JEFFERIES v. SESSIONS et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/3/17. 10/4/17 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFERSON B. SESSIONS, Ill, et al
October 3, 2017
In legislation enacted in 1968, Congress prohibited persons involuntarily committed for
mental illness from possessing a firearm. No one disputes the valid government purpose in
ensuring an involuntarily committed person suffering with mental illness cannot possess a
firearm. The tougher question arises in the permanency of this prohibition. Congress allows
Pennsylvania officials or the Attorney General to grant relief from its statutory prohibition but
Pennsylvania has not established a compliant program and Congress has barred funding the
Attorney General's ability to administer this process. After evaluating the statute's purpose
relating to once involuntarily committed persons, we follow the analytic framework set a year
ago by our court of appeals in Binderup and conclude Congress can constitutionally prohibit a
person once involuntarily committed from ever possessing a firearm. This is particularly so
when Congress provides avenues for relief, albeit not presently available. We are not asked to
today to opine on potential claims against Congress for not funding the Attorney General's
waiver program or against Pennsylvania for non-compliance with the federal mandate. In the
accompanying Order, we grant the Attorney General's Motion to dismiss the once-involuntarily
committed person's claim Congress's prohibition is unconstitutional as-applied or deprives him
of due process or equal protection under the Fifth or Fourteenth Amendments.
Steven Jefferies alleges the United States violates his Second Amendment rights by
prohibiting him from possessing a firearm based on his involuntary commitment under 18 U.S.C.
§ 922(g)(4). He alleges the United States' failure to provide "a reasonable procedure pursuant to
which an individual could regain their Second Amendment rights upon demonstrating their
current mental and emotional fitness" makes the prohibition overbroad and as-applied to him
impermissibly burdens his Second Amendment rights. He alleges the United States also violates
his Fifth Amendment right to due process by depriving him of his right to keep and bear arms
without pre-deprivation notice and an opportunity to be heard or a post-deprivation proceeding
for relief from the prohibition.
He lastly alleges an equal protection violation under the
Fourteenth Amendment but does not identify similarly situated parties.
We find, as a matter of law, his arguments lack merit under our court of appeals' 2016
holding directing us to not consider the person's rehabilitation since the incident causing the
The involuntary commitment of Mr. Jefferies.
Fifty-two year old Steven Jefferies lives in Montgomery County where he is selfemployed as a landscaper. 1 He attended technical automotive repairs school while at Plymouth
Whitemarsh High School and graduated in 1984.2 He then worked as a mechanic for 25 years. 3
Mr. Jefferies learned how to safely handle and shoot firearms from his father and at 12 years old,
he took hunter safety classes. 4 He avidly hunted deer with rifles and bow until he could no
longer possess firearms. 5
On October 5, 2001, Mr. Jefferies had an altercation with his former wife because he
"believed, rightly or wrongly, [she] was having an affair." 6 His former wife alleged Mr. Jefferies
"threatened or attempted suicide" and "threatened to kill himself." 7 Based on Mr. Jefferies's
suicidal threats, his former wife petitioned to have the Montgomery County Court of Common
Pleas involuntarily commit him under § 302 of Pennsylvania's Mental Health Procedures Act. 8
She swore Mr. Jefferies followed her and their 8 year old daughter to a local football game but
she was unaware he followed her until they were leaving the game. 9 Mr. Jefferies followed his
wife and daughter home and "preceded [sic] to bump the back of [her] car as [she] was turning
onto [their] street. An argument followed.
[Mr. Jefferies] told [his wife] that he had been
practicing how to ... " 10
The state court involuntarily committed Mr. Jefferies on October 5, 2001 for a period not
to exceed 72 hours. On October 9, 2001, Mr. Jefferies's treating doctors petitioned to continue
his involuntary commitment for up to 20 more days of outpatient treatment. 11 The court agreed
and found Mr. Jefferies "several mentally disabled and in need of treatment" and discharged him
for up to 20 days of outpatient treatment under§ 303 of the Mental Health Procedures Act. 12 Mr.
