Pennsylvania Federal Court Restores Second Amendment Rights to Man Convicted of Repeat DUI

On 28 September, 2018, the U.S. District Court for the Middle District of Pennsylvania restored Second Amendment rights to Raymond Holloway, Jr.

Mr. Holloway had his Second Amendment rights removed after being convicted of driving under the influence (DUI) for a second time, in 2005. The first time was in 2002. Under Pennsylvania law, a second offence with a blood alcohol level above .16%, could be punished as a misdemeanor with up to five years in prison.

After serving his sentence as work-release for 90 days, and paying a fine of $1,500, Holloway has lead a virtuous life without further arrests or convictions.

Holloway attempted to purchase a firearm in 2015. He was denied because of the DUI conviction. People who have state misdemeanor convictions which can be punished with more than two years in jail, are prohibited posessors under federal law.

Holloway sued under the precedent of Binderup v. Sessions, from the Third Circuit, of which Pennsylvania is a part.

In Binderup, the Third Circuit found that minor, non-violent felonies were not sufficient to permanently remove a persons Second Amendment rights. The case was appealed to the Supreme Court, and the Court refused to hear it. Thus, Binderup is binding precedent for the Third Circuit.

From Holloway v. Sessions:

 Conclusion

Section 922(g)(1) is unconstitutional as applied to Holloway. Holloway’s disqualifying conviction was not sufficiently serious to warrant deprivation of his Second Amendment rights, and disarmament of individuals such as Holloway is not sufficiently tailored to further the government’s compelling interest of preventing armed mayhem. The court will grant summary judgment, declaratory judgment, and permanent injunctive relief to Holloway. An appropriate order shall issue.

The Binderup v. Sessions decision is far from perfect. It requires individuals to bring lawsuits to regain their Second Amendment rights. Each case is judged individually, at great expense in time and treasure.

As the Second Amendment is restored to full Constitutional authority with other amendments in the Bill of Rights, the number of classes of prohibited possessors should be reduced.

It has been part of the “salami slice” technique used by opponents of an armed population, to keep increasing the categories of people restricted from exercising their Second Amendment rights under federal law.

Justice Thomas has been urging that the Second Amendment be protected with the vigor the Supreme Court uses to protect other enumerated rights in the Constitution, such as the First Amendment.  From scotus blog.com:

Thomas dissented from the court’s announcement that it would not review a challenge to California’s 10-day waiting period for gun purchases. The U.S. Court of Appeals for the 9th Circuit rejected a challenge by two California men, who had argued that the waiting period was unconstitutional for, at the very least, state residents who already own a gun or have a license to carry a concealed weapon. When the Supreme Court rejected the men’s petition in February 2018, Thomas was sharply critical of both the 9th Circuit’s ruling and the Supreme Court’s disposition of the case. He argued that the lower courts had generally failed to give the Second Amendment “the respect due an enumerated constitutional right.” “If a lower court had treated another right so cavalierly,” Thomas continued, “I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court,” and the justices’ “continued refusal to hear Second Amendment cases only enables” the double standard that the lower courts apply to gun-rights cases.

Citizens do not lose their right of free speech or the right to practice their religion if they are under indictment. They do not lose their right to vote because of a restraining order or a minor domestic violence conviction.

These reforms can be accomplished by Congress. They are infringements of Second Amendment rights put in place by Congress, not by the Constitution. 

The Holloway case is another step in the process of restoring Second Amendment rights.

 ©2018 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch