Felon-in-Posession Upheld in Third Circuit

The Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, argue that the “presumptively lawful” language in Heller is not dicta, under the following criteria:

We agree with the Second and Ninth Circuits that Heller‘s list of “presumptively lawful” regulations is not dicta. As we understand Heller, its instruction to the District of Columbia to “permit [Heller] to register his handgun [and to] issue him a license to carry it in the home,” was not unconditional. See Heller, 554 U.S. at 647. Rather, it was made expressly contingent upon a determination that Heller was not “disqualified from the exercise of Second Amendment rights.” Id. The District of Columbia could comply with the Supreme Court’s holding either: (1) by finding that Heller was “disqualified from the exercise of Second Amendment rights” under a “presumptively lawful” regulation (such as a felon dispossession statute); or (2) by registering Heller’s handgun and allowing him to keep it operable in his home. Id. Accordingly, the Supreme Court’s discussion in Heller of the categorical exceptions to the Second Amendment was not abstract and hypothetical; it was outcome-determinative. As such, we are bound by it.

The Court probably did us a favor by preventing felons from testing the limits of the Second Amendment. I think the Third Circuit is on solid ground here. On considerably less solid ground is that among these “presumptively lawful,” restrictions on keeping and bearing arms is pretty much anything the courts or gun control activists think is reasonable. I would also argue that laws banning certain misdemeanants from possessing arms is neither longstanding nor covered in this opinion. Many courts have taken bans on misdemeanants seriously, but others have not.

9 thoughts on “Felon-in-Posession Upheld in Third Circuit”

  1. And the analysis that some folks are improperly in the category of “disqualified to exercise their Second Amendment rights” is why the word “presumptively” is in there.


  2. A felon includes someone who got probation for check kiting 20 years ago to someone just out of prison for his second armed robbery. This is too broad brushed.
    The felon is subject to a lifelong ban on possessing firearms. What other fundamental right is subject to such discrimination?

  3. I remember people telling me that these statements were “only dicta”.

  4. I urge everyone to go read the actual opinion. It leaves the door open for a non-violent felon to challenge the law barring felons from possession (Mr. Barton is not a non-violent felon, btw). It’s actually quite a reasoned opinion. Makes me hopeful for the Muller vs. Maenza case, when that gets appealed to the 3rd circuit.

  5. Someone who got nabbed for check kiting once is probably going to get probation and a withhold, which doesn’t count as a conviction.

    Also, most people with a conviction that old and that minor can get their civil rights restored.

  6. The guys who are screwed are the guys who committed a minor federal felony decades ago and are faced with the fact that there is no federal process for restoration of rights. Well there is a process but congress never funds it.

  7. The problem is that rights can be waived by the individual, but can not be removed by any law. Any law claiming to remove or disqualify you for protection of a right is illegal based on the constitution’s supremacy clause. No one can remove the rights of another. Once you are no longer incarcerated, and free of any probation or parole, you should have all your rights restored with no questions. I am of the belief that if you can not be trusted to exercise your rights then you can not be trusted to live in general population.

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