[Eugene Volokh] Can some people who have finished their felony sentences recover their Second Amendment rights?

In D.C. v. Heller, the Supreme Court held that the Second Amendment secures an individual right to keep and bear arms. But it described the right as belonging to “law-abiding” citizens and mentioned that some restrictions were “presumptively lawful,” including bans on gun possession by “felons.”

Federal law indeed bans gun possession by felons — people who have been convicted of any “crime punishable by imprisonment for a term exceeding one year” (with some exceptions for things such as antitrust violations), except for state crimes that the state calls “misdemeanor[s]” that are “punishable by a term of imprisonment of two years or less.” And this is so even when the actual sentence imposed on the person is very short, likely reflecting the court’s judgment that the actual circumstances of the crime made it not very serious.

This brings us to Daniel Binderup and Julio Suarez. When Binderup was 41 (20 years ago), he had a consensual affair with a 17-year-old girl who worked at his bakery. Pennsylvania, like over half the states, sets the age of consent for sex at 16. (About three-quarters of all states set the age at 16 or 17.) Still, Binderup was convicted of “corrupting a minor,” a misdemeanor that had a maximum term of up to five years, but in this instance led only to a $300 fine plus three years’ probation. Binderup has no subsequent criminal record.

Julio Suarez was convicted in 1990 for carrying a handgun without a license, a misdemeanor punishable by up to three years; but he was sentenced only to a $500 fine plus a suspended sentence of 180 days in jail, followed by a year of probation. (In 1998, he was convicted of misdemeanor drunken driving, but that apparently didn’t carry a long enough potential sentence to count as a felony.) Suarez has apparently led a law-abiding life since then; indeed, he has a federal security clearance (“Secret”).

Binderup and Suarez both challenged the federal ban on their possessing guns, and they just won this morning in the 3rd Circuit (Binderup v. Attorney General). But they won by the barest of margins (the vote was 8 to 7), and the majority opinion supporting their claims was itself split. Here’s a quick summary (necessarily an oversimplification, since the opinions are 174 pages long put together).

1. Three judges (Judges Ambro, Smith and Greenaway) took the view that:

a. Felons — including nonviolent felons — can generally be deprived of gun rights because their crimes show that they are not “virtuous citizen[s],” and the Second Amendment was understood as protecting virtuous citizens.

b. But this prohibition is only a “presumption,” and the presumption can be rebutted — not by a showing that the crimes were old, but only by a showing that the crimes weren’t that serious in the first place. This is so because of a mix of factors: (i) the crimes were labeled “misdemeanors” under state law; (ii) they didn’t involve violent conduct; (iii) they led to minor sentences; and (iv) “there is no cross-jurisdictional consensus” that the crimes were serious (for instance, because “the vast majority of states” don’t outlaw sex between 41- and 17-year-olds, or at least don’t treat it as a serious crime).

c. Even once the presumption that Binderup and Suarez are outside the scope of the Second Amendment altogether (as felons) is rebutted, the government can still defend the prohibition by showing that it passes “intermediate scrutiny” — i.e., by showing that the government is using means substantially related to an important government interest. (Presumably intermediate scrutiny is applied here because, even if Binderup’s and Suarez’s crimes aren’t that serious, Binderup and Suarez still haven’t been fully law-abiding citizens — the opinion doesn’t discuss whether strict scrutiny would apply to bans on gun possession by certain classes of law-abiding citizens.) There is an important government interest in preventing “armed mayhem.” But the government hasn’t shown that denying guns to people like Binderup and Suarez, who have committed fairly minor crimes and haven’t even been sent to jail for them, is sufficiently related to that interest: The government’s studies (which focus on felons whose crimes were serious enough to send them to prison) are just not applicable to Binderup and Suarez.

2. Five judges (Judges Hardiman, Fisher, Chagares, Jordan and Nygaard) agreed that Binderup and Suarez should have their Second Amendments restored, but for a slightly different reason. They took the view that:

a. The Second Amendment, based on its history, excludes only felons who had committed violent crimes, or at least crimes closely associated with violence (such as drug trafficking).

b. Even some people who had committed violent crimes long in the past might recover their Second Amendment rights if they have led law-abiding lives since then; but the five judges did not conclusively decide this (as opposed to the three judges who joined the l