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Somewhat lost in all the teeth-gnashing from both the right and left over the Supreme Court’s denial of certiorari in Peruta and its tentative upholding of the Trump Administration’s travel ban was the news that the Supreme Court also let stand the Third Circuit’s decision in the gun rights case Binderup v. Sessions.

We’ve been reporting on Binderup since the case was hot off the presses last year. Daniel Binderup and Julio Suarez were legally prohibited from owning firearms after being convicted of nonviolent misdemeanors potentially punishable by more than two years in prison — Binderup because of one count of corrupting a minor in Pennsylvania (he had a consensual romantic relationship with a 17-year-old when he was 41,) and Suarez for carrying a firearm in a vehicle without a license in Maryland.

Neither did any time for the convictions, but under 18 U.S.C. § 922(g)(1), they were barred from possessing a firearm. Decades later, both tried to get their rights to keep and bear arms restored, but absent a presidential pardon, they found that they couldn’t. Although a process existed to restore the gun rights of ex-cons, Congress had not provided money to the Attorney General to implement the law.

The Third Circuit held that the law was unconstitutional as applied to these two, and since they had no other recourse, both should have their rights to keep and bear arms restored. The Supreme Court, by denying the petition for certiorari, let the matter stand.

From a gun rights perspective, it would have been nice to have the case go before the Court and to have Binderup and Suarez win — indeed, that was Second Amendment Foundation jefe Alan Gottleib’s ardent hope when I spoke to him last month:

[W]e 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.

That’s hardly consolation for the Peruta cert denial but a win is a win. For the record, the text of the order reads:

The petitions for writs of certiorari are denied. Justice Ginsburg and Justice Sotomayor would grant the petitions for writs of certiorari.

So now you know.

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    • Well.
      So we have no doubts who the two true constitutionalists are on the court (via the other decision) and who the two are that failed basic reading comprehension in grade school.
      Unfortunately, neither Sotomayor or Ginsberg are in line for retirement (or death, and no – don’t make any tasteless cracks about that).

      • Sotomayor has a while left, but Ginsberg is old. If Trump wins in 2020, we may have a shot at replacing her.

        In any case, Anthony Kennedy may be retiring soon. I’m actually glad they didn’t hear the case yet with him on the bench: WAY too dangerous.

        • Kennedy gets a lot of flack, some of it deserved, but I’m not completely convinced that he’s the weak justice on the 2A. I have a feeling Roberts might be the one.

          No, I don’t have anything to back that up. Just a feeling.

        • Considering “Penaltax” Roberts nearly broke his pelvis bending over backwards re-writing the ACA so it would pass Constitutional muster, I have no doubt he is done with the 2A.

        • Even knowing nothing about you, odds are good that Ginsburg is in better shape than you are.

          Google [Ginsburg workout routine]

          As long as her brain holds up, she’s going to be on that court for a very long time yet.

        • @Johannes Paulson Why choose one?

          Swallow the full reality. We know Alito, Thomas, and Gorsuch have signed dissents from denial of cert.

          That’s it. No more.

          To be truly honest about what we know, that’s what we know.

          Why assume *magically* that Kennedy is OK on guns, but Roberts isn’t?

          Why assume *magically* that Roberts is OK on guns, but Kennedy isn’t?

        • Maybe she just didn’t care that much.

          Or: perhaps she actually cares about restoring ex-con rights?

        • I would think a progressive like Kagen would be all over restoring a right.

        • kagen and breyer are liberals but not nearly as far left as Ginsburg or Sotomayor. Those two are as far left as you can get.

  1. Another win for the inherent right of all people, even ex-cons, to have the ability to legally KABA’s.

    The idea that one felony, especially a non-violent felony, could bar a person from keeping and bearing arms for life, is an abomination! And that is not hyperbole. To legally bear arms by common citizens has always been the mark of a free citizen for all of recorded history. The denial of such a right has always marked the peasant, the serf and the slave. And a two tier social system where a legally enforced sub class, a sub-human class, is denied the most fundamental right of being able to effectively defend ones life, for life, from arbitrary or malicious attack is something a supposedly free society should find as sickening as the actual buying and selling of human beings as property, as slaves.

    • Neither Binderup nor Suarez had a felony conviction. They were both convicted of misdemeanors that were potentially punishable by more than two years in prison, which is what triggered the permanent federal prohibition on gun ownership.

      In fact the 3d Circuit’s reasoning casts some doubt in my mind whether they would’ve restored gun rights to someone who had been convicted of a felony. The court said that the point of the federal law was to prevent people who’d been convicted of serious crimes from owning guns, and in the court’s view, the fact that both Binderup’s and Suarez’s offenses were classified as “misdemeanors” was a tell that the crimes weren’t serious. (They also waxed philosophical about a “virtuous citizenry”…)

      • the fact that both Binderup’s and Suarez’s offenses were classified as “misdemeanors” was a tell that the crimes weren’t serious.

        The fact that both of them were sentenced to zero days in jail was an even bigger tell.

  2. “…That’s hardly consolation for the Peruta cert denail…”

    Yeah, that hurts, but it’s not the end of the world.

    Are there other cases in the pipeline of a similar bent that can help us?

    If not, why not? Sounds like a perfect thing for the NRA legal division to take care of…

    • t/here are vanishingly small opportunities for addressing the issue raised by Peruta, because the fact of the matter is that all of the ban circuits (2, 3, 4 and 9) have now weighed in on most issues, the court has denied cert in all of the cases from those circuits, and the issue is unlikely to arise in any district because those circuits have states with much better laws. the two cases I know of are Nichols v. State, which argues that there is a constitutional right to open carry (which is basically prohibited in California in all urban areas), and Norman v. Florida, a case where a right to open carry in a state where concealed carry is “shall issue” was denied.

      • Don’t forget Wrenn/grace out of DC!

        I’m a pessimist, but if I was an optimist, I’d say the courts were waiting for the DC circuit to weigh in, as they’re a very important circuit that gets lots of cases before SCOTUS.

    • Hasn’t the Peruta case been denied cert before, and then been given further opportunities to petition for cert? I vaguely recall something to that effect. . . .

      • It was relisted, which means the decision whether or not to grant cert was kicked down the road.

  3. After scanning the comments here and in other articles about the law, it really warms my heart that millions of gun owners know what a petition for a writ of certiorari is!

  4. So we have a court that will make sure that criminals can get guns but is nowhere to be found when law-abiding citizens want to carry them to protect themselves. Yep, that sounds about right.

    Yes, yes, I know… I’m just making an overwrought point.

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