Federal Court Holds Convict Can Keep His Second Amendment Rights

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An interesting decision was handed down yesterday in the Middle District of Pennsylvania yesterday concerning the Gun Control Act of 1968. The Court held that the Second Amendment actually protects the rights of individuals who have been convicted of old, nonviolent crimes. Julio Suarez was convicted in Montgomery County, Maryland of carrying a handgun without a license in 1990. The offense was classed as a misdemeanor in Maryland, but had a potential term of imprisonment of “not less than thirty days, nor more than three years.” Suarez was sentenced to . . .

180 days’ imprisonment and fined $500 (both suspended) and given one year of probation. He was also convicted of a misdemeanor in 1998 for driving while under the influence of alcohol.

The Gun Control Act of 1968 (at section 921(g)), bans anyone who “is under indictment for, or has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year….” Therefore, Suarez was barred under federal law from obtaining a firearm.

Suarez filed a complaint in 2014 (his attorneys includedPennsylvania lawyer Douglas Gould and the famous Alan Gura,) announcing that he intended to acquire a firearm for purposes of self-protection and the protection of his family. He argued (among other things) that the Gun Control Act, as applied to him, violates the Second Amendment to the U.S. Constitution.

Judge William W. Caldwell of the Middle District of Pennsylvania agreed with him.

Judge Caldwell applied a two-prong test: first he asked whether or not Suarez’s case fell within the meaning of the Gun Control Act (which he held that it did.) Then he examined whether or not “the challenged law imposes a burden on conduct falling wtihin the scope of the Second Amendment’s guarantee.

The key to the ruling appears to be this section of i>U.S. v. Heller (and I’m taking this quote from Eugene Volokh in the Volokh Conspiracy):

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[Footnote: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

Because the Supreme Court held that these measures were only “presumptively” valid, Judge Caldwell held that they could be “rebutted with an as-applied challenge.” To raise such a challenge, the challenger “must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment Challenges.”

Judge Caldwell noted: “the traditional justification of § 922(g)(1) [the section of the gun control act barring possession of firearms by people convicted of crimes punishable by more than one year in prison] was the disarmament of individuals likely to commit violent offenses.”

Concerning Suarez’s background, the Court had this to say:

Since his 1990 conviction, Plaintiff has been married for twenty years. He is a father of three children. He is a member of a local church and enjoys a position of leadership there. Since 1992, Plaintiff has maintained continuous employment within the technology field. For the last six years, he has been employed as a Project Manager for a technology management company. In his position, Plaintiff provides technology services primarily to Department of Defense clients. And in order to provide those services, he holds a government security clearance of “Secret.” Finally, in August of 2009, Plaintiff applied to the Pennsylvania Court of Common Pleas of Adams County to remove the firearm disability imposed under Pennsylvania law. The court granted the application and held that Pennsylvania law no longer prohibits Plaintiff from possessing a firearm. Plaintiff asserts that he is entitled to judgment as a matter of law because these circumstances place him outside the intended scope of § 922(g)(1). We agree.

(Citations omitted.)

Because of these facts, Judge Caldwell held that Suarez should not be barred from owning firearms for life, as is mandated by the language of the Gun Control Act:

First, we find that…Plaintiff’s predicate conviction was minor and non-violent, and the conviction is now decades-old. The conviction was minor because he ultimately received only one year of probation. It was non-violent because it did not involve the use of force. And his 1990 conviction is now two and a half decades old.

Second, we find that Plaintiff’s background and circumstances in the years following his conviction establish that he is no more dangerous than a typical law-abiding citizen and poses no continuing threat to society….

Plaintiff’s conviction did not involve violence. He served his probationary period without incident. There is no evidence that in the twenty five years since his conviction Plaintiff was dangerous or misused firearms. There is no evidence that he used violence toward other citizens. Although he does have one intervening conviction for driving under the influence of alcohol, that conviction is not a disqualifying conviction…and is itself nearly two decades old. Indeed, despite Plaintiff’s subsequent conviction, in 2009, a Pennsylvania Court of Common Pleas determined that Plaintiff’s circumstances justified removal of a firearm disability imposed under State law. And finally, Plaintiff maintains “Secret” security clearance with the government in order to provide services to Department of Defense clients. We think it safe to assume that our government does not give such clearances to individuals that are dangerous or that pose a threat to society. Accordingly, we find that Plaintiff has established that he is no more dangerous than a typical law-abiding citizen and poses no continuing threat to society. Therefore, we find that Plaintiff falls outside the intended scope of § 922(g)(1) and is distinguishable from those historically barred from Second Amendment protections.

(Footnotes omitted.)

Boiled down, the Judge wasn’t willing to permanently disarm a person who had made some (non-violent) mistakes as a young man, who had clearly been on a good path for over fifteen years, and who simply wanted to exercise his right to own a firearm for the protection of his family.

Thus, yet another victory for Alan Gura.

As soon as they digest the case, the usual suspects opposed to the right to keep and bear arms will no doubt issue breathless statements about how this decision will put guns in the hands of violent felons. To do so, however, would be to ignore the rather thoughtful decision written by Judge Caldwell, and the facts in Mr. Suarez’s particular case.

