right. Id. at ond Amendment with, option” begin "only To ... available 128 S.Ct. The Dissent's retort that Hel Binderup satisfy and Suarez to the so- distinguishable there the ler is "core because "precondition” imposed 922(g)(1) called 'right law-abiding, responsible citizens to pardons. Id. at is to receive 124 S.Ct. and home'" use arms defense of hearth 1354. To frame this moonshot a mere con- implicated was and here it is not because precedent dition to arms not un- Binderup place and Suarez’s misdemeanors training-course requirement like a cre- strains puts the rabbit them outside of that class dulity. Section is a han on firearms Heller, (quoting the hat. at 397-98 Dissent possession subject statutory excep- ato few U.S. at If Binder- tions, regulatory proviso anot mere that sim- up’s type and Suarez’s offenses are not ply exercise of the conditions historically that were understood to remove background safety completion of a check or persons entitled them from the class of class. rights, effects Second Amendment Indeed, type “precondi- shows the the same “conditions” that Heller itself of untenable § 922(g)(1) were deemed in Heller. tion” characterization of to be unconstitutional (2) citizen,” abiding might Amendment to a certain class “a court find a opinion our in that case ex- felon whose crime of conviction is persons. And decades-old,poses continuing an no threat to plains things the two individual must do society.”12 Id. as-applied challenge. to mount a successful First, identify jus- he must the traditional mean, course, This does not that a excluding tifications from Second dispossessed as-ap- individual can an win protections the class of which plied challenge by promising to behave Barton, he is member. See a 633 F.3d at diligently well the future.13 Courts must Only justifications 172. with “historical inquire into facts to determine whether im- pedigree” regulations are relevant for challenger adequately a has distinguished Id. Second, posing permanent disability. a per- his own circumstances from those of present he must facts about himself and historically sons barred from Second background that circum- distinguish his his Heller and Bar- protections. persons stances from those of in the his- ton place challenger on the burden to torically barred class. Id. at 174. These presumptive rebut lawfulness Barton, justifi- speak facts must to the traditional § 922(g)(1). See 633 F.3d at 174. legitimize disability. cations that the class’s easy That’s no task. Governmеnt evidence Barton we noted at least two ways regarding history one’s criminal will re- (1) “a mi- doing this: felon convicted of a quire challenger strong to make a nor, might non-violent crime show that he showing, distinguish himself from others dangerous typical is no more than a law- with criminal records. But deny one colleagues reject viewing array people, including Our Bartons mention of a wide felon, friends, possibility passage family, that "the of time or his his references, [might] evidence of rehabilitation restore the whom he lists as character mem lives, people. community Second Amendment who bers of the where he his coworkers, Op. employers, committed serious crimes.” Ambro current and former his officers,” presented parole We have not been with historical and his former we noted as way "[p]olicy evidence one or another a [c]onsideration[ ]” whether this that without might prior be a route to restoration of the ATF involvement and an adversarial cases, keep process, and bear arms in at least some so are without the "courts tools neces day sary systematic inquiry we would leave for another the determi- to conduct a into an background.” whether that applicant's nation turns out be the case. Id. If courts “re novo," reasoned, applications viewed de we "they rely primarily would be forced to 13. The Government’s and the Dissent's re- —if exclusively' provided by peated information point citations on this v. Pontarelli —on felon,” dangerously Department Treasury inapposite. which "would be U.S. (internal quotation Id. appropriations That case involved an one-sided.” marks and ban ' omitted). Contrary suspended ability citation to the of the Bureau of Alco- Govern hol, Tobacco, (ATF) characterizations, ment's and the Firearms to consider Dissent’s petitions inquiry presumptively from convicted felons for restoration constitutional into one-sided, privileges of their under 18 U.S.C. lawful statute is distinct from the .firearms 925(c), gives inquiiy a statute that also federal dis- fact-intensive that would have been jurisdiction applications required trict courts to review called for were courts to assess (3d §.925(c) petitions denied ATF. 285 F.3d in the first instance. Re ap- viewing We concluded that "because the constitutional chal propriations suspends ability lenge alleged by challenger ban ATF's based on facts 925(c) weighing against pre- competing issue the 'denial’ that makes a those facts requisite, effectively suspends proffered by it that statute’s evidence the Government is not do, jurisdictional grant.” only something equipped Id. Given that courts are "[evalu- Const, 925(c) ating application requires duty. a de- is our constitutional See U.S. VI, 2; Madison, investigation background Marbury tailed of the felon's arts. III and cl. conduct,” (1 Cranch) (1803). and recent which "inter- 2 L.Ed. 60 includes committed, danger public injury factu- or real “develop to opportunity [a] the even of The Address and Rea- from, in of his constitutional individuals.” support al basis” Supreme Minority run afoul of both would of Dissent of the of the claim sons of the regarding scope the guidance Pennsylvania of to their Con- Court Convention concept the of an stituents, Schwartz, Amendment and reprinted in Bernard challenge. Id. at Rights: Documentary 2 The Bill A His- of (1971) added). tory (emphasis II Likewise, ratifying at the Massachusetts later, just months Samuel convention A that the proposal Adams offered “Consti- that agree with the District Courts We tution be never construed to authorize applied to 922(g)(1) is unconstitutional Congress prevent people ... to the of the far as the histori- Binderup and Suarez. As States, citizens, peaceable who are United justification dispossession for felon cal keeping their own arms.” Journal of in time- explained we it Barton: the goes, 6, 1788, Wednesday February Convention: right keep the to principle honored Proceedings reprinted in Debates and in to those bear arms does not extend and the Convention the Commonwealth of violent offenses. Because likely to commit Massachusetts Held in the Year “expound Supreme the Court declined 1856) (Boston, (emphasis William White justifications” the for the upon historical added). Hampshire And the New conven- lawful exclu- presumptively list of firearm proposed “Congress tion shall never Heller, n.26, at 627 sions 554 U.S. any disarm Citizen unless such as are or leaving that task to us— 128 S.Ct. 2783— Schwartz, have been in Actual Rebellion.” Barton’s, expli- further rationale warrants Rights: Documentary 2 The A His- Bill of stated, that the cation. As Heller instructs tory at 761. understanding scope of the of the public keep proposals and bear arms at the time of These show that there was right to Amendment’s enactment dic- Federalists and the Second broad consensus between right today. the of the Id. at na- scope opponents tates their on the existence and undertaking this right” keep 128 S.Ct. 2783. “natural and ture the we are reminded that inquiry, “[historical what purposes; bear arms for defensive difficult; it re- analysis can be sometimes the was controversial was whether Consti- questions, and quires resolving threshold a Bill to ensure required Rights tution (as making judgments nuanced about which arms so- right keep the and bear interpret and how to contended) evidence to consult or called Anti-Federalists 803-04, McDonald, it.” 561 U.S. at explicit guarantee was whether such (Scalia, J., concurring). S.Ct. 3020 unnecessary light Congress’s limited in fact back- delegated powers might germane The most evidence available other, by minimizing fire unenumerated directly supports the conclusion (as argued). See Ste- liberties Federalists founding generation did not understand Halbrook, The Founders’ Second phen P. and bear arms to extend keep (surveying 190-215 the de- people too categories to certain deemed ratifying conventions bates dangerous possess firearms. At commonplace understand- highlighting the convention, Pennsylvania ratifying Consti- persons could be dis- ing “dangerous opponents and other of the tutionalists armed”). Indeed, telling language stating that proposed Federalists conventions, such ratifying crucibles of passed disarming “no law shall be scope public declarations people of them unless crimes keep pro- arms did not to Have bear Arms and Whether the Second any apparent disagreement. voke See id. Amendment Should Be Incorporated in Barton, we City As summarized McDonald v. of Chicago, “[de- 57 Clev. St. Pennsylvania, (2009); bates from the Massachu- L. Rev. Robert H. cf. Churchill, Hampshire ratifying setts and New con- Regulation, Gun the Police ventions, Power, which ‘highly were considered and the Right Keep Arms in influential’ Court in Hel- Early Legal America: The Context ... right Amendment, ler confirm that the common law Second 25 L. & Hist. Rev. 139, (2007) keep to and bear arms did not extend to 164 (noting although “En- likely those who were to commit violent glish supplied ample law precedent” to di- “ Hence, citizens,” offenses.” 633 F.3d the best sarm ‘dangerous’ power the rarely evidence we have indicates that the practiced by early was American keep short, and was governments). bear arms understood to “from time imme- morial, presented danger jurisdictions exclude those who various recognizing a public. the right to have ... taken step arms the of forbidding suspect groups having A of number firearms restrictions from arms,” and legislators “American at the founding pre-founding support and era time of the Bill Rights of seem to have this conclusion. “complete Aside from bans been of aware this tradition.” Don B. gun by blacks, slaves, on ownership free Cramer, & Clayton Kates E. Second Americans, Native and those of mixed Criminolog- Limitations and (each today race” of which plain would be Considerations, 1339, ical Hastings 60 L.J. unconstitutional), ly the founding genera (2009); Marshall, 1360 see also 32 Harv. tion also disarmed those who refused to Pol’y J.L. & Pub. at 711-12 (examining pledge Revolution, loyalty their to the courts) later (upheld laws barring pos- state, Winkler, or nation. Adam Heller’s session of firearms while intoxicated and Catch-22, 1551, L. 56 UCLA Rev. (roam- by “tramps” of firearms (2009). As the Fifth explained, Circuit has ing beggars) construing and them terms “[although Loyalists these were neither of “present danger” pre- misconduct traitors, legislators criminals nor American persons sented such carry were permitting had determined that per these firearms). keep sons to and bear posed poten arms Am., danger.” tial Nat'l Ass’n Inc. Although the ratifying debates from the Rifle Alcohol, Tobacco, Firearms, v. Bureau point conventions strongly toward a limit (5th & Explosives, 700 F.3d Cir. Second Amendment centered on 2012); see Carpio- also United States v. dangerousness, dispossessory regulations (4th Leon, 2012) 701 F.3d enacted to that end were few far and (noting that required par Massachusetts between in the century Repub- first of our ticipants Shays’ Rebellion to Consequently, obtain lic. some have reckoned pardon for taking up against arms regarding “[t]he historical evidence” state, state, allegiance swear scope and of the Second Amendment “is incon- give up their years). firearms for three Skoien, clusive at best.” United States v. principle 2010) (en banc) This had some roots the En glish tradition, J., arms (Sykes, wherein the Crown dissenting). disagree. We Even authority had the only pap “to disarm not though Founding generation “[t]he had no ists, but dangerous and persons disaffected laws ... denying keep [to Charles, as well.” Patrick J. people crimes,” “Arms bear arms] convicted of Historical, Their Winkler, An Legal, 56 UCLA L. Rev. at novel- Defence”?: Analysis and Textual English Right ty unconstitutionality. does mean After id. at 727- century ability danger.”); redresses that all, eighteenth paucity “[t]he (“[T]o the extent that one can distill might have reflected control laws gun guidance English disability from the rather than consti- political demand lack of disarmament, Revolutionary it would Lund, limitations.” Nelson tutional seem at most to be that who Amendment, Heller, Original- just thoughts their actions —not their —be- Jurisprudence, 56 UCLA L. Rev. ist tray against a likelihood of violence (2009). disarmed.”); may P. Hal- Stephen state be Thus, through running a common thread A brook, What the Framers Intended: actions of the Founders the words and Linguistic Analysis Right to ‘Bear principle to inform our gives us a distinct Arms’, 151,161 49 Law & Contemp. Probs. original public mean- understanding criminals, (1986) “violent (concluding Amendment. ing of the text of the Second children, and those of unsound mind See, Marshall, e.g., Harv. & Pub. J.L. deprived (emphasis be of firearms” add- (“[Ajctual prec- Pol’y ‘longstanding’ at 698 ed)). sum, In the historical record leads us pre-Founding Eng- in America and edent public understanding to conclude that the disability that a firearms can suggests land scope of the of the Amendment Second the be consistent with principle was tethered to the that the Con- credibly ... to the extent its basis permitted dispossession stitution the of one present danger indicates a will persons they who demonstrated that would a if against present danger public others and the dis- to the armed.14 misuse arms Collins, 1255, arguing generally persons Wesleyv. that all to vote. See 791 1986) ("[T]he right to are not entitled to Second 1261 felons criminal records fundamental.”). Probably vote is not due to rights, the Government and the right the breadth of this exclusion from the emphasize "[w]e Dissent the fact that as vote, Supreme the Court has not indicated require persons society convicted of crimes to might that a disenfranchised criminal succeed rights privileges, forfeit number of and demonstrating right that such disenfranchise- including right jury, sit on office, applied to right ment is unconstitutional as him in and the to vote.” hold elective light understanding of the historical of the Dissent at 380. But these forfeitable Rather, right. challenger's only option is to different histories and different constitu- have vote, particular right show that disenfranchisement tional dimensions. Consider provision is either irrational or discriminato- right keep bear which like the arms 2655; Richardson, 56, ry. 418 U.S. at 94 S.Ct. has been declared fundamental the Su- Underwood, 222, 233, Sims, 471 U.S. Hunter v. preme Reynolds v. 377 U.S. Court. See Thus, (1985). 533, 561-62, S.Ct. 85 L.Ed.2d 222 84 S.Ct. 12 L.Ed.2d 506 historically (1964). scope right to vote Although Court has con- textually Amend- distinct from the Second cluded that the Fourteenth Amendment's right. ment require Equal Clause does not Protection compelling jury eligibility advance a interest before states to service or Nor do limits denying any insight who have been convicted of public citizens offer into the office vote, Amendment, right to Richardson v. Ra- scope crimes the the Second not least mirez, 24, 54, they rights. 94 S.Ct. 418 U.S. are not fundamental See because (1974), Cnty., demanded Jury L.Ed.2d 551 that result was Carter v. Comm’n Greene 320, 332, Specifically, text. 24 L.Ed.2d Constitution’s “understanding (1970) (“The of those Court relied on the remain free to confine the States Amendment, citizens, adopted meeting speci- as who Fourteenth selection to language” age express qualifications reflected in of Section and educational at- [ ] fied tainment, good possessing Amendment that affirma- intelli- of the Fourteenth and to those character.”); tively ‍​​​‌‌​​‌‌​‌​​​‌​​‌‌​​‌​​‌​​‌‌‌​‌‌​‌​​‌‌‌​‌​​​​‌‌‍contemplates gence, judgment, criminal disenfranchise- and fair sound Binnall, ment, Angry guarantee equal Men: despite Section l’s James M. Sixteen Million Challenge the Accordingly, Reviving A Dead Doctrine to protection of the laws. Id. felons Excluding right Constitutionality Felons scope fall outside the of the fundamental much 922(g)(1) sweeps Judges Section more Ambro and Fuentes^—is unconvinc- broadly ground traditional than this ing. Relying on republican notion of Barton, 633 F.3d at disarmament. See virtue,” “civic the Government maintains (“Although 922(g) was meant 18 U.S.C. Binderup’s and Suarez’s misdemeanor keep pre- firearms out of the hands of place convictions them outside the class of sumptively risky people, Congress did not “those polity members who were possessing bar non-violent felons from capable deemed of exercising right to [the 1961.”) (internal until guns quotation keep and bear a virtuous man- arms] omitted); marks and citation United States ner.” Gov’t Suarez Br. 14 (quoting Saul (1st Booker, 12, 24 & n.14 Cir. Cornell, “Don’t Know Much about Histo- 2011) (“[I]n covering only those with a ry”: The Current Crisis in Second Amend- (dis- crime, record of violent 922(g)(9) [ Scholarship, Ky. 29 N. L Rev. possession of domestic violence misde- (2002)). sure, To be “[s]ome scholar- meanants) arguably more ] consistent ship suggests that at the time of the na- regulation with the historical of firearms founding, tion’s to bear arms was § 922(g)(1),” “applies than which to all indi- not understood to extend to those convict- felony, viduals convicted of a federal thus felony, ed of a either they because were encompassing individuals convicted of among people’ believed to be ‘the disparate crimes as tax evasion and protected, whose to bear arms was breadth, robbery. particu- bank This because requisite lacked the ‘virtue’ offenses, larly the inclusion of nonviolent necessary for firearm possession.” Alexan- significant constitutes a departure from Barrett, Note, der C. Taking Aim at Felo- understandings earlier a ‘felony.’ of At Possession, 163, ny L. B.U. Rev. 194-95 law, example, ‘[o]nly common the most (2013) Kates, (citing Jr., & n.197 Don B. serious crimes’ were considered to be felo- The Second A Dialogue, Amendment: (internal omitted)); nies.” swpra citations (1986) (of- Contemp. L. & Probs. n.14. upshot The of all this is that the as- fering that the right keep and bear applied constitutionality §of 922(g)(1) is arms was tied to the ideа of the “virtuous justification: tied to its historical people citizen,” right such that “the to arms does who they have demonstrated that are like- preclude disarming laws the unvirtu- ly to commit violent crimes have no consti- criminals) (i.e., who, ous or those like chil- right keep tutional and bear arms.15 mentally unbalanced, dren or the B virtue”)); incapable deemed see also Don Kates, Clayton Cramer, B. Jr. & E. Sec- divergent The reading Government’s scope the historical ond Amendment the Second Amend- Limitations and Crimi- adopted ways by Considerations, ment—-also in different nological Hastings L.J. Service, Jury Pol’y 17 Va. J. Soc. & L. gov- This rationale is consonant with the (2009) (“The Supreme recog- usually Court does not today ernmental interest offered as right jury nize justification dispossession: the to sit on a public safety. fundamen- tal.’’); Bowen, Lindsay v. 750 F.3d principle But the traditional that constrained (9th 2014) (noting persons keep there is no “fun- the class of not entitled to and office’’); Heller, right public governs. damental to run for bear arms still See 554 U.S. at Const, Const, I, 2, 1; 634-35, (“Constitutional art. cl. U.S. rights amend. X. 128 S.Ct. 2783 rights These defeasible civil scope they cannot be in- are enshrined with the were un- justify disarming Binderup voked to people adopted and Sua- derstood to have when the them, They rights, rez. legislatures are different with different whether or not future scopes, subject (yes) and judges scope histories to different con- even future think that too broad.”). analyses. stitutional (2009) (“[T]here reject- who ticated collective model” every reason 1339, 1360 the Amendment confers Fathers ed the view Founding the to believe character- right an individual and instead convicted have deemed would right right.... as a “civic exer- not to be ized common law felonies any of the citizens, not individuals ... who whom cised people’ to among ‘the [virtuous] arms.”) manner, in a for a together act collective right guaranteeing were in a (alteration distinctly public purpose: participation original). regulated militia.” Saul Cornell & Na- well especially This “virtue” standard — DeDino, Regulated Right: A than Well by the Govern- version articulated pliable Control, Early Origins American Gun the “civic re- implausible because ment —is (2004).17 73 Fordham L. Rev. 491-92 scope of the Second publican” view of Moreover, courts, limitation on Although supposed this wrong. from a scholars, sup- this the Second Amendment stems mis- litigants and have cited limitation,16 reading of an academic debate about “ideo- this virtuous-citizens- posed DeDino, logical interpretation,” Cornell & right keep and only conception n.29, gist 73 Fordham L. Rev. at 528 closely pre- associated with arms is bear concerns the extent to which the the Second which interpretations Heller' or liber- “sophis- republicans Founders were civic by proponents of See, prior Yancey’spublication). Yancey, ready e.g., had been United States 2010) curiam) Marshall, (per Pol’y 684-85 32 Harv. J.L. & Pub. See (“Whatever against pedigree of the rule (“The Cooley ... [cited 709-10 discussion weapons possessing even nonviolent felons dispossession] ... concerns classes for felon the Second Amendment ... most scholars of voting. These included women excluded right tied to agree that the to bear arms was being property-less citizens —both that, citizenry concept of a virtuous Cooley protected by rights. When arms accordingly, government could disarm arms, keep and bear does address ”) (cited Bind citizens.' in Govt. ‘unvirtuous far it be in the ‘[H]ow one finds'this: 13-14); Br. erup Br. 13 and Govt. Suarez legislature regulate the power of the 1111, Vongxay, 1118 United States say. Flappily undertake to there we shall not (“[W]e 2010) observe most been, nor, likely may hope, is has we neither agree that the Second Amendment scholars of be, for the examination of to much occasion ‘inextricably ... right was to bear arms ”) (quoting question by the Coo- courts.’ citizen[ry]’ concept tied to’ the of ‘virtuous ed., (Victor ley, H. Lane 7th Treatise at 499 society through ‘defensive protect that would 1903)). ed. criminals, oppressive against offi use of arms cials, alike,’ foreign and that ‘the enemies Columbia, 478 F.3d Parker v. District of Cf. preclude laws right to bear arms does not 370, (D.C. 2007), sub nom. aff’d (i.e. disarming crimi the unvirtuous citizens Heller, however, nals).’ recognize, that the histor We (rejecting the view that “the Sec- L.Ed.2d 637 definitively question re- ical has not been protects private ond Amendment - (cited omitted)) (internal citations solved.” perform- only weapons in connection with Binderup and Govt. Suarez Br. 12-13 Govt. well-regulated part civic duties as of a ance of 13-14). Br. security organized for the citizens militia Yancey century treatise relies on a 19th added, (second emphasis internal state” free Cooley proposition that the M. for the Thomas omitted)); Hardy, quotation marks David T. "protect[s] rights People’ ‘the Constitution Mary & Bill Rts. J. 1241-84 Wm. idiot, others, among excluding, ‘the the luna- ” Cornell, (2007) Well-Regu- (reviewing A Saul tic, (citing 621 F.3d at 685 and the felon.’ Founding and the Militia: The Fathers lated Cooley, Limita- A Treatise on Constitutional (2006)) Origin in America 1868)). Gun Control (Boston, & Co. Little Brown tions (marshaling historical evidence considerable interpretation Cooley’sTreatise has this But indeed, (and, right only” approach). against “civic thoroughly al- Cornell’s debunked been bearing well as what ideol- possession tarians as these as critical to the virtue of the state, citizenry spirit and the of the but ogies might have had on how under- characterizing never the possession of vir- right keep stood the to and bear arms. See prerequisite rights). tue as a to arms Shalhope, Ideological Robert E. The Ori- identify This literature does not help us gins Amendment, the Second 69 J. Am. types people who were not entitled (1982) (the Hist. 599-601 article that rights.18 to exercise Second Amendment contemporary principal served as scholars’ Contemporary advocates of a “virtuous- limitation). source for the “virtuousness” ness” projected limitation have that con- Unfortunately, this literature sheds no straint right keep onto the and bear light thought enjoy on “who” was very arms based on the fact that the exis- (at least, right keep and bear arms none tence of right by repub- was informed beyond the now-settled individual-versus- lican philosophical principles.19That is not Rather, right interpretation). colleetive it enough. We have found no historical evi- having right relates to the rationale for public dence on the meaning keep place. and bear arms in the first keep and bear arms indicating that See id. at 606-07 (characterizing “virtuousness” was a limitation on one’s qualification for the right -contemporary keep and bear arms as one with both — insistence contrary to the falls somewhere individual- and collective-right elements guesswork ipse between dixit. claiming unique the Founders’ Furthermore, hard to understand republicanism blend of and libertarianism what the proposed Government’s “virtu- “perceive[ led them to a vital relationship ] ousness” limitation require. would even vigorous republican between husbandmen The guidance Government has offered no and the possession of arms” and believe regard, this except urge that we capable that a “man defending himself legislative judgments defer to about what necessary with arms if prerequisite was sorts of offenses or characteristics render maintaining the moral character to be one insufficiently enjoy “virtuous” to a fun- good republican”); Shalhope, Robert E. right. damental The Dissent and to a less- Early The Armed Citizen in the Republic, er Judge extent Ambro have accepted this - (1986) 49 L. Contemp; & Probs. approach. legislative judgments set (explaining that republican- strains of civic margin forth in the are but a few illustra- early-American ism in culture viewed arms tions of deep flaws.20 We doubt the its. DeDino, largely 18. Not least because it rests on a theo- civic-virtue limitation. Cornell & retical foundation that the Court has Fordham L. Rev. at 492. Heller, rejected. twice now See 554 U.S. at adopt pro- 20.Were we to the Government’s 595, 2783; McDonald, 128 S.Ct. 561 U.S. at standard, posed examples consider a few 767-68, 130 S.Ct. 3020. And as at least one (and do) currently offenses that would render scholar has "[i]f surmised: the Second permanently disqualified possessing one provide right guns Amendment does to own Arizona, simple possession any firearms. In self-defense, republicanism for supply cannot marijuana felony punishable amount of is a Williams, the intellectual foundation for it.” by enough jail trig- time that conviction added). (emphasis 101 Yale L.J. gers 922(g)(1). See Ariz. Rev. Stat. Ann. it, primary proponents 19. One of the of this 13-3405. As the Government would have thought school of has conceded "[histor- the last three Presidents of the United States scholarship ical has possess- abandoned the notion would have been forever barred from political that American ing youthful culture can be under- firearms had their indiscretions any single ideological prosecuted stood in terms of Copper tradi- been in the State. Or con- tion, pluralistic (10- and has Michigan, generous embraced more sider which has a conception cents-per-container) repayment of the intellectual world of the policy for re- founders,” though cyclable he remains a devotee of the cans and bottles returned to the designed Founders a fundamental sovereign consti- States and municipali- countless right vagaries. tutional to turn on such gun ties ... regulation [that] in the United Although it fifty “befits diverse nation of States resembles a patchwork quilt long beverage (1958) (“[T]he state —so as the containers L.Ed.2d 1460 line between purchased were in state. But one who returns speech unconditionally guaranteed subject felony out-of-state containers is to a speech may legitimately regulated, which be beverage count of return of nonrefundable drawn.”); suppressed, punished finely punishable by up years’ impris- bottles to five Connecticut, 296, 304, Cantwell v. 310 U.S. (thus disabling conniving onment inter- 900, (1940) ("[T]he S.Ct. 84 L.Ed. power recycler § 922(g)(1)). state under See Mich. not, regulate must be so exercised as 445.574a(l)(d). Comp. spells Laws Ann. This end, permissible attaining a unduly infringe Kramer, Newman, disqualification and at freedom.”); Wilson, protected Gooding v. least one recent real-life offender. See Sein- 518, 521-25, 1103, 405 U.S. 92 S.Ct. (NBC Deposit The Bottle television feld: (1972) (statute L.Ed.2d 408 that state claimed 2, 1996); May Seinfeld-inspired broadcast only "fighting would reach words” was un- 'Michigan deposit bottle scam' lands Kramer constitutionally overbroad where its terms 15, (RT wannabe in hot water America Jun. expression criminalized that a listener would 2016), https://www.rt.com/viral/ available at merely insulting). find offensive or For in- 346835-seinfeld-michigan-bottle-deposit/. Fi- stance, plainly it would be unconstitutional nally, library Pennsylvania theft in constitutes legislature for a "obscenity” to redefine (federally disabling) misdemeanor of the capture expression order to that would other- degree punishable by up years’ first to five — escape wise scope obscenity the traditional imprisonment the value of the material is —if as defined Court. See Janicki $150 or more. 18 Pa. Stat. and Cons. Stat. Pizza, 1274, 1983); examples Ann. 3929.1. These illustrate the Coal., Speech v. Free 535 U.S. Ashcroft "[cjonsti- saliency of Heller's admonition that (2002). 152 L.Ed.2d 403 rights scope tutional are enshrined with the words, scope other the historical they were peo- understood to have when Congress First Amendment—not —determines them, ple adopted legis- whether or not future parameters right. of the scope latures ... think that too broad.” 554 import analogy The of this for the Second 634-35, U.S. at 128 S.Ct. 2783. We would straightforward: although Amendment is cer- dangerous contravene this instruction and set types tain criminals excluded from the precedent for other constitutional were arms, right keep and bear this traditional blithely accept we to "[i]f citizens of a scope right may limitation on the particular state believe that a criminal offense expanded by legislative be fiat. To hold other- disarmament, trigger is too minor to their wise would treat the Second Amendment "as remedy petition legislature is to the state right, subject entirely a second-class to an amend the law—not to seek redress in the body different of rules than the other Bill of federal courts.” Dissent at 380. McDonald, Rights guarantees.” 561 U.S. at theory The Government’s is all the more (plurality opinion). 130 S.Ct. 3020 questionable analogized when to other consti- historical record indicates that the rights, tutional such as the First Amendment’s keep publicly and bear arms was understood free-speech guarantee. Like limitations on the at the time of the Constitution's enactment to Amendment, scope unpro- of the Second broadly secure a held natural that did words, obscenity, fighting tected status of not extend to violent criminals. To redefine history. like is rooted in our See R.A.V.v. type qualify of "criminal” that would Paul, Minn., 377, 383, City St. 505 U.S. dispossession via a malleable "virtuousness” (1992). S.Ct. 120 L.Ed.2d 305 These capture standard in order to former nonviol- free-speech exceptions mean that while Con- ent misdemeanants who are in all other re- gress sharply speech can restrict that normal, spects indistinguishable from law- obscenity fighting amounts to or words as understood, abiding redefining traditionally citizens would be akin to it not substan- tially "fighting encompass redefine words” to run-of-the- obscenity what counts as fighting words in order mill "trash talk.” The Constitution takes each to reach otherwise See, Heller, protected expression. e.g., temptations Speiser v. of these "off the table.”

