Trump administration lawyers are urging the Supreme Court to reject a 2nd Amendment claim that would restore the right to own a gun for two Pennsylvania men who were convicted more than 20 years ago of nonviolent crimes.
The case of Sessions vs. Binderup puts the new administration in a potentially awkward spot, considering President Trump's repeated assurances during the campaign that he would protect gun-ownership rights under the 2nd Amendment.
But the Justice Department under Trump has embraced the same position in this case that was adopted under President Obama: to defend strict enforcement of a long-standing federal law that bars convicted criminals from ever owning a gun, even when their crimes did not involve violence.
The decision is in keeping with Justice Department tradition to defend federal laws in court, even if the administration may not be enthused with the statute.
Attorney Alan Gura, a gun rights advocate who represents the two men, said he was disappointed but not surprised.
"I am not shocked by it. The government never likes to have its authority limited," said Gura, a Virginia lawyer who brought the landmark 2008 case District of Columbia vs. Heller, which resulted in the Supreme Court's first ruling upholding an individual's constitutional right to have a gun for self-defense. "They could dismiss the appeal at any time. But I have no reason to expect they will."
Gura said the federal law had been misapplied to individuals whose crimes didn't merit a lifetime ban against exercising their 2nd Amendment rights to own a gun. This has "nothing to do with disarming dangerous felons," he said.
A Justice Department spokesman declined to comment on the case.
During last year's campaign, Trump made gun rights a key issue, winning the early endorsement of the National Rifle Assn.
Last month, Trump told an NRA audience in Atlanta that the "eight-year assault" on the 2nd Amendment had come to "a crashing end…. I will never, ever infringe on the right of the people to keep and bear arms."
The two Pennsylvania men won a federal court ruling last year, the first of its kind, that ordered the government to restore their rights to own a gun.
Daniel Binderup pleaded guilty in 1996 to a charge of corrupting a minor for having a sexual relationship with a 17-year-old female employee at a bakery where they worked. He was 41. He served no jail time and was put on probation for three years.
Julio Suarez was stopped by police in 1990 and had a gun in his car but no permit for the weapon. He pleaded guilty to a misdemeanor and served no time in jail.
However, both offenses triggered the federal ban. Since 1968, federal law has prohibited people from owning a gun if they have been convicted of a "crime punishable by imprisonment for a term exceeding one year." Although the two men pleaded guilty to misdemeanors, their crimes could have been punished by more than a year in jail.
Gura argued it was absurd to stretch the federal law to cover state misdemeanors that did not result in a jail sentence. He also argued that because the 2nd Amendment protects a constitutional right, judges should waive the ban for people who were convicted of minor, nonviolent offenses in the past and have had a law-abiding record since then.
Last year, he won on the 2nd Amendment claim before the U.S. 3rd Circuit Court of Appeals in Philadelphia. By an 8-7 vote, its judges said the men should have their gun rights restored because they had not committed a serious or violent crime. However, the judges did not agree on clear guidelines about when gun rights should be restored.
In January, lawyers for the outgoing Obama administration appealed the case to the Supreme Court. They noted the opinion in the Heller case, written by the late Justice Antonin Scalia, said the decision did not interfere with the "long-standing prohibition on the possession of firearms by felons." They also said the 3rd Circuit's ruling would "open the courthouse door to an unknown number of future challenges."
Last month, acting Solicitor Gen. Jeffrey B. Wall, representing the Trump administration, filed another brief urging the court to hear the appeal. He said the lower court's ruling "if allowed to stand … will place an extraordinary administrative burden" on federal judges since people with a criminal record may go to court and seek an exception to the law.
"The 3rd Circuit's conclusion that the Constitution mandates that untenable result warrants further review," he told the justices. He also urged the court to reject Gura's separate claim that the law should not be stretched so far.
It is one of two significant appeals involving the 2nd Amendment that the justices are considering this week.
In Peruta vs. California, the court is being asked to strike down part of California's law restricting the carrying of guns in public.
While California law authorizes people to seek a permit to carry a concealed weapon if they show "good cause," county sheriffs in San Diego, Los Angeles and San Francisco routinely deny such requests by establishing a high bar to meet that standard. Last year, the U.S. 9th Circuit Court of Appeals, in a 7-4 decision, upheld this enforcement policy.
"There is no 2nd Amendment right for members of the general public to carry concealed firearms in public," the appeals court said.
Former U.S. Solicitor Gen. Paul Clement appealed on behalf of several San Diego residents and urged the court to clarify whether 2nd Amendment rights extended "outside the home." He said the court should make clear the "Constitution guarantees ordinary, law-abiding citizens some means of bearing firearms outside the home for self-defense, whether it be open or concealed carrying."
Because the California case involves a constitutional challenge to a state law, the Justice Department has not been involved so far.
The Supreme Court will meet Thursday to consider these and other appeals. If justices decide whether to hear or deny the appeals, the announcement could come on Tuesday.
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