[Hat tip: Arthur P.]

comments

  1. avatar Gman says:

    As we discussed earlier on this topic I must beg the question:
    If someone is deemed suitable to re-enter society (i.e. out of prison), then does not their natural human right to self protection apply? Is any other portion of the Bill of Rights denied?

    1. avatar Ralph says:

      Is any other portion of the Bill of Rights denied?

      Yes, depending on the terms of their release. For example, it’s settled law that the broad protections of the 4th Amendment do not apply to probationers and parolees.

      1. avatar JR_in_NC says:

        Those are not permanent, though…right? Don’t 4A rights restore after they probation/parole terms are complete?

        1. avatar Jake Tallman says:

          Yes they do, but Ralph is beyond reason when it comes to guns and convicts. He has no problem with the fact that a sizable group is arbitrarily denied the right to self-defense, in fact, he supports it, right up until the moment he finds himself inadvertently commuting some B.S. felony.

        2. avatar LarryinTX says:

          Please tell me you meant “committing”?!

        3. avatar Ralph says:

          I’m not beyond reason, Jake. I just don’t want convicted murderers, rapists and armed robbers to be able to walk over to Bud’s and buy guns. I also don’t want anybody’s rights restored until they have made compete restitution to their victims.

          In this case, there was no victim so no restitution was warranted, the crime was nonviolent and the guy’s probation ended a long time ago. Let him have his gun.

        4. avatar Tommycat says:

          Soooo the Second amendment is not a natural right then? If the government can take that right away from a man, then it is not a natural right.

          It’s stupid anyway. Just because the violent thugs don’t get their guns from Buds Gun Shop doesn’t mean they cannot get guns. You realize it’s far easier for me to get an illegal M4 or M16 or heck even an m60 or M2 than it is to get a legal one. I don’t, because I obey the law. The people who intend to do evil with their arms rarely procure their arms through legitimate dealers.

        5. avatar Dano says:

          Ralph would rather solve this whole thing by staging an OC gathering, rifles of course, at the local Carl’s Jr.

      2. avatar Drew says:

        If as per your post below you dont want felons to “be able” to buy guns then you are by default pro gun control. Pro registration, pro permits and anti 2nd amendment. You can not remotely bar any single person of any type from buying or owning anything without resigning power and control to the government. Power that must be misapplied and abused. Power that will be used to abuse and oppress your supposed comrades. You Ralph are not one of us, you are a fudd, an anti.

        1. avatar Drew in Michigan says:

          Drew I was with you right until the end [no need to accuse or ad hom]

          I have said this a hundred times…[maybe more]
          axe murderer = can buy an axe [and take out a few people]
          arsonist = can buy a can of gas and matches [and take a lot of people out]
          rapist = can buy rope, duct, tape and a hunting knife [causing untold emotion damage & death]
          ALL THIS THE FIRST DAY OUT OF THE PEN.

          Now your are quibbling about buying guns? really? You “all” might want to re-examine your argument[s] for denying a fellow human the “right” to protect him/her self with the best tool for the job.

        2. avatar Custodian says:

          In practice, the second amendment is not a natural right.

          That’s why it can be licensed/permitted, adjusted and taken away permanently.

          Do I want it to be just as natural as the first? Uh huh. But that’s not gonna happen.

      3. avatar Accur81 says:

        I’m pretty much with Ralph on this one. While minor, and non-violent felonies (AKA the BS felonies like using a neighbor’s wifi) should not trigger the removal of rights upon release (or even incarceration in the first place), violent felonies are a different matter. I don’t support gun rights for rapists, kidnappers, child molesters, etc. Simple solution: don’t rape anyone (again I’m speaking of a strong case, and not a girl regretting a one night stand), don’t rape children, don’t kidnap people, don’t get drunk and kill someone in a car crash, etc. That’s not a tall order for an intelligent and responsible individual.

        Of course this revocation of rights should be based on a solid case, a preponderance of evidence, and solid police work. Further, a road to restoration after 7-10 years of productive and non-violent living is certainly a possibility. Interestingly enough, I’ve worked cases where violent felons have – wait for it – committed additional violent crimes. Like murder. It is difficult to put into words how frustrating that is. I’ll fight for the rights of innocent and mostly innocent parties all day long, especially given that we have way too many asinine rules and laws. Something about campaigning for the rights of child molesters just doesn’t do it for me.

        And unless you live under a rock, or are otherwise hopelessly naive, we release violent and dangerous people back into society all of the time. These scumbags have not “repaid a debt.” Prison is a punishment, not a loan, and it carries long term consequences, just like the victims have long term physical and emotional scars.

    2. avatar Sian says:

      If they can be trusted to mix with the rest of society (post a probationary period, since most recidivism happens within just a few years of release) then they can be trusted to be armed and to vote.

      If this is a problem, then our criminal justice system isn’t doing its job right and needs to be adjusted.

      1. avatar Accur81 says:

        Wake up call: our criminal justice system has had serious issues since at least 2001, when I started working within it. I suspect it’s been sooner than that (like the OJ case). Good luck “fixing” opinionated judges, sloppy police work, stupid juries, sketchy lawyers, crooked witnesses, etc.

