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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.]

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  1. “The Administration has to defend the law [in court], they don’t really have a choice,” Mr. Gottlieb said.

    And there’s the rub it’s their job to defend that law unfortunately.

    • Bull to the shit. There are absolutely zero consequences for them to simply not show up and have the judge issue summary judgement in favor of the defendant. No one will sue them, no one will arrest them, no one will even report on it outside of a few fringe websites.

      What has happened to the people of the gun? Trump says some pretty words and suddenly he’s our version of Obama? HOLD HIM ACCOUNTABLE! If you don’t care when he screws us he sure as shit isn’t going to.

      • Didn’t we just have 8 years of a White House that only enforced the law if they felt like it?

        If you’re going to be angry with Trump, it should be for failing to take some of the easy executive actions open to him, or failing to use his position to pressure Congress for legislative action. I’m not happy with either of those issues, and I didn’t really like him in the first place, but the last thing I want is for the law to lose some of what little meaning it still has.

        • Enforcing an unjust law is in no way shape or form a good thing. Ever. Are we really okay with the ‘I vaz jus following ze orders’ argument now?

        • While no one likes an unjust law it’s still the law and the law loses all meaning when it’s selectively enforced.

          It’s also the case that if this goes to the SCOTUS and the government fails, then the unconstitutional application of the law becomes verboden nationwide instead of just within the jurisdiction of the 3rd Circuit. While lawyers don’t like to lose, “throwing” a case like this would be a smart way to get what they want (if that’s what they want) in a permanent manner without having to deal with Congress critters.

        • There is a vast gulf between the law in question and the genocide you seem to be referencing with the Nuremburg defense.

          There are bad laws all over the country, to varying degrees, and laws you and I probably think are good, that the left think are bad. If the law is actually bad, it should be changed, through the legislature. If it is unconstitutional, that’s a different matter, but that’s not the case here. Otherwise, we end up with utter nonsense on the books as criminal. Google ‘ridiculous laws in the us’ at your convenience.

        • to me executive orders are a joke, as the next president can over rule them with ease. They are not laws, just temporary directives. We need the supreme court to do the ruling, so that no one can change it without a change in the constitution, which will never happen with our divided congress.

        • This is not about enforcing the law. This is about defending the law as constitutional, when its constitutionality is challenged in court.

      • “There are absolutely zero consequences for them to simply not show up and have the judge issue summary judgement in favor of the defendant. ”

        Evidently, you didn’t read the article. We just went through eight years of what you propose. You didn’t like it. Now, you want the same thing to happen, just because NOW it’s in your favor.
        It’s not supposed to work that way, and you know it. Trump promised to stop just that behavior. Believe it or not, there’s a bigger event than just a 2A case here. If the administration can act like Obama and pick and choose which laws to enforce, then Trump becomes part of the swamp.

    • 1) BS; many, maybe ALL modern administrations have refused to defend laws or parts of laws (DOMA being a recent example)
      2) All the crap Trump is doing off the reservation and this is the thing that he has to be traditional about?

      • “Well, it’s wrong, but Obama did it first so there.”

        Did I get that about right?

    • his 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.”

      In other words, let the SCOTUS rule on it so that it applies everywhere! If Jeff Sessions really fighting against them, or is this a long term plan to permanently reverse the law as unconstitutional for all people?

      I wouldn’t be so fast to jump to conclusions.

    • Just how forcibly they defend the law is not specified. Certainly they can send a new graduate attorney to present the case or they can send the most experienced barrister in the DOJ.

      The LAW is too broad and it is wrong. That is what the appeals court said because it can be applied too often against too many people.

      Congress can and should amend the law so it applies only to violent crimes, not financial crimes such as embezzlement or tax evasion.

  2. Wouldn’t it be better to go to the supreme court and get ruled in favor of the defense?

    • Wouldn’t matter. If it goes to the Supreme Court they’ll 99.9% win and if it doesn’t go to the Supreme Court they win.

    • and make it a nation wide law that has to be followed and is going to be almost impossible for congress to change. I say definitely, but some do not agree. Its a double edged sword, if we win then great for all, but if we lose, then we all suffer. I say lets fight the battle before we get a more liberal, more activist supreme court. Maybe we will get a conservative pro 2nd amendment judge soon, or maybe we will end up with another activist liberal judge by the next president. Our odds maybe the best we are going to get right now.

  3. I love how some folks are baffled that this guy does more flipping and waffling than an IHOP.

  4. Personally, I think this being decided by the supreme court isn’t that horrible, if in fact the supreme court holds the lower courts decision. To me, we need the supreme court to rule on these 2nd amendment rights cases, as places like CA (where I am) will always try to bend a lower court ruling and later force a supreme court decision. The supreme court is just that “Supreme” and CA will have to follow a supreme court decision. I would really lie it if the supreme court ran all 2nd amendment cases and ruled in favor of gun owners in every case….this would end this stupid non-sense of trying to take away gun owners rights. Best to fight when our chances are good, than when we get another liberal activist judge and the odds are not in our favor. Hopefully the supreme court will not fail us.

    • The “Supreme” Court ruled that states may ban “assault weapons” and “high capacity” magazines in the NRA “victory” Heller decision so you have confidence in them??? Why should anyone lose the 2nd Amendment after they have “done their time” or “paid their debt to society?” If anyone proposed a law which would take away anyone’s 1st, 4th, 5th, 6th, 7th, etc. Amendment rights for life after they were teleased from jail the Democrats and Republicans would go crazy but the 2nd Amendment can be taken away for life – no problem. The NRA’s Col. Ollie North (and felon) got his gun rights back after lying to Congress on a national security matter before the ATF rights restoration program was defunded but the NRA can care less about anyone else. The liberals would like to take away our gun rights for life for getting a few parking tickets. By the way, Alan Gottlieb is a felon who got his gun rights back in the 1980s.