Jefferies alleges the doctors' concern he would harm himself is the "primary reason" for his
commitment and his "experience at this mental health facility was horrendous to say the least." 13
Since leaving involuntary commitment in October 2001, Mr. Jefferies has not received mental
health treatment. 14
Mr. Jefferies attempts to restore his Second Amendment rights.
As a result of his involuntary commitment, both Pennsylvania and federal law prohibited
Mr. Jefferies from possessing a firearm.
A few years after release from his involuntary
commitment, Mr. Jefferies petitioned the Montgomery County Court of Common Pleas to restore
his ability to possess firearms. 15
The state court granted his petition on January 16, 2004
determining Mr. Jefferies "capable of possessing firearms "}'ithout posing a danger to himself or
Mr. Jefferies began using his firearms. 17 When he tried to purchase a new firearm, he
failed the Pennsylvania Instant Check System. 18 Mr. Jefferies attempted to renew his license to
carry concealed firearms. 19 He learned he could not renew his license because federal law
prohibited individuals previously subject to involuntary commitment from acquiring firearms. 20
Mr. Jefferies now sues Attorney General Jefferson Sessions, the Department of Justice
and a variety of federal officers and agents along with the United States (together "United
States"). Mr. Jefferies asks us to declare 18 U.S.C. § 922(g)(4) and its attendant regulations
violate his Fifth and Fourteenth Amendment right to equal protection and due process and to
permanently enjoin the United States from enforcing§ 922(g)(4) against Mr. Jefferies.
The Second Amendment effective December 15, 1791 ensures the Government shall not
infringe "the right of the people to keep and bear Arms." Our issue is whether the specific
language of §922 (g)(4) enacted in 1968 infringes Mr. Jefferies's Second Amendment right: "It
shall be unlawful for any person ... who has been adjudicated as a mental defective or who has
been committed to a mental institution ... to ... possess ... any firearm or ammunition ... "
The United States moves to dismiss, arguing § 922(g)(4) passes constitutional muster
under the Second Amendment because it is substantially related to the furtherance of an
important governmental interest of keeping firearms away from mentally ill persons. 21
United States argues even if we allow Mr. Jefferies to proceed on an as-applied challenge, §
922(g)(4) as-applied to Mr. Jefferies is constitutional because he caused his involuntary
commitment by following his wife and daughter, hitting their occupied car to provoke an
altercation, and threatening to commit suicide. The United States also moves to dismiss Mr.
Jefferies's due process claims because there is no constitutionally required process to disqualify
individuals who have been involuntarily committed from owning firearms.
Mr. Jefferies cannot state a Second Amendment claim.
Mr. Jefferies argues § 922(g)(4) is unconstitutional as-applied to him because as a
"competent individual who present[s] no risk of harm to [himself] or others", the statute is an
undue burden on his Second Amendment right to keep and bear arms.
He further argues
Congress's bar on funding of the relief afforded by 18 U.S.C. § 925(c) impermissibly infringes
upon his Second Amendment right. We find neither argument persuasive.
Our analysis begins with Second Amendment precedent since 2008.
The Second Amendment prohibits the infringement of "the right of the people to keep
and bear Arms.'m Since the Supreme Court's 2008 landmark District of Columbia v. Heller
opinion, appellate and trial judges have wrestled with the extent to which Congress's prohibition
of firearms possessed by certain persons infringes Second Amendment rights.
In Heller, the Supreme Court held a "ban on handgun possession in the home violates the
Second Amendment, as does its prohibition against rendering any lawful firearm in the home
operable for the purpose of immediate self-defense." 24 The Court held "[u]nder any of the
standards of scrutiny that we have applied to enumerated constitutional rights" the District of
Columbia's handgun ban "would fail constitutional muster." 25 Without deciding the standard of
scrutiny applies, the Court noted if rational-basis scrutiny is applied, "the Second Amendment
would be redundant with the separate constitutional prohibitions on irrational laws, and would
have no effect. " 26
Neither the Supreme Court nor our court of appeals has addressed whether prohibiting a
previously involuntarily committed individuals from possessing a firearm violates the Second
Amendment. But key to our factual analysis, the Supreme Court in Heller cautioned "nothing in
our opinion should be taken to cast doubt on longstanding prohibitions of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications on the commercial
sale of arms. "
The Supreme Court in Heller did not decide the standard of scrutiny applying to Second
Amendment rights because it held the District of Columbia's handgun ban failed under all
standards of scrutiny. 28 Since then, trial courts are continually evaluating the proper standard of
scrutiny for these Second Amendment challenges. For example, shortly after Heller, Michael
Marzzarella claimed 18 U.S.C. § 922(k) prohibiting the possession of a firearm with the serial
number obliterated unconstitutionally infringes on his Second Amendment rights.
Our court of
appeals interpreted Heller to "suggest a two-pronged approach to Second Amendment
challenges."30 We determine whether the law burdens "conduct falling within the scope of the
Second Amendment's guarantee." 31 If the conduct falls outside the scope, we are finished with
our inquiry. If the conduct is within the Second Amendment's scope, "we evaluate the law under
some form of means-end scrutiny" to determine if the law passes constitutional muster. 32 The
court of appeals found uncertainty as to whether possession of "unmarked firearms" is outside
the scope of the Second Amendment's guarantee so it proceeded to evaluate if§ 922(k) passed
constitutional muster. 33
Our court of appeals in Marzzarella held the Supreme Court's footnote recognizing
Justice Breyer's dissent "correctly notes [the handgun ban] ... would pass rational-basis
scrutiny" suggests a heightened standard of scrutiny applies. 34 Our court of appeals found
intermediate scrutiny is the appropriate standard of review because unlike the handgun ban in
Heller which prohibited possession of handguns, § 922(k) only regulates the possession of
firearms with their serial number obliterated. 35
The court of appeals in Marzzarella held § 922(k) passed intermediate scrutiny because it
served a significant government interest in tracing firearms by serial number and does not burden
Second Amendment rights because the court could not "conceive of a lawful purpose for which a
person would prefer an unmarked firearms, the burden will almost always fall only on those
intending to engage in illicit behavior."36 The court also concluded, "even if strict scrutiny were
to apply ... the statute still would pass muster."37
A year later, convicted felon James Barton challenged 18 U.S.C.§ 922(g)(l)'s prohibition
on felons possessing a firearm as an "as-applied" unconstitutional infringement on his Second
Amendment right. 38 Our court of appeals explained to make an as-applied challenge, Mr. Barton
must adduce evidence to distinguish himself and his background from "those of persons
historically barred from Second Amendment protections." 39
Our court of appeals held Mr.
Barton did not adduce evidence to distinguish himself because his underlying offenses of "drug
trafficking and receiving stolen weapons are closely related to violent crime" and there is no
evidence Mr. Barton rehabilitated himself because he recently sold a firearm with an obliterated
serial number. 40 The court theorizes "a felon convicted of a minor, non-violent crime might
show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might
find that a felon whose crime of conviction is decades-old poses no continuing threat to
Our court of appeals' willingness to look beyond the felony to current and rehabilitative
conduct lasted approximately five years.
In 2016, our court of appeals sitting en bane, in
Binderup v. Attorney General United States of America faced Daniel Binderup's and Julio
Suarez's as-applied challenge to the prohibition based on misdemeanors punishable by
imprisonment of more than two years. 42 While the majority of our court of appeals allowed an
as-applied challenge based on the non-serious nature of the misdemeanors, it focused on the
conduct causing the prohibition and not the passage or rehabilitative conduct after the
misdemeanors. More significant today, the court of appeals overruled portions of Barton and
defined our framework for handling as-applied challenges to federal laws prohibiting firearm
Section 922(g)(l) prohibits individuals convicted of a "crime punishable by
imprisonment for a term exceeding one year" from possessing firearms. 43 Congress excluded
from this prohibition, "any State offense classified by the laws of the State as a misdemeanor and
punishable by a term of imprisonment of two years of less." 44 The state court convicted Messrs.