    3. avatar Jonathan - Houston says:

      I agree. Just to allay the concerns of others, though, let’s go ahead and apply that principle to you first. The released sex offender gets to be your kid’s school teacher, the released embezzler gets to manage your retirement funds, and the released animal abuser gets to be your dog walker. After all, they’ve paid their debts to society. Why continue to punish them by restricting post-incarceration their freedom of association, as we do now?

      1. avatar Chip Bennett says:

        I agree. Just to allay the concerns of others, though, let’s go ahead and apply that principle to you first.

        Not sure if serious…

        The released sex offender gets to be your kid’s school teacher…

        The right to keep and bear arms is a natural right that derives from the right of self-defense, which derives from the right to life. There are no legitimate grounds to infringe upon that right for people who life in a free society.

        Being a schoolteacher is not a right. Therefore, it is fully acceptable for the State (or society) to impose restrictions regarding being a schoolteacher, based on the risk involved.

        …the released embezzler gets to manage your retirement funds…

        The right to keep and bear arms is a natural right that derives from the right of self-defense, which derives from the right to life. There are no legitimate grounds to infringe upon that right for people who life in a free society.

        Being a financial adviser is not a right. Therefore, it is fully acceptable for the State (or society) to impose restrictions regarding being a schoolteacher, based on the risk involved.

        …and the released animal abuser gets to be your dog walker.

        The right to keep and bear arms is a natural right that derives from the right of self-defense, which derives from the right to life. There are no legitimate grounds to infringe upon that right for people who life in a free society.

        Being a paid dog walker is not a right. Therefore, it is fully acceptable for the State (or society) to impose restrictions regarding being a schoolteacher, based on the risk involved.

        After all, they’ve paid their debts to society. Why continue to punish them by restricting post-incarceration their freedom of association, as we do now?

        How on earth does freedom of association apply? Do not the other parties privy to such potential “association” not have a say in the matter as well? Freedom of association also means freedom not to be forced into unwanted association.

        Do you have any arguments that aren’t straw men or non sequiturs?

        1. avatar Pseudo says:

          Ah, ye old separate magisterium argument. I don’t think you can legitimately argue that something qualifies as a natural right if people were, for millenia, deprived of it by virtue of guns not having been invented yet. I’m right there with you on self defence. Not so much on specific tools. At least not as a ‘natural’ right.

        2. avatar JR_in_NC says:

          “people were, for millenia, deprived of it by virtue of guns not having been invented yet. “

          Wait. What?

          In the case of guns having not been invented yet, then neither the criminals (that seek to deprive of life, liberty and the pursuit of happiness) have them nor the tyrannical governments (that seek to deprive life, liberty and the pursuit of happiness) have them to exploit everybody else.

          The whole point of “bearing arms” as a natural right is that “The People” have the same right to the same “Arms” as those that seek to deprive them of the right to life.

          That is…”arms” != “firearms” necessarily.

          So what if before firearms it was edged weapons or bows and arrows … or whatever.

        3. avatar Jonathan - Houston says:

          You don’t just get to ignore my argument or relabel it, because you’ve failed to refute it. Freedom of association is a right, a natural right, just as valid as RKBA. If a school (or mutual fund) and a released sex offender (or embezzler) MUTUALLY VOLUNTEER to associate in an employment relationship, they may not, by law, do so. Is that untrue? If so, how so? Exactly. You cannot refute any element, so you cannot discredit the entire argument.

          You keep referring to natural law, which is essentially an axiom. You just declare it so, then justify what follows, based on that expedient premise. Well.

          Even YOU allow for infringement of that right for inmates themselves. Or are you of the arm the prisoners persuasion? Same with one’s right to his own life. The Constitution specifically allows for the taking of life, providing due process has been adhered to. Even YOU allow for depriving someone of that natural right in the case of self defense. The point? Rights are not absolute, as they must be balanced against responsibilities, as well as other people’s rights.

          Likewise, the Constitution allows for deprivation of liberty. That can include incarceration, as well as post-prison abridgements such as freedoms of association and RKBA.

          Ultimately, you’re just staking out your own little preferred patch of philosophical real estate, but your argument does not hold up when taken to its logical extension. It’s not even internally consistent, but you willfully ignore all that.

          Sooo…….any more hands-over-your-ears “la la la la la la la! I can’t hear you, I can’t hear you!” arguments, or are you done?

        4. avatar Chip Bennett says:

          You don’t just get to ignore my argument or relabel it, because you’ve failed to refute it. Freedom of association is a right, a natural right, just as valid as RKBA. If a school (or mutual fund) and a released sex offender (or embezzler) MUTUALLY VOLUNTEER to associate in an employment relationship, they may not, by law, do so. Is that untrue?

          You’re missing some rather important entities who are privy to the association: the students and their parents.

          Now, if sex-offender teacher, school, parents, and students all agree that the sex offender should be hired as a teacher? Sure, then we can discuss the role of government in interfering. (And in any case, we can certainly discuss the role of the federal government in interfering. The Fed.Gov has absolutely no constitutional authority to be involved in State or local-level education, regardless.)

          Even YOU allow for infringement of that right for inmates themselves. Or are you of the arm the prisoners persuasion?

          Reductio ad absurdum?

