RAYMOND HOLLOWAY, JR. v. ATTORNEY GENERAL UNITED STATES OF AMERICA; DEPUTY DIRECTOR BUREAU OF ALCOHOL TOBACCO FIREARMS & EXPLOSIVES; DIRECTOR FEDERAL BUREAU OF INVESTIGATION; UNITED STATES OF AMERICA
No. 18-3595
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
(Filed: January 17, 2020)
PRECEDENTIAL
Argued October 2, 2019
Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-17-cv-00081), District Judge: Hon. Christopher C. Conner
Before: SHWARTZ, FUENTES, and FISHER, Circuit Judges.
Assistant Attorney General
David J. Freed
United States Attorney
Mark B. Stern
Thais-Lyn Trayer [ARGUED]
Tyce R. Walters
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Civil Division, Room 7712
Washington, D.C. 20530
Counsel for Appellants United States of America, Attorney General United States of America, Deputy Director Bureau of Alcohol Tobacco Firearms & Explosives, and Director Federal Bureau of Investigation
Adam J. Kraut
Joshua Prince [ARGUED]
Prince Law Offices
646 Lenape Road
Bechtelsville, PA 19505
Counsel for Appellee Raymond Holloway, Jr.
Firearms Policy Coalition
1215 J Street, 17th Floor
Sacramento, CA 95814
Counsel for Amici Curiae Firearms Policy Coalition Inc, Firearms Policy Foundation, Madison Society Foundation Inc, and Second Amendment Foundation Inc
OPINION
SHWARTZ, Circuit Judge.
Drunk driving is a dangerous and often deadly crime. “Approximately a quarter million people are injured annually in alcohol-related crashes,” Begay v. United States, 553 U.S. 137, 156-57 (2008) (Alito, J., dissenting), and the number “who are killed... by drunk drivers is far greater than the number of murders committed” during many other violent crimes, id. at 157 & n.4. “[F]rom 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year. In the best years, that would add up to more than one fatality per hour.” Mitchell v. Wisconsin, 139 S. Ct. 2525, 2536 (2019) (emphasis omitted) (citations omitted).
Today, we consider whether Pennsylvania‘s driving under the influence (“DUI“) law, which makes a DUI at the highest blood alcohol content (“BAC“) a first-degree misdemeanor that carries a maximum penalty of five years’ imprisonment, see
I
In 2002, Holloway was convicted of a DUI at the highest BAC, but the charge was dismissed upon his completion of an accelerated rehabilitation program. In 2005, Holloway was again arrested for driving under the influence and registered a BAC of 0.192%. Holloway pled guilty to violating
In 2016, Holloway sought to purchase a firearm but was unable to do so because of his disqualifying DUI conviction. Holloway sued the Attorney General of the United States and other federal officials (the “Government“) in the United States District Court for the Middle District of Pennsylvania, claiming that
The District Court granted Holloway‘s motion for summary judgment, awarded him a declaratory judgment, and entered a permanent injunction barring the Government from enforcing
II1
The sole issue on appeal is whether applying
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. 570, 635 (2008). This right, however, “is not unlimited.” Id. at 626. Indeed, the Court cautioned that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. The Court described the felon ban as just one “example[]” of “presumptively lawful regulatory measures.” Id. at 627 n.26.