Randall, 513, 525, 357 U.S. 78 S.Ct. atU.S. 128 S.Ct. 2783. crimes”). custom,” And at least one of our sister Drake v. reflects local largely (3d 2013) argu- Filko, faced with the virtuousness 724 F.3d courts (Hardiman, J., make an in- dissenting), basically synony- treated “virtue” as ment to the Second entitlement dividual’s “non-dangerous.” See United mous predi- turn on the right (1st itself E., 8, 16 v. Rene 583 F.3d States legislature governing his or lections of the (“To 2009) sure, ongoing be there is patch her is deference Constitution about the extent among debate historians McDonald, at 561 U.S. won’t bear. See right to arms to which the bear (holding that “the Sec- 130 S.Ct. 3020 turned on concerns about founding period fully applicable to ond Amendment ‘virtue,’ie., legislative on a possessor’s added)). (emphasis the States” of firearms a judgment pose attempt apply if we were to certain class of individuals would Even dispossession, notion of civicvirtue to felon danger public.” (emphasis to the serious pre- added)). the Government would is doubtful Accordingly, reject the Gov- we Although felons at common law “were vail. Amend- suggestion ernment’s property and other essentially stripped of “to those protections are limited only “felony” “applied the term rights,” polity members of the who were deemed serious, very dangerous of- very a few exercising keep capable [the arson, murder, rape, fenses such as in a virtuous manner.” arms] and bear words, closely robbery” other crimes —in Gov’tSuarez Br. Cramer, Kates & associated with violence. Marshall, Hastings L.J. at 1362.But see C (cast- Pol’y & at 715-16 32 Harv. J.L. Pub. Binderup and All this means that Suarez felony claim that a convic- ing doubt on the themselves and their cir distinguish must necessarily permanent dispos- tion entailed cumstances from those of enti session). Indeed, one of the scholars cited arms beсause of keep tled to and bear that insofar by the Government concludes propensity their for violence. And as the pos- as a statute “would seek to bar arms found, both men did so. District Courts con- by” persons session who have been con Specifically, each is misdemeanant “felony” victed of a nonviolent the mod- victed of a non-violent crime who has sense, “those laws would seem to be ern dangerous “that no more than shown he is Cramer, Hastings Kates & invalid.” Barton, typical law-abiding citizen.” See Barrett, at 93 B.U. L. Rev. L.J. 1363. See agree at 174. we with the While (“[E]ven if were histori- at 196 some felons felony-misdemeanor Government pos- cally understood to be barred arbitrary,” distinction is “minor and often firearms, law term sessing the common especially since “numerous misdemeanors ‘felony’applied only catego- a few select dangerous more than involve conduct ries of serious crimes the time Sec- felonies,” many Binderup Br. 19 and Gov’t ratified, ond Amendment was while (quoting Gov’t Suarez Br. 18 Tennessee times, categories of ‘non-dan- modern vast 1, 14, Garner, 471 felonious.”); gerous’ qualify activities (1985)), point L.Ed.2d 1 that is beside Marshall, Pol’y 32 Harv. J.L. & Pub. legiti remain on the here. Our focus must federal (explaining 729-30 the first traditional) (ie., justi mate concern felony dispossession applied only laws of certain offenders: dispossession fies the “murder, group including core of crimes not to commit violent we cannot trust them manslaughter, rape, mayhem, aggravated The Government crimes with firearms. ... robbery, burglary, assault housebreak- might that “the Court ing, attempt to commit of these concedes so tame and technical ing scope find some felonies as to keep and ban,”21 justify to be insufficient bear arms. Br. Binderup Gov’t 15 and Gov’t Suarez Binderup’s Neither improper relation- (quoting Br. 15 United States v. Torres- ship employee with an capable of consent (1st

Rosario, 2011)), 658 F.3d nor possession Suarez’s handgun of a that Binderup’s but insists and Suarez’s possessed he could have lawfully had he qualify. misdemeanors do not disagree. We acquired a license meets this description. purposes justifica- For of the traditional Nor did their any offenses involve actual animating 922(g)(1), tions both Binder- violent behavior. It is true that a small up’s corruption of minors offense and Sua- handful of States classify would Binderup’s licensing rez’s violation were nonviolent statutory offense as rape22 or sexual Barton, misdemeanors. we described circum-, abuse. And there certainly the violent crimes of the sort that motivat- stances in which an inappropriate and ille- dispossession ed felon since 1938 in the gal relationship Binderup’s like might in- following way: “For nearly quarter cen- volve implicit genuine violence. Such tury, 922(g)(1)had a narrower basis for a facts would make his a much different disability, limited to those convicted of a case. But as the explained: District Court ‘crime of violence.’ ‘Crimes of violence’ simply There is nothing the record commonly were only understood to include here which would support a reasonable ‘ordinarily those offenses committed with [Binderup] inference that any used vio- ” Barton, the aid of firearms.’ 633 F.3d at lence, force, or threat of force to initiate Marshall, (quoting 32 Harv. J.L. & or maintain the relationship sexual (some (2009)) Pol’y Pub. inter- seventeen-year-old his employee. More- omitted); nal quotation marks see also over, there is no record present evidence Chovan, v. United States support here which would a reasonable (9th 2013) (noting that the “Fed- inference was any [he] convicted of eral Act only Firearms of 1938 restricted (or crime of violence that he even 'en- firearm for those individuals gaged any threatening violent or con- violence,’ convicted of a ‘crime of defined duct) before or after his November 1997 ‘murder, manslaughter, rape, mayhem, as conviction for [corruption of minors. kidnapping, burglary, housebreaking, Binderup, 2014 certain WL *22. Nor aggravated forms assault —as- kill, any is there “record sup- sault with intent to evidence rape, [that] commit or' rob; ports a dangerous assault with a reasonable inference that he has a weapon, or acts, propensity assault with intent to commit to commit violent offense sexual stretch, punishable by imprisonment for or otherwise.” Id. at In a more than *23. real ”). year’ one Dispossession on the Binderup’s basis Government likens conduct a conviction for these sorts of crimes com- to that which was felonized a 1576 ports original with the public English understand- statute forbade “carnal[ ] view, acknowledges rape’ 21. The Dissent this but sexual with a '[u]nlawful intercourse expresses confidence that "institutional (as con- person age under the consent defined prevent particularly siderations" will absurd statute), regardless against of whether it is ” view, disarmaments. Dissent at 405. In our Holder, person's Binderup will.' questionable questions disarmaments raise (E.D. 25, 2014) Sept. WL at *24 Pa. constitutional law. (quoting Dictionary Law Black's ed. 2009)) added). (emphasis out, however, pointed 22. As the District Court Dictionary 'statutory Black's Law “defines 376 arms, con- prior illegal to his sales of “any woman child under ed

