A new Third Circuit case, Holloway v. Attorney General, sheds more light on how that circuit will consider as-applied challenges to the federal felon prohibitor—18 U.S.C. § 922(g)(1). Consistent with its fractured opinion in Binderup v. Attorney General, the Holloway court reaffirmed that seriousness, not violence, is the proper measure for whether an otherwise disqualifying conviction can constitutionally be applied to permanently extinguish Second Amendment rights. Courts in the Third Circuit naturally (as one of the few circuits to have vindicated an as-applied challenge) have an active docket of as-applied challenges and Holloway will serve as additional guidance for courts confronted with these challenges.
In 2002, Ray Holloway was convicted of driving under the influence with the highest blood alcohol content. This charge was dismissed after he completed a rehab program. But in 2005, Holloway was back. He pleaded guilty to violating this same statute again for driving under the influence with the highest BAC. Under Pennsylvania law, this second charge carries a mandatory 90-day prison sentence and a maximum potential sentence of five years’ imprisonment. Holloway “received a sentence of 60 months’ ‘Intermediate Punishment,’ including 90-days’ imprisonment that allowed him work release, a $1,500 fine, and mandatory drug and alcohol evaluation.”
More than a decade later, in 2016, Holloway sued, arguing that applying § 922(g)(1) to him based on this conviction violates the Second Amendment. After the district court accepted his claim and granted relief, the Third Circuit reversed. First, the court drew out from the fractured en banc Binderup opinion the core circuit guidance for adjudicating as-applied challenges:
- The two-step coverage-protection test that the circuit applies in other Second Amendment challenges is the proper framework across the board;
- At the first step, the question is whether the offense is “serious”—and thus whether the offender is part of the class of “unvirtuous citizens” who were historically denied firearms rights and “fell out of the Second Amendment’s scope”;
- Prior Third Circuit cases that focused on whether the offense was violent or whether the challenger posed a threat of violence is no longer good long post-Binderup;
- The challenger can make a factual showing that he falls outside that historically barred class;
- Even he makes that showing and thus moves to step two, intermediate scrutiny applies at that phase.
The court then looked to the factors that inform the inquiry into offense seriousness: “whether the crime poses a danger or risk of harm to self or others, whether the crime involves violence or threatened violence, the classification of the offense, the maximum penalty, the penalty imposed, and how other jurisdictions view the crimes.” (The dissent took issue with a focus on potential for danger and risk of harm apart from the context of force or violence as an element of the offense, as Binderup had done.) Although the court recognized that some of the factors pointed in Holloway’s favor—violence was not an element of the DUI, the offense is labeled a misdemeanor, Holloway’s sentence was relatively lenient—it concluded that on balance the factors supported the conclusion that his crime was serious. It looked, for instance, to the maximum potential punishment of five years and mandatory term of imprisonment & the jurisdictional consensus that DUIs are serious and dangerous offenses, to support its conclusion. Thus, because Holloway’s offense was serious, he was outside the scope of the Second Amendment.
In dissent, Judge Fisher found a distinction between colloquial and contemporary notions of “seriousness” and the constitutional or legal one. For him, although DUIs are undoubtedly dangerous and serious in the popular sense, they are not significant enough to warrant permanent debarment under the Second Amendment. Judge Fisher not only thought that Holloway could distinguish himself from the historically barred class at step one, he also concluded that 922(g)(1) failed intermediate scrutiny at step two. In his view, the government’s interest was undeniably compelling, and the evidence supporting the danger of DUI offenders was supported by the record, but because different states treated this same conduct differently, the statute was “wildly underinclusive.” Judge Fisher observed that in only 8 of 51 jurisdictions (the states and DC) would Holloway’s two DUI’s trigger the federal prohibitor in § 922(g)(1). “The statute’s dependence on state criminal classifications and punishments results in an underinclusive application that raises constitutional concerns, regardless of the reasonableness of disarming recidivist DUI offenders.” He concluded that this underinclusiveness rendered the application to Holloway unconstitutional because it severed any reasonable fit between the permissible means and the chosen ends.