Since Heller, we have been called upon to determine whether various laws unlawfully infringe the Second Amendment. Some of these laws regulate who can possess firearms, see, e.g., Beers v. Att‘y Gen. U.S., 927 F.3d 150, 155-56 (3d Cir. 2019) (ban on possession by those adjudicated
After Marzzarella, we addressed a constitutional challenge to
There are no specific rules for how to identify the holdings and legal standards from split circuit opinions. We can, however, look to the rules we use to identify such standards in fractured Supreme Court opinions, as set forth in Marks v. United States, 430 U.S. 188 (1977), and its progeny.3 We need not conduct an explicit Marks analysis of the Binderup opinions here because we already recited its holdings, as expressed by Judge Ambro‘s controlling opinion, in Beers, 927 F.3d at 155-56;4 see also N.J. Rifle, 910 F.3d at
(1) Marzzarella‘s two-step test — and not the test articulated in Barton — governs Second Amendment
(2) At Marzzarella step one for challenges to
(3) Barton‘s focus on whether the challenger‘s crime
(4) a challenger, otherwise barred from possession by
(5) intermediate scrutiny applies at Marzzarella step two, id. at 353 (Ambro, J.); id. at 396-97 (Fuentes, J.).9
We apply this framework to determine whether
B
At the first step of the analysis, we must determine whether the application of
No majority of judges in Binderup agreed on how to determine whether a particular offense is serious. That said, we have viewed, albeit in a non-precedential opinion, Judge Ambro‘s factors as providing data points for determining whether a challenger‘s prior conviction was serious, King v. Att‘y Gen. U.S., 783 F. App‘x 111, 113-14 (3d Cir. 2019), and we agree with the dissent that a multifactor test should be used to identify whether an offense is serious, at least as to misdemeanor offenses, Dissenting Op. at 6.
As previously stated, Heller embraced the “longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. Because Holloway‘s DUI misdemeanor conviction carries a maximum penalty of five years’ imprisonment, it is deemed a disqualifying felony under
2
We next examine whether Holloway‘s crime was nonetheless “not serious enough to strip [him] of [his] Second Amendment rights.” Id. at 351. Under Binderup, “a person who did not commit a serious crime retains his Second Amendment rights,” because “a non-serious crime does not demonstrate a lack of ‘virtue’ that disqualifies an offender from exercising those rights.” Id. at 349.
A crime that presents a potential for danger and risk of harm to self and others is “serious.”11 See “Serious,” Black‘s
First, The Address and Reasons of Dissent of the Minority of the Convention of the States of Pennsylvania to Their Constituents (the “Address“), “‘a highly influential’ ‘precursor’ to the Second Amendment,” Binderup, 836 F.3d at 349 (Ambro, J.) (quoting United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) and Heller, 554 U.S. at 604), stated “no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals,” United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (emphasis omitted) (quoting the Address, reprinted in Bernard Schwartz, 2 The Bill of Rights: A Documentary History 662, 665 (1971)); see also Binderup, 836 F.3d at 349 (quoting same passage). While the dissent proposes a narrow reading of the broad language “real danger of public injury,” Dissenting Op. at 13-15, we precedentially interpreted the Address to indicate that the legislature could
Second, Samuel Adams’ proposed language for the Second Amendment would have expressly limited the right to “peaceable citizens.” Binderup, 836 F.3d at 367 (Hardiman, J.) (quoting Journal of Convention: Wednesday February 6, 1788, reprinted in Debates and Proceedings in the Convention of the Commonwealth of Massachusetts Held in the Year 1788, at 86 (Boston, William White 1856)) (emphasis omitted). In Adams’ time, “peaceable” meant “free from tumult;” “quiet; undisturbed;” “[n]ot violent; not bloody;” “[n]ot quarrelsome; not turbulent.” 1 Samuel Johnson, A Dictionary of the English Language (5th ed. 1773). Relatedly, “[b]reaches of the peace comprise[d] not only cases of actual violence to the person of another, but any unlawful acts, tending to produce an actual breach of the peace; whether the peace of the public, or an individual, be in fact disturbed or not.” Pearce v. Atwood, 13 Mass. 324, 332 (1816). From these sources, judges have concluded that “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting). Thus, the Pennsylvania and Massachusetts proposals show that any right to bear arms did not extend to those who posed a danger to the public. These historical sources therefore support considering risk of danger in determining whether an offense constitutes a serious crime that deprives an offender of Second Amendment protection.
All three branches of the federal government have recognized as much. The Supreme Court has described individuals “who drive with a BAC significantly above the... limit of 0.08% and recidivists” as “the most dangerous offenders.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2179 (2016). Congress and the Executive Branch have also recognized the dangers posed by drunk driving. Congress requires states to implement highway safety programs “to reduce injuries and deaths resulting from persons driving motor vehicles while impaired by alcohol.”
While use or the threatened use of violence is not an element of a DUI offense, see
Moreover, though labeled as a first-degree misdemeanor, Holloway‘s DUI crime carries a three-month mandatory minimum prison term and a five-year maximum prison term. See
Furthermore, the maximum penalty that may be imposed often reveals how the legislature views an offense.12
punishment is a more appropriate data point because it provides insight into how a state legislature views a crime—not how a sentencing judge views an individual. See Lewis v. United States, 518 U.S. 322, 325-26 (1996) (noting that an offense‘s penalty “reveals the legislature‘s judgment about the offense‘s severity“); id. at 328 (noting that the maximum punishment is an “objective indication of the seriousness with which society regards the offense“); Binderup, 836 F.3d at 351-52. For these reasons, it is proper to consider the maximum penalty an offender faces, and not simply the actual punishment imposed or whether the offense is designated as a misdemeanor or felony, to determine whether an offense is properly viewed as “serious.”
Holloway received the statutory minimum sentence of 90 days’ imprisonment,
Holloway suggests that his crimes cannot be so serious to justify federal disarmament and that to apply
Together, these considerations demonstrate that Holloway‘s DUI conviction constitutes a serious crime, placing him within the class of “persons historically excluded from Second Amendment protections.” Binderup, 836 F.3d at 347. Because Holloway has not met his burden at the first step of the analysis to overcome the presumptive application of
For the foregoing reasons, we will reverse the order granting Holloway summary judgment, a declaratory judgment, and an injunction and remand for the entry of judgment in favor of the Government.
Driving under the influence of alcohol is undoubtedly a significant offense deserving of punishment. Yet the principal question in this case is not whether that offense is “serious” in the abstract or even as a matter of ordinary understanding. “Seriousness” here has a discrete legal meaning—that a conviction of the crime deprives in perpetuity an individual of an enumerated constitutional right. Under our precedent, these two categories are distinct, and they must be treated as such. Just because this question arises under the Second Amendment does not make our decision any less weighty. If the circumstances were different, we would assuredly consider very carefully the legal standard for depriving an individual of his right to free speech. The majority incorrectly, in my view, holds that Holloway has not carried his burden at Step One of the two-step framework established in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). Further, because I conclude that at Step Two,
I
Under the Marzzarella framework, we first determine “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment‘s guarantee.” 614 F.3d at 89. In particular, our precedent requires the challenger to satisfy the two elements articulated in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). He must “identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member,” and then “present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class.” Binderup v. Attorney Gen. United States of America, 836 F.3d 336, 347 (3d Cir. 2016) (en banc) (plurality opinion) (citing Barton, 633 F.3d at 173-74); see id. at 366 (Hardiman, J., concurring in part and concurring in the judgments); see also Beers v. Attorney Gen. United States of America, 927 F.3d 150, 157 (3d Cir. 2019) (adopting this test for an as-applied challenge to
In Binderup, ten judges on the fifteen-member en banc court agreed that, in the context of as-applied challenges to
The principal question before us today concerns the application of Barton‘s second prong in the
It is on this latter point—the application of the multifactor test—that I break with my colleagues in the majority. They interpret the test‘s list of factors to be non-exhaustive, Majority Op. at II.A, and so they supplement their analysis of the factors with additional considerations. The majority appears to concede that at least three of the four Binderup factors are in Holloway‘s favor, but still concludes that Holloway is not entitled to Second Amendment protection. Although I agree that we are not bound to consider the four factors exclusively, I disagree with my colleagues in how they have applied and supplemented those factors. Simply because our precedent does not require us to apply the four factors alone does not mean the determination of “seriousness” is open to
A
As it was applied in Binderup, the multifactor test contains four factors for determining whether an individual‘s crime is sufficiently “serious” to deprive him of his Second Amendment right. First, the court considers whether the state classifies the challenger‘s disqualifying crime under
My review of our case law leads me to question this conclusion. Courts and legal scholars disagree as to the nature
B
Nevertheless, like the District Court, I believe that the multifactor test should guide the Step One analysis in this case. On my reading, the four factors reflect an underlying logic that is consistent with our precedent in Barton and Binderup. Those cases require us to assess the relation between the challenger‘s “circumstances [and] those of persons historically barred from Second Amendment protections.” Barton, 633 F.3d at 174; see also Binderup, 836 F.3d at 346-47 (plurality opinion); id. at 366 (Hardiman, J., concurring in part and concurring in the judgments). This comparative exercise demands certain measures of “seriousness,” and those measures should naturally be the features—the classification, elements, and punishments—common to the crimes that traditionally have qualified the individuals convicted of them for firearm dispossession. These crimes include felonies, crimes of