knowledge]” of Binderup cluding Br. that Pruess could not “rebut the years.” Gov’t age of ten Levine, A More of lawfulness of the felon-in- (quoting presumption Mortimer 15-16 “Rape, applied ”13 and to him.” Ordinary possession prohibition Than Case as 159, (4th I, Legal 242, Hist. Although 7 Am. J. Cir. Elizabeth 703 F.3d (1963)). was, however, Suarez, Deplorable Pruess, regula- as it like had committed violations, a seventeen- Binderup’s conduct involved dis- tory his circumstances were consent,23 was not sub- year-old capable way. in every from Suarez’s other similar ject criminal at the time of the sanction committed “re- example, For Pruess had importantly not founding, laws, and —most violations of the firearms peated —did violence, force, or threat of force. involve twenty prior convic- leading least tions,” although and admitted that he “did of- The nonviolent nature of Suarez’s to use them for violence himself not intend fense is evident as well. The Government’s weapons and [certain] ... he believed Maryland’s unremarkable observation underlying' ammunition his convictions requirement public relates licensing repeated dealings stolen.” Id. His were 'a safety not make Suarez’s offense does stolen, illegal weapons fully auto- actual crime. It neither involved the violent —such grenades appropriate- matic and AK-47’s force, use of nor was use or threatened — ly the court to conclude that Pruess led “closely to violent crime” related “closely acts related to vio- had committed way drug trafficking receiving law-abiding Barton, “flunk[ed] lent crime” weapons are. See 633 F.3d stolen requirement.” citizen’ Id. at responsible at 174. characterized the Second Heller 244, Suarez, by comparison, commit- guaranteeing “the Amendment as licensing ted a nonviolent firearms offense citizens to use law-abiding, responsible respect weapon with to an otherwise lawful and home.” 554 arms defense of hearth ago, the circumstances of which decades (emphasis 128 S.Ct. 2783 add- ed). were unassociated with violence.24 on the Fourth The Government relies decision in United States v. Circuit’s showing that neither their In addition to argue that violation of a Pruess to Suarez’s offenses nor the circumstances surround- lawful, regulation firearm well-established any them involved violence or threat of ing a responsible, demonstrates that he is not violence, Binderup and have also Suarez law-abiding citizen. That reliance is mis- subsequent demonstrated that their behav- placed. membership among ior their confirms responsible, law-abiding citizens to Pruess, rejected class the Fourth Circuit ex- protection a whom Second Amendment as-applied challenge found, disqualifying convictions relat- tends. As the District Courts both felon whose deadly Hughlett, prior convictions for assault with a Commonwealth v. 249 Pa.Su- Cf. (1977) (noting per. government clearly 378 A.2d weapon on a official dem- is axiomatic that females under the "[i]t is far from a law-abid- [Moore] onstrate that age legally of 16 assent to sexual acts citizen.”); ing, responsible United States v. kind”). ...of 215, 221-22, Smoot, (4th 690 F.3d 221 & n.8 2012) (32 convictions for Cir. arrests applied 24. A number of other cases have Bar- officer, police offenses such as assault of a challenges rejecting as-applied ton in distribute, possession of cocaine with intent to Pruess, 922(g)(1). challengers Like property); United States v. and destruction with Sua- those cases have little in common 2014) (8th Woolsey, Moore, rez. See United States (three felony aggravated prior convictions for 2012) ("[T]hree prior felony 319-20 arrest). resisting assault and robbery convictions for common law and two compelling presented handgun purchases men evidence that to convicted felons citizens, responsible each purchases with by persons successful ar- job, family, a and a clean record since 1997 but not felony. convicted of a The rested Their home has seen fit study State found that the “denial of handgun their to keep purchases reinstate and bear is associated with a reduction in though arms. it’s disposi- And no means risk for activity later criminal of approxi- case, tive in fact mately Suarez’s 20% to 30%.” A. Wright Mona et al., deems him upright enough United States Denial Handgun Effectiveness of of to entrust him with the Nation’s secrets is Purchase to Persons Believed to Be at “typical further evidence that he is a High Violence, law- Risk Firearm 89 Am. J. for Barton, (1999). abiding citizen.” 633 F.3d at 174. of Pub. Health presented The Government has Finally, no evi- with respect to Binderup, it (which Binderup dence that either or Suarez has notes that offenders” “[s]ex Binder- been, be, not) dangerous, violent, or would up or “present high risk of recidi- irresponsible firearms.25 all with For these vism.” Binderup Gov’t Br. (citing Penn- reasons, the District sylvania Corrections, Courts did not err Dep’t of Recidivism (Feb. when found 922(g)(1) unconstitu- Report, 8, 2013), 21 tbl. 12 available applied tional as to Binderup and Suarez. at http://www.nationalcia.org/wp-content/ uploads/2013-PA-DOC-Recidivism-Report.

D pdf) (finding percent of persons statutory Government cites a number of re- convicted of rape per- and 60.2 “[ojther [sjexual cidivism justification studies as final cent of those convicted of [ojffenses” permanently disarming Binderup and Sua- were rearrested reincarcer- rez. It (1998).

2083, 2086 addressing studies are recast as the issue scope,27they Perhaps still fall short. presents this evidence The Government to demon- 922(g)(1) might satisfies Government use statistics argument that its who commit certain scrutiny applied as to Binder- strate intermediate high have a likelihood of explained, But as we have nonviolent crimes up Suarez.26 recidivism, even decades later. But this case. violent inquiry inappropriate scrutiny that conclusion would stretch the notion of form of means-end Applying some the historical roots challenge against an abso- “close association” and Moreover, it already estab- of felon disarmament. would lute ban—after it has been right require untangling complicat- a number of the individual has lished variables, the effects of incar- ing arms —eviscerates such as keep and bear balancing type in di- ceration. Recidivism studies of this right judicial via interest demonstrating would be better suited to of Heller. See Mc- rect contravention Donald, 3020 means-end fit for less restrictive firearm 561 U.S. at S.Ct. (“In rejected protect- on criminals expressly regulations ... we otherwise Heller (such scope by of the ed the Second Amendment argument Second by waiting periods licensing requirements). determined should be judicial balancing.”). way, mat- Either the studies cited the Gov- interest What ters, presumptively it comes to a ernment don’t cut it. when very scrutiny, the Dis- well how to read the Constitution broad Applying intermediate ly sympathetic agrees when to the sent with the Government that —to being particular right Binderup protect- asserted. ... When a extent that and Suarez are comports especially perma- well with our notions of ed the Second Amendment—their good policy, magnificent legal is a social we build nent disarmament under " carry elliptical phrases— fit' to out the Govern- edifices on constitutional 'reasonable spaces purposefs].” we or even the white between lines of ment’s Dissent at 65. Should categorically constitutional text. But ... when we’re none be incorrect that particular guar applied challengers too keen on a constitutional unconstitutional as antee, equally ingenious....” we protective scope of the can be Sil who fall within the Amendment, Lockyer, Judge veira v. we Ambro’s Second find J., 2003) (Kozinski, course, dissenting denial of gap analysis persuasive. Of more rehearing panel adopt en banc of a decision Judge ap- Ambro’s and the Dissent’s between plications right” interpretation ing the “collective "step two” assess- Marzzarella’s Amendment), panel decision abro highlights ment in this case our concern that Heller, gated by 128 S.Ct. 2783. interest-balancing such exercises are too

malleable when it comes to laws that eviscer- Indeed, rights. Judge astutely ate we fear that Gardner observed that "the fundamental "heightened” contend[s] [that Government] the winners and losers of scru- contentions increasingly support pertinent to the tiny reflective of these studies are ... contests are as-applied challenge analysis of under [an] what or not—"scrutiniz- —enumerated Binderup, 2014 WL ing” judges As a Ninth the Barton framework.” favor or disfavor. ' "Judges judge presciently noted: know at *26. Circuit First, Justice, Binderup Dep’t and Suarez were not U.S. Office of Justice Programs, Bureau Justice convicted of felonies and have never been Statistics of. Special Report: Recidivism Prisoners incarcerated, irrelevant which renders tbls.9, Released in 15. The same most of the Government’s studies. The goes for the dated firearm-offense recidi- argues that Government even criminals study vism the Government invokes probation than placed rather sent to Suarez, against wide, which covers a un- have a prison heightened risk of recidi- specified range of “nonviolent firearm-re- study But vism. cites found that Wintemute, lated offenses.” 280 Am. Med. “[generally, the risk of recidivism was Ass’n 2086. Common sense dictates that highest during year the first after admis- violent rates are different for recidivism probation,” sion to and that “[a]s released drug dealers carrying unlicensed firearms prisoners probationers age, they tend protect turf ordinary their citizens to exhibit lower rates of recidivism.” Iowa carrying unlicensed firearms for self-de- Div. of & Juvenile Planning, Crim. Justice (behavior fense that several do states Probationers, Among Recidivism Iowa criminalize). GAO, even See States’ Laws 2005), (July http:// available at Requirements Concealed Carry (last publications.iowa.gov/15032/ visited Vary (2012), Permits Across Nation 8-9 2016). Sept. Binderup’s Given and Sua- available at http://www.gao.gov/assets/600/ ages, study by rez’s cited Govern- (last 592552.pdf Sept. visited predict they ment would a pose negli- more, Without the Government’s studies gible being chance of a arrested fоr violent support application § don’t 922(g)(1) percent crime and a zero being chance of Binderup and Suarez. Given the uncon- felony. arrested for a violent Id. 39-40. they presented troverted evidence have Second, the denial-of-handgun survey was distinguishing persons themselves from restricted to felons with extensive criminal who not keep are entitled to and bear only records and conceded not arms, the Government needs to offer more “may benefit” it observed reflect “modest regression analyses than of recidivism fact that study the members of both who, (largely felons unlike Binderup groups had extensive criminal records and Suarez, incarcerated). were An as- therefore were at high risk for later crimi- applied challenge ultimately rests on the activity,” nal study but also “this was question of “application whether a stat- [of too small to determine whether the differ- particular person particu- to a under ute] ah, ences occurred Wright chance.” et lar circumstances deprive[s] person 89 Am. J. Pub. Health at 89. of a constitutional right.” Marcavage, 609 added). (emphases Binderup Finally, the Government’s sex-offender presented and Suarez have unrebutted evi- paints recidivism evidence with too a broad dence that their offenses were nonviolent Binderup’s brush. misdemeanor was not old, they pres- and now decades and that classified as a sexual offense and did not society, places ent no threat to which them trigger duty register as a sex offend- persons within the class who have a Compare er. 18 Pa. Ann. Const. Stat. to keep Accordingly, and bear arms. 6301(a)(l)(I), with 18 Pa. Const. Stat. § ap- U.S.C. is unconstitutional as Ann. report 3103-3144. The does not plied to them. appear to cover corruption-of-minors recid- v * * lumps

ivists and Binderup together with amalgam persons guilty aof broad years since the Court’s range unspecified Heller, sexual offenses. See decision in courts have had to that, though they to hold even Amendment before: difficult Second wrestle with punishable convicted of crimes were both can Although questions these be questions. by multiple years prison, Congress high guar- and the stakes challenging —the them ‘from constitutionally prevent deadly weapons, after all— one to antee is They us to do this owning firearms. ask say legislatures answer to it is no in this notwithstanding long tradition right. total control” over “have near own- country preventing criminals from That is not how constitu- Dissent at 405. despite the fact that ing guns, and personal Because their rights work. tional statute, U.S.C. felon-in-possession distinguishable from circumstances over half 922(g)(1), has been force for historically the class of those of all, they ask century.1 troubling Most protec- excluded Second judges with a to saddle district court us violence, propensity to their tions due to review seemingly unending obligation fall out- Binderup and Julio Suarez Daniel theirs, even as as-applied challenges like dispos- scope of the felon proper side the any workable they provide fail to us with And their Second Amend- session statute. regime that would make such standards merely cannot be withdrawn administratively doctrinally feasible or co- broadly pub- serves the because herent. the Second Amendment’s good. lic Where and Hardiman believe Judges Ambro Binderup do for guarantees apply, as requires that the us Second Suarez, choices” are policy “certain challenges, although plaintiffs’ sustain the Heller, “necessarily” taken “off table.” along differ- they arrive at that conclusion 2783. Forever 554 U.S. at our shape ent routes and would any fire- possessing them from prohibiting divergent ways. in Amendment doctrine policy arm is one of those choices. contrast, plain- By I would hold the 922(g)(1) as-applied challenges to tiffs’ Amendment, impor- fail. The must FUENTES, concurring Judge, Circuit be, may prevent it does not Con- tant as part, dissenting in and part, dissenting deciding that convicted crimi- gress McKEE, judgments, with whom from the to firearms. nals should not have access VANASKIE, Judge, . Chief and society require persons convicted We as SHWARTZ, KRAUSE, RESTREPO, and any number of of crimes to forfeit ROTH, Judges, join. Circuit on privileges, including right the sit office, something us to do plaintiffs jury, right The ask the to hold elective much the right to vote.2 However appellate that no federal court has done the by punishable 922(g)(1) it "unlawful for State as a misdemeanor 1. Section makes years imprisonment or less.” any term of of two any person ... who has been convicted in of, as the “felon- We refer to punishable by imprisonment therefore court a crime commonly in-possession” Courts use this ban. exceeding year ship one ... or term commerce, though even the statute itself does shorthand foreign transport or interstate "felon,” though it commerce, the term and even not use any possess affecting fire- in or scope ammunition; includes within its certain individuals any or to receive firearm arm or "misde- committed offenses labeled as who shipped or or ammunition which hаs been States, See, Logan e.g., v. United meanors.” foreign transported in interstate or com- 23, 27, 475, 169 L.Ed.2d 552 U.S. merce.” (2007). §921(a)(20), "[t]he Under 18 U.S.C. term interpreted Nothing as tak- punishable by imprisonment for a term 2. herein should be 'crime any validity exceeding year’ ing position on the of statutes one does not include ... right deprive of the to vote. laws convicted felons State offense classified may plaintiffs see unfairness the fact dissent from majority’s decision to af- law-abiding peers legally their can firm judgments of the District Courts. cannot, firearms and dispar- own I. The Current State of the Law Re-

ity consequence is a of their own unlawful garding Challenges §to I conduct. Because believe that the Second permits Congress to disarm appellate No federal yet court has up- crimes, persons who commit serious and held a challenge, as-applied, facial or to the § 922(g)(1) reasonably because circum- felon-in-possession statute. It there- crime, scribes what as such a I counts helpful fore be to begin by summarizing reject plaintiffs’ as-applied would chal- guidance Court’s limited lenges judgments and reverse the explore this issue and to how our sister District Courts. circuits have applied guidance in the context 922(g)(1). more,

What’s even if we apply were to scrutiny validity intermediate to test the Meaning A. The of Heller I 922(g)(1), would conclude that the stat- reasonably ute is tailored to The promote the Second Amendment provides: “A government Militia, substantial sup- regulated interest of well being necessary to pressing Congress State, armed violence. security itself of a right free previously created and then defunded an the people keep Arms, and bear shall regime providing administrative indi- not infringed.”6 be in any touchstone vidualized exceptions felon-in-pos- to the Second Amendment case is District Co that, session ban.3 When it pro- terminated Heller,7 lumbia v. the Supreme Court deci gram, it stated that the review of such sion holding that the Second Amendment applications very “awas difficult and sub- protects “right of law-abiding, respon jective task which could have devastating sible citizens to use arms defense of consequences for innocent if citizens hearth and home.”8 recog While Heller made,”4 wrong decision is and warned that arms, nized an individual to bear many “too gun these felons whose own- that, explained also rights, most “[l]ike ership rights were restored went on to secured the Second Amendment is commit violent crimes with firearms.”5 not unlimited.”9 pro The Court went on to congressional These judgments stand in important vide us with guidance about the stark plaintiffs’ arguments. contrast to the scope: Second Amendment’s Congress already experimented has with a in [Njothing opinion our tak- should be were, effect, system of what in as-applied en to longstanding prohi- cast doubt on challenges and concluded that it was un- bitions on the of firearms dangerous. workable and ill, mentally felons and the or laws for-

I Judge bidding therefore concur with carrying Ambro’s of firearms in sen- opinion part, from it in part, places dissent and gov- sitive such as schools and Const, The issue of felon disenfranchisement is not 6. U.S. amend. II. here, presented may very and there well be distinguish different considerations that a fel- 570, 2783, 7. 554 U.S. 171 L.Ed.2d right on's loss of the to vote from the loss of (2008). possess gun. 8. Id. at 128 S.Ct. 2783. 925(c). 3. See 18 U.S.C. 102-353, (1992). Rep.

4. S. No. at 19 9.Id. 128 S.Ct. 2783. 104-183, (1995). Rep.

5. H.R. No. at 15 per- not challenges 922(g)(1) are imposing plied laws buildings, or ernment missible, respect with to felons. at least on the conditions and qualifications arms.10 commercial sale Circuit, which begin with the Fifth We that the years before Heller Second held footnote, these the Court described In a right to protects Amendment an individual lawful collectively “presumptively laws as case, pre-Heller arms.13 In another bear measures,” making clear regulatory Everist,14 the Fifth Cir States v. United purport to be exhaus- list does not “[the] felon-in-possession ban cuit held that the people stated that The also tive.”11 Court to both vio respect was constitutional with firearm in keep loaded have the offenders.15 In the lent and nonviolent self-defense, provided their homes view, “[i]rrespective Fifth Circuit’s disqualified “not nature, offense was violent whether his rights.”12 exercise of Second disregard manifest a felon has shown Heller interpretive questions about Two and “[h]e of others” First, again. again arise therefore limitation on his justly complain of the say that the felon-in- what does mean possession of firearms liberty when his “presumptively lawful”? possession ban security would otherwise threaten 'Second, say that a does it mean to what the con his fellow citizens.”16The issue of if may only possess a firearm he person af stitutionality again §of arose “disqualified from the she has not been v. Scroggins.17 ter Heller in United States. As rights”? exercise nothing Fifth there said that Circuit see, have al- our sister circuits we shall question prior it to its in Heller caused these ready yeoman’s exploring work done conclusion Everist answers. questions suggesting possible applied to non-vio constitutional even аs

lent felons.18 Rejected Have As- B. Four Circuits addressed the issue of The Ninth Circuit Challenges Altogether Applied challenges in United States v. as-applied Fifth, Tenth, Ninth, Vongxay.19 The defendant there raised Four circuits—the challenge to as-ap- both a facial and an concluded and Eleventh —have 626-27, 14. 368 F.3d 517 10. Id. at 128 S.Ct. 2783. ("It 11. Id. at 128 S.Ct. 2783 n.26. Elsewhere 15. See id. at 519 is not inconsistent ability opinion, described limit the in the Court the Second Amendment to possess regulations "permissible” keep and as "ex- fire- these convicted felons to arms.”). ceptions” Second Amendment. Id. at to the later, years 128 S.Ct. 2783. And two 16. Id. City Chicago, McDonald v. 3020, (2010), 177 L.Ed.2d 894 with- 130 S.Ct. (5th 2010). 17. F.3d 433 Cir. 599 expounding delinea- out otherwise on Heller's scope of the Second Amendment tion 451; v. 18. Id. at see also United States "long- right, recapitulated the list of the Court Anderson, 348, (5th 2009) 352 Cir. 559 F.3d standing regulatory measures” in Heller provides (stating that “Heller no basis "repealed] that such [.Heller's] assurances” 922(g) § reconsidering” whether is constitu "imperiled]” by laws were not tional) Darrington, (citing v. United States 786, Id. at 130 S.Ct. 3020. Amendment. ("Section 632, (5th 2003) Cir. Amend Heller, ‍​​​‌‌​​‌‌​‌​​​‌​​‌‌​​‌​​‌​​‌‌‌​‌‌​‌​​‌‌‌​‌​​​​‌‌‍635, 922(g)(1) not violate the Second does 2783.