Binderup and Suarez of state law misdemeanors punishable by a term of imprisonment more
than two years. 45 Pennsylvania and the United States prohibited them from possessing firearms
based on their convictions. 46 In 2009, similar to Mr. Jefferies, Pennsylvania granted Messrs.
Binderup and Suarez relief from its state law prohibition on possessing firearms, however, §
922(g)(l) still prohibited firearm possession. 47 Messrs. Binderup and Suarez sued the Attorney
General asking the court declare § 922(g)(l) does not apply to their convictions as a matter of
statutory construction. 48 If§ 922(g)(l) does apply to their convictions, they asked the court to
declare it unconstitutional as-applied to them. 49
Our court of appeals in Binderup first rejected the statutory construction argument
holding when Congress made an exception for state law misdemeanors "punishable by a term of
imprisonment of two years of less" the use of "punishable by" means "subject to a maximum
penalty of." 50 Our court of appeals unanimously held § 922(g)(l) applies to their convictions
because the state court convicted both Messrs. Binderup and Suarez of misdemeanors subject to
a maximum penalty of five years. 51
Our court of appeals then turned to the constitutionality of§ 922(g)(l). The court first
rejected the argument the Supreme Court's holding in Heller means "any law barring persons
with Second Amendment rights from possessing law firearms in the home even for self-defense
is per se unconstitutional; that is, no scrutiny is needed." 52 The court likened the government's
ability to burden Second Amendment rights to its ability to "prevent an individual with First
Amendment rights from engaging in First Amendment conduct--even conduct at the core of the
First Amendment-if it makes the showing necessary to surmount heightened scrutiny." 53
Our court of appeals found § 922(g)(l) did not "completely eviscerate" Second
Amendment rights because individuals had avenues of relief from it. Individuals could regain
their rights under 18 U.S.C. § 921(a)(20) ifthe state expunges their convictions, the state pardons
them, or the state restores their civil rights.
The court of appeals also cited an avenue for
statutory relief where an individual could request the Attorney General lift§ 922 prohibitions. 54
Our court of appeals then turned to the Messrs. Binderup and Suarez's as-applied Second
Amendment challenge and its framework to review those challenges. Reviewing Marzzarella
and Barton, the court defined "a framework for deciding as-applied challenges to gun
As directed by our court of appeals in Binderup, we evaluate Marzzarella's two-prong
approach by first determining "whether the challenged law imposes a burden on conduct falling
within the scope of the Second Amendment's guarantee, and, second, if the "law burdens
protected conduct, the proper course is to 'evaluate the law under some form of means-end
scrutiny. "' 55
Our court of appeals identified "two hurdles" a challenger must surmount to make an asapplied challenge. 56
First, the challenger must "identify the traditional justifications for
excluding from Second Amendment protection from the class of which he appears to be a
member, and then ... present facts about himself and his background that distinguish his
circumstances from those persons in the historically barred class." 57
The court of appeals in Binderup then closely examined Messrs. Binderup's and Suarez's
disqualifying convictions. Our court of appeals held they proved their crimes were not serious
by showing: (1) they are labeled misdemeanors; (2) they lacked a violent element; (3) they
received a "minor sentence"; and, (4) there is "no cross-jurisdictional consensus" about the
seriousness of theu cnmes. 58
Because Binderup is a plurality opinion, our court of appeals offered us guidance to
understand the "fractured decision." 59 First, "the two-step Marzzarella framework controls all
Second Amendment challenges, including challenges to§ 922(g)(l)." 60 To satisfy Marzzarella's
first step, a challenger must prove "the law or regulation at issue burdens conduct protected
conduct protected by the Second Amendment."
