Last week, the Third Circuit, sitting en banc, upheld two as-applied challenges to 18 U.S.C. 922(g)(1), holding that it was unconstitutional as applied to individuals who have not previously been convicted of a felony involving violence. You can read the decision in Binderup v. Attorney General, 14-4550, 14-4549, here.
The Court itself described the opinion as “fractured,” and helpfully included a Section IV with instructions for applying the case to future as-applied challenges to 922(g)(1). The Court explained that the steps to an as-applied challenge are governed by the Third Circuit decision in United States v. Marzarella, 614 F.3d 85 (3d Cir. 2010). A person challenging the constitutionality of 18 U.S.C. 922(g)(1) must first demonstrate that the law burdens conduct protected by the Second Amendment. To do so, the challenger must prove that he was not previously convicted of a serious crime. Evidence ofthe challenger’s rehabilitation or likelihood of recidivism is not relevant to this inquiry. A challenger who has been convicted of a crime covered by 922(g)(1) can make this showing by “distinguishing [his] crime of conviction from those that historically led to exclusion from Second Amendment protections. If the challenger can make this showing, the burden shifts to the government to show that the law survives intermediate scrutiny.