12. 554 U.S. at ment.”)). Emerson, 203, 270 F.3d 13. United States 2010). (9th (5th Cir. 19. 594 F.3d 1111 Cir. 922(g)(1). respect preclude § With to the defendant’s arms does not disarming laws ” citizens,’ including unvirtuous criminals.24 the Ninth conclud- challenge, facial Circuit “[n]othing ed that Heller can be read decision, A recent Ninth Circuit United to cast doubt on the constitu- legitimately Phillips,25 States v. re-affirmed Vongxay, although-with skepticism. some tionality 922(g)(1).”20 respect With The defen- dant argued prior there that his criminal challenge, defendant’s conviction could not support disarmament Vongxay concluded that is con- § 922(g)(1) crime, under because his which applied stitutional even as to non-violent consisted of concealing an ongoing felony felons. The Ninth Circuit articulated sever- officials, non-violent, from federal was “a First, al rationales for this conclusion. it passive crime of inaction.”26The Ninth Cir- right noted that the to bear could be arms cuit said that “there be good some Second, restricted at common law. ob- skeptical reasons to be about the correct- “that to date no served court that has ness of the current of analyzing framework examined' Heller has found 18 U.S.C. felons,”27 the Second Third, § 922(g) constitutionally suspect.”21 but it nonetheless concluded that Heller “[d]enying right it stated that felons Vongxay foreclosed the defendant’s bear arms is ... consistent with the ex- argument.28 plicit purpose of the Second Amendment to The Tenth rejected Circuit a constitu- ”22 security maintain ‘the free State.’ challenge tional 922(g)(1) in United “[fjelons end, often, To that and histor- States v. MeCane.29It focused on the fact been, ically explicitly prohibited have from that Supreme “explicitly Court stated duty.”23Lastly, militia it stated that “most in Heller ‘npthing opinion our scholars of the agree Second Amendment should be taken to cast long- doubt on that the to bear arms was ‘inextrica- standing prohibitions on the ”30 bly concept ... tied to’ the of a ‘virtuous firearms felons.’ Judge Tym- While ” “ citizenfry]’ ‘the to bear kovich complained in concurrence that 1173, (inter- 20. Id. at 1114. 26. Id. at 2016 WL 3675450 at *2 omitted). quotation nal marks (internal quotation 21. Id. at 1117 marks omit- 1176, ted). 27. Id. at WL 3675450 at *5. 2016. Const, ('‘[As- II). 28. (quoting Id. at 2016 WL 3675450 at *4 22. Id. amend. suming propriety of felon firearm bans— Id. we precedent must under Court question and our own—there is little (alteration original) (quoting Id. at 1118 Phillips’s predicate conviction ... can consti- Kates, Jr., Don B. The Second A Amendment: . ban.”); tutionally serve as the basis for a felon Dialogue, Contemp. 49 Law & Probs. Holder, see also Van Der Hule v. (1986)). infra, strength As discussed (9th 2014) (“We 1050-51 addressed interpretation of this historical since been has whether violates the Second See, challenged by e.g., other scholars. Carlton [Vongxay] and determined that Larson, Exceptions F.W. Four in Search not.”). Duckett, it did But see United States v. Theory: District of Columbia v. Heller and 2010) (Ikuta, Fed.Appx. Dixit, Ipse Hastings Judicial L.J. J., concurring) (stating might that it be consti- (2009) (analyzing 1374-75 sources cited tutionally problematic prevent hon-violent scholars); Marshall, Why earlier C. Kevin firearms)'. possessing felons from Gun?, Can’t Martha Stewart Have a 32 Harv. (2009).' (10th 2009). Pol’y J.L. & Pub. 29. '573 F.3d 1037 Cir. (9th Heller, 25. 827 (quoting 2016 WL 3675450 Cir. 30. Id. at 1047 554 U.S. at 6, 2016). 2783). July . 128 S.Ct. laws, although it has not of felon federal firearms summary treatment “[t]he Court’s n pos- In challenges. in dictum forecloses such United foreclosed dispossession interpreta- sibility sophisticated Torres-Rosario,37 of a more the First Cir States v. scope,”31 the Tenth 922(g)(l)’s § tion of cuit considered a defendant’s the issue. To the has not revisited Circuit conviction under challenge his that it had in a later case contrary, it said prior convic 922(g)(1). The defendant’s notion that Heller “already rejected the were for with intent tions con- inquiry an individualized mandates and distribution of controlled distribute § 922(g)(1).”32 cerning pursuant felons substances, the court concluded that upheld Circuit Lastly, Eleventh failed because challenge the defendant’s 922(g)(1) constitutionality United notoriously linked to viol “drug dealing opinion That focused on v. Rozier.33 States conclusion, the reaching ence.”38 language Heller Court’s “Supreme First Circuit stated “disqualification] from the exer regarding open be to claims that some Court rights.”34Inter Amendment cise Second potential violence felonies do indicate language, this the Eleventh Circuit preting applying and cannot be the basis for implied that one of Heller’s concluded ban,” “might even categorical and likewise can be was that certain premises highly fact-specific object open be exercising permissibly disqualified so, Even the court observed that ions.”39 altogeth rights Amendments their Second approach, applied “such an permitting say went on to that Hellers er. The court in individual circum countless variations prohibitions” indicat “longstanding list of stances, obviously present would serious disqualifying felons from ed that “statutes administration, consistency problems firearm under and all possessing a thus warning.”40 and fair The First Circuit offend the circumstances do not Second bring could as- suggested that defendants result, it concluded Amendment.”35 As applied challenges, recognizing even while “statutory pos restrictions of firearm considering the difficulties that such chal session, § 922(g)(1), are a constitu such lenges would create. avenue to restrict the Second tional upheld The Second Circuit constitu peo of certain classes of tionality United States “Rozier, by virtue of his ple,” and Bogle.41 analyze It did not the issue conviction, felony falls within such Instead, it great depth. pointed to Hellers class.”36 “longstanding prohibi language about Wary Three Are of As- C. Circuits “join[ed] every tions” and other circuit to Challenges Applied affirming consider the issue in is a constitutional restriction on skepti expressed The First Circuit has to the of convicted as-applied challenges cism about Id. 31. Id. at 1049. States, (1st 2011). Cir. 32. In re United 37. 658 F.3d 110 2009). (10th Cir. 38. Id. at 113. 2010). F.3d 768 39. Id. Heller, (quoting

34. Id. at 770 554 U.S. at 2783). 40. Id. (2d added). (emphasis 35.Id. at 771 41.717 F.3d 281 court not be unlawful to distinguish possess felons.”42 The did firearm after having as-applied challenges.43 facial and institution, tween been committed to mental -18 § 922(g)(4), permits U.S.C. as-applied chal Meanwhile, jurisprudence issue, lenges. That which raises a doctrinal appears to be in flux. That Sixth Circuit conundrum similar to the one we confront § challenges 922(g)(1) court dealt with here, en banc review.50 triggered has also one, non-precedential opinions. two Frazier,44 United States the court re As-Applied D. Four Circuits Permit

jected 922(g)(1) § on challenge to Challenges “congressional regulation view of fire arms constitutional” even post- [remained] Fourth,51 Seventh,52 Eighth,53 and v. Kham another, United States Heller45 In D.C. Circuits54 have left the door open to i,46 recognized the court the theoretical so, as-applied challenge. successful Even possibility as-applied challenge of an yet none of these courts has upheld one. that, § 922(g)(1) but said on the facts be instances, In many these courts have it, applied challenge fore an as “[e]ven also narrowed the as-applied universe of ... A would be difficult to mount.”47 later challenges permissible. The precedential opinion, United States v. Care Circuit, Fourth which repeatedly has said y,48 flatly “prohibitions stated on fel might it affirm an as-applied chal on of firearms do not violate the circumstances, lenge in the recently, Second Amendment.”49 And most has re jected the proposition Congress may Sixth Circuit has considered the issue making only of whether the federal statute disarm persons who commit violent as-applied 42. Id. challenge at 281-82. Second Amendment succeed.”). 922(g)(1) could Bogle as-applied challenge 43. did not raise an (7th Lynch, Fed.Appx. 52. Baer v. on the basis of the Second 2016) ("We so, Cir. have not decided if felons Amendment. Even the Second Circuit's historically were outside the language scope of the Sec broad and its citations to numerous protection ond Amendment’s and instead challenges courts that have considered such have focused on whether survives suggest broadly approve that it intended to felons, scrutiny. intermediate As to violent restrictions on Second Amendment scrutiny, statute does survive intermediate we law-abiding. of individuals who are not concluded, prohibition have because the gun possession (6th 2008). substantially related to the Fed.Appx. 44. 314 Cir. government’s keeping interest in those most likely obtaining to misuse firearms from 45. Id. at 807. (internal omitted)); them.” citations United (6th Williams, (7th 2010). Fed.Appx. 46. 362 Cir. States v. 616 F.3d Cir. 2010) (^'Heller referred to felon disarmament lawful,’ which, 47. Id. at only ’presumptively 508. bans implication, means that there must exist the (6th 2010). 48. 602 F.3d 738 Cir. possibility that the ban could be unconstitu as-applied tional in the face of an chal 49. Id. at 741. lenge.”). Tyler Cty. Dep’t, (8th v. Hillsdale Woolsey, 53. United States v. 759 F.3d 905 Sheriff’s (6th 2014), reh’g grant- F.3d 308 Cir. en banc Cir. ed, 21, 2015). opinion (Apr. vacated Holder, 54. Schrader v. 704 F.3d 991-92 Moore, (D.C. 2013) (rejecting United States v. chal- 2012) ("We lenge 922(g)(1) brought by do foreclose the common-law class). possibility might that a case exist in which an misdemeanants as a 386 Pruess,55 a facial chal shaky ground. v. Bena involved In States

crimes. United § § which challenge 922(g)(1) lenge 922(g)(8), a bars court considered subject and collector those to a restrain brought by a firearms dealer of firearms twenty prior convictions ing addressing challenge, who also had over order. In laws, gun variоus failing comply “long Bena stated that the HellePs list of were although none of those convictions standing prohibitions” suggested that the “that appli crime. Pruess held for violent regulatory “viewed [those] Court prohibi felon-in-possession cation presumptively measures ... as lawful be felons ... allegedly tion to non-violent infringe on the cause do not Second Amendment.”56 does not violate Second right.”63 support Amendment In of that conclusion, analy own the court cited our ambiguity in the There is also some sis in v. Marzzarella.64 The United States Eighth Circuit. That jurisprudence of pointed to the fact Eighth Circuit also constitutionality court the facial upheld that, matter, states historical several Seay.57 § States v. It 922(g)(1) United viewed the to bear arms as limited to as-applied challenges addressed also citizens. The court peaceable, responsible § 922(g)(1) Woolsey,58 in United States v. expressly question declined'to consider the prior non-prece- where it cited one of its 922(g)(8) § of “whether would be constitu Brown,59 opinions, dential United States v. subject applied person tional as to a who is that in turn relied on our decision Unit to an order that was entered without evi Following ed States v. Barton.60 Barton’s dangerousness.”65 dence rejected a logic, Woolsey defendant’s as- 922(g)(1) § he applied challenge to because Meanwhile, the D.C. Circuit considered “presented had not ‘facts about himself as-applied challenges the issue of background distinguish his and his case, v. Holder.66 In that Schrader circumstances from those of his plaintiffs court concluded that had torically barred from Second most, brought, challenge 922(g)(1) ”61 protections.’ applied “as to common-law misdemeanants class,” so, applied as a not as to Schrader Eighth Even another Circuit deci sion, Bena,62 rejected suggests individually.67 easily The court United States v. challenges might challenge. “plaintiffs rest on that It stated that the (3d 2011). (4th 2012). 242 60. F.3d 168 Cir. 55. 703 F.3d Cir. 633 56. Id. at 247. Brown, Woolsey, (quoting 61. 759 F.3d at 909 726). Fed.Appx. at 436 (8th 2010). Seay 57. 620 F.3d 919 Cir. techni- 922(g)(3), prohibits cally which addressed (8th 2011). by drug reviewing 62. 664 F.3d 1180 Cir. gun possession users. Eighth precedents, Seay Circuit’s Stated prior non-precedential opinion uphold- that a 63. Id. at 1183. ing constitutionality was (citing id. at United correct. See 924 States (3d 2010). 64. 614 F.3d 91 Cir. Irish, (8th 2008)). Fed.Appx. Cir. Eighth rejected challenge Circuit facial Bena, 664 F.3d 1185. time in United States v. second Joos, (8th 2011). (D. C. Cir. 58. 759 F.3d 905. 67.Id. at 991. Brown, (citing Fed.Appx.

59. Id. at 909 2011)). II. Marzzarella Step-One no evidence that individuals and Exclu- offered [had] from the sions misdemeanors] of [common-law convicted Right future armed insignificant risk of pose an adopted It also view violence.”68 decision in Marzzarella establishes Our if common-law misdemeanants two-step assessing challenges even “some test constitutionality of statutes under the risk ... present no such may ... well Second Amendment: case-by-case not limited to ‘Congress is First, challenged we ask whether the persons who have been exclusions of imposes falling law a burden on conduct untrustworthy weapons, with shown to be scope of the Amend- within the Second by these limits be established nor need ”69 not, guarantee. If it does our ment’s in court.’ presented evidence does, If it inquiry complete. we evalu- ate law under form of means- some * * * If scrutiny. passes end the law muster standard, it is constitutional. under demonstrates, survey of cases As this fails, it If it is invalid.71 complete judges face an almost federal agree Judge I with Ambro Marzza- from the guidance absence provides the correct framework for rella scope about of the Second Court assessing challenges the constitutionali- so, only four of right. Even § him ty 922(g)(1). agree I also clearly courts have stated that our sister that, step-one, persons at Marzzarella who 922(g)(1) § are as-applied challenges to disqualified commit serious crimes are taking the further permissible. even asserting their challenge, we step upholding such a rights.72 entirely alone. stand Unfortunately, Judge Ambro and I dis- mind, pos- background this With agree how to decide whether over agree I dis- explain enough sible to where particular crime is serious —and rights. Judge Am- my colleagues.70 cause a loss of firearm agree—with punish- ed misdemeanors with a maximum 68. Id. at 990. years of two or less. (quoting United States v. Id. at 990-91 69. words, only persons subject In other Skoien, 2010) (en (i) (ii) 922(g)(1) are felons and misdemean- banc)) (emphasis original). sug- Schrader by punishable are more ants whose crimes that, gested plaintiffs properly raised had the join prison. years in I therefore than two as-applied challenge by arguing "that the opinion. Judge Ambro's Parts I and II of spe- applied Schrader statute is invalid as Marzzarella, (internal F.3d at 89 cita- cifically,” might then "Heller well dictate omitted). and footnote tion decision the different outcome” than the respect to the class-wide court reached with III.B, III.A, Accordingly, join III. I Parts challenge. Id. at 991. III.C.2, C.l, Judge Ambro’s and III.C.3.a entirety. vote to opinion in their I would also matter, agree initial I with both 70. As an Barton, at least insofar as it states overrule Judge that the Judge Ambro and Hardiman challenges are unavailing. statutory arguments plaintiffs’ сurrently codi- permissible as that statute is straight- statutory provisions here are The two view, they my are not. fied. In makes it unlawful for forward: Shwartz, McKee, Judge Judge possess having been Chief anyone to a firearm after only II of Judge Restrepo join Parts I and punishable by of a crime more than convicted (See Type- 921(a)(20)(B) opinion. Op. Judge Ambro prison, re- Ambro’s year in one n.l.) script prohibition persons convict- at 6-7 moves from that prohibition pos- as to the on felons category of “serious least bro believes that firearms, sessing Heller and Marzzarella some crimes amorphous. While crime” is definition, question directly. answer that including may be serious attempted actual or use those in which the careful to tell us The Heller Court was offense,73 of violence is an element “nothing opinion should be [its] not— other crimes be serious—or prohi- on longstanding taken to cast doubt In Judge on the circumstances. depending possession bitions on the of firearms view, inquiry Ambro’s the seriousness It felons.”74 also referred to the felon-in- district courts to en- requires therefore “presump- ban as one of several gage person-specific assessments based tively regulatory lawful measures.”75 In By any particular on the facts of case. Marzzarella, that the “better we concluded contrast, I would hold Heller itself that these reading” of Heller was meas- disqualified are from tells us that felons complete “exceptions to the ures were exercising view, their felons right to bear arms.”76On this principled there is no ba- rights. simply Because do not have narrower Second context, sis, distinguish- rights law-abiding at least in this for than their counterparts; they disqualified misdemeanants who com- “are ing felons from exércising punishable by mit crimes more than two their Second Amendment rights” altogether.77 certainly felons years currently all within While prison, crimes using have an interest firearms “for 922(g)(l)’s scope serious defini- are. home,” defense of hearth and Marzzarella I plain- tion. would therefore hold the felony disqualifies stated that “a conviction challenges step- fail at Marzzarella tiffs’ asserting an individual from inter- one, full stop. est.”78 Congress May Permissibly