          Incarceration removes convicts from free society for the duration of the sentence. It isn’t that incarceration directly prohibits possession of arms; rather, incarceration simply separates convicts from access to free society, where arms are found.

          Same with one’s right to his own life. The Constitution specifically allows for the taking of life, providing due process has been adhered to. Even YOU allow for depriving someone of that natural right in the case of self defense.

          Using deadly force in self defense is not an act of depriving someone else of that person’s right to life. It is the assailant, putting the victim in mortal danger, who makes his own life forfeit through his own decisions and actions.

          Likewise, the Constitution allows for deprivation of liberty. That can include incarceration, as well as post-prison abridgements such as freedoms of association and RKBA.

          I’m with you on the former, but not on the latter. I see nothing in the constitution that authorizes the denial of a constitutionally protected right post-incarceration.

          Ultimately, you’re just staking out your own little preferred patch of philosophical real estate, but your argument does not hold up when taken to its logical extension. It’s not even internally consistent, but you willfully ignore all that.

          The irony is that you’ve taken my argument to an absurd conclusion, and then called that the logical conclusion (reductio ad absurdum) – all while conflating the alleged “right” of a sex offender to work as a teacher with the actual right of every free person to keep and bear arms.

        5. avatar Jonathan - Houston says:

          I’m not missing any such thing, because those are irrelevant. You’re just, once again, evading my argument. Parents and students don’t get a routine say over school hiring decisions even when there are no controversies surrounding an applicant. It’s an employer/employee, freedom of association relationship and the simple fact is, despite your evasion and obfuscation, that the law allows restriction of that constitutional right to freedom of association based on an applicant’s prior conviction.

          Nevertheless, let’s accept your view that parents and students should sit on the hiring committee. Well, the law still forbids sex offenders from being teachers, even if the school, students, parents, and applicants all agree on the potential hire! So even with your moving-the-goal-posts tactic, your point is still deflated and defeated. Even you wouldn’t consent to a sex offender teaching your kids. It’s all just comment board B.S. until it hits home, which is the real test of fidelity to one’s views.

          Reductio ad absurdium? Wrong. Incarceration does directly prohibit possession of arms. It doesn’t merely remove the imprisoned from the public. The proof? Visiting and attempting to deliver a firearm to an inmate is a crime in and of itself. Try being an inmate in possession of any weapon, such as a knife: also a crime. Meanwhile, prisoners are removed from access to other things in society, like food, which they’re still provided in prison. Another inconsistent counterpoint on your part that is also just wrong on the plain facts, which is embarrassing. I don’t have time to correct you on each and every elemental fact. If your last ditch tactic now is simply to overwhelm me with B.S. you make up, and force me to play fact-check whack-a-mole, then shame on you.

          Using deadly force most assuredly does deprive someone of their right to life. Don’t believe me? Just ask the deceased. Oh wait. Now, that the deceased brought that upon himself by his own belligerent actions is an encumbrance upon his right to life, which, as you may recall from the first several times you ignored my argument, is exactly my point: no right, even the right to life, is absolute. It must be reconciled against one’s responsibilities, others’ rights, and even waiver of one’s own rights. In this case, one’s right to life was forfeited in that moment when he attacks another. He waived his right and got ventilated.

          The Constitution allows for denial of rights, subject to due process. Period. The Constitution doesn’t set an expiration date on denial of life, liberty or property. After all, someone executed in a prison is still dead, even after they’ve been killed and removed from the prison, n’est-ce pas?

          You’re the only one erecting that second, flimsy and gauzy wall beside the concrete prison walls; artificially and unilaterally confining all punishments whatsoever to the prison environs. Another mistake of fact on your part. In addition to the post-prison occupational restrictions I mentioned earlier, there are innumerable other punishments available: Fines and victim restitution which must be repaid from future earnings post-prison. Restrictions on residence location. Bans on access to certain government benefits or holding office. Even restrictions on specific constitutional rights, not just 2A. Ex-cons on parole must submit to random drug tests, searches of their homes, are saddled with curfews and parole officer meetings, and are typically barred from alcohol consumption and association with felons.

          There’s no irony whatsoever, except your own citation of logical fallacies in defense of an argument itself riddled with them. I’ve only pointed out flaws in your argument with specific references to the Constitution and examples of application to equivalent situations. You doubled down on that relabeling of my argument, but nowhere actually refuting anything I’ve written. Meanwhile I’ve destroyed your argument piece by piece. So this is where I exit the merry-go-round. Real downgrade of my esteem for you, Chip. You’re free to have the last, asinine word.

      2. avatar John in Ohio says:

        The difference is that constitutions restrain government. Individuals are free to choose (except for certain protected classes apparently). Look closely at the BOR and realize what entity is being restrained.

        1. avatar Jonathan - Houston says:

          True, up to a point, and that point being the Constitution restraining government in terms if how it may restrain you.

          For example, numerous restraints exist to prevent government from injurying citizens. However, make no mistake, once those conditions are cleared and your rights respected, there’s still plenty of room for the government to injure you. Those constitutional demarcation lines, therefore, by defining the outer ambits of your safe zone, serve to restrain individuals, too.

        2. avatar John in Ohio says:

          I don’t really disagree with this comment. I would offer the opinion that government has stretched its possibly implied very narrow privilege to restrain individuals to an alarming breadth. This is the nanny state and I don’t believe it to be truly in the spirit of our federal constitution.

    4. avatar Ray Ficara says:

      Prior to about 1900 (when the evil virus of Progressivism began to spread) any convict was given 3 things when he left prison: $20 in silver coin, a sound horse and a pistol. Once he had paid his debt he was then on regarded as once more just another citizen. He needed some pocket money to avoid a vagrancy charge while he sought work, a horse for mobility and a pistol in case some dirt bags realized that he’d just gotten a new horse and $20 to defend himself. Nowadays we’d give him a $500 debit card, a year’s worth of EBT for food and a used Hyundai and a Glock 21.

      Ray

      1. avatar Geoff PR says:

        ehhhhhh, make that a HiPoint.

    5. avatar Naksuthin says:

      Not necessarily. Just because you were convicted of child molestation…have served your time…and are out of prison, doesn’t mean you can go back to running a child day care center.
      And just because you have paid you dues and are out of prison for violently assaulting someone…doesn’t mean you are a nice guy now and can handle a firearm.

      Firearm ownership is a PRIVILEGE and not a Constitutional right.
      So if one state wants to bar all ex felons from gun ownership and another state wants to permit non violent ex felons to own firearms…that’s perfectly up to the states.

  2. avatar Art Out West says:

    Good beneficial decision. This is a tiny step in the right direction.

    In the end though, both the 1968 Gun Control Act and the 1934 National Firearms Act are profoundly unconstitutional. Both need to be struck down in entirety.

    1. avatar Paul G says:

      They still weaseled around the “violent” context, but it is a step In the right direction. Do people convicted of slander, libel, or profanity lose their first amendment rights? More to the point, violent does not even equate to a firearm related offense. They keep pandering in the name of safety, to the destruction of liberty.

      1. avatar Art Out West says:

        Exactly! Do felons lose their:

        1. Right to freedom of speech?
        2. Freedom of religion?
        3. Freedom of the press?
        4. Freedom of assembly?

        All people have a basic right to be able to defend themselves. Firearms are just tools for doing that.

        1. avatar Ralph says:

          Felons do lose their freedom of assembly under the terms of their probation or parole. They may not associate with other criminals except in very limited circumstances; if they do, their parole or probation can be revoked.

        2. avatar BlueBronco says:

          @Ralph, Parole and probation are a different matter than a served sentence.

        3. avatar Jjmmyjonga says:

          I believe those who raped children have their right to assembly highly restricted, as is logical and reasonable in a civil society.

        4. avatar Accur81 says:

          Again, Ralph gets it. Probably because he’s had actual experience with violent felons. We have parole, probation, supervised release, etc. All of those are established law which do in fact restrict rights. They restrict association with prior criminal contacts, gang members, etc. as well as voting and gun rights. Of course we also have registered sex offenders. The list goes on.

          So I guess we have some folks making the “argument” that parole, probation, supervised release, sex offender registry, etc. should all be eliminated forthwith. Further, any persons who commits any crime, no matter how violent, should immediately be “restored” with full rights once they serve their (likely reduced) prison sentence because they have “paid” their debt to society. Even though incarceration costs roughly $35-$50 K / year, plus the cost of the conviction. At taxpayer expense. Even though the victim(s) is still dealing with the rape, stab wounds, kidnapping, torture, etc. Even though recidivism is a real possibility. Go ahead and stand in line at Cabela’s and discuss 9mm vs. .45 with a guy who just got out of prison after running over a couple of joggers with an SUV who were in a marked crosswalk, who slowly died as a result of their injuries, in a fatal hit and run. Pardon me if I don’t think that is a super idea.

        5. avatar John in Ohio says:

          So I guess we have some folks making the “argument” that parole, probation, supervised release, sex offender registry, etc. should all be eliminated forthwith. Further, any persons who commits any crime, no matter how violent, should immediately be “restored” with full rights once they serve their (likely reduced) prison sentence

          That is exactly what I’m saying. I do have experience with violent criminals and have been a victim of violent crimes.

          Probation, parole, or any other supervised release should only be with the free consent of the convicted. In Ohio, the convicted cannot refuse. One must violate the terms of release (sometimes multiple violations) and hope that they don’t get more time added on.

        6. avatar John in Ohio says:

          It’s crucial to my position that self-defense laws be revamped so that anyone defending themselves with lethal force has a more likely chance of not being charged or at least not of being convicted. The balance to not infringing upon the rights of convicts in society is the ability of an individual to legally shoot the SOB dead if the situation warrants it.

    2. avatar LarryinTX says:

      I got rather a kick out of the fact that his original offense was CC without a license, which damn near all of us agree should be recognized as a right guaranteed by the constitution. It would have been more fun if the judge had decided the case on that basis, that the original conviction was unconstitutional.

      1. avatar Robert says:

        I agree 100%

  3. avatar Pascal says:

    @Johannes Paulsen — anyway to find if there were any amicus briefs from the anti-gun side. Would love to see what their argument said.

  4. avatar mark_anthony_78 says:

    The whole “punishable by a year in prison” language that sets the bar for restricting firearm ownership really irks me…

    What crime today ISN’T punishable by a year or more in prison?

    1. avatar DonS says:

      (The text of the article above says “921(g)”, but the section is really 922)…

      18 USC 922(g)(1):
      “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

      Nearly all misdemeanors are punishable by for imprisonment up to one year. When punishable by more than one year, it’s usually a felony. There are some exceptions, of course – like the case in the article, where a misdemeanor offense was punishable by a term of up to 3 years.

      1. avatar DonS says:

        “Nearly all misdemeanors are punishable by for imprisonment up to one year”

        That was intended to mean that there are very few misdemeanors where the possible punishment includes imprisonment for more than one year.

      2. avatar mark_anthony_78 says:

        Except in NJ, what would typically be a misdemeanor carries a penalty more akin to felonies:

        Penalties for criminal offenses in New Jersey are as follows:

        First Degree: Ten (10) to Twenty (20) years in prison (presumption of incarceration)
        Second Degree: Five (5) to Ten (10) years in prison (presumption of incarceration)
        Third Degree: Three (3) to Five (5) years in prison
        Fourth Degree: Maximum of Eighteen (18) months in prison
        Disorderly Persons Offenses: Maximum six (6) months in the county jail

        I’ll let you guess how many firearm related crimes are “Disorderly Persons Offenses” in this state. For something that may be as simple as having a bayonet lug, or someone squeezing a 16th round into a magazine that may not have been blocked/pinned perfectly you basically lose your gun rights forever (via state law).

        1. avatar DonS says:

          Oh, I do understand that some states (e.g. NJ) have multi-year penalties where, if the crime was committed in nearly any other state, would be a 1-year misdemeanor.

          But, I would argue that this is still the exception, rather than the “What crime today ISN’T punishable by a year or more in prison?” rule I was addressing.

          I was also pointing out that 18 USC 922(g)(1) doesn’t say “a year or more” – it says “exceeding one year”. If a crime is punishable by “up to one year”, then it’s not included in 922(g)(1).

    2. avatar Cory says:

      I’m with you Mark! Any offense that is going to disarm you should have solid grounds for the disarming. It should be some crime that clearly gives reason that your continued possesion of a firearm is a risk to society and that needs to be clearly defined. And there should be an established timeframe for which they revisit your issue should you so desire to obtain a firearm.

    3. avatar Gatha58 says:

      @ Mark: Have to agree. There should probably be qualifiers such as “a violent crime exceeding one year imprisonment” or something like that. Does not really make sense for non-violent offenders to be denied their 2A rights.

  5. avatar Ralph says:

    The court ruled that 921(g) as applied to Suarez was invalid. It did not hold that 921(g) was unconstitutional.

    Which is kinda good for people who want to continue to deny gun rights to violent felons but see no good reason to deny gun rights forever to nonviolent misdemeanants. Unfortunately, this decision means that each former nonviolent misdemeanant who wants to reclaim his or her gun rights will need to sue for them. That’s simply unfair.

    There needs to be a fast and fair administrative process for all nonviolent misdemeanants so they can get their rights restored without having to find a capable local attorney and Alan Gura to sue for them.

    1. avatar DonS says:

      922, not 921.

      Section 922 of title 18 of the United States Code has no subsection or paragraph (g).

      The article above is incorrect. The quoted part of the decision says 922(g)(1).

      1. avatar DonS says:

        “Section 922 of title 18 of the United States Code has no subsection or paragraph (g).”

        Good grief. I did just what the article’s author did.

        Section ***921*** has no (g).

    2. avatar Chip Bennett says:

      Which is kinda good for people who want to continue to deny gun rights to violent felons but see no good reason to deny gun rights forever to nonviolent misdemeanants.

      And what, exactly, does denying rights to violent felons accomplish? What public good does it serve? What crime does it prevent?

      1. avatar John in Ohio says:

        Well, it commits at least one crime under the Supreme Law of the land. Seems to me that his right to keep and bear arms was infringed for twenty years. Who is going to do the time for that crime?

      2. avatar Ralph says:

        And what, exactly, does denying rights to violent felons accomplish?

        If Murderers, armed robbers and rapists are caught in possession, it sends them back to prison where they belong.

        1. avatar Stinkeye says:

          If they belong in prison, isn’t the solution to that problem then to just keep ’em in prison in the first place? Why let them out and just hope and pray that a cop happens to stumble across them breaking a firearms prohibition before they can rape, rob, or murder again?

        2. avatar Chip Bennett says:

          If Murderers, armed robbers and rapists are caught in possession, it sends them back to prison where they belong.

          Sure, there are cases of felon-with-a-gun arrests that are used to send violent criminals back behind bars. The question is: was the presence of an illegally possessed gun (as opposed to a lawfully purchased/possessed gun) the indicator that the violent felon was going to commit a crime – or was it the mere fact that the person was, in fact, a violent felon?

          That a violent felon who should never have been out of prison in the first place was sent back to prison on what amounts to a technicality would be a non-issue if that violent felon had not been released in the first place. In the meantime, how many tens of thousands of non-violent felons (or lesser criminals) either have their natural rights permanently denied or are forced to jump through unduly expensive and difficult processes to have those rights restored?