To overcome the second hurdle to a §
922(g)(l) challenge, the challenger must prove he or she "was not previously convicted of a
serious crime. " 62 "Evidence of the challenger's rehabilitation or his likelihood ofrecidivism" is
not relevant to our analysis. 63 If the challenger satisfies both hurdles of Marzzarella's first step,
"the burden shifts to the Government at step two to prove that the regulation at issue survives
intermediate scrutiny. " 64
Mr. Jefferies does not plead an as-applied constitutional challenge.
As we now tum to Mr. Jefferies's as-applied challenge to a federal prohibition on firearm
possession by a person involuntarily committed, we restate the framework:
Marzzarella's first step.
The United States prohibits Mr. Jefferies from possessing a firearm under 18 U.S.C. §
922(g)(4) based on his 2001 involuntary commitment. Mr. Jefferies argues the statutory ban of
firearm possession under § 922(g)(4) as-applied unconstitutionally infringes his Second
Amendment right to keep and bear arms in defense of hearth and home.
Barton's first hurdle.
We must determine if § 922(g)(4) prohibiting individuals who were involuntarily
committed from possessing a firearm burdens conduct protected by the Second Amendment.
When declaring the Second Amendment protects the "right of law-abiding, responsible citizens
to arms defense of home and hearth", the Supreme Court cautioned its holding "should not be
taken to cast doubt on longstanding prohibitions on the possession of firearms by ... the mentally
ill."65 The court's footnote describes these prohibitions as "presumptively lawful." 66 Our court
of appeals held the "presumptively lawful" prohibition of firearms by the mentally ill
comport[s] with the Second Amendment because [it] affect[s] individuals or conduct unprotected
by the right to keep and bear arms." 67
We tum to whether Mr. Jefferies's prohibition is presumptively lawful under the Second
Amendment. Congress, through§ 922(g)(4), prohibits an individual "who has been adjudicated
as a mental defective or who has been committed to a mental institution" from possessing a
firearm. 68 The Code of Federal Regulations defines "adjudicated as a mental defective" to
include, among other things, "[a] determination by a court, board, commission, or other lawful
authority that a person, as a result of ... mental illness ... [i]s a danger to himself or to
others ... " 69 The Code defines "committed to a mental institution" as a "[f]ormal commitment of
a person to a mental institution by a court, board, commission, or other lawful authority"
including "commitment to mental institution involuntarily" and "commitment for mental
defectiveness or mental illness" 70 Section 922(g)(4) is "presumptively lawful" under the Second
Amendment and Heller because it prohibits the mentally ill from possessing firearms. 71 Mr.
Jefferies having been involuntarily committed and found to be a danger to himself is subject to
"presumptively lawful" prohibition because it applies to "individuals or conduct unprotected by"
the Second Amendment. 72
We examine the traditional justifications for denying the mentally ill the right to keep and
bear arms. While the Supreme Court referred to prohibitions on the mentally ill possessing
firearms as "longstanding", courts and scholarly articles examining the history of the prohibition
find little evidentiary support before the early twentieth century, and the first federal ban did not
occur until 1968. 73
While our court of appeals has not yet examined the absence of traditional justifications
for prohibiting the mentally ill from possessing firearms, other colleagues on the district court
have done so. In Simpson v. Sessions, Judge Schmehl examined the lack of specific prohibitions
on the mentally ill possessing firearms but found "clear historical evidence that persons prone to
violent behavior are outside the scope of Second Amendment protection." 74 In Keyes v. Lynch,
Judge John Jones examined Professor Larson's hypothesis the absence of firearm prohibitions
directed at the mentally ill is because eighteenth century ''judicial officers were authorized to
'"lock up' 'lunatics" who were 'dangerous to be permitted to go abroad'" and if taking away a
lunatic's liberty was permissible, then we should find the "lesser intrusion" of taking his or her
firearms was also permissible. 75
Both courts concluded the strongest historical argument
supporting the prohibition "involved a concern over individuals who had mental impairments
that made them dangerous to themselves or others in society." 76
We agree with Judge Schmehl's and Judge Jones's conclusions. The understanding and
language of mental illness is amorphous and ever evolving but § 922(g)(4) prohibits individuals
from possessing firearms who, because of their mental illness, are a danger to themselves or
others. The Code of Federal Regulations supports our conclusion defining "mental defective" to
include individuals who are "a danger to [themselves] or to others", who are unable to manage
their own affairs, or those found insane or incompetent to stand trial in a criminal proceeding. 77
The definition of "committed to a mental institution" also supports our conclusion because it
includes individuals committed involuntarily and those committed for "mental defectiveness or
mental illness" but excludes individuals admitted for observation or a voluntary admission. 78
This exclusion bolsters our conclusion Congress's aim is to prevent' individuals who are likely to
harm themselves or others based on their mental illness from possessing a firearm.