A. Di- down, At the time Marzzarella came sarm Felons at Marzzarella Step- reading of this Heller was accord One the views of several of our sister courts.79 In applying step-one of the Marzzarella have since the same adopted Other circuits analysis, we ask whether bur- position,80 and we ourselves have recom- any right. At to it.81 dens Second Amendment mitted Op. Typescript sessing handgun, 73. See Ambro at 31. we must determine qualified possess whether he a hand- ("[F]elons gun.”); Vongxay, 74. 554 U.S. 128 S.Ct. 2783. 594 F.3d at 1113 categorically are different from the individu- n.26, right 75. Id. at 627 128 S.Ct. 2783. als who have a fundamental to bear arms, Vongxay’s reliance on Heller is added). (emphasis (footnote omitted)). 614 F.3d misplaced.” 91-92; Golimowski, See, Bena, ("It e.g., 77. Id. at see also Jeff 664 F.3d at seems Note, Pulling Trigger:Evaluating likely Criminal that the Court viewed most World, regulatory Gun Laws in a Posf-Heller 49 Am. Heller measures listed in (2012) (contending presumptively Crim. L. Rev. lawful because do not in- fringe right.”). that felons forfeit Second Amendment on the Second Amendment through affirmative decisions violate Filko, (3d contract). 81. See Drake v. social 2013) (reiterating long- that "certain standing regulations 'exceptions' to 78. 614 F.3d at 92. arms, keep that the and bear such Rozier, ("Prior they regulate scope 79. See 598 F.3d at 770-71 conduct is not within the Amendment”). taking purpose pos- into account the Second Rozier's itself, Apart ing them, from the text of Heller his- the people unless for tory support and tradition also Marzzarel- committed, danger crimes or real public felon-in-possession la’s conclusion that the injury from individuals.’”85 Heller identi- permissible ban is a exclusion from the proposal fied this as a “precursor” that right. Second Amendment Without “en- “highly was influential” to the ratification gaging in a round of full-blown historical of the Second Amendment.86 analysis,”82it say suffices now to The Seventh Circuit has also done help- numerous courts have reviewed the histor- ful work mining the historical sources. Sit- ical Founding- record and concluded that banc, ting en the court highlighted the fact support constitutionality era sources that, era, during the Founding “[m]any of § 922(g)(1) applied even as to non-violent states, whose own constitutions énti- felons.83 armed, tled their citizens to be did not’ respect Founding genera- With extend this convicted of tion, Eighth Circuit points us Black- crime.”87In Yancey,88 United States v. stone, “explained English who sub- “[wjhatever court stated that pedigree jects enjoyed right to have arms for their against rule even nonviolent felons defense, ‘suitable to their condition and possessing weapons ... ”84 most scholars of degree’ and ‘under due restrictions.’ As the Second Amendment agree that themselves, to the Founders several right to bear arms was tied to the concept judges including Judge Hardiman —have — citizenry that, of a virtuous and according- “[sjhortly recounted how after the Penn- ly, government could disarm ‘unvirtu- sylvania ratifying convention origi- for the ”89 Yancey that, ous' citizens.’ also noted nal Constitution ... the Anti-Federalist “while felon-in-possession laws could be minority recommended following ‘wildly criticized as overinclusive’ for en- amendment: ‘That the people have a compassing offenders, every nonviolent to bear arms for the defénse of themselves state, state court in and their own or the the modern era to United States consider ... and no passed law shall be for disarm- the propriety disarming of felons under (5th 2012) 82. Id. (emphasis 201 re- moved) Cornell, (quoting Commonplace Saul Model, See, Bena, or ("Scholar- Anachronism: The Standard e.g., Sec- 83. 664 F.3d at 1183 Amendment, History ond and the Problem in ship suggests support historical a com- of Contemporary Theory, Constitutional 16 permits mon-law tradition restrictions di- (1999)); Const. Comment. see also law-abiding rected at citizens who are not Op. Typescript (discussing Hardiman at 24. responsible.”); Vongxay, and 594 F.3d at 1113 proposal). the same ("[M]ost scholars of the Second Amendment agree that the to bear arms ‘was ... 86. 554 U.S. at inextricably S.Ct. 2783. concept tied to’ the of 'virtuous ” (all citizenfry]’..,. except alternations first Kates, 24)); Skoien, original) (quoting supra (citing Stephen note P. Emerson, Halbrook, (citing 270 F.3d at 226 n.2-1 sources The Founders' Second Amendment Marshall, proposition (2008); for the Why that "the Second Amend- Can’t Martha Stew- Gun?, prohibit legislation ment does not Pol’y such as art Have a [the 32 Harv. J.L. & Pub. ban]”). 700-13). felon-in-possession Bena, 2010). (quoting 664 F.3d at 1183 1 William 88. 621 F.3d Blackstone, Commentaries (considering challenge 89. Id. at 684-85 a Am., 922(g)(3), 85. Nat’l Ass’n Inc. v. Bureau 18 U.S.C. which makes it unlaw- Rifle Alcohol, Tobacco, Firearms, Explosives, possess person & ful to firearms as a who is "an incompeten- or provisions age, background, criminal constitutional analogous state ”96 cy.’ step permissi- to be concluded has ble.”90 922(g) §of also evinces development keep guns away desire to statutory Congress’s on convicts ban

The federal un past than those whose lengthy persons a other firearms itself has possessing of fu a law lawful conduct indicates likelihood Congress passed In pedigree. dangerousness. The current iteration possession on the ture imposing restrictions groups per nine shotguns, 922(g) prohibits and guns, sawed-off machine including fugi possessing guns, sons from weapons in the District certain other tives, addicts, drug persons previously illegal That law also made it Columbia.91 institutions, persons committed to mental has been convicted any “person who threatening part a court order for or elsewhere of under the District of Columbia child, persons ner or with misdemean- own or have in his [to] crime of violence vio or convictions for domestic within the District of crimes of pistol, prohibitions 922(g), Congress passed a lence. The other Columbia.”92 however, slightly rest on a different ratio Federal Firearms broader statute —the 1968, Congress expanded who nale. In what is Act—that made it unlawful for those § 922(g) now to cover undocumented or convicted of a “crime of violence” had been aliens, non-immigrant or ammunition dishonor to “receive firearm ably discharged military, from the shipped transported or which has been persons who have renounced their U.S. cit foreign commerce.”93 Con- interstate additions, izenship. “crime of violence” limi- These which were “en gress removed the response political to the wave of “changed ‘receipt’ acted in tation during and civil assassinations ‘possession’ [in element of the 1938 law to 1960s,”97 1968], Congress’s judgment § its current reflected giving “may persons categories within these purpose form.”95 The stated of the 1968 possess a firearm without by keeping “to curb crime not be trusted revision was society.”98 becoming hands of those not a threat Rather ‘firearms out of the link rigid than disarm based on a possess entitled to them because of legally 30, 1938, 850, 1(6), 2(f), §§ any 93. Act of June user of or addicted to controlled unlawful ch. 1250, substance”). 52 Stat. 1250-51. 3, 87-342, 1961, 94. Act of Oct. Pub. L. No. 75 Winkler, (quoting Id. at Adam Scruti- 90. Stat. 757. Amendment, nizing L. the Second 105 Mich. 683, (2007)). Rev. Skoien, (statutory citation 95. 614 F.3d truncated). 14, 8, 1932, 465, July § 91. ch. 47 Stat. Act 650, 654. 814, States, v. United 415 U.S. 96. Huddleston 1262, 824, (1974) 94 S.Ct. 39 L.Ed.2d 782 Slat, 3,§ The 1932 Act 92. Id. 651. 90-1501, (1968)). (quoting Rep. at 22 S. No. “[m]urder, defined a "crime of violence” as maliciously manslaughter, rape, mayhem, dis- Toner, 115, 728 F.2d 97. United States v. another, abduction, figuring kidnaping, bur- (2d larceny, any glary, housebreaking, assault States, kill, Scarborough rape, robbery, v. United 431 U.S. intent to commit with (1977) weapon, L.Ed.2d 582 dangerous or assault assault with 14,773 (1968)); (quoting Cong. any punishable Rec. see with intent to commit offense States, penitentiary,” by imprisonment in the or "an also Stevens United 146-49, 1971) (recounting attempt same.” Id. 152-70 to commit legislative history). the relevant 47 Stat. at 650. past categorical violent acts and future dan possessing between ban on felons fire- deeply enough arms is rooted in our gerousness, these restrictions —consistent tradi- operate tion to as a bona disqualifica- Founding tying with the tradition at the fide tion from the Second right. gun rights groups to civic virtue —disarm Congress un whose members believes are B. Misdemeanors Within unwilling able or to conduct themselves in 922(g)(l)’s Scope Are Function- conformity responsibilities with the of сitiz ally Felonies enship.99 Having established that felons are cate- fair, might quibble To be one with this gorically disqualified from asserting their kind historical explanation rights, Second Amendment ques- the next § 922(g)(l)’s scope. regard With misdemeanants, tion is whether like the itself, if might years statute one ask 50 is a plaintiffs, differently. are situated long enough of time period to entrench a plaintiffs view, insist that are. their although constitutional several tradition — ‘felons,’ spoke Heller spoke “[w]hen assessing courts have said as much when a traditional common-law classification challenges.100 Second Amendment And Framers, known to the not a late-twentieth sources, respect Founding-era (if century including statute some vast dis- judges expressed some have view puted) . number of misdemeanor of- infirm the historical too a plat- record is Judge sympathetic fenses.”102 Ambro is form on which to rest hard-and-fast deci- that notion.1031am not. scope sions about of the Second matter, As an initial nothing Heller right.101 Our multiple Court’s suggests that felony-misdemeanor dis- opinions just in this case illustrate how true, meaningful tinction is a one. It is Founding-era contested can historiography course, that of “presumptively Hellers list be. lawful regulatory measures” includes so, my Even review of the relevant his- “longstanding prohibitions on posses- tory 922(g)(l)’s leads me to conclude that sion of firearms felons.”104One could J., ("[SJcholars permitting plaintiffs bring (Sykes, I dissenting) note that as- F.3d at 650 applied challenges opens disagree about the extent to which felons—let challenges door to similar under these other alone misdemeanants —were considered ex- provisions. example, plaintiff For once a can during cluded from the to bear arms challenge application felon-in-posses- era.”); McCane, founding at 573 F.3d ground prior J., ban ("But sion that his or her (Tymkovich, concurring) more re- crime does not indicate likelihood of future cent authorities have not found evidence of dangerousness, might the next case involve an longstanding dispossession laws. On the con- 922(g)(6), § challenge provi- trary, specifically argued a number have such concerning discharge sion dishonorable questioned laws did not exist and have Forces, the Armed same reason. upon by sources relied authori- earlier ties.”). See, Pruess, (re e.g., 100. 703 F.3d at 245 n.1 jecting argument that the ban on non Binderup 102. Br. at 55-56. possessing violent felons firearms is not "longstanding,” place since it has been in See, e.g., Op. Typescript 103. Ambro at 30-31 century”). "for more than half a ("Congress may entirely not overlook the mis- label, which, See, Chester, demeanor in the Second Amend- e.g., 101. United States 628 F.3d context, important.”). 2010) is also (stating 680-81 that the best, is, scholarship relevant historical "not n.26, Founding genera- conclusive” as to how the & 104. 554 U.S. at 626-27 Skoien, dispossession); tion treated felon 2783. year day prison.107 and one in words and conclude least one perhaps read those Supreme explained And the Court has purposefully- Court was that the law, that, only contemporary felons—in the in “the distinction placing felons—and permissi- misdemeanors] felonies and category [between of who be arbitrary.”108 the exercise of their minor and often The kinds bly disqualified from Still, scope within rights. one could misdemeanors Second 922(g)(1) punishable by § more just easily as conclude that the Court was —those effectively 922(g)(1) years prison § as a than two in using shorthand to refer to —are all, careful felonies in all but name.109 whole. After the Court was say that the elsewhere Heller Indeed, held that previously we have “the of law- protects power to define a “felo- Congress has the citizens to use arms in abiding, responsible ny” ways law in purposes federal defense of hearth and home.”105Neither depart year-and-a-day even from the felons nor misdemeanants are the kinds Graham,110 rule. In United States v. we “law-abiding” citizens whose Heller apply Congress’s defini- considered how to vindicated.106 “aggravated felony” provi- tion of an to a “in- fundamentally, Sentencing More the notion that sion of the Guidelines that sharp penalty there is a distinction between felo- for the crime of crease[d] misdemeanors, country reentering deporta- nies and at least within the after by § two-fold. 922(g)(1), universe of crimes covered tion.”111The issue the case was First, long is not correct. Our own Court has the federal statute defined the term that, world, recognized “aggravated felony” punisha- in the modern as an offense “felony” punishable by year prison not, crime ble at least one — 922(g)(9), prohibits Id. at S.Ct. which 2783. by persons firearms convicted of “misde- 106. Heller also its list of underscored meanor crime of domestic violence.” longstanding prohibitions purport "does not challenge Because Voisine did not involve a exhaustive," emphasizing to be while that the constitutionality 922(g)(9), to the it bears justifications.” Id. list flows from “historical Still, only indirectly. on these cases Voisine n.26, 635, guid- at 627 128 S.Ct. 2783. This recognized Congress passed suggests practical approach ance a more than dangerous loophole gun [a] "to close in the focusing on the word "felon” alone. (alteration origi- control laws.” Id. at 2276 See, States, e.g., Thorm v. United nal) (internal omitted). quotation marks (3d 1932) (noting Congress particular, Congress enacted historically has defined felonies as crimes "many perpetrators address the fact that punishable by prison exceeding term one charged with misde- domestic violence year). felonies, meanors rather than notwithstand- ing Id. the harmfulness of their conduct.” Garner, 1, 14, 108. Tennesee v. 471 U.S. Congress closing loophole believed that this (1985) ("[T]he S.Ct. 85 L.Ed.2d 1 as because, important Supreme was in the sumption dangerous that a 'felon' is more words, "[fjirearms Court’s and domestic strife Indeed, than a [is] misdemeanant untenable. (al- deadly potentially are a combination.” Id. numerous misdemeanors involve conduct original) (quoting teration in United States v. felonies.”). dangerous many more than 415, 427, Hayes, 555 U.S. 129 S.Ct. (2009)). Supreme L.Ed.2d 816 109. The Court’s recent decision in - States, -, v. United U.S. Voisine (3d 110. 169 F.3d 787 (2016), S.Ct. 195 L.Ed.2d 736 also ad- dressed the distinction between misdemean- (discussing 111. Id. at 8 U.S.C. ors and felonies. That case raised an issue of 2L1.2(b)(l)(B)). 1101(a)(43) statutory § interpretation regarding and U.S.S.G. 18 U.S.C. by contexts; an In typical, punishable is more offense “serious” misdemeanors. other Second, year prison.112 than one more Court has affirmed the value triggered prior state offense easily statutory administrable schemes sentencing federal enhance- defendant’s clear, stating Congress adopt can misdemeanor technically a un- ment was uniform rules about what counts as a “felo- New York law.113 der ny” law, purposes for of federal even where state-level definitions nu- are more recognized that line be- “[t]he Graham an anced.116 tween felonies and misdemeanors is one,” that, it also -noted “[w]ith ancient but The bottom line is this: once misde- penitentiary disap- the rise of the and the meanor punishable by more than two pearance penalty of the death most years in prison, treating though it as it felony-misdemeanor felonies ... dis- intrinsically were felony different than a one-year tinction line.”114 solidified unjustifiably By formalistic. choosing to so, that-Congress Even we concluded could punish such misdemeanors severely more year- and-a-day rule in its own ignore felony, than a traditional a state has al- result, statutory law. As a the label New ready. indicated that such crimes are seri- York had offense was affixed Graham’s view, my Congress ous. In is entitled to immaterial; fact what mattered was the ' rely judgment. on that that his misdemeanor fell within the tech- Accordingly, my resolution of this case “aggravated nical federal definition of felony.”115 simple. would be Heller tells us that “noth- ing in opinion [that] should be taken to Contrary statutory to the scheme we cast longstanding prohibitions doubt on on Graham, § confronted in 922(g)(1) respects of firearms felons.”117 modern, year-and-a-day the more distinc- interpreted Our Court has since Heller to tion between felonies and misdemeanors. say that possessing the ban on felons fire- Indeed, respect does more than it: it complete arms is a carve-out from the actually scope excludes from its misde- Since, right. Second Amendment pres- punishable by years meanors two purposes, ent there is no functional differ- imprisonment way, or less. this ence com- certain between felons who incorporates state-law judgments punishable by about crimes count as mit misdemeanors more what fense,” (“8 1101(a)(43)(G) previous "depended 112. Id. at 791 U.S.C. de- which its form aggravated felony fines as a theft offense vagaries .an on the of state-law classifications of year.”). with a sentence of at least one misdemeanors,” in- offenses as felonies or standard”); stead use a "uniform federal Lo- 113. Id. at 789. gan, (explaining 552 U.S. 128 S.Ct. 475 Congress could choose to "revise 114. Id. at 792. 921(a)(20) provide ... that federal rather ("Congress power 115. Id. has the to define pur- than state law defines conviction for punishment reentering crime of for the 922]”); poses Turley, United [§ States country deportation, after and we con- 407, 411, U.S. 77 S.Ct. 1 L.Ed.2d 430 Congress defining clude that was a term of (1957) (“[I]n plain the absence of indication art, ‘aggravated felony/ which in this case incorporate of an intent to diverse state laws includes certain misdemeanants who receive statute, meaning into a federal criminal year.”). a sentence of one dependent the federal statute should not be law.”). state See, States, e.g., Burgess v. United 124, 134, 170 L.Ed.2d (2008) at 128 S.Ct. 2783. 117. 554 U.S. (recounting Congress how amend- "felony drug ed a statute’s definition of of- statutory judicial, by finding all which years prison, [a] than in two 922(g)(1) including scope gives fact to existence of basic rise — disqualified from as- plaintiffs fact, here —are presumed presumption until [the] using in firearms “for serting their interest rebutted.”121 of hearth and home.”118At Marz- defense in reading “presumptively” This Hel- analysis further is nec- step-one, zarella no weight more on that word than it puts ler essary. in fairly important keep can bear. It is the word mind the context within which A Note on Heller’s Use of the C. key says: appears. The text of Heller “Presumptively” Word [NJothing opinion in be tak- our should majority my colleagues disagree A longstanding prohi- en to cast doubt on proposition felon-in-pos- with the that the bitions on the of firearms session ban is a constitutional carve-out ill, mentally felons and the or laws for- right. from the Second Amendment af- bidding carrying of firearms in sen- firming plaintiffs’ challenges, places gov- sitive such as schools and it in make clear district courts our buildings, imposing ernment or laws person-by-per- Circuit must now conduct qualifications conditions and on the son,- inquiries in order to individualized commercial sale of arms.122 application determine whether § 922(g)(1) any particu- is constitutional in Heller, accompa- Footnote 26 of which lar case. identify passage, nies this states: “We conclusion,