A methodical evaluation of each factor, consistent with this logic, compels the conclusion reached by the District Court: that Holloway‘s conduct has not removed him from the scope of Second Amendment protection. In conducting this analysis, I shall also address the majority‘s additional considerations—the “potential for danger and risk of harm” posed by the challenger‘s crime, Majority Op. at II.B.2, and the maximum level of punishment Pennsylvania imposes for Holloway‘s second DUI offense, id. While, as noted, I do not dispute that the majority may supplement the four factors, any such additions must be—as the four factors are—consistent with the comparative exercise required by Barton and Binderup.7
1
The first factor asks whether the challenger‘s crime is a felony or a misdemeanor. The majority acknowledges that Pennsylvania classifies Holloway‘s second DUI offense as a misdemeanor, but it points out that the offense “carries . . . a five-year maximum prison term.” Majority Op. at II.B.2. Yet, under our precedent, the potential prison term cannot nullify the relevance of the felony/misdemeanor distinction for determining whether a crime is “serious” enough to deprive an individual of his Second Amendment right. A common feature of the crimes that traditionally have barred an individual from owning a firearm is that they are classified as felonies.
For example, in Heller, the Supreme Court warned specifically that its opinion should not be read to question “longstanding prohibitions on the possession of firearms by felons.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (emphasis added); see also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion).
In saying this, I do not question the Pennsylvania legislature‘s judgment that an offense such as Holloway‘s should be punishable by a lengthy prison term. But for the purposes of answering the question before us today—whether that offense is “serious” enough to deprive Holloway of his Second Amendment right—we must look to how his offense compares with those of the historically barred class. That involves giving weight to the felony/misdemeanor distinction. In addition to the sentence it permitted, the Pennsylvania legislature also chose to punish Holloway‘s crime as a misdemeanor. Indeed, the sentence and the classification are inseparable—all such misdemeanors in Pennsylvania carry Holloway‘s maximum possible prison term. See
2
The most prominent late eighteenth-century sources supporting legislative power to bar certain individuals from owning firearms are the proposals made in the ratifying conventions of Pennsylvania, New Hampshire, and Massachusetts. The first of these provides that “no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” THE ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF THE CONVENTION, OF THE STATE OF PENNSYLVANIA, TO THEIR CONSTITUENTS 1 (Phila., E. Oswald 1787), https://www.loc.gov/item/90898134. It is important to note that the two categories are interlocking—the provision captures both convicted criminals and those non-criminals who pose a “real danger of public injury.” Id. The inclusion of the
Yet the provision alone does not tell us what “real danger of public injury” means. Perhaps the best way of interpreting this historical term is to look to the dispossessory provisions proposed at the other two conventions. In voting to ratify the Federal Constitution, New Hampshire‘s delegates also recommended certain amendments to it. Among these was a provision that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” 1 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 326 (2d ed. 1836). Although the Pennsylvania minority‘s “real danger of public injury” was likely meant to sweep more broadly than New Hampshire‘s “in actual rebellion,” insofar as we are attempting to discover the limitations the ratifying public would have implicitly placed on the Second Amendment, the New Hampshire provision suggests a concern with armed conflict or violence against the government, rather than with all dangerous acts. In this context, it is noteworthy that the Pennsylvania minority speaks of the danger of public, rather than private, injury—a distinction it explicitly makes elsewhere in the document. See, e.g., ADDRESS AND REASONS OF DISSENT, at 3 (“The absolute unqualified command that congress have over the militia may be made instrumental to the destruction of all liberty, both public and private . . . .“). From this perspective, it appears the Pennsylvania antifederalists had in mind something narrower
than the majority‘s standard of “risk of harm to self and others.”11In sum, the principal historical evidence from the Founding period suggests that the majority‘s “risk of harm” standard is too broad to serve as a basis for comparison under our precedent. The correct standard appears to be something closer to the one used in Binderup, focusing on the presence of
Further, although the majority cites contemporary authorities to support its standard, these seem to me inapt for conducting the comparison required by Barton and Binderup. On my reading, the majority principally relies on an inference from a colloquial understanding of drunk driving‘s
Given the indeterminate nature of the historically barred class, I do not dispute that current authorities may assist us in measuring the “seriousness” of a challenger‘s offense. But any such measurement must be consistent with our precedent. To me, the most relevant contemporary authorities for measuring “seriousness” are in fact included in the third and fourth factors: the actors within the criminal-justice system who confronted the challenger‘s offense and imposed a punishment, and the jurisdictions that penalize the challenger‘s conduct as a crime. As a result, I must conclude that the second factor weighs in Holloway‘s favor.
Although the preceding factors support Holloway, they are insufficient in themselves to establish whether he is entitled to Second Amendment protection. Because a majority of the judges in Binderup held that a nonviolent misdemeanor may be “serious,” the preceding factors, while probative measures of “seriousness,” are not dispositive. Yet in the absence of common features of “serious” nonviolent misdemeanors—and Binderup did not specify any—we must compare the punishment for the challenger‘s crime with the punishments for the crimes of the historically barred class. See 836 F.3d at 352 (opinion of Ambro, J.). The third and fourth Binderup factors both accomplish this end.13
The third factor looks to the sentence the challenger received. It directs our attention to the unique circumstances of the challenger‘s offense and conviction. Holloway was arrested in January 2005 after a police officer witnessed him driving the wrong way down a one-way street. Holloway, 349 F. Supp. 3d at 454. He registered a blood alcohol concentration (BAC) at the “highest rate” under Pennsylvania law, and because this was his second DUI offense, he was convicted of
The majority finds this factor against Holloway, emphasizing that, unlike the challengers in Binderup, he received a punishment that deprived him of his liberty. See Majority Op. at II.B.2. While this fact is certainly evidence that Pennsylvania considers Holloway‘s offense more significant than that of Binderup (which was also committed in Pennsylvania), it does not measure Holloway‘s offense against those of the historically barred class. A factor that considers the punishment received suggests some deference to the decisions of those within the criminal-justice system. See Binderup, 836 F.3d at 352 (opinion of Ambro, J.) (“[P]unishments are selected by judges who have firsthand knowledge of the facts and circumstances of the cases and who likely have the benefit of pre-sentence reports prepared by trained professionals.“). Here, the actors on the ground did not deem Holloway‘s offense “serious” enough to warrant the maximum penalty that Pennsylvania law permitted. Rather, the sentencing judge imposed the lightest punishment that the law allowed—a term of imprisonment, with work release, considerably shorter than the qualifying sentences under either
For the purposes of the Barton and Binderup comparison, then, I conclude that those who administered Pennsylvania‘s law did not deem Holloway‘s offense “serious” enough to merit imposition of a sentence on a par with those of
4
The fourth factor asks whether there is a “cross-jurisdictional consensus regarding the seriousness of the [challenger‘s] crime[].” Id. Like the sentence actually received, the challenger‘s maximum possible punishment similarly provides a point of comparison with the historically barred class, but it cannot be assessed by looking to the challenger‘s jurisdiction alone. The fact that the challenger‘s crime is punishable by more than one or two years is the very reason he is in court; it demonstrates only that one jurisdiction has chosen to punish his conduct on terms comparable to the punishments of the historically barred class. More significant is how jurisdictions generally punish the challenger‘s conduct because such a measure permits a comparison of current appraisal of the significance of the challenger‘s crime with the punishments imposed on the historical class.