Barton's second hurdle.
Mr. Jefferies must now allege how his involuntary commitment is distinguished from the
traditional justifications for excluding individuals from possessing firearms because their
involuntary commitment makes them more likely to be a danger to themselves or others. Mr.
Jefferies fails as to make a meaningful distinction.
The state court involuntarily committed Mr. Jefferies because he was a danger to himself
and others. Mr. Jefferies's former wife asked the state court to involuntary commit him because
he attempted suicide. 79 Mr. Jefferies's involuntary commitment stems from an altercation with
his former wife where he used his car to "bump" his wife's car (with their child inside) and
provoked an argument. 80 Mr. Jefferies attached his former wife's narrative to his complaint and
does not allege his wife lied and does not deny his suicidal ideations and statements.
Mr. Jefferies's treating doctors extended his involuntary commitment under § 303 of the
Mental Health Procedures Act. To extend treatment under § 303, Mr. Jefferies's examining
physician and facility must apply and the state court must appoint counsel and hold an
adversarial proceeding. 81
The court found Mr. Jefferies "severally mentally disabled" and
extended his treatment for twenty days. 82 Mr. Jefferies's involuntary commitment for being a
danger to himself fits directly into the historical justification of prohibiting individuals who are a
danger to themselves or others from possessing firearms. His conduct falls outside the scope of
Second Amendment protections. 83
Mr. Jefferies offers no evidence distinguishing his commitment for attempting to harm
himself from the class of individuals prohibiting from possessing a firearm because their
involuntary commitment as a danger to themselves or others renders them more likely to harm
themselves or others in the future. Mr. Jefferies attempts, instead, to distinguish his own postcommitment conduct from his conduct which led him be involuntarily committed. He argues the
common law right to keep and bear arms did not "exclude from its scope (merely because of a
recommitment) individuals like Mr. Jefferies, safe, sane, stable individuals who do not and have
not presented a risk [to] themselves [or] others since the time of their commitment." 84
Two courts in this District reviewing Binderup disagree with Mr. Jefferies and held
evidence of individual's post-involuntary commitment mental health is not relevant to his
challenge to § 922(g)(4). In Beers v. Lynch, Judge Davis recently dismissed an individual's
identical as-applied challenge to§ 922(g)(4) finding the individual's "'current fitness' to possess
firearms is of no moment" based on Binderup's holding "the passage of time or evidence of
rehabilitation" cannot restore an individual's forfeited Second Amendment right. 85 In Simpson v.