          What percentage of violent felons are sent back to prison on an illegal possession charge, as opposed to being sent back to prison as a repeat offender?

        3. avatar BlueBronco says:

          This guy was neither a robber, a murderer nor a rapist.

        4. avatar John in Ohio says:

          If Murderers, armed robbers and rapists are caught in possession, it sends them back to prison where they belong.

          The end justifies the means? Why should they be permitted the exercise of any right then? Wouldn’t it be easier to send them back if they lost the ability to exercise any protected right? If the purpose is to send them back to prison, even for the exercise of the basic right to keep and bear arms, then why not for speaking, not allowing troops to be quartered in their homes, etc?

          IMHO, enough convicts already believe that the the system’s sole purpose is to bust them to send them back. I believe actually making that the clear purpose of the system would have a high potential for a lot more desperate people.

    3. avatar Retired Para says:

      “If Murderers, armed robbers and rapists are caught in possession, it sends them back to prison where they belong.”

      Really????? If that is the case then why do murderers, rapists and robbers still get caught using firearms when the “law” prohibits them? It’s pretty clear that the above individuals are not overly impressed or concerned about getting caught. Considering that under the current CJ system, the majority of repeat offenders either do not end up back in jail or plea bargain it down to a vacation stay for 3 hots and a cot.

      The 1934 and 1968 gun laws have done nothing to curb violent criminals. You Ralph are like many anti-gunners, most likely without realizing it, in as you focus way too much attention on the tool and how to prohibit the tool rather that addressing the persons and how to either rehabilitate them or completely remove them from society if they cannot function within it.

      True criminals by nature are predatory and have little to no regard for the social contract most of us abide by. Being predators, the “law” is little to no deterrent and enforcing the idiotic ’34 and ’68 laws are having no affect on them. Rather we see many cases such as Mr. Suarez who committed isolated offenses and rehabilitated themselves who now suffer an undue burden thanks to the arbitrary application of the asinine laws you appear to whole heartedly embrace

    4. avatar Accur81 says:

      Amen to that.

  6. avatar JR_in_NC says:

    “convicted … of carrying a handgun without a license”

    Fiat Crime. Check

    Sole victim is the bureaucracy. Check

    Presumption of Guilt (convicted of NOT doing something…the act of carrying a firearm is ok IF the permit is present, then the act of carrying a firearm is not illegal; it’s the absence of the permit that is the crime). Check

    This kind of crap has GOT to go, and not just in regard to 2A.

    1. avatar LarryinTX says:

      Nicely explained. I hadn’t thought of it that way.

  7. avatar mlloyd says:

    Am I to understand that his possession rights were first restored by the state? If his possession rights were restored by the state, his federal rights should have been restored automatically as long as he was not convicted of a federal felony or a domestic violence charge or in other words, some crime that disables a person federally.
    As an example, a person here in Washington State who has a felony, lets say a 2nd degree burglary, may, after a certain amount of time and after conditions have been met, petition the court to restore his possession rights.

    If the court restores those rights, it also restores them federally.
    The laws in Washington concerning gun rights restoration is a patchwork mess and not the the model of clarity and extremely difficult for even attorneys to make sense of.
    The laws here grant gun rights to be restored with a certificate of rehabilitation,( among other ways) except Washington has no such certificate. They can also apply “other equivalent procedure”
    There are situations where the state could restore possession rights, but the person is still prohibited federally.
    One thing I do know, getting rights restored can be expensive and complicated and even if everything is done correctly, a person needs to follow up and verify all the databases used by the states and federal governments are indeed updated. They screw up ALL the time.

    1. avatar BlueBronco says:

      Exactly! It seems that Eric with-Holder’s bunch stuck their nose in this one.

  8. avatar Garrison Hall says:

    I have to say good for Suarez on this one. It’s worth mentioning that, with the proliferation of regulatory bureaucracies, more things are now illegal and carry jail-term penalties than ever in hour history. So much of everyday life is now subject to legal intervention, that every one of us is potentially guilty of breaking multiple laws at any given time. With that in mind, I think it’s time to start a decriminalization process aim at removing the state’s reach into the daily lives of citizens. We need to start making fewer things illegal and we need to attaching draconian rules to what are, or should be, minor crimes.

  9. avatar Gary McClenny says:

    The state law of which he was originally convicted is in and of itself a violation of the mans right to keep and bear arms. That was his only conviction—he chose to exercise a constitutionally guaranteed right and was arrested for doing so.

  10. avatar John in Ohio says:

    Sorry if this has already been covered somewhere and I missed it…

    So, does this mean that he must OC if he doesn’t qualify for a concealed carry permit?

    1. avatar JR_in_NC says:

      Oh, you’ve GOT to stop….

      ( 🙂 )

  11. avatar Frank Masotti says:

    Well this is a no brainier. No where in the constitution does it say how to take away someone’s rights. Especially the first 10.

    1. avatar Jjmmyjonga says:

      …nor does it define “Arms” (muskets, bows, clubs, full auto, m4, ma-duece, rpg, etc…)

      1. avatar John in Ohio says:

        Is there any physical object prohibited from mere possession in the Constitution? Nope. So, on a federal level, no physical object can be prohibited from individual possession. That’s why so very much hangs upon that flimsy little thumb tack of interstate commerce. 😉

    2. avatar John in Ohio says:

      That power was usurped in 1803 by the Supreme Court of the United States of America. The high court is a thief and continues to violate the Constitution every time it pretends to hold the unenumerated power of judicial review.

  12. avatar Jonathan - Houston says:

    Another activist judge legislating from the bench. The POTG accept it and rationalize it, even celebrate it, because it’s a score for their side. It’s wrong and dishonest, but a little dirty pool is OK when we’re battling the bad guys, right?

    The law is the law. There are no special exceptions because Congress is stupid and cast too wide a net in the course of discharging their constitutional duties. It isn’t this judge’s place to divine what was in the minds of hundreds of Congressmen four+ decades ago. We have their words to convey their thoughts. Those words hold that this man go firearms-free for life.

    Let him write his Congressman if he wants the law changed. Let him petition the President for a pardon if his case is so exceptional. It is not this lawless judge’s place to usurp the authority of the other two branches of government and replace their lawful authority with his own poorly written and thinly veiled personal opinion.

    1. avatar Retired Para says:

      You obviously have never hear of the term Judicial Review. Take some time to read up on the decisions of the early SCOTUS under Chief Justice Marshall. Whether you like it or not the judicial branch have every right to review the laws written by the legislative branch when there is a question of constitutionality. Its part of our system of checks and balance.

      1. avatar John in Ohio says:

        http://constitutionality.us/SupremeCourt.html

        So much hangs upon interstate commerce because even the Supreme Court didn’t want to stretch their own lie too far. Imagine if the People realize too early that they were duped. Pulling on the thread weaved in 1803 would untangle it all.

        Why didn’t the Court infringe directly early on? Because even the Court recognized that the Second Amendment didn’t allow it. Federally, it all began as a tax based upon interstate commerce.

      2. avatar John in Ohio says:

        Whether you like it or not the judicial branch have every right to review the laws written by the legislative branch when there is a question of constitutionality.

        Government isn’t alive so it cannot posses rights. Therefore, it cannot confer rights. It has merely privileges enumerated in constitutions. Stating that any part of government has a right is dangerously incorrect.

    2. avatar Chip Bennett says:

      The law is the law. There are no special exceptions because Congress is stupid and cast too wide a net in the course of discharging their constitutional duties.

      Ever since Marbury v Madison, the courts have had the authority to determine the constitutionality of laws.

      The law may be the law, but unconstitutional law is unenforceable.

      1. avatar John in Ohio says:

        False, usurped authority is no authority at all. Judicial review is still debatable. http://constitutionality.us/SupremeCourt.html

        As I commented previously, federal infringement was through interstate commerce because even the court recognized that it could not infringe directly. So much for the privilege to make blanket decisions on all things constitutional. If the Court really believed that it possessed the privilege then it would’ve infringed directly in the beginning. Instead, early decisions by the Court were indicative of a “guilty mind.” The Justices knew that they were pushing a usurped power and did so with great caution lest the fraud be discovered.

      2. avatar Accur81 says:

        Unconstitutional law in unenforceable?

        What world do you live in? SAFE Act, mag capacity limits, bullet buttons, denial of concealed carry permits, Texas not allowing open carry, etc. Those are just significant 2nd Amendment violations. The NSA against the 4th, hate speech against the 1st, Obamacare against multiple, – the list is endless.

        I don’t think Area Armor, who got raided by the ATF regarding polymer lowers, would agree with that assessment in the slightest.

    3. avatar BlueBronco says:

      John Houston, Obviously you aren’t familiar that the Federal law says to go by the state regarding state law. In this case, Holder’s bunch are trying to change that. Regarding Federal laws, there is a method for restoration, but the AG will never do that for Federal law so civil rights restoration is dead on arrival.

      1. avatar neiowa says:

        “We” could execute felons rather than the current catch and release model. Wide spread execution of all many or lawbreakers and felons is well established in English law.

        That solve the issue?

        1. avatar wood says:

          So kill all felons is the answer? As long as we go back to calling only a few crimes a felony I have no problem with that. When we first became a country there were I believe only a few crimes that were considered a felony, murder and treason and you were executed and your property was seized for violating either. Now you want to make everything a felony and basically execute people for bad checks and don’t blame the liberals for everything you mental midgets. Republicans are just as responsible for this penal system that incarcerates anyone for anything unless of course your a billion dollar corp then they fine you and that is it. Iowa shut up you people have been dumbed down into being the poorest state in the upper mid west quit buying into everything these extreme right and left are saying to you telling you everything you want to hear and never following through. I do not discriminate I find both parties to be equally worthless. Prisons are so expensive so why put everyone you can in one why are we not demanding sensible law making not laws that coddle your own little fears but laws that make sense are rational, and are well thought out. The stupidity in this country is not the politician it is the voter.

  13. avatar Former Water Walker says:

    I have no problem with this. Exactly as I and a bunch of others stated last week. Oh yeah +1 Ralph.

  14. avatar preston says:

    finally, a TRUE common sense gun law.

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