In reaching my col- presumptively regulatory these lawful leagues treat Helleds use of the word only examples; measures as our list does it “presumptively” though requires as purport to be exhaustive.”123 as-applied challenges courts to consider Judge read Judge Ambro and Hardiman felon-in-possession Judge ban. Hardi- “presumptively” though the word as man, example, cites the Seventh Cir- communicating, Supreme Court was cuit’s decision United States v. through single its use of a adverb Williams, which read Hellers reference footnote, a the Second mandate only ‘pre- “to felon disarmament as bans ” requires Amendment now courts to hear sumptively imply “the possibili- lawful’ as-applied challenges to certain laws that ty that the ban could be unconstitutional in gun rights. interpretation limit That as-applied challenge.”119 the face of an exactly strikes me as backwards. The Su- Likewise, Judge Ambro insists “[u]n- preme putting Court was not us on notice irrebutable, flagged presumptions less that “longstanding prohibitions” universal- assumption are rebuttable.”120The shared ly pre-Heller considered constitutional that, here is when the Court used were, constitutionally suspect. post-Heller, Heller, “presumptively” the word trying provide was instead Court convey meant to something like the defini- that, Heller assurances whatever else “presumption” might tion of that one find law, legal dictionary ie., might portend, provide “a rule of it did not a basis — Marzzarella, Chase, 118. 121. United States (4th 1994) (quoting Law 1172 n.7 Black's 1990)). Dictionary 1185 ed. (cit- Op. Typescript Hardiman 9-10 n.6 Williams, ing 616 F.3d at 626-27, 122. 554 U.S. at 128 S.Ct. 2783. n.26, Óp. Typescript 120. Ambro at 28. 123. Id. at 627 128 S.Ct. 2783. upend any ambiguous might and all more boundaries. One litigants future on the to bear existing restrictions govern- well ask: other than a school and a words, language In other Heller’s arms. building, ment what kind of location counts prohibitions” was “longstanding about place”? as a “sensitive kinds of con- What holding, expand to cabin its not to meant truly ditions on the of arms “long- sale are it. standing”? involving regu- a case such a important also to underscore that lation,

It is engage a court will need to in a “longstanding prohibitions” all of the more probing inquiry determine wheth- on Heller’s list are the same. The ban challenged constitutionally er the law is of firearms felons”124is “the valid.127 that has proscription a black-and-white And here we come back to the word tra- deep roots in our shared constitutional In a case “presumptively.” involving “laws nothing There is also unclear about dition. forbidding carrying firearms sen- recognized applies. when Marzzarella places” imposing sitive or “laws conditions much, “suggests that Heller reasoning qualifications on the commercial sale disqualified ... from ex- felons [that] arms,”128 “presumptively” word is rights” ercising their Second important. signals judges It to lower court “validity” felon-in-pos- because the “turn on the presence carefully session ban does not must think about circumstances.”125 or absence of certain truly challenged regulation whether the analogous “longstanding prohibitions” “longstanding The latter two kinds of upon which Heller does not “cast doubt.” catego- are different. These prohibitions” In the parlance jurispru- of our Court’s forbidding carrying of fire- ries—“laws dence, regulations “pre- not all will be such places” impos- and “laws arms sensitive (cid:127) sumptively enough satisfy lawful” qualifications on the ing conditions and inquiry step-one. of arms”126—have much at Marzzarella commercial sale See, Serv., e.g., Bonidy 124. Id. at 128 S.Ct. 2783. 127. v. U.S. Postal 2015), cert. 1124-29 Judge 125. 614 F.3d at 91-92. Ambro states denied, -, 1486, 194 136 S.Ct. two-step that "the framework Marzzarella (2016) (considering L.Ed.2d 550 whether a challenges,” controls all Second Amendment limiting carrying regulation federal (Ambro 40), Op. Typescript agree. and I Yet post parking office lots was consti- firearms plainly stated that "the better Marzzarella reading” guid- tutionally permissible in view of Heller's disquali- Heller that felons are govern- carrying of ance about firearms asserting their Second Amendment fied Am., Inc., buildings)-, Nat’l Ass’n Rifle Marzzarella, rights. Judge 91-92. (considering 700 F.3d at 203 the constitution- departs reading Ambro from this to leave ality prohibiting law the sale of federal open as-ap- possibility of "a successful 18-to-20-year-olds by federally li- firearms to plied challenge by a state-law felon” to dеalers, concluding that censed firearms 922(g)(1), although that the "in- he cautions longstanding, consistent with a law "is extraordinarily dividual's burden would be tradition, suggests which that the historical high perhaps even insurmountable.” —and (Ambro n.6.) Op. Typescript conduct at issue falls outside the Second at 33-34 No- Judge explain we can protection"). where does Ambro how Amendment’s simultaneously proclaim fidelity our to Marz- ignoring while at the same time its zarella Heller, 626-27, 128. U.S. at reading key language. of Heller’s 2783. Heller, 626-27, S.Ct. 554 U.S. at felon-in-posses- to the III. Marzzarella Step-Two respect But with ban, is no work for the word sion there Proper Application of Constitu-. “presumptively” 922(g)(1) to do. Section Scrutiny tional pos- codifies the restriction on criminals if, caution, Even out of an abundance of sessing firearms in a manner that reflects step we were to move on to two of the longstanding history and tradition —and analysis apply heightened Marzzarella explicitly has Court told us scrutiny I step a do not believe is neces- Heller does not “cast doubt” on such —a say Congress law.129This is not to sary Congress’s preventing interests — luck. If press Congress could never its sufficiently gun important, violence are expand 922(g)(1) beyond were to its tra- felon-in-possession and the statute suffi- by, scope example, banning ditional for tailored, ciently 922(g)(1) would sur- persons of firearms convict- plaintiffs’ challenges. vive the punishable by ed of crimes- six months’ My colleagues disagree. Judge it run Hardi- imprisonment, might well afoul of protections. the Second Amendment’s But man 922(g)(1) believes that is so destruc- Hellers, such a law would be outside of that, tive of Second “longstanding prohibi- safe harbor for criminals, applied least as to non-violent tions,” requiring again, in the par- courts— Ambro, per Judge is se unconstitutional. proceed lance of our Circuit—to to'Marz- meanwhile, apply insists we must con- step-two zarella and assess such a law scrutiny at people stitutional the level of heightened under some form of constitu- plaintiffs, if govern- like the and that scrutiny.130 tional ment cannot that “disarming people show Consequently, disagree I Judge with promote responsible like them will use Ambro’s view that courts must “deter- firearms,” people or that “like them whether enough min[e] crimes are serious potentially remain irresponsible after destroy rights” Second Amendment many years of apparently responsible be- case-by-case mind, my basis.131To havior,”133 application then is validity felon-in-possession of the ban is contrast, By unconstitutional. I believe not so precarious. Congress has made a conducting a tailoring analysis at judgment currently reasoned that crimes- Judge specificity pro- Ambro’s level of by § covered 922(g)(1)- and mis- —felonies blematic. Even in the First Amendment punishable by demeanors more than two context, there are some laws whose struc- years’ imprisonment enough serious —are purpose incompatible ture and support categorical disarmament. That person-specific challenges. constitutional rule is history consonant with and tradi- follow, § tion, For the reasons that and Heller does not “cast doubt” on it at all.132 such law.

129. Id. professional, 128 S.Ct. 2783. ever seen mental health Hel- "longstanding prohibi- safe ler’s harbor for 130. The same could be said of ban on longer apply. tions” would no mentally-ill persons possessing firearms. As codified, currently § 922(g)(4) makes it unlaw- Op. Typescript 131. Ambro at 29. any person possess gun ful for "who has adjudicated been aas mental defective or ... 132. 554 U.S. at 128 S.Ct. 2783. institution,” committed to a mental and Heller does not “cast doubt” on that law. But if Op. Typescript (emphasis Congress 133. Ambro at 39 expand were to the current restric- to, added). example, tion all who have regulations stated that those were uncon- Scrutiny Ap- Is the A. ‍​​​‌‌​​‌‌​‌​​​‌​​‌‌​​‌​​‌​​‌‌‌​‌‌​‌​​‌‌‌​‌​​​​‌‌‍Intermediate stitutional “[u]nder standards propriate These Standard scrutiny applied ... to enumerated consti- Cases rights.”137 interpreted tutional Marzzarella Marzzarella, inter- opted apply we suggesting regula- Heller as that firearm scrutiny than strict to test mediate rather continuum, along fall tions with laws like of a statute. constitutionality the federal handgun the District of Columbia’s ban jurispru- First Amendment Looking to “at the far falling spectrum end of the of (i) we whether guidance, dence for asked infringement.”138 challenged government the law involved a “sub- Marzzarella thus drew a distinction “significant,” interest that was either be- (ii) stantial,” laws that “core ... “important,” right and whether tween burden the challenged regulation law-abiding possess of citizens to [certain] “the fit between home,” in objective weapons reason- for self-defense [was] and the asserted hand, able, challenged The law in the one and laws that not perfect.”134 “do[ ] 922(k), Marzzarella, severely it limit possession makes of fire- U.S.C. arms,”139 with an on the other. Marzzarella con- possess unlawful to a firearm obli- apply number. We concluded that cluded that courts should strict scru- terated serial scrutiny tiny validity be- to test the constitutional of the law survived intermediate kind of government rеgulations, cause the had a substantial the former while scrutiny tracing weap- apply “in of should intermediate to test enabling interest other, numbers,” validity reg- and Marzza- of less burdensome ons via their serial ulations.140 pur- rella had failed to offer “lawful person prefer for which a would an pose in We reaffirmed this framework Drake to a marked one.135 unmarked firearm” Filko,141 v. we where considered consti tutionality Jersey’s regulations of New choosing apply intermediate scruti- important governing permits carry the issuance of ny, Marzzarella discerned clearly guns public. in Heller. While Heller Drake reasoned “the distinction review,136 trigger not Second Amendment can more than rejected rational-basis did scrutiny scrutiny, de particular select either intermediate or strict one standard type assessing pending, part, upon at least appropriate as the standard constitutionality challenged type law and the of Second of the District Co- Instead, It Amendment restriction at issue.”142 also gun regulations. lumbia’s Heller 138. 614 F.3d at 97. 134. 614 F.3d at 98. measure, good

135. Id. at For we noted 98-99. Id. at 97. 139. uphold constitutionality of that we would 922(k) applied scrutiny even if we strict ("The id. at 97 distinction between 140. See because, view, the statute was narrow- our protected con- limitations on the exercise of ly compelling government tailored to serve a regulation of the form in which that duct id. at 99-101. interest. See appears in the First conduct occurs also n.27, Heller, 136. See 554 U.S. at 628 Accordingly, context.... we ("If required to overcome all that was intermediate, 922(k) should merit think also keep and bear arms was a ration- strict, scrutiny.”). rather than basis, al the Second Amendment would be separate redundant with the constitutional 724 F.3d 426. laws, prohibitions on irrational and would effect.”). have no Reese, (quoting United States 142. Id. at 435 2010)). (10th Cir. Id. at S.Ct. 2783. -apply asserting concluded that courts should inter to be the “core” Second Amend- scrutiny challenged “law-abiding, responsible mediate unless ment cit- reason, regulation the “core” Second burdens izens.”147For the same the Fourth right.143 applied scrutiny Circuit has intermediate n validity provisions to assess the of those scrutiny as intermediate was the Just § 922(g) that limit the of fire- apply correct standard to in Marzzarella by persons subject protective arms or- Drake, it is also the correct standard by persons ders and who have committed ban, apply felon-in-possession here. The misdemeanor crimes of domestic vio- to the it burdens extent Second Amend- lence.148The decisions of cir- other several all, rights impinge does not on the cuits are accord.149 rights “law-abiding, responsible citi- Rather, zens.”144 it constrains the Thus, assuming Binderup even who, persons by prior virtue of their crimi- fall Suarez within the Second Amend- conduct, nal fall outside the core of the protections, join ment’s I our would sister protections. Second Amendment’s holding circuits in prior their criminal place convictions them outside the core Several of our sister circuits have as- “right law-abiding, of responsible citizens challenges to provisions sessed other of to use arms defense of hearth and 922(g) using approach. this same reason, home.”150For this intermediate Carter,145 example, United States scrutiny is the correct standard under Fourth Circuit considered a challenge to challenges. which to assess their § 922(g)(3), prohibits 18 U.S.C. which fire- possession by “any person arm ... who is Judge Rejection B. Hardiman’s of an unlawful user of or any addicted to Heightened Scrutiny Citing controlled substance.” Marzzarella farther, approval, applied proceeding Carter Before I think it intermediate scrutiny important validity pause to assess the of is to order to address a the stat- person profound disagreement ute.146It reasoned that a doctrinal within the between is, scope 922(g)(3) myself Judge a user of con- and Judge Hardiman. Like —-that me, fairly trolled substances —could not claim Judge Ambro and Hardiman believes 436; though 143. Id. at see id. right possess also at 436 & n.14 Chester asserts his to a (noting purpose a few subtle differences between the firearm in his home for the of self- defense, scrutiny standard for intermediate we articulated believe his claim is not within the circuits). right the various core identified in Heller ... virtue of history criminal Chester's as a domestic vio- Heller, misdemeanant.”) 554 U.S. at 128 S.Ct. 2783. (considering lence a chal- lenge 922(g)(9)). §to (4th 2012). 145. 669 F.3d 411 Cir. Chovan, 149. See United States v. (9th 2013) ("Section 146. Id. at 417. implicate [the] does not core Second Amend- Heller, (quoting 147. Id. at 416 right regulates pos- because it firearm session for individuals with criminal convic- tions.”); Schrader, (applying F.3d at Chapman, 148. See United States v. "[bjecause scrutiny intermediate common-law 2012) ("Chapman’s claim is misdemeanants as class cannot be consid- right not within the core identified in Heller— Reese, law-abiding responsible”); ered and law-abiding, responsible of a citizen (applying 627 F.3d at 802 intermediate scruti- possess carry weapon for self-de- ny 922(g)(8)). §to fense.”) (considering challenge Chester, ("Al- Heller, 922(g)(8)); 628 F.3d at 682-83 554 U.S. at 128 S.Ct. 2783. Judge opinion as Hardiman’s scope Insofаr holds proper determine that we history non-violent criminals have by looking to abso- lute, keep guns his- inviolable their Reviewing the relevant tradition. sources, self-defense, concludes homes for Heller seems to Judge Hardiman torical only that, past disagree. practice, a matter of subject were disarmament scrutiny advantage heightened Ambro dangerous. Judge were who those how that it allows us think about Con- assess- obviously disagree with that and I (and, by gress corollary, polity) we as ment, acknowledge that happy I am but challenges can tackle real-world within on this minds could differ reasonable an inquiry constitutional boundaries. Such however, Judge Har- point, At that score. requires about necessarily us to think I a serious makes what to be diman believe ends, connection between means and error. doctrinal therefore to debate the seriousness Congress problems including gun we vio- Having concluded that face— permissible persons likely to com- lence—and the means ad- permissibly disarm acts, history dressing Hardiman then them. While course Judge mit violent and in will be ap- important, many all other cases dis- proposition defends scrutiny provide tiers positive, se uncon- us plications per analytical heightened No with a useful framework as- stitutional. recourse laws balancing sessing constitutionality is nec- the scrutiny or means-ends all, a After down burden Second Amendment essary. Heller struck —even those, § 922(g)(1), like prevented that disarm certain completely local ordinance altogether. in their possessing citizens from firearms 922(g)(1) homes for self-defense. Section The Ban Sur- C. Felon-in-Possession to felons respect the same effect with has Scrutiny vives Intermediate So, Judge certain and misdemeanants. concludes, scrutiny, must be we ask Applying Hardiman intermediate in involves every application challenged the law a unconstitutional whether “significant,” “eviscer- government criminals because it interest non-violent “substantial,” I or and rights.151 “important,” then their Second Amendment ates” the whether fit between chal- Judge that such assess “the agree with Ambro objec- the asserted develop- lenged regulation and approach is inconsistent with reasonable, perfect.”154 in not Sec- doctrine tive [was] ment of Second Amendment easily clears those hurdles. tion this and other circuits.152 objec- addition, rejection Congress’s have identified heightened Courts In “keepfing] guns out-of-step passing 922(g) in as scrutiny in this context seems tive earlier, risky presumptively the hands of with Heller itself. As discussed out of armed vio- “suppressing Amend- says people” that the “core” Second Heller explained when law-abiding, Congress As “right is the lence.”155 to the stat- in the 1968 modifications passing citizens to arms defense responsible use ute, any person can crimi- ease with which “[T]he of hearth and home.”153Non-violent are, than a rifle shot- definition, “law-abiding.” acquire firearms other not nals Marzzarella, at Op. Typescript 98. Hardiman 50. 154. 151. Op. Typescript 152. Ambro at 15-18. (citing Yancey, S. 621 F.3d at 683-84 155. 90-1501, (1968)). Rep. at 22 No. U.S. at 153. 554 S.Ct. ...) burden, signifi- Seeking satisfy is a this gun (including gov- criminals points ernment to numerous studies that prevalence factor in the lawlessness cant explore past the link between criminal and violent crime in the United States.”156 crime, conduct and including gun future govern- Our Court has also said that challenge violence.160 plaintiffs The “undoubtedly significant, a ments [have] government’s relevance of the cited stud- pro- interest important substantial and ies, they asserting that while show safety.”157 tecting As the [their] citizens’ past connection between criminal conduct shortly Circuit after the stated violence, gun do not show such Newtown, shootings in horrific Connecti- link respect criminals who share cut, regulation para- “[t]he of firearms is their and who characteristics committed safety, mount public issue of and recent Judges offenses similar theirs.161 Am- a sad events this circuit are reminder bro and Hardiman share this criticism. dangerous wrong that firearms are correctly, my Several courts have— hands.”158 government’s parse view—refused to Having govern- established finely plaintiffs evidence as ask us one, objective ment’s is a substantial we to.162 question The is not whether someone challenged if next ask law is a “rea- exactly plaintiffs poses like the threat carry government’s fit” to out the sonable public safety. question The whether “the assessment, purposes. making that challenged fit regulation between the justifying bears the burden of “State its reasonable, objective the asserted [is] affirmatively restrictions it must es- perfect.”163 [and] plaintiffs The seem to want fit require.”159 something tablish reasonable we more. 90-351, 901(a)(2), Violence, High

156. Pub. L. No. Stat. Risk Firearm 89 Am. J. of (1968). (1999)). government Pub. Health points also out the risk of recidivism is Drake, (citing F.3d at United particularly high sex offenders like Bind- Salerno, 739, 745, v. States 481 U.S. erup irrespective whether or not of states 2095, (1987)) (punctuation 95 L.Ed.2d 697 categorize as their crimes felonies or as seri- modified). ous misdemeanors. Bartlett, 139, 158. Osterweil v. 706 F.3d 143 that, might 161. (2d We also consider the fact Cir.) (O'Connor, J.), certifying question to Drake, legislatures generally we noted in Appeals, ques- the New York Court of certified answered, 580, regulatory governing crafted the schemes fire- tion 21 N.Y.3d 977 N.Y.S.2d 153, (2013); arms before Heller concluded that the Second 999 N.E.2d 516 see also N.Y. Ass’n, Cuomo, protected an individual to State & Pistol Inc. v. 804 Rifle (2d 2015) ("It beyond Consequently, F.3d 261 bear arms. the statistical evi- is substantial, lacking cavil that both states have indeed dence of "fit” be in certain in- compelling, governmental public interests in regulations stances because the drafters of the (internal safety prevention.” quota- and crime compile did not realize would need to it. omitted)). Drake, tion marks and citation See 724 F.3d at 437-38. Drake, (quoting 159. 453 F.3d at Bd. of See, ("[M]ost e.g., Yancey, 162. 621 F.3d at 685 Fox, Trs. 469, 480, State Univ. N.Y. v. 492 U.S. of of nonviolent, felons are but someone with a S.Ct. L.Ed.2d 388 felony likely his conviction on record is more (1989)). engage illegal than a nonfelon and vio- Lane, gun (citing lent use.” United States v. Binderup (citing 160. See Gov’t Br. in 2001))). Statistics, Bureau of Justice Recidivism of (2002); Prisoners Released in at 6 Mona Marzzarella, 98; al., Wright F.3d at A. et see also Denial Effectiveness of of Drake, (same). Handgun Purchase to Persons Believed Be F.3d at 436 To that Against backdrop, this I conclude govern- Assessing strength assiduously government’s as the es- adequately evidence as evidence ment’s raise separa- would also demand crimi- plaintiffs past a connection between tablishes concerns, at least in the powers of tion I gun nal and future also conduct violence. scrutiny. gen-We context of intermediate Congress’s to di- conclude that decision legislature’s job, say that is the erally “[i]t sarm felons and those who commit misde- ours, conflicting weigh evidence not than two punishable meanors more judgments.”164Our Court policy and make years prison reasonably is tailored “conflicting empirical has cautioned preventing such violence. suggest, ... not let alone evidence does ‘fit’ that the between compel, conclusion 922(g)(1) Tailoring D. Narrow- Too challenged regulation] pub- firearm [a ly Is Problematic ”165 is ‘reasonable.’ Other safety lic course, analysis, foregoing speaks The of Congress may regu- have said that courts tailoring respect to the to the issue late firearms on the basis “correlational vio- gun connection between risk of necessarily “prove that does not evidence” lence and the universe of offenses at is- causal link” between the conduct (ie., trigger and misde- felonies provision particular sue than two punishable meanors more 922(g).166 the words of D.C. Cir- plaintiffs years prison). The believe cuit, ‘far legislature “the is better narrowly must be more statute tailored judiciary’ than the make sen- equipped indeed, narrowly it takes ac- so still— (within policy judgments con- public sitive count of their individual characteristics. limits) concerning dangers stitutional con- And we come to the difficult here carrying firearms and manner as- ceptual in this case: this sort of issue Judge those risks.”167 Wilkinson combat applied challenge per- even been more Fourth Circuit has even has the Courts missible? This issue divided business. do direct: “This serious We Appeals, for the caused endless trouble minutely be responsible not wish to even argument, has at government at oral unspeakably tragic may- act for some I ulti- times me as well. But perplexed judicial of our peace in the hem because the, be mately answer must conclude we miscalculated as chambers “no.”169 rights.”168 Westchester, key dangerousness. Kachalsky Cty. minations touch that, contexts, (2d 2012). are point in these there is judicial place informing in mechanisms Drake, 724 F.3d at 439. 165. revocation, sentencing, and bail discretion. In example, hearings, judges the benefit have Carter, United 750 F.3d States reports, presentence pretrial of services denied, - U.S. -, (4th Cir.), cert. pretrial input probation ser- from trained (2014). 190 L.Ed.2d 201 professionals, and vices recommendations Schrader, (quoting at Ka prosecutors. from 97). chalsky, 701 F.3d at contrast, readily at- By are there no tools per- deciding whether an individual hand for Masciandaro, 168. United States v. despite a to son have access a firearm should Judge I do not take at past criminal conviction. See also infra imply judges to that Wilkinson's admonition (discussing pages previous cases 406-07 incapable making decisions about are of in recognized the difficulties have inherent particular persons dangerous. are whether determinations). making such day grant Every judges decide whether to time, bail, of an assessment impose prison period revoke 169.I offer here alternative or a challenges the problem in the of supervised all of deter- release—and these .402 are, as-applied challenge effect, saying, an is

The and Suarez “Trust notion of in the context of First familiar to us people us: we are the kind of who will cases, the gov- such Amendment law. gun problem future The cause violence.” is limiting ernment some kind of law enacts praсtically impossible it is to make (such speech logistical for either reasons prediction this kind individualized restrictions) time, or place, as and manner any degree costly of confidence. Mistakes — promote conception public to its own simply likely. ones—are too (such good regulations governing cam- my That is not but rather judgment, the situations, In such it is paign financing). A judgment Congress separate itself. entirely that a number predictable certain laws, gun provision the federal argument raise the that the citizens will 925(c), person U.S.C. states that “[a] to applied law little sense as them. makes who prohibited possessing, ship- is from typically over- arguments These sound ping, transporting, receiving or per- breadth. normal claim is that firearms The son’s within the the law scope application inclusion or ammunition make meaningful gov- has no connection the Attorney General for relief .from the objective, leading ernment’s To purported imposed by disabilities laws.” Federal The impermissible infringement per- an on that Attorney may “grant General such relief if rights. speech son’s free it is established his satisfaction regarding disability, circumstances limitations But like reputation, the applicant’s record and are ban ban felon-in-possession and the the applicant likely such that will not be mentally-ill persons possessing guns are dangerous public act in a manner they’re safety different —and reason different context, because, is govern- in this the granting and that of the relief would objective logistical ment’s is neither nor contrary public not be to the interest.”171 is, quite prevent simply, abstract. It denied, If application applicant result, mayhem armed and death.170As a may petition district for relief. court As analysis when we tailoring conduct out, it turns this “relief has provision been case, such a we must assess whether inoperative” by rendered virtue the fact challenged reasonably law is tailored to “Congress has repeatedly barred the prevent violence. future Attorney using appropriated General from why as-applied challenges .investigate upon And this funds ‘to act [relief] ”172 § 922(g)(1) problematic. so Binderup applications.’ {i.e., Court, scrutiny context challenged 922(g). of intermediate statute and Marz- step-two). Because I rejecting comparison, believe that felons zarella stated that the law and serious misdemeanants can disarmed targeted "past be at issue Varíelas miscon " step-one, duct,” I would hold as an ‘longstanding id. at Marzzarella whereas plaintiffs initial matter that been prohibitions have on the of firearms disqualified i.e., target present danger, exercise of their Second ... felons' rights altogether. posed danger bear felons who arms.” Id. Heller, 626, (quoting 554 128 U.S. at S.Ct. Supreme 170.The Court’s Vartelas decision in Holder, -U.S. -, 1479, v. 132 182 S.Ct. (2012), congres L.Ed.2d 473 reiterated these 925(c). § 171. 18 U.S.C. purposes. sional Varíelas whether a addressed n.1, provision immigration Logan, laws could be 552 128 U.S. at 28 S.Ct. 475 172. (that is, (alteration applied retroactively original) (quoting to conduct oc in Untied States 71, enactment). Bean, 74-75, curring gov before the law’s The 537 v. 123 S.Ct. 584 , (2002)). analogy ernment tried draw an between the 154 L.Ed.2d 483

403 sys- § in that such provision this and concluded Congress defunded appropri- Department In a of Justice was unworkable. This should have a 1992. tem statute, provided it that “none of the ations tailoring analysis. on our profound impact shall be avail- appropriated funds herein scrutiny, Under intermediate we ask upon investigate applications or act able there is a “reasonable” fit be- whether from Federal firearms disabilities for relief challenged regulation tween and 925(c).”173 embargo That under U.S.C. Here, objective.177 government’s Congress place in since. on funds has remained ever plaintiffs’ way doing things tried the and effectively write why Congress And did error-prone that it was too concluded 925(c) Because out of the statute books? objective support government’s pre- granting indi- it that the task of concluded venting armed violence.178There were too relief applications vidual and, many unlike the First mistakes — A was too to error. prone context, those mistakes were that the Justice De- report Senate stated potentially fatal. “a was partment’s applications review of experience Notwithstanding Congress’s subjective which very difficult task 925(c), plaintiffs seem to believe devastating consequences could have by shoehorning complaints their about wrong if citizens decision innocent into 922(g)(l)’s scope the rubric of “as- made,”174 and noted that Bureau necessarily challenges,” they force applied (“ATF”) Tobacco, Alcohol, and Firearms us to assess their individual characteristics ... spent “approximately man-years rely Congress’s categorical rather than investigate upon and act these annually rule. I Even in the First Amend- disagree. investigations applications.”175Similar- context, routinely where courts as- that “too ly, report a later House stated speech-limit- challenges sess many gun ownership these whose felons laws, ing there are circumstances where on to commit rights were restored went in the challenges such must fail face of firearms,” violent crimes with and conclud- legislative judg- reasonable deference to spend reason to ed that no “[t]here ments. money taxpayer’s Government[’s] time or to own

to restore convicted felon’s Court’s decision United a firearm.”176 (C.I.O.) v. Public Workers America example. perfect Mitchell179 is a The Su- words, Congress

In other reviewed an as-ap- confronted preme Court there regime its of what prior evidence from Act, were, effect, challenge to the Hatch which as-applied challenges plied Service, legislature.” corporate Heller Treasury, General deference 173. Postal arid 264, Columbia, Act, v. District Appropriations Pub. Government J., (Henderson, (D.C. 2015) concurring in 102-393, (1992). L. No. 106 Stat. (citing part dissenting part) Holder 1, 34-36, Project, Law 561 U.S. Humanitarian 102-353, (1992). Rep. at 19 174. S. No. (2010)). Def- 130 S.Ct. 177 L.Ed.2d appropri- more erence in this context is even 175. 20. Id. at Congress simply when made ate has gun policy judgment preventing about vio- 104-183, (1995). Rep. at 15 176. H.R. No. lence, actually experimented with a but has gun regulation system of and concluded— Marzzarella, F.3d at 98. experience un- on lived was based —that workable. colleagues Cir- of our in the D.C. As one it, put reality gun violence 91 L.Ed. 754 cuit has “the 179.330 U.S. (1947). analysis in- should means our constitutional government employees engag- bans is concerned. Whether there are such ing partisan political weight in certain kinds of differences and what to attach to them, are all of political matters detail for activity, including some forms of Con- .... gress speech. Congress’s goal in the Act passing promote efficiency integrity was “to in

the official discharge of duties.”180 The actions of When civil servants in the challenger, a at “skilled mechanic” the judgment Congress of menace integ- the Mint, argued United States he that was service, rity and the of competency simply government not of type employ- legislation to forestall such danger and likely ee whose was integ- conduct to raise adequate to maintain its usefulness is rity Structurally, argu- concerns.181 this The required. Hatch Act is the answer ment is identical to the one plaintiffs Congress of to this need.184 i.e., make that far are too re- here — logic applies of with equal Mitchell moved from group people the core of who Here, too, present force to the case. Con- harm pose Congress the risk of that gress passed has respond law to to a sought passing address Here, too, public danger. individualized applied law to be constitutional as predictions impossible are degree to them. accuracy. Here, too, regime person- by-person regulation present grave would rejectéd The Supreme argu- Court problems administrability. here, But un- view, ment. In its Hatch Act survived Mitchell, like in potential harm is not scrutiny constitutional because the conduct only widespread, serious and but also “reasonably it outlawed was deemed deadly. Congress efficiency to interfere with the public service.”182 recog- The Court Mitchell Congress instructs us that has that, Mint, given nized his role at the power such impose circumstances to challenger was situated differ- somewhat a complete ban on the of a exercise consti- ently employees than white-collar right by category who tutional might who, manage- estimation, be more inclined to in its pose take on reasonable so, must, ment political public. roles in threat to courts campaigns. Even While course, entertain challenges the Court did think constitutional these distinctions to statutes that constitutionally infringe on-constitutional dispositive.183 were As the rights, Mitchell makes it clear that there Court observed: respect are some laws with to which as- Whatever differences there be be- applied challenges categorically will I fail. tween employees of administrative believe is such a law.185 Government and industrial workers its employ Moreover, so far differences detail plaintiffs’ insofar as power overbreadth, the constitutional under review claims sound it is worth 96-97, Circuit, too, (quoting 180. Id. at 67 S.Ct. recognized Ex First 185.The has Curtis, 371, 373, parte 106 U.S. categorical rules are sometimes constitution- (1882)). 27 L.Ed. 232 ally permissible in the Second Amendment Booker, context. See United States (1st 2011) ("[T]he Id. 181. at 67 S.Ct. 556. Second Amend- permits categorical regulation gun 182. Id. possession by persons e.g., classes of felons — mentally requiring and the ill—rather than Id. S.Ct. 556. imposed only be restrictions on the individualized, (in- case-by-case on an basis.” 102-03, omitted)). Id. 67 S.Ct. 556. ternal citation

405 Congress regime may permis- for me to conclude that the federal emphasizing that a sibly prior use the existence of criminal by convicts firearm regulating trigger as a for collateral conse- conviction any make safety valves that has numerous under law. necessari- quences federal This persua- unfairness far less complaint about ly have total con- means that states near sive. will those trigger trol over what offenses First, that we should remember If the of a consequences. federal citizens predicated prin- is on § a statute that of- particular state believe a criminal specify- Rather than of federalism. ciples disarmament, trigger too fense is minor offenses, looks “[i]t a list of ing qualifying remedy legis- petition their is to the state on imposes law” and “restrictions to state lature to amend the law—not to seek re- made based on decisions certain convicts Indeed, in the federal courts. there dress In this legislatures and courts.”186 by state per- is evidence that state authorities are judg- leaves the way, federal statute fectly capable of the conse- assessing trigger offenses ment about which should quences 922(g) to counter acting leg- of state to the discretion disarmament doing appropri- them if that is feel so are, theory, alternative, least in closer regime judges who at The a islators ate.187 serving super-legislature as to review experience the lived their constitu- in all reasonableness of criminal codes way, put Congress To another did ents. it states, way we is inconsistent with the plaintiffs’ convictions not decide that regulated for more gun ownership have preventing them have the effect would a century. than half firearms; rather, state their owning from legislatures did. way, § put 922(g) To another reflects judgment that states congressional policy point, might reasonably this ob- At one determining have what should a role that, by refusing permit as-applied ject trigger kinds of misdemeanor offenses will challenges 922(g)(1), give legisla- we over question That disarmament. power far citi- tures too much to disarm predictably disagree. will which the states all, prevents After what a state zens. recognized itself The Court saying jaywalking passing law The Logan much v. United States.188 Or a years prison? five punishable convic asserted that his petitioner there one littering? “Surely,” speeding ticket? Or unlawful violating 922(g)(1) was tion for think, peo- might “Congress cannot disarm because, construed, statute properly ple who commit those offenses?” his— apply did not to state offenses—like appreciate I these con- of civil trigger understand and that did not loss Supreme Court found rights.189 But lead cerns. institutional considerations 34-36, J., Chovan, (Bea, 128 'S.Ct. con- 188. 552 U.S. (2007). curring). L.Ed.2d Mikos, at-26, petition- Enforcing id. 128 S.Ct. 475. The State Law 189. See 187. See Robert A. Shadow, argument U.S.C. Congress’s Rev. relied 90 Cornell L. er’s nn.187, §921(a)(20), (2005) provides "[a]ny (finding con- which 1463-64 & expunged, set aside con- viction which has been expungement of domestic violence pardoned or following person has been or for which a victions increased the enactment not be con- 922(g)(9)); Logan, has had civil restored shall also 552 U.S. see chap- purposes of this (recounting no sidered a conviction that "Wisconsin S.Ct. 475 ter, expungement, or res- pardon, longer punishes than unless such misdemeanors more rights expressly provides that years imprisonment”). toration civil two argument unjustified disqualification” In the course of unpersuasive. from the Sec- right.195 ond Amendment the Ninth As Cir- analysis, favorably its it cited McGrath v. explained, any imposed cuit by has burden States,190 opinion United a Second Circuit § provisions 922(g) lightened by the “is in stating application that “anomalies” exceptions” ways these that can factor of the federal firearms laws are “inevit- into relevant constitutional calculus.196 “depend able” when those laws on the Third, petition there is the Con- differing policies several laws of the 925(c), § gress respect itself. With some Logan recognized ap- states.”191 also that of Congress members have announced plication federal of the firearm laws would support appropriating their for the funds if be more uniform “federal rather than for necessary Department the Justice pur- define[d] state law a conviction for again once consider applications for relief so, poses Logan 922].”192 Even treat- [§ felon-in-possession from the ban.197Wheth- uniformity ed the how to issue of balance Congress prior er will do so in of its light state-by-state variation this context regime determination that such a is un- policy properly as a question reserved to open is an question. workable legislative branch.193 is also possibility obtaining There offense-specific carve-outs . Second, federal law lifts the felon-in- § For 922(g)(1). example, provision another possession ban whenever a conviction “has gun of the that says federal laws the term aside,” expunged, been or set or is one “for punishable by “crime imprisonment for a which person pardoned has been or has exceeding § term year” one had civil rights restored.”194This is a sec- “does not include ... or Federal State way ond which statute devolves violations, pertaining offenses to antitrust regulatory power to state authorities. As a practices, trade, unfair trade restraints of consequence, 922(g) § “in appli- its normal or other similar relating offenses to the cation does not create a perpetual regulation of If practices.”198 business Skoien, person may ship, possess, transport, (discussing 614 F.3d at ex- or receive firearms.” pungement way imposed aas to lift the ban ("Some 922(g)(9)); see also id. (2d 1995). 190. 60 F.3d Cir. largest expungement make states available as have misdemeanants who a clean 1009; Logan, 191. Id. at see also 552 U.S. at California, specified record for a time. 33-34, (quoting pas- S.Ct. the same example, program.” (citing has such a Cal. sage). 1203.4a)). Penal Code 192. 552 U.S. at 128 S.Ct. 475. Chovan, 735 F.3d at 1138. ("We assume, 193. See arguendo, id. Congress §921(a)(20) when revised in 1986 Release, Buck, Rep. 197. See Press Ken Buck misapprehension ... it labored under the Fights Chance at Second Amend- all offenders—misdemeanants as well as fel- (June Rights 2015), https://buck. rights, temporarily. ons—forfeit civil at least indulging Even assumption house.gov/media-center/press-releases/buck- further may repair congressional (last courts such a over- fights-restore-second-amendment-rights mistake, sight hardly we could divine the Sept. visited (foot- Legislature revision the would favor.” omitted)). note 921(a)(20)(A); 198. 18 U.S.C. also United see Schultz, States v. 586 F.3d 529-31 921(a)(20); 194. 18 U.S.C. see United also 2009) (considering application proper Leuschen, (3d States v. 159-60 carve-out). statutory of this 2005) (discussing meaning of “civil circuit). rights” in our cor- is vacated or the felon is til the conviction crimes plaintiffs believe some affirma- carrying disability a firearm relieved his minor and rupting a list, advantage their action.”199 The of this belong license tive without a alternative, to- fruitfully simplicity. “a may be more directed scheme its efforts legislature “very instead would floating prohibition,” the national free be wards Indeed, would the courts. hard administer.”200 never-ending a of create stream “serious § I that is 922(g)(1) Accordingly, believe administration, consistency problems of carry govern- fit out the a reasonable to warning.”201 and fair reducing vio- of armed purpose ment’s judg- a Congress has made reasoned lence. apparent once we This becomes consider commit felonies persons who challenges regime as-applied how a of by more punishable and misdemeanors previ in the world. We would function real to in likelier years prison than two are ously this in Pontarelli v. examined issue gun violence than law-abid- commit future Department the Treas States United of is ing judgment That informed citizens. ury,202 Congress’s That case arose from 925(c), § which Congress’s experience with discussed decision 1992 to previously danger- it concluded was unworkable and 925(c). 2000s, § early plain In the defund because, view, did not ous its law began in federal filing tiffs suits court make way government for to provide a the that, alleging by refusing process to their re- safety about the judgments accurate funding, to lack of applications due arming particular people. effectively Department had denied Justice 925(c) § applications. pro those Because § un- uphold 922(g)(1)

