A Fourth Circuit Trifecta: New Rulings Confirm Need for Judges who Respect Second Amendment

Anyone still unconvinced about the importance of the courts and the need for justices who support Second Amendment rights had plenty of food for thought [last] month, with the U.S. Court of Appeals for the Fourth Circuit issuing two anti-gun opinions in rapid succession. These follow a troubling decision in January, United States v. Robinson, addressed in a previous alert.

On February 17, the court decided Hamilton v. Pallozzi, finding that a felon who has had all of his civil rights restored by the convicting jurisdiction and was found by a state court to be qualified to be entrusted with firearms, and who serves as a federal security officer, is not entitled to relief from a firearms disability in the state in which he currently resides.

More than ten years ago, James Hamilton, the plaintiff, plead guilty to credit card fraud violations in Virginia (he agreed to let an individual buy him a laptop on a stolen credit card). The offense was nonviolent, his sentence was suspended with no actual jail time, and he successfully completed probation and other court-imposed conditions. A Virginia court subsequently restored his firearm rights, and his other civil rights were restored by the Governor of Virginia.

In the years following his convictions, Hamilton worked towards becoming a “responsible, law-abiding American citizen.” Licensed to work as an armed guard, he was employed as a protective security officer with the Department of Homeland Security in Washington, D.C. When he relocated to Maryland, Hamilton sought to possess a handgun in his home to protect himself and his family. Maryland laws, however, prohibit any person “convicted of a disqualifying crime” from possessing a firearm. “Disqualifying crime” includes any out-of-state offense classified as a felony in Maryland, and two of Hamilton’s convictions qualified.

When Hamilton’s attorney made inquiries about obtaining a handgun qualification permit and recognition of Virginia’s restoration of his firearm rights, an Assistant Attorney General in Maryland responded that Hamilton could not possess a firearm in that state unless he obtained a full pardon in Virginia. Hamilton, though, was not eligible to seek a pardon until the expiration of a statutory five-year period. Instead, he brought an as-applied challenge to the Maryland laws against William Pallozzi, Superintendent of the State Police, and Brian Frosh, the Attorney General of Maryland.

The U.S. Supreme Court has generally upheld the validity of felon disarmament laws as “presumptively lawful” in District of Columbia v. Heller and McDonald v. City of Chicago, although an individual may challenge the application of such bans by presenting facts to distinguish his or her circumstances from those of person historically barred from Second Amendment protections.

Accordingly, Hamilton pointed to the restoration of firearm rights following his convictions (the only prohibiting factor regarding his ability to possess firearms), his lack of any history of violence or subsequent criminal charges, and his employment as an armed security officer for the Department of Homeland Security, as justifying a ruling that the laws were unconstitutional as applied to him. He argued that “the Second Amendment secures the arms rights of individuals who, having fallen within the metes and bounds of facially-valid arms prohibitions, have nonetheless become the responsible, law-abiding citizens whose rights the Amendment seeks to protect, and whose disarmament consequently serves no purpose.”

The Fourth Circuit, however, was unconvinced and dismissed his claim. Their analysis required Hamilton to show that his challenge wasn’t “ordinary” with facts and circumstances so clearly outside the norm that he was deserving of Second Amendment protections. The court found, categorically, that conviction of a felony necessarily removed a person like Hamilton from the class of “law-abiding, responsible citizens” for the purposes of the Second Amendment, unless the person was pardoned or the law defining the crime of conviction was found unconstitutional or otherwise unlawful. “Hamilton cannot rebut the presumption that he falls outside the category of ‘law-abiding, responsible citizens,’ and so cannot succeed in his as-applied challenge.”

The court specifically “reject[ed] rehabilitation, recidivism, and passage of time evidence” in this assessment of factual circumstances because of “the additional greater consequences it has on our criminal justice system.” The restoration of Hamilton’s rights in Virginia (which the court dismissively called a “rather pro forma matter”) and the fact that the federal government entrusted Hamilton to be armed in the course of his employment – none of this “mandates that Maryland must permit Hamilton to be armed in his home.”

The result is that in Maryland (and the other states within the jurisdiction of the Fourth Circuit), persons like Hamilton who have “turned their life around” have almost no recourse against similar disarmament laws.

A few days after this decision, the Fourth Circuit, clearly on a roll, ended its three-decision trifecta with a spectacular flourish in Kolbe v. Hogan – a decision upholding a Maryland ban on “assault weapons” and large capacity magazines because the banned assault weapons and magazines are arms that are beyond the reach or protection of the Second Amendment. (To read more about the Kolbe decision, please click here.)

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