Sessions, Judge Schmehl held § 922(g)(4) has no exception for the passage of time relying on
Mr. Jefferies' s counsel, aware of our court of appeals directs we must not consider
evidence of rehabilitation or post-deprivation conduct in as-applied challenges to federal
prohibitions on firearm possession, argues we should follow the Court of Appeals of the Sixth
Circuit where the case law is friendlier for him. 87
In Tyler, the court of appeals reversed the
dismissal of an individual's allegation § 922(g)(4) unconstitutionally burdens his Second
Amendment rights because he was involuntary committed twenty-eight years ago and had no
intervening mental health issues. 88 The court based its conclusion on "persons who were once
committed due to mental illness are forever ineligible to regain their Second Amendment
rights." 89 The court relied on the individual's post-commitment conduct as the proper evidence
to review whether§ 922(g)(4)'s prohibition is unconstitutional as-applied to the individual.
To follow Tyler and examine Mr. Jefferies's post-commitment conduct we would have to
ignore our court of appeals' rejection of the "claim that the passage of time or evidence of
rehabilitation will restore the Second Amendment rights of people who committed serious
crimes." 90 Our court of appeals is specifically discussing felons but its next sentence extends the
reasoning to any federal prohibition, "[t]here is no historical support for the view that the passage
of time or evidence of rehabilitation can restore Second Amendment rights that were forfeited"
and any remedy afforded by Congress "is a matter of legislative grace ... " 91 We decline Mr.
Jefferies's request we ignore our court of appeals.
In a similar vein, Mr. Jefferies's reliance on Keyes is misplaced as it overlooks the
intervening governing decision in Binderup.
In Keyes, the district court found § 922(g)(4)
unconstitutional as-applied to a challenger because he is "no more dangerous than a typical lawabiding citizen" and "not a 'continuing threat' to himself."92 The court relied on the language in
Barton theorizing "a felon convicted of a minor, non-violent crime might show that he is no
more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon
whose crime of conviction is decades-old poses no continuing threat to society."93 Our court of
appeals overruled this argument in Binderup holding "[t]o the extent Barton holds that people
convicted of serious crimes may regain their lost Second Amendment rights after not posing a
threat to society for a period of time, it is overruled. " 94 We find the portions of Keyes where the
court relied on Barton and considered a challenger's post-commitment conduct unpersuasive
ii. We need not reach Marzzarella's second step.
As Mr. Jefferies cannot overcome the two hurdles to challenging §922(g)(4) under
Barton, we need not consider whether this prohibition can survive intermediate scrutiny.
Mr. Jefferies's inability to seek relief from §922(g)(4) does not render the
prohibition unconstitutionally overbroad.
Mr. Jefferies argues § 922(g)(4) is unconstitutionally overbroad because there is "no
reasonable procedure pursuant to which an individual could regain their Second Amendment
rights upon demonstrating their current mental and emotional fitness." 95
Mr. Jefferies' s inability to secure relief from § 922(g)(4) to possess firearms again does
not render the statute unconstitutional.
Our court of appeals held "[t]here is no historical
support for the view that the passage of time or evidence of rehabilitation can restore Second
Amendment rights that were forfeited." 96
In Binderup, our court of appeals held as to §
922(g)(l), "to the extent Congress affords such a remedy in § 921(a)(20) or § 925(c), that is a
matter of legislative grace; the Second Amendment does not require that those who commit
serious crimes be given an opportunity to regain their right to keep and bear arms in that
At the same time, our court of appeals distinguishes § 922(g)(l) as not a complete
evisceration because of the statute's "escape hatches" where individuals could regain their rights
under § 921(a)(20) if the state expunges their convictions, the state pardons them, the state
restores their civil rights, or through the currently unfunded ability for the Attorney General lift§
922 prohibitions. 98
The Second Amendment does not protect Mr. Jefferies's right to seek relief from §
922(g)(4) because "[t]here is no historical support for the view that the passage of time or
evidence of rehabilitation can restore Second Amendment rights that were forfeited." 99
Even assuming our court of appeals' holding § 922(g)( 1) is not per se unconstitutional is
based on the "escape hatches" available to a felon challenger, Congress also provides two
"escape hatches" from§ 922(g)(4). The unfunded avenue to petition for relief from the Attorney
General under § 925(c) is theoretically available to Mr. Jefferies just as it was to Messrs.