I therefore would denials, for of such judicial vides review scrutiny, applied der both as intermediate litigants ask these asserted that could applied to future plaintiffs to and as these federal district courts to “review” their chal- bring similar plaintiffs might who applications in the first instance. lenges. rejected argument. Sit- Pontarelli As-Applied IV. The Problems banc, ting Congress’s en we concluded Challenges § Are In- 925(c) § process applica- of funds to denial surmountable the federal district courts stripped tions back and Finally, important step it is Depart- jurisdiction to review the Justice are actual- plaintiffs take stock of what the applications. to act on those ment’s refusal do, create an ly asking us which that courts expressed skepticism alsoWe resolving judicial process entirely new for capable individualized de- making were Such challenges 922(g)(1). any particular terminations about whether doctrinally unneces- approach an is both his or her firearm should have felon sary administratively unworkable. courts’ “[district stated that restored. We suggest that Con- institutional limitations determining wheth- The current rule ap- have for the applies straight- gress could not intended er is about as felony to transfer them gets: propriations “the fact a ban forward as determining disability responsibility un- imposes primary a firearm conviction Rehlander, States, 60- v. F.3d 200. United States 199.Lewis United 2012). (1st (1980) S.Ct. 63 L.Ed.2d 198 (considering challenge to 18 U.S.C. Torres-Rosario, 113. 658 F.3d at predecessor to the current (en (3d 2002) banc). “inherently firearm privi- requires policy-based whether to restore felons’ deci- required agency.”208 best of an leges.”203 a task “interview- sion left hands Such ing array people, including wide recognized Pontarelli and Bean felon, friends, family, his his many pitfalls in a regime inherent of as- references, lists whom he as character applied challenges. should We embrace lives, community members of the where he opinions wisdom of those now.209 employers, his current and former his co- Indeed, great advantage workers,. officers,” parole and his former § 922(g)(1) application its turns on and, agency, pos- unlike a federal “courts adjudication. prior There is a real risk that conduct the sess neither resources to peering instead into the seriousness requisite investigations expertise nor the conviction, plaintiffs prior we invit- accurately predict which felons car- are, effect, ing what collateral attacks ry guns threatening public’s without long-closed proceedings. The Tenth Circuit safety.”204 recognized as much in v. United States unanimously The Supreme Court later case a to challenge Reese.210That involved vindicated v. Pontarelli United States 922(g)(8), § which 18 U.S.C. makes it un- explained Bean.205The Court there that possess subject lawful to firearms to while by ATF a “[i]naction does not amount to protection a domestic order. The defen- 925(c),” § meaning ‘denial’ within the argued prosecution dant that his for violat- “an an by actual decision ATF on ing §'922(g)(8)was to improper alleged due application judicial is a for prerequisite underlying infirmities in the court state “[wjhether review.”206It further noted that proceeding. rejected The Tenth Circuit applicant an a ‘likely is to act in manner argument, stating this that “the over- dangerous public safety1 an presupposes weight whelming pre- of federal law ease inquiry applicant’s background— into that § 922(g)(8) prose- cludes a defendant in a performed a function best Execu mounting cution from a collateral attack on tive, which, courts, institutionally unlike underlying protec- the merits of the state neutral, equipped conducting a wide- As-applied challenges tive order.”211 ranging investigation.”207 The Court sum invite the same kinds of collat- 925(c) by stating rejected.212 marized its view that firmly eral attacks that Reese 804; ("[A]ny 203. Id. at 230-31. id. 211. Id. at see also at 805 such challenges could and should have been raised 204. Id. at 231. Court.”). Family Reese in the Hawaii 71, 584, 205. 537 S.Ct. L.Ed.2d that, recently 212. We a ourselves reiterated (2002). rule, general past collateral attacks on state 75-76, sys- convictions are disfavored in our federal 206. Id. at 123 S.Ct. 584. Napolitan, tem. In United States 207. Id. at 123 S.Ct. 584. (3d July 2016 WL 3902164 2016), we a concluded that defendant could Id. 208. challenge the reasonableness of his feder- ground al sentence that was it to run course, recognize, I that Heller consecutively to a state sentence that the de- changed landscape. the constitutional But fendant claimed was unconstitutional. our again: held Heller that the Second Amend- view, permitting such an attack "would be protects "right law-abiding, re- imposition sentencing on federal cumbersome sponsible citizens to use arms in defense repudiation finality typical- and a clear hearth and home.” 554 U.S. at ly judgments.” afforded to state court Id. Asking WL at *4. district litigate prior 210. 627 F.3d 792 courts to the seriousness of the Fifth also vul- Due Process Clause of Amend- colleagues’ approaches My suggested Their ment, front. prohibits government nerable on another which challenges assessing as-applied criteria life, away “taking liberty, someone’s if like every challenger, be feasible might so vague or under criminal law property here, declaratory judg- filed a plaintiffs ordinary fails fair give people it point impor- it is But this ment action. punishes, notice of the conduct so provi- tant to reiterate arbitrary it invites en- standardless its own law. This raises sion of criminal that, It to me under a forcement.”214 seems constitutional difficulties. set of as-applied challenges regime First, today places an ex- our decision § 922(g)(1), compliance principles on dis- traordinary burden administrative process quickly prove impossible. will due handling prosecutions criminal trict courts chal- 922(g)(1). under Once Judge in mind that both Ambro Keep way through our start to work their lenges open Judge pos- Hardiman are courts, increasingly large bewill there a crime sibility person that a convicted of orders” that restore body of “re-armament time, might, present over be able evi- rights. As a conse- firearm individuals’ sufficient to mount dence rehabilitation peo- more and more quence, there will be as-applied challenge successful rely on a can ple who believe if felon-in-possession ban.215 But time- particular judicial decision to claim really one the from-conviction is rele- too, possess a firearm. they, are entitled to criteria, why there no clear reason vant is judges will themselves District court find §to subject a could not person as-applied morass of ever-thickening that, hope bring challenges.in seriatim the trying fine-grained to make dis- precedent, or point, at his her conviction would some felon-in- whether individual tinctions about past support far in the the stat- be too to proceed. can Given prosecutions Perhaps future cases application. ute’s open the to my colleagues leave door try jerry-rig to some kind of we could challenges respect to even with this framework to situa- felonies, doctrinal address we hаve committed who challenges in a {e.g., multiple single tion expect challenges begin can these work- disfavored; our Circuit almost ing way through their challenge every year are one immediately.213 but years permissible), we would be five nothing on more than doing so the basis worse, my colleagues’ approaches

Still judicial intuitions. with the our own on a collision course appear be 357-358, 1855, 75 L.Ed.2d 903 S.Ct. giving rise under 103 crimes to disarmament (1983)). raises similar concerns. See, Op. Transcript at 35 n.15 Woolsey, (noting e.g., F.3d at 907 215.See Hardiman 759 (“We presented have been with historical on not defendant moved to dismiss indictment Moore, way [the another whether grounds); evidence one or 666 Second Amendment Barton, (same); rehabilitation] passage at of time or evidence F.3d 169 315 633 (same); (same); might be a route to restoration of Vongxay, see cases, Hauck, keep at least some so Fed.Appx. and bear arms in v. also United States 2013) (not day the (3d determination precedential) we leave for another case.”); (same). to be the Am- whether that turns out ("[UJnder n.7 Op. Typescript at 36-37 bro - States, -, passage of time since right circumstances the U.S. 214. Johnson v. United 2551, 2556; (2015) can be a relevant consideration a conviction 192 L.Ed.2d 569 risks.”). Lawson, assessing recidivism (citing v. Kolender Imagine, example, people for that three another.”217This clause bedeviled the Su- prosecuted for a committing are non-vio- preme nearly Court for decade as felony. year ago, lent One was convicted considered raising numerous cases years ago, years one ago. one All question particular of whether a offense caught police are by three officers at presented a risk of potential phys- “serious shooting thereby rage guns-in-hand, injury Finally, ical to another.” re- violating 922(g)(1). in- ensuing Are the States,218 cent case of Johnson United constitutional, dictments convic- Court declared that the re- ap- too far in past? tions Under the vagueness. sidual clause was In void by proach adopted my colleagues, I simply view, “grave the Court’s the clause created have no idea. Neither will future defen- uncertainty about how estimate the risk dants, to whom the Fifth posed' generated a crime”219and too guarantees clarity some as to whether “uncertainty much about how much risk it is, not, conduct their or is unlawful. qualify takes for a crime to as a violent response to this quagmire, evident felony.”220 might propose bright-line one a series of I take proposi- Johnson to stand for the rules for determining application when tion that category felony” “violent § 922(g)(1) Unfortunately, is constitutional. simply too indefinite use as basis my colleagues do offer not such rules. Un- determining subject who is and is not standards, their der more holistic the con- liability criminal 922(g)(1). Judge under stitutionality of felon-in-possession Hardiman, contrast, permit would particular statute in any may depend case plaintiffs bring as-applied challenges on judge’s views about the offense and ground their previous crimes result, offender. As defendants sufficiently were not support violent to dis- fair have notice when and against whom armament. This the question raises of how constitutionally the statute will be—or can violent, exactly, a crime ap- has to be for be—enforced. § plication 922(g)(1) to be constitutional. The judiciary’s experience federal recent Barton, Citing Judge Hardiman on focuses with the Armed Act Career Criminal “closely offenses related to violent . it plain regime makes that our new of as- crime,”221 goes on but to state that may applied challenges heading be to- “ ‘[cjrimes of commonly violence’ were un- a wards doctrinal dead-end. The Act in- early part derstood [in of the 20th penalties creases the on violations of century] only to include ‘or- those offenses 922(g) whenever a defendant has three dinarily committed with the aid of fire- or more a convictions “serious earlier ”222 only arms.’ and can litigants We future drug felony.”216 offense” a “violent guess definition, whether this unbounded so-called “residual clause” of the Act de- a as it is reference felony,” part, fined “violent in as a elements of crime offense, that presents drug possession “involves conduct that a extends to seri- potential physical distribute, ous risk of injury to intent human ex- trafficking, 924(e)(1). 216. 18 U.S.C. Id. 220. at 2258. 924(e)(2)(B)(ii). §Id. 217. Op. Typescript (quoting 221. Hardiman at 13 Barton, 174). 633 F.3d at — -, 218. (2015). L.Ed.2d 569 (material 222. Id. at 42 in set of second brack- Barton, added) Id. at (quoting ets 633 F.3d at V. Conclusion

tortion, need not violations. We or RICO wonder, however, provides it fair whether empathize plain- with the easy It is process: the comports with due notice Having committed mis- tiffs these cases. dear Johnson made Supreme Court they past, far fail see demeanors not, Judge ap- Hardiman’s and thus does they fairly be a can denied how inexorably to courts lead proach would guaranteed to them the Constitution. § 922(g)(1) as void having to down strike says that “core” Second Amend- Heller vagueness.223 “right law-abiding, citizеns to use arms in defense

Unfortunately, Judge approach responsible Ambro’s plaintiffs say of hearth and home.”228The problems. its He would raisfes own set. of they “law-abiding, responsi- a are now judges consider require district court why should be un- to assess a ble citizens”—so variety of factors order fami- “seriousness,” protect able to themselves and their including, among crime’s (i) gun? a with a a crime is mis- lies things, other whether (ii) felony,224 the sentence demeanor or as that intuition As understandable (iii) there is a whether imposed,225 be, law emerging our of the Second “cross-jurisdictional regarding consensus permit kind of Amendment does this rise to giving the crime the seriousness” of First, challenge. estab- Heller Judge Am- disability.226 firearm the federal statutes like lishes clear rule: explain it to future cases to bro leaves prohibitions” that are “longstanding weigh and balance these fully more how to “presumptively Interpreting lawful.”229 Unfortunately, factors. once dis- various directive, has our Court said disagreeing about judges trict court start may permissibly disqualify cer- Congress only inquiry, it be this will how conduct their Second people asserting tain void-for-vagueness a matter of time before categorical on ba- percolate challenges start to history, As matter of tradition sis.230 throughout our courts.227 commit and misde- persons who felonies by more than two punishable meanors nothing in the Second Amendment I see (which in all years in are felonies prison the current compels us to abandon Second, name) category. regula- but fall into firearms system of administrable plaintiffs’ if even we were to consider for such an uncertain future. tion it, put point but I Judge 227. Not to too fine a say nothing of Hardi- 223. This is to disagree Judge conclusions as assessing with Ambro’s approach to whether Binder- man’s very may "responsible While it in this case. up and Suarez are citizens.” to seriousness violence, Judge Bind- answering question, Hardiman have involved the threat of plaintiffs’ teenager his em- only erup's relationship recent avoid- considers not were, conduct, personal power dynamics ploy ance of criminal but also involved least, job troubling. "a very both have traits like the fact that And Suarez's of- family.” approach Id. at 46. This carrying unlicensed firearm —indi- [and] an fense— particularized require analysis safety so gun seems to attitude towards cates cavalier characterological, raising practically as to be regulations. offense strikes me friv- Neither warning and due problems additional of fair olous "non-serious.” process. Heller, 2783. U.S. at 128 S.Ct. 228. Op. Typescript at 30-31. 224. Ambro n.26, 2783. Id. & 229. at 626-27 Id. 225. at 31-32. Marzzarella, F.3d at 92. Id. at 32. challenges under rubric of intermedi- scrutiny, reasonably

ate Congress has con-

cluded that commit who crimes gun

are also likelier to commit violence. § 922(g)(1) appropriately

Because tai-

lored that problem, plain- to address challenges

tiffs’ must fail. plaintiffs’ suggestion that we should

get issuing into the business of individual-

ized exceptions felon-in-possession ‍​​​‌‌​​‌‌​‌​​​‌​​‌‌​​‌​​‌​​‌‌‌​‌‌​‌​​‌‌‌​‌​​​​‌‌‍to the is, analysis,

ban in the final administrative-

ly unworkable constitutionally suspect.

By affirming plaintiffs’ challenges to-

day, my I colleagues sending fear our

nascent law the Second Amendment into Labyrinth

a doctrinal from which it

not soon return.

I respectfully therefore dissent.

ASSOCIATED BUILDERS AND CON

TRACTORS INC NEW JERSEY

CHAPTER; Contracting LLC; GMP

Alpine Painting Sandblasting & Con

tractors; Alper Inc; Enterprises Ron

Vasilik, Appellants, CITY,

CITY OF JERSEY JER NEW

SEY; County Building Hudson (Interve

Construction Trades Council Court).

nor in District

No. 15-3166

United Appeals, States Court of

Third Circuit.

Argued: June 2016)

(Opinion September 12, Filed: notes felons commit violent ated years within three of release from frequently crimes more than Pennsylvania prison) nonfelons. Dep’t and U.S. Statistics, Justice, See Bureau of Justice Dep’t Programs, Office Justice Bu- Justice, Recidivism Prisoners Re- reau Special Justice Statistics Report: (2002) that, leased in (finding 199J, Recidivism Prisoners Released in 199J 234,358 a population tbls.9, 15, within in- federal http://www.bjs. available at mates released in the rates of arrest gov/eontent/pub/pdf/rpr94.pdf (finding a for homicides were percent 53 times the national 41.4 among persons rearrest rate average). Relatedly, assault”). it highlights a 1994 convicted for “other sexual And study finding approximately Suarez, respect one with the Government five imprisoned emphasizes offenders for nonviolent arrested for crimes were rearrested for violent “weapons offenses offenses” are rearrested at high years within three of their release. See rates within a years. few Gov’t Br. 30 & Sheet, studies). Bureau of Justice Statistics Fact (citing addition, nn. 10-11 it Exiting Nonviolent relies upon study indicating that Califor- Profile of Offenders (Oct. Prisons, 2004), State tbl.ll available nia handgun purchasers in 1977 “who had http://bjs.gov/content/pub/pdfipnoesp. prior convictions for nonviolent firearm- pdf. The Government’s piece second of evi- related offenses such carrying as concealed study dence comparing denials of in public, firearms but none for violent sure, (2008) 25. To be (holding Suarez’s 1998 DUI conviction L.Ed.2d 490 that drunk driv- dangerous was a ing act—but not in the felony” sense of is not a “violent under the Armed motivating the traditional concerns felon dis- Career Criminal Act because does not in- See, States, possession. violent, e.g., Begay "purposeful, v. United aggressive volve 137, 145, conduct”). 553 U.S. that eliminates the offenses,” likely regulation times more lawful over four were arms, keep and bear is whether Binder- a later violent offense charged to be with history. up distinguish and Suarez can themselves no criminal See person than a al., law-abiding citizens in con- responsible, et Prior Misde- Garen J. Wintemute persons historically the class' of as a Risk Factor trast meanor Convictions understood to be excluded Firearm-Related Crimi- Later Violent and protection. Among Authorized Purchas- Amendment Activity nal 280 Am. Med. Ass’n Handguns, ers of generalized if Even the Government’s

Case Details

Case Name: Daniel Binderup v. Attorney General United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 7, 2016

Citation: 836 F.3d 336

Docket Number: 14-4549 & 14-4550; 15-1975 & 15-1976

Court Abbreviation: 3rd Cir.