My review of the DUI laws in all fifty states and the District of Columbia reveals a notable consensus in how these jurisdictions punish Holloway‘s conduct. Most importantly, only twelve of these jurisdictions punish such conduct with a maximum term of imprisonment exceeding one year.14 Of
***
Drunk driving is a dangerous crime. Declaring it not “serious” for purposes of the Second Amendment in no way detracts from its “seriousness” in the ordinary understanding of that word. But that is my point—the two categories are distinct, and our analysis should reflect that fact. Although Binderup did not create controlling precedent on the nature of the “seriousness” inquiry, the legal content of that inquiry must fulfill the requirements established in Barton and Binderup. Properly understood and applied, the multifactor test meets these demands. And in the context of the present case, it leads me to agree with the District Court that
II
If a court determines, as I do here, that the challenged law burdens protected conduct, then Marzzarella‘s second step requires the court to “evaluate the law under some form of means-ends scrutiny.” 614 F.3d at 89. In Binderup, the same ten judges who agreed to adopt Marzzarella‘s two-step framework and the “seriousness” standard also accepted the
Following a long line of Supreme Court case law, Marzzarella enumerated two elements of intermediate-scrutiny review. First, the government interest in the enforcement of the challenged regulation must be “significant, substantial, or important.” 614 F.3d at 98 (internal quotation marks omitted). Second, there must be a “reasonable” fit between the asserted government interest and the regulation as written or applied. Id.; see also Ass‘n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 910 F.3d 106, 119 (3d Cir. 2018) (adopting this two-part test); Drake v. Filko, 724 F.3d 426, 436 (3d Cir. 2013) (same). I will consider each in turn.
A
The parties do not contest that the government has a substantial interest in “protecting the public from people who cannot be trusted to use firearms responsibly.” Appellants’ Br. at 29. Neither Holloway‘s brief nor the District Court‘s opinion even mention this element. Thus, there is no reason to question whether the government has a substantial interest in enforcing
B
Our primary difficulty lies in determining how to apply the second element of intermediate-scrutiny review to
1
There is no binding precedent in our Circuit for the proper application of intermediate scrutiny to
Despite this ostensible difference, these standards are in fact consistent with each other as a doctrinal matter.
The Supreme Court applies a four-step test for determining whether a regulation of commercial speech violates the First Amendment. A court must first “determine whether the expression is protected by the First Amendment,” and then “ask whether the asserted governmental interest is substantial.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm‘n of N.Y., 447 U.S. 557, 566 (1980); see also Fox, 492 U.S. at 475. If the answer to both inquires is affirmative, the government must then show “that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest.” Sorrell v. IMS Health Inc., 564
This test bears notable resemblance to our Circuit‘s developing Second Amendment doctrine. For our purposes here, the third and fourth steps are especially remarkable: they resemble the standards applied in Binderup and Marzzarella, respectively. Both are essential means of measuring the fit between the interest and the regulation. Indeed, the Supreme Court has said that these steps are not necessarily distinct inquiries. In as-applied challenges, the question posed at step three “cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity.” United States v. Edge Broad. Co., 509 U.S. 418, 427 (1993). The court must also consider “the regulation‘s general application to others” with the same relevant characteristics as the challenger. Id. As a result, the validity of the regulation‘s application to the challenger “properly should be dealt with under the fourth factor of the Central Hudson test.” Id. This means that, regardless of the nature of the challenge, the third and fourth steps “basically involve a consideration of the fit between the legislature‘s ends and the means chosen to accomplish those ends.” Id. at 427-28 (internal quotation marks omitted).
This background clarifies the standard to apply in the present case. In effect, Binderup concerned the correct application of the third step—whether the regulation “directly advances a substantial governmental interest.” Sorrell, 564 U.S. at 572. The three-judge opinion announcing the judgment of the Court did not need to advance its inquiry any further, because it concluded that
2
Applying that standard in the present case, I conclude that
a
In finding that
The government‘s expert report in the present case does exactly that. It offers evidence relating to the features of Holloway‘s biography that are at issue in this case. It refers to the likelihood of drug and alcohol abuse among repeat DUI offenders. D. Ct. Docket No. 61-4, at 4. It refers to firearm purchasers with prior alcohol-related convictions. Id. at 9. These are the features of Holloway‘s biography at issue here. For the purposes of government policy, barring individuals with those characteristics from possessing a firearm is reasonable.
b
As explained above, our inquiry into “reasonable fit” does not end here. The question is not merely whether it is reasonable to disarm the challenger because of his conviction, but whether “the fit between the challenged regulation and the asserted objective [is] reasonable.” Marzzarella, 614 F.3d at 98 (emphasis added). As a result, we must consider, in the context of this as-applied challenge, how closely
Under this standard, the law appears to be significantly underinclusive. Holloway‘s crimes—a first DUI offense at a BAC of 0.131%, and a second DUI offense less than three years later with a BAC of 0.192%—implicate
c
The next question is whether this underinclusivity renders
First, it might be argued that our precedent remains unsettled regarding whether underinclusivity is a valid consideration in the Second Amendment context. Although Marzzarella allowed that a regulation‘s “underinclusiveness can be evidence that the interest is not significant enough to justify the regulation,” 614 F.3d at 99, the Court was there referring to underinclusivity in the context of strict, rather than intermediate, scrutiny. As a result, a future panel majority may reject a consideration of underinclusivity in intermediate-scrutiny review. See, e.g., Ass‘n of N.J. Rifle & Pistol Clubs, 910 F.3d at 122 n.28 (“While our Court has consulted First Amendment jurisprudence concerning the appropriate level of scrutiny to apply to a gun regulation, we have not wholesale incorporated it into the Second Amendment.” (citations omitted)).
Yet, in constitutional law, underinclusivity follows necessarily from the evaluation of a fit between means and ends. And in Marzzarella we explicitly adopted a test that considers “the fit between the challenged regulation and the asserted objective.” 614 F.3d at 98; see also Reilly, 533 U.S. at 556; Fla. Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995); Fox, 492 U.S. at 480. The assessment of fit looks to the relation between the class of persons who come within the scope of the regulation‘s stated objective, and the class of persons actually affected by the regulation. See, e.g., Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF.
This generalized inquiry encompasses both intermediate and strict scrutiny. The difference between those standards is the degree, rather than the type, of fit—whether the fit is either “reasonable” or “perfect.” Marzzarella, 614 F.3d at 98; see McCutcheon v. Fed. Election Comm‘n, 572 U.S. 185, 218 (2014) (plurality opinion) (“Even when the Court is not applying strict scrutiny, we still require ‘a fit that is not necessarily perfect, but reasonable; ... that employs not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective.‘” (alterations in original) (quoting Fox, 492 U.S. at 480)). Intermediate scrutiny
It would be contrary to the logic of this analysis to hold that under intermediate scrutiny alone a court may not consider a regulation‘s underinclusivity. To be sure, there may be a compelling reason why the Second Amendment context precludes such a consideration, but, to my mind, even that determination must now be left either to this Court sitting en banc or to the Supreme Court. Because our Court in Marzzarella adopted a means-ends fit analysis, we have already decided that underinclusivity is at least a valid consideration.
Second, it might be argued that
These defenses do not support
***
Ultimately at stake in this case is whether the government may arbitrarily burden the constitutional right of some citizens and not others. This equality concern goes to the heart of constitutional adjudication, regardless of the nature of the right at issue. As Justice Jackson put it in a different context:
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon
them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
Ry. Express Agency v. New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring). When a law, for reasons unrelated to enforcement discretion, on average punishes the same conduct only one in five times, such that those chosen individuals are deprived in perpetuity of a constitutional right, there is not a reasonable fit between the legislature‘s asserted interest and the challenged regulation.22 If Congress wants to bar all individuals convicted of a second DUI offense with a BAC above 0.16% of owning a firearm, then it must do so through the ordinary channels of democratic lawmaking. At least then all persons’ constitutional right will be treated equally.
For these reasons, I respectfully dissent.
Notes
As one district court analyzing an as-applied challenge under Binderup aptly observed,
juxtaposing the Pennsylvania legislature‘s use of the misdemeanor label with the legislature‘s simultaneous imposition of a substantial imprisonment term creates an inherent contradiction: a five-year maximum prison term suggests that [the plaintiff‘s] predicate offense is serious, while the misdemeanor label simultaneously undercuts the apparent severity by labeling the offense a non-serious.
Laudenslager v. Sessions, No. 4:17-CV-00330, 2019 WL 587298, at *4 (M.D. Pa. Feb. 13, 2019) (discussing the classification and maximum sentence for receiving stolen property under Pennsylvania law). We agree, and for the reasons described above, conclude that the legislative history elucidates this contradiction.
See