      • Wrong. Oliver North had his conviction reversed on appeal. That reversal happened in 1991, almost a year before the funding ban was instituted. In the eyes of the law, Oliver North is NOT a felon, and therefore, has/had no need to petition for restoration of gun rights.

        • While what you state about Ollie North getting off the felonies is true, North’s attorneys made a statement immediately after the conviction that they where going to pursue a relief from firearms disabilities because North and his family were threatened by terrorists. There is news footage of this and I don’t know if he was granted relief because normally you had to finish your sentence before applying at BATF and his convictions were turned over about a year later.

  5. It’s doubtful that the president is fully aware of everything that is going on in the Executive Branch.. There a millions of little processes all moving along, he cannot be on top of them all.
    Our economy (Tax Reform) and our border security are the more pressing issues right now,.

    • “It’s doubtful that the president is fully aware of everything that is going on in the Executive Branch.”

      Shouldn’t Trump’s all star Second Amendment committee be informing him about these important issues or was the committee just for show and to get elected?

  6. And this is why I didn’t want him to get the republican nod. At least the SCOUS might stop this RINO’s anti gun agenda.

  7. Attorney General Jeff Sessions, however, is continuing to support the petition filed by Ms. Lynch

    Sessions or one of the coven of Obumer appointees that STILL infest the Fed Govt’/DOJ? Footnotes?

  8. I don’t have a problem with even many Felons carrying.
    If someone makes a mistake on ordering a tropical fish. For their pet store they can find them self stuck with a import felony.
    Violations of customs law and lose their rights to carry.. That is not a Dangerous Felon.

  9. It seems that many here should definitely run for congress, then president, because they sure think they have all the answers.

  10. I think Ken Cuccinelli, the former Atty. General of Virginia, is a first-rate jerk. Total a-hole. BUT….

    He did a talk with the VCDL a few years ago about something that he had to defend, which he didn’t agree with. That was a prohibition on college-campus carry. Mr. Cuccinelli is *VERY* pro-2A. He said, essentially, that his “client” is the State/Commonwealth of Virginia, and that means state agencies…INCLUDING state colleges and universities. As their attorney, he is obligated to defend them, even if he personally thinks the law is stupid, and furthermore, he is obligated to give them the very best defense that he can, as their attorney. He also expressed his personal desire for the VA General Assembly to change the law so we get campus carry…but until they do, he had to defend these colleges on this point.

    As much as I find him personally detestable…he is 100% correct on this point. That’s what it looks like the Trump Administration is also doing here. I don’t like it, either…but I do understand it, and I understand why they have to do it.

    – T

    • The attorney general is supposed to defend their client, yes. Which in this case is the US government.

      But the US government doesn’t have an obligation to defend laws against constitutional challenges.

      • The president, who is the one actually in charge of the justice department, took an oath when he took office, and part of that oath is to defend the constitution, which charges him with the job of being, in a real sense, the top cop of the US, which means he must enforce all constitutional laws, whether he likes them or not.
        So yes, he does have to defend laws against constitutional challenge, right up until they are found to be unconstitutional.

  11. TABG, this is the best you could come up with for gun news? Yawn..? Stick to REAL gun news, you are great at reporting that. Let the NRA worry about the political poo poo.

  12. Those of us who thought ‘why not give a businessman a chance at being POTUS instead of the *yawn* lawyer” have just found out there is very little difference. When push comes to shove, they will do the opposite of what they promised could not happen if “THEY” were POTUS. They will lie, cheat, and do exactly as they please. As far as I’m concerned we’ve been given enough reason by now to make certain Trump is a one term jerk.

  13. The government operates on auto pilot. That is the problem. The only fix is to the stop writing laws and cut all government agencies. That’s very hard to do.

  14. Can someone explain to me how if we follow the rules the democrats magically will, or it doesn’t put us at a disadvantage because they can continue to violate our rights faster than we can restore them, then the entire republican administration makes up for lost ground without moving the ball forward.

    Damn right I believe in tit for tat. So did the senate when they extended the judicial filibuster.

    Maybe I’ve been in california so long I see the truly insipid evil of democrats, but this idea that adhering to the law and all that crap makes us somehow better is stupid.

    Winning, advancing liberty, etc. etc. is what makes us better. Republicans managed to nominate:
    Reagan (I guess the god king before I was cognizant)
    Bush H.W. the backstabber who signed gun control and was 1 for 2 when it came to SCOTUS justices
    Bush W the milquetoast deregulator who destroyed civil liberties, would have signed gun control if it reached him (his words) and was 1 for 2 when it came to SCOTUS justices

    Yeah, damn RIGHT I don’t trust the traditional republican presidents. All we’ve done under them is LOSE. CONGRESS, ironically, did MORE for guns during Dubya, while he was a worse president.


    I want out of California, but eventually that won’t cut it. This is a culture war, and the blueing of the west has begun. If you don’t attack the blue state battlegrounds NOW, and get on a PRO-gun agenda, not a benign neglect program, you’ll see we almost certainly lose the white house in 2024 (if not before then) because there is TERRIBLE precedent for 3 consecutive republican terms (handing over reins of power) and you’ll see cyborg-Hillary-Warren (who determined they needed to combine to get elected) determined to destroy our guns.

    Think of how insane it is that in spite of 2016, they HAVEN’T DROPPED GUN CONTROL AS A DEMOCRAT ISSUE.

    Gentlemen, I present you evidence it really is a cultural jihad item for them. There is no reasoning, is no fairplay with such a thing. All we have is to destroy them and their cultural marxist jihad as quickly as possible before they can show up outside our concerts and score a lucky blow.

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