Despite its strong rhetoric supporting the right to keep and bear arms, and the appointment of staunch originalist Neil Gorsuch to the Supreme Court, the Trump Administration is fighting a 2016 federal appeals court ruling that strengthened the Second Amendment.
In last year’s Binderup v. Attorney General decision, the en banc Third Circuit held that David Binderup and Julio Suarez had been unconstitutionally deprived of their right to keep and bear arms after being convicted of nonviolent misdemeanors that were potentially punishable by more than two years in prison in the 1990s. Suarez had been convicted for unlicensed carry of a revolver in Maryland, Binderup for corruption of a minor due to a consensual romantic relationship with a 17-year-old in Pennsylvania.
The Appeals Court ruled that while the law itself was constitutional, the way it was applied to these two men was beyond the pale. First, they held that Congress’ intent was to penalize “serious” crimes by suspending the right to possess firearms for certain crimes, the fact that the two were guilty of nonviolent misdemeanors for which they didn’t serve any prison time meant that the crimes were not “serious.”
Second, there was no recourse for Binderup and Suarez to get their rights restored apart from a Presidential Pardon because Congress had not (and still has not) given funding to the DOJ to provide a path to restore the rights of ex-cons. Because of that, the Court held, the law was unconstitutional as applied in this case, and both men should have their rights restored.
In the last days of the Obama Administration, Attorney General Loretta Lynch and the Bureau of Alcohol Tobacco and Firearms petitioned the Supreme Court to hear the case. Attorney General Jeff Sessions, however, is continuing to support the petition filed by Ms. Lynch.
In an interview with the LA Times, the famous civil rights attorney Alan Gura — who is representing Binderup and Suarez in this matter — said he was disappointed, but not surprised by the Administration’s move.
“I am not shocked by it. The government never likes to have its authority limited,” said Gura…. “They could dismiss the appeal at any time. But I have no reason to expect they will.”
Gura said the federal law had been misapplied to individuals whose crimes didn’t merit a lifetime ban against exercising their 2nd Amendment rights to own a gun. This has “nothing to do with disarming dangerous felons,” he said.
To be fair, it is standard operating procedure for an administration to go through the motions of defending a law that’s on the books in court, even if it doesn’t like the law (all experience during the Obama administration to the contrary). It’s the business of Congress to change laws and the executive to enforce them. That’s the way Alan Gottlieb of the Second Amendment Foundation (which is helping Messrs. Binderup and Suarez with their legal fees) is looking at the situation.
“The Administration has to defend the law [in court], they don’t really have a choice,” Mr. Gottlieb said in a telephone call earlier today. “Of course we opposed the [Obama Administration’s] petition for certiorari [appeal to the Supreme Court] because we want our clients’ win at the lower court to stand. But that said, we think this is actually a win/win situation for us — if the Supreme Court refuses to hear the case, we win. If they agree to hear it, well, we’re convinced that we have a winning case and we’ll win there, too, which would mean it would apply across the country.”
For what it’s worth, Mr. Gottlieb’s instincts have proven correct in the past when it comes to gun cases — after all, he backed the Heller case when no one thought it had a snowflake’s chance on Tucker Carlson Tonight.
For its part, the Administration isn’t talking about its motivations here, choosing not to respond to requests for comment about the matter.
We may hear as early as next Tuesday whether the Supreme Court will take the case. Stay tuned.
[Hat tip: TTAG user Mad Cow.]