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Appeals Court: Non-Serious Convictions Do Not Permanently Erase Right to Keep, Bear Arms

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Alan Gottlieb, the chairman of the Citizens Commission for the Right to Keep and Bear Arms. Check out our interview with Alan at SHOT Show 2015.

Alan Gottlieb, the chairman of the Citizens Commission for the Right to Keep and Bear Arms. Check out our interview with Alan at SHOT Show 2015.

The Second Amendment Foundation has landed another big win for protecting one’s right to keep and bear arms this week as the Third District Court of Appeals has ruled that individuals convicted of certain non-serious misdemeanors do not permanently lose their 2A rights.

The court addressed two cases that raised the issue, Binderup v. the U.S. Attorney General and Suarez v. the U.S. Attorney General, unanimously ruling that certain misdemeanor offenses are not grounds for depriving one of their right to keep and bear arms in perpetuity.

“Where the Second Amendment’s guarantees apply, as they do for Binderup and Suarez, ‘certain policy choices’ are ‘necessarily’ taken ‘off the table.’ Forever prohibiting them from possessing any firearm is one of those policy choices,” the appeals court said in Wednesday’s ruling.

To recap the cases, Julio Suarez was pulled over for driving under the influence in 1990.  He was also carrying a handgun and ammo without a permit.  He pled guilty in a Maryland state court, receiving 180-day suspended sentence and a $500 fine.  Daniel Binderup, meanwhile, pled guilty to a misdemeanor charge related to a consensual relationship he had with a 17-year-old female employee in 1996.  He received three years probation and a $300 fine.  Neither Suarez or Binderup were incarcerated.

Since federal law bans those convicted of crimes that could have resulted in jail time ***exceeding one year*** from owning firearms, Binderup and Suarez petitioned the Pennsylvania court in 2009 to remove the state prohibition against firearms possession, but federal law “continues to bar them from possessing firearms because their convictions have not been expunged or set aside, they have not been pardoned, and their civil rights have not been restored,” the court noted.

“Today’s victory confirms that the government can’t simply disarm anyone it wishes,” said SAF attorney Alan Gura. “At an absolute minimum, people convicted of non-serious crimes, who pose no threat to anyone, retain  their fundamental rights. That this is even controversial is a matter of some concern.”

SAF founder and Executive Vice President Alan Gottlieb also weighed in on the matter, “In an era where government officials want to disqualify as many people as possible from gun ownership, this ruling is monumental. This case will lead to the restoration of people’s civil and constitutional right to own a firearm that is long overdue.”

We live in a society were good people sometimes make mistakes.  Maybe it’s due to immaturity or maybe they just weren’t thinking straight when they did what they did, but whatever the reason, it’s good to have a system by which they can (a) learn from their mistake and (b) be given a second chance, particularly when it comes to the precious right of self-defense via lawful gun ownership.

Now, it would be naive to suggest that everyone agrees with the “second chance” concept.  Some gun owners believe that when it comes to firearms, if you mess up once, then you deserve to lose your right to keep and bear arms forever.  The logic being that when you mess up you not only make yourself look bad but you make all gun owners look bad and because we are constantly battling to preserve our 2A rights, it’s too much of a risk to give that right back to someone who has acted irresponsibly in the past.

Where do you come out on this issue?  Do you believe in rights restoration or are you a one-and-done proponent?

{ 35 comments… add one }
  • Dave September 18, 2016, 10:47 am

    I am old enough to see the term “CONVICTED FELON” dramatically change since I was younger. It USED TO BE that a convicted fellow was a genuine bad person and nearly all sane citizens would agree they need not have access to a firearm. However, in the liberal world today, a convicted fellow could mean about anything you can imagine. Late on child support, DUI, etc…. It is long past time that non-violent offenders, regardless of the offense, have ALL their constitutional rights restored. The removal of the basic rights our ancestors fought for and died to preserve, should be reserved for those known to have intentions to cause bodily harm or otherwise do serious harm or injury to others.

  • Chris Baker September 16, 2016, 6:36 am

    “people convicted of non-serious crimes, who pose no threat to anyone, retain their fundamental rights.”

    If a person poses a threat to others after serving their punishment prescribed by the court they were tried in, why are they being allowed out again? Presumably the punishment prescribed is to teach the convict either how to tell right from wrong and to not do wrong or they’ve been prescribed the wrong punishment. If the court prescribes the wrong punishment then get rid of the court and send suspected criminals to one which will do their jobs correctly and assign punishment that teaches the criminal not to do wrong. If they’ve learned their lesson on not to do wrong, no matter what the crime was, they should receive full rights back once they have learned. If they receive their rights back as they should and prove that their punishment didn’t teach them right from wrong, then execute them as being an incorrigible menace to society and be done with it. Even God gives second chances and if the person is truly remorseful and repents their sins, he forgives them, See the story about the thief on the cross next to him. Even while being killed he forgives and forgets.
    Luke 23:39-43 One of the criminals who were hanged railed at him, saying, “Are you not the Christ? Save yourself and us!” But the other rebuked him, saying, “Do you not fear God, since you are under the same sentence of condemnation? And we indeed justly, for we are receiving the due reward of our deeds; but this man has done nothing wrong.” And he said, “Jesus, remember me when you come into your kingdom.” And he said to him, “Truly, I say to you, today you will be with me in Paradise.”
    If it’s good enough for God, it aught to be good enough for us.

  • Henry September 14, 2016, 12:58 pm

    An improvement over the current regime, but still rearranging deck chairs instead of addressing the real problem: we should restore the bright line between misdemeanors and felonies and reserve firearms disabilities for felons only. If a misdemeanor is so gross as to deserve firearms disability, it should be made a felony.

  • Sidney Lee Patin September 13, 2016, 12:04 pm

    The Lautenberg amendment to the Brady bill is unconstitutional. So are parts of the Brady bill. Not all persons convicted of crimes that are classified as a felony are dangerous to themselves or to the public. There are felonies for accounting mistakes, tax errors, tax evasion, and a host of other non-violent offenses. I could understand prohibiting vicious and dangerous persons from having access to firearms, but someone who has simply made a mistake and is convicted of a non-violent felony should not lose his right to self-defense. That is just wrong and is a back door method of gun control, and is an infringement of the 2nd Amendment. –

  • Alan September 12, 2016, 6:43 pm

    If I read correctly, DOJ has, re these cases, spoken of appeals to the USSC. If such appeals are actually taken and heard, who knows how The USSC might rule.

  • James September 9, 2016, 8:51 pm

    A persons GOD given right of defending themselves starts when they are born til the day they die. Those that choose to do harm upon others, in a violent or physical form should not be allowed to possess any weapon. As for the rest of us. Those who are not guilty should cast the first bullet. We all mess up. Make stupid mistakes. And most of us eventually grow up. The only involvement this or any government should ever have in restricting one’s basic right are those incarcerated or proven unstable and put in mental hospitals. Evil will always be here. Therefore we are the ones responsible for protecting ourselves and loved ones.

  • Xan September 9, 2016, 8:28 pm

    How about sending 11 love letters and poems over an 8 month period to your ex-fiancee, in a New Mexico case where the Judge deliberately instructed the jury not to consider the ESSENTIAL ELEMENTS necessary to brand the action a crime? i.e. that the action was not prompted by a legitimate motive (i.e., reconciliation) ; that there was an intent to SERIOUSLY annoy, and ALARM the alleged victim. The case had been DISMISSED ON NOVEMBER 1994 due to Insufficient Evidence of a Crime Committed, but REFILED by DA Robert Merle “Bob” Schwartz, AFTER the accused filed a LAWSUIT in US DISTRICT COURT CIV 94-1353M, against the Albuquerque Police Department, his ex-fiancee, and the Albuquerque Police Officer, Robin Burge, who was PRIME SUSPECT in the Albuquerque Police Evidence Room looting (Albuquerque Journal, March 2, 2006, Page A1) and had broken into the wrong home during a drug raid and so severely abused an 80 year old grandmother she required a trip to the emergency room (Albuquerque Tribune, July 16, 2004, Page A1). Judge of record Neil Candelaria instructed the Jury to DISREGARD the ESSENTIAL ELEMENTS of a crime in the case (CR 6014-94 NM Metropolitan Court) & subsequent appeal in 2nd Judicial District Court before Richard Knowles, Judge Knowles did the same.
    The accused out of money and out of work did not continue to appeal. There had been NO VIOLENCE or THREATS either during or after the relationship, and the letters and poems did NOT contain any threats of any kind and were merely appeals to reconcile. On a police report dated 9 August 1999, the alleged “victim” stated that “she did not think (the accused) would bring any harm to her” and the Probable Cause Affidavit stated clearly the accused’s reason was to RECONCILE with his ex-fiancee.

  • PhxCop September 9, 2016, 5:06 pm

    Arizona Revised Statutes include “criminal damage” in the Domestic Violence category. If a spouse breaks a telephone in anger and admits it to police they can be arrested and charged under the Domestic Violence clause. When convicted, the offender looses all gun privileges for life. All because they, purposely, broke an item owned in joint tenancy. Who is covered under the domestic violence clause? This is straight from the ARS:

    ARS 13-3601
    1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
    4. The victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.

    So, if you are related by blood or have ever lived in the same residence as the defendant, you can be charged under the domestic violence clause.

  • Just1Spark September 9, 2016, 3:27 pm

    I want to see if anyone can pick the pattern out of the following list of words.

    Public Defender,
    Police Officer,
    Judge,
    Congress,

    What is the common connection between them all?
    They all get their paychecks from the same place. The govt.

    Scream constitution all you want. It was written by men, and so can be rewritten (or ignored) by men.

    Until you understand that your rights were inherent in you the moment you were born, as a human being, you can never win this battle.

    • Dale Sievers September 9, 2016, 6:45 pm

      No they are paid by the tax payer who is us. So if you can get that wrapped around your head and everyone else we might get somewhere instead of sticking it in the sand, and saying we can’t do anything about it.

    • Dale Sievers September 9, 2016, 6:45 pm

      No they are paid by the tax payer who is us. So if you can get that wrapped around your head and everyone else we might get somewhere instead of sticking it in the sand, and saying we can’t do anything about it.

    • jerry September 12, 2016, 9:06 pm

      inailiable ,absolutely correct

  • Mark H Wagila September 9, 2016, 1:31 pm

    I went to Chicago with my pistol along with my carry permit from Indiana and promptly was arrested and charged with Aggravated Unlawful Use of a Firearm, a felony, during a traffic stop. Does this mean there is hope to renewing my ownership rights?

    • Tom Horn September 9, 2016, 6:59 pm

      Damn well should be hope. Chicago’s bans are unconstitutional. I would get a good attorney, well acquainted with firearms issues. Keep us posted if possible. That makes me sick.

      Try contacting the 2nd Amendment Foundation, perhaps they can assist or direct you: https://www.saf.org/contact-us-2/

      Best of Luck,

      Tom

  • gordon miller September 9, 2016, 10:58 am

    I don’t think, as well, that a domestic abuse conviction should automatically disqualify someone from owning a firearm. Frequently a conviction of a male is grounded in a shoving match between a couple where no serious force was used by the husband, and he didn’t brandish a firearm (reciprocal abuse). Driven by the political force of feminist-inspired judicial policy, a man who is in no way a threat to use a firearm in violation of the law receives a judgment against him in a domestic abuse matter. This is political correctness gone awry with the unjust result of a person being deprived of his 2nd amendment right to own a firearm.

  • Leighton Cavendish September 9, 2016, 10:48 am

    What I have a real problem with is the domestic violence misdemeanors…where a gun was NOT used during the crime…and now you take a person’s right to guns away.
    Hear me out…
    They leave the chainsaw…all the knives…the bats…the golf clubs…swords…etc etc etc .
    I understand if you use a gun during the crime…sure. But come on…stripping a person of their rights? Think there needs to be a higher standard than just …well…they COULD.

    • Brian September 9, 2016, 3:37 pm

      Here in VA it’s not self defense until you are struck 3 times. This means if someone hits you once and you use force (of any kind) to defend yourself, bye bye guns. Even if you are unarmed at the time.

      • Pumbaa September 12, 2016, 6:07 pm

        If you are old and not very healthy three strikes may kill you. Government agents are not going to let Hilary Clinton get struck 3 times before taking defensive action.

  • jack daugherty September 9, 2016, 10:26 am

    The problem with disallowing those who are not “of sound mind” from bearing arms, is that it is the government who determines who is sane.
    Note that evangelical Christians top the list of the DOJ domestic Terrorist list. Obviously, the DOJ should NOT be allowed to bear arms.

  • John September 9, 2016, 8:21 am

    Our 2nd Amendment rights should “not be infringed”. Period. Remember to vote! Take someone with you who might otherwise skip the polls.

  • John September 9, 2016, 6:57 am

    I agree, there is no federal prohibition that I am aware of that prohibits firearms ownership based on ANY crime that could have resulted jail time, only felonies and misdemeanors that carried a maximum sentence one more than one year, except for domestic violence of any sort. Please look into this and correct it, you are spreading false information.

    • John September 9, 2016, 6:59 am

      *maximum sentence OF more than one year

      • S.H. Blannelberry September 9, 2016, 7:08 am

        Good catch.

      • mike September 9, 2016, 8:40 am

        The problem is in many states that have tough drunk driving laws…..any conviction could result in a sentence over 1 year, making everyone with drunk driving history prohibited persons thus stripping them of their 2nd amendment rights! thats the problem, many states are turning misdemeanors into felonies

    • Mahatma Muhjesbude September 10, 2016, 12:08 pm

      Well, this is the first step in a too weak and slow counterattack fight against Totalitarianism’s first major attack in their battle to disarm the populace to usurp the power of the American governing people, which is to make illegal laws of permanent penalties of disarmament for crimes, even though the person had been rehabilitated and released from prison to once again become law abiding citizens.

      The only gun control before 1900’s in America was self responsible good common sense with your firearms, and if you do a violent crime, you lose everything to stop you in your tracks by being locked up as necessary.

      Everything else that came later was part of a well planned Totalitarian socialist agenda. And it’s working quite well for them. They slippery sloped all the way down to the number one ‘conflict’ in all society, ordinary, ubiquitous domestic disturbances. Who actually engineered that stroke of Tyrannical genius escapes me at the moment, But I’m sure she’ll get a great Stalin-esque statue erected when the last private AR-15 of the last American Patriot is confiscated.

      But the crash to the bottom of the slippery slope is really going to swing the tide of battle if we don’t act fast. Almost nobody knows what this is yet, And I’m not risking my security clearance, but it should get ‘leaked’ soon. Suffice to say if Hellbitch gets in, it will make this domestic disturbance/violence atrocity look like nothing.

      I just donated a hundred bucks to this organization with a message to start repealing pressure on our Reps. That’s really the only chance left to keep our shit.

  • Miles September 9, 2016, 5:25 am

    I thought the only way u lost your rights was to be a convicted felon thats bs in my opinion say someone is young and does whatever if its not a felony or some sort of violent crime thay shouldnt loose there rights. How long has this law been on tue books

  • SuperG September 8, 2016, 1:46 pm

    If they choose to ignore your rights unless you spend thousands of dollars to fight them, they are in essence denying them and there is nothing you can do about it. Even with this decision, watch them add more crimes to the list that causes you to lose your gun rights, at both the state and federal levels.
    As for the two people caught up in this, I’d say it was unfair on the surface, but why did Julio feel the need to be armed without a permit if he could legally get one in the first place? When someone breaks a law, I have to consider intent, and I’d sure want to know more about Julio before I said he was wronged.

    • Joe McHugh September 9, 2016, 7:15 am

      SuperG, you bought into the great lie that almost all politicians and bureaucrats promote. The Second Amendment does not limit a competent, law-abiding adult citizen’s right to arms. At least one state, Vermont, has never required its residents to apply for a permit or license to carry a handgun. They regard the right to keep and bear arms as a constitutional given.

      Did the Founding Fathers want dangerous psychotics and violent criminals to have access to firearms? Call me crazy but I’m almost sure that they didn’t because I’m very sure that they possessed……… wait for it…..common sense.

      Let’s cut to the chase here, every citizen retains the right to enforce ALL of the enumerated items in the Bill of Rights, unless they cause harm to others or are of unsound mind. To better understand this point, ask yourself this question. If the Founders felt that the right to arms was so important that they made it a constitutional right, why do the various states feel free to violate those same rights? We are protected from tin-pot dictators at the Federal level of government, but the little Napoleons in the state legislatures act like tyrants.

      Fortunately, more and more states are changing their laws to be in accordance with Vermont’s. By the way, Americans actually lived and thrived for 135 years when the state of New York enacted the Sullivan Law. The people in New York City do not have the right to carry a handgun to defend their lives. Those city residents can apply for a gun license if they regularly carry large amount of cash or jewelry for business purposes but the powers that be regard human life as inconsequential. It’s not that I’m describing New York City residents as being slaves………….wait a minute! That’s exactly what they are, because if you lack a basic freedom like the right to have a credible means of defense using a gun or a knife over 1 1/4-inches long, you are nothing more than a serf supporting the ruling class.

    • Papa Bear September 9, 2016, 8:51 am

      @ SuperG : He was in Maryland. In Maryland, you can’t get a permit unless you are a police officer (don’t need one), judge, or lawyer. I know multiple women who have moved to Virginia because they were being assaulted repeatedly by abusive husbands/boyfriends. The husband/boyfriend would be arrested, set free on bond, then come and beat them for sending them to jail. At worst, the hubby would get a few months in prison, then he’d be right back beating on his wife. Even with the record of violent assaults against her, and no criminal record herself, the wife was repeatedly denied a permit as the state police said that she never proved a need for self defense. So in each case, the woman moved to Virginia and within 60 days had a CCWP and was never bothered again.

      • Brian September 9, 2016, 3:49 pm

        So let’s say she did have a gun then? Is she supposed to shoot her husband because she wasn’t strong enough to stand up for herself and leave?

  • Will Drider September 8, 2016, 12:44 pm

    Per Fed Law: A firearms restricted person (for criminal conduct) is based on a court conviction where the “potential incarceration time” is one year or more. It does not matter if the “actual sentence” handed down by the Court mandated max or minimum incarceration, suspended it, or did not mandate it. All the B.S. about they only did this or that and only served XXX days is moot window dressing.
    There has been procedure for petitioning for the restoration of firearm rights. This Fed office has not been funded in years and therefore not taken any action on petitions. The question here is: since there is a existing but not functional path; can the Court direct Congress to fund it and open the door again? Please note that every Case is an individual entity to itself to which Case Law is reviewed for application.

    Domestic violence is the subject of a seperate restriction like mental health and illegal drug use.

    • S.H. Blannelberry September 9, 2016, 7:09 am

      Thanks, good catch!

    • Gary September 9, 2016, 2:30 pm

      Where in the “Bill OF Rights” or “United States Constitution” does it say that anyone convicted of a misdemeanor or felony is barred from bearing arms or owning one?
      Personally I think that after a person serves his time and after a period of time, 10, 15, 20 years depending on the crime should have ALL his rights restored……except certain crimes as murder, capital offenses, rape, child molestation or abuse, if it’s a violent crime you loose your rights for life.
      I also believe that the young 1st time non violent offenders should have a choice join the service or go to prison if not handicapped.

    • Larry September 12, 2016, 5:02 pm

      “There has been procedure for petitioning for the restoration of firearm rights. This Fed office has not been funded in years and therefore not taken any action on petitions. The question here is: since there is a existing but not functional path; can the Court direct Congress to fund it and open the door again?”

      The response by the Government to this (which I do not agree) is that there IS a remedy … a Pardon from the President of the United States.

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