Binderup and Suarez. 10 Congress's decision not to fund§ 925(c) does not create jurisdiction for
us to review a banned individual's § 925(c) petition. In United States v. Bean, Mr. Bean filed a
petition for relief from § 922(g)(l) after Congress decided to disallow funding for§ 925(c). 101
The ATF 102 returned Mr. Bean's petition unprocessed because Congress "forbade it from
expending any funds to investigate or act" on his petition. 103
Mr. Bean appealed, arguing the
ATF's failure to process his petition is really a denial and the statute provides judicial review in
the district court for denials. 104
The Supreme Court rejected Mr. Bean's argument holding
'judicial review under § 925(c) cannot occur without a dispositive decision" and the ATF's
failure to process an application is not dispositive. 105
In 2008, Congress authorized another avenue to waiver: "a State court, board,
commission, or other lawful authority shall grant relief .. . [from §922(g)(4)] ... if the
circumstances regarding the disabilities ... , and the person's record and reputation, are such that
the person will not be likely to act in a manner dangerous to public safety and that the granting of
the relief would not be contrary to the public interest ... " 106
If the state grants relief in
accordance with this section, "the adjudication or commitment ... is deemed not have occurred
for purposes of[§ 922(g)(4)]." 107
Mr. Jefferies cannot presently obtain relief under this 2008 waiver because Pennsylvania
has not implemented a relief program meeting Congress's requirements and because Congress
withholds appropriations to fund § 925(c). 108 We lack authority, particularly absent a request, to
compel either Congress to fund review under §925(c) or Pennsylvania to comply with federal
Our court of appeals did not find Messrs. Binderup and Suarez's inability to receive relief
from Pennsylvania through § 921(a)(20) or from the United States through § 925(c)
unconstitutional because a remedy to recover lost Second Amendment rights is "legislative
grace," not a constitutional right. 109 As in Binderup, Mr. Jefferies's inability to secure relief
through remedies of "legislative grace" through the two "escape hatches" does not make §
922(g)(4) unconstitutionally overbroad as-applied to him. 110
We dismiss Mr. Jefferies's Fifth Amendment claim.
Mr. Jefferies alleges the United States violates his Fifth Amendment right to due process
in depriving him a right to keep and bear arms without pre-deprivation notice and an opportunity
to be heard or a post-deprivation proceeding for relief from the prohibition. The United States
move to dismiss this claim and Mr. Jefferies offers no counter-argument in his brief.
To state a claim for procedural due process, Mr. Jefferies must have a constitutional right
In Keyes, the challenger alleged the United States deprived him of his Second
Amendment rights without due process in prohibiting him from possessing a firearm because of
his involuntary commitment without notice and an opportunity to be heard. 111
reviewed our court of appeals' decision in Bell v. United States affirming a district court's
holding § 922(g)(l) does not require a hearing because "[t]he plain language of [the statute]
makes clear Congress's decision to bar all convicted felons (not merely those with violent
tendencies or who otherwise present an ongoing danger to society) from possessing firearms." 112
The district court found the same rationale applies to a § 922(g)(4) prohibition because
"the statute subsection is clear that anyone who has been committed for mental health is subject
to it; thus a hearing on whether the plaintiff is still dangerous is not in fact relevant." 113 We
Congress enacted § 922(g)(4) to apply to all persons involuntarily committed. Mr.
Jefferies does not challenge the propriety or accuracy of his involuntary commitment. Rather he
asks for an exemption in spite of it. Mr. Jefferies does not have a Fifth Amendment right to
procedural due process before the United States applies § 922(g)(4) to him because of his
The district court in Keyes also addressed the friction between Barton and Bell as Barton
seemed to open the door for a felon to challenge a firearm ban based on his post-conviction
conduct while Bell held a felon did not require due process before the firearm ban applies
because the statