In 2008, the landmark decision announced in District of Columbia v. Heller established that the Second Amendment protects the individual right of "lawabiding ... citizens to use arms in defense of hearth and home." (1) One decade has now passed since Heller was decided, but the Supreme Court has remained largely silent about the scope and applicability of the Second Amendment. (2) Lower courts, as a result, have been left to grapple with the silence. Courts of appeals have formulated frameworks to apply in cases involving constitutional challenges to firearm regulations. This Note will evaluate a current split in the federal courts of appeals--a divide about whether courts should entertain as-applied challenges to the felon-in-possession ban codified in 18 U.S.C. [section] 922(g)(1). This Note will examine most closely a recent decision from the Third Circuit, Binderup v. Attorney General (3) and contemplate the court's analysis as a potential framework to apply going forward.
Part I of this Note outlines the relevant statutory scheme governing the felon-in-possession ban, along with its applicable exceptions. Part II surveys landmark Supreme Court precedent related to the Second Amendment--namely, District of Columbia v. Heller and McDonald v. City of Chicago. In Part III, this Note conducts an overview of the current circuit split percolating in the courts of appeals. Part IV presents a rationale and justification for permitting judicial review of as-applied challenges to [section] 922(g)(1). Finally, Part V provides a critique of the Binderup analysis and puts forth an alternative standard to analyze similar cases.
THE STATUTORY SCHEME OF FEDERAL FIREARM REGULATIONS
Federal firearm regulations were not commonplace until the beginning of the twentieth century. (4) With the advent of the reform-oriented Progressive Era, crime was perceived "both as a major problem and as a national one." (5) In 1927, the first federal statute to regulate firearms outlawed the shipment of concealable firearms by way of the United States Postal Service. (6) Then in the 1930s, congressional action initiated a wave of new legislation, including the National Firearms Act of 1934 (7) and the Federal Firearms Act of 1938. (8) The National Firearms Act dealt largely with licensing and taxation regulations. (9) The Federal Firearms Act of 1938 extended that regulatory scheme: in addition to expanding the scope of licensing provisions for dealers and manufacturers operating in interstate commerce, the 1938 Act, for the first time, criminalized the possession of firearms (that had been shipped in interstate commerce) by individuals who had been convicted of "crime[s] of violence." (10) And thus began the federal firearms ban against individuals who had "violen[t]" criminal histories (11)--a statutory scheme that continues on robustly today.
Congress enacted a second wave of gun control regulation in the 1960s, in part, as a response to the assassinations of President John F. Kennedy, Robert Kennedy, and Martin Luther King Jr. (12) Just over two months after King was fatally shot, President Johnson signed the omnibus crime control and Safe Streets Act of 1968 into law. (13) The Act's congressional findings note that the "ease with which [criminals] can acquire firearms... is a significant factor in the prevalence of lawlessness and violent crime in the United States." (14) The Act made it "unlawful for any person who is under indictment or who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" from shipping, transporting, or receiving any firearm or ammunition that has been shipped via interstate or foreign commerce. (15)
The felon-in-possession ban remains part of the U.S. Code today. As presently codified, 18 U.S.C. [section] 922(g)(1) makes it "unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess a firearm that has "been shipped or transported in interstate or foreign commerce." (16)
Exceptions to the Federal Firearms Ban
Section 922(g)(1) does not exist without exceptions. These exemptions can be divided into three categories: (1) type of firearm, (2) type of offense, and (3) type of offender.
The first exception--type of firearm--is a narrow one. For purposes of the ban, antique firearms are not considered "firearms" within the meaning of the Act. (17) In other words, individuals who would otherwise be banned from possessing a firearm may possess antique firearms, so long as the gun was manufactured in or before 1898, or serves as a replica thereof. (18)
The second type of exception exempts certain offenses from triggering the firearm ban. Section 922(g)(1) does not apply to "offenses relating to the regulation of business practices" like "antitrust violations" and "unfair trade practices." (19) Additionally, misdemeanor state offenses punishable by a term of imprisonment of two years or less do not implicate the [section] 922(g)(1) ban on firearm possession. (20) Taken together, the felon-in-possession ban applies to individuals convicted of: (1) any (state or federal) felony punishable by a term exceeding one year or (2) any misdemeanor punishable by a term exceeding two years.
Finally, the third type of exception relates to the offender. Section 921(a)(20) provides that individuals who have a qualifying conviction are excluded from the ban if: (1) they were pardoned, (2) their civil rights were restored, or (3) their conviction was expunged. (21) This exception, however, does not apply where the "pardon, expungement, or restoration of civil rights expressly provides that the person may not... possess... firearms." (22) The statutory scheme also leaves open the possibility for any disabled individual to seek administrative relief. The discretionary exception in 18 U.S.C. [section] 925 authorizes the Attorney General to grant firearm-disability relief. (23)
Administrative Relief from Federal Firearm Disability
Pursuant to the statutory scheme thus far discussed in Part I, Congress expressly codified an administrative route for seeking firearm-disability relief. (24) In particular, [section] 925(c) provides that where a person is prohibited from possessing a firearm because of [section] 922(g) restrictions, that person may seek relief from the Attorney General. (25) The Attorney General subsequently transferred that authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). (26) When considering whether to grant relief, Congress outlined various factors to evaluate. These factors include (1) the "applicant's record and reputation," (2) whether the applicant is "likely to act in a manner dangerous to public safety," and (3) whether providing relief to an applicant would be "contrary to the public interest." (27)
Section 925(c) further provides individuals the opportunity to file a petition for review in a federal district court if administrative relief is denied. (28) District courts, at their discretion, may "admit additional evidence where failure to do so would result in a miscarriage of justice." (29)
Congress, however, has blockaded this route to relief for more than a quarter of a century. Since 1992, the disability-relief provision in [section] 925(c) has been "rendered inoperative" (30) by Congress's refusal to appropriate funds for the ATF to "investigate or act upon [relief] applications." (31) A Senate Committee Report advanced two reasons justifying cutting off appropriations: first, members of Congress feared the potential harmful consequences of restoring gun rights to violent individuals, and second, the laborious task of conducting the investigations consumed "approximately 40 man-years" each year. (32)
The [section] 925(c) appropriations ban continues to this day. (33) The ATF's website notifies visitors that individuals "convicted of Federal offenses [and seeking relief] must apply for a Presidential Pardon" through the Department of Justice. (34) In light of this administrative impasse, individuals have understandably turned to the courts for relief. (35)
THE SECOND AMENDMENT AND SUPREME COURT JURISPRUDENCE: ESTABLISHING AN INDIVIDUAL RIGHT
Congress constructed the regulatory scheme discussed in Part I decades before the Supreme Court decided its landmark Second Amendment cases. Not until 2008 did the Supreme Court settle the following question: Does the Second Amendment provide a constitutional protection for the individual unconnected with service in the militia? In District of Columbia v. Heller, (36) the Supreme Court's 5-4 majority opinion answered that question in the affirmative. Although Heller, and subsequently, McDonald v. City of Chicago, helped to define the scope of the Second Amendment, language in both decisions has sparked questions relating to the constitutionality of the federal firearm regulatory regime.
Establishing an Individual Right: District of Columbia v. Heller
Heller involved a challenge to a District of Columbia statutory scheme that "generally prohibit[ed] the possession of handguns" by making it a crime to carry unregistered firearms, while also prohibiting the registration of handguns. (37) Dick Heller was a D.C. special police offer who challenged the firearm prohibition after the District of Columbia refused to grant him a registration certificate to keep a handgun at home. (38) At issue in the case was whether the Second Amendment afforded an individual right, or if the text of the amendment applied "only... in connection with militia service." (39) Justice Scalia, writing for the majority, held that the "Second Amendment confer[s] an individual right to keep and bear arms" (40) unconnected to militia service. (41) "[A]t the core of the Second Amendment is 'the right of lawabiding, responsible citizens to use arms in defense of hearth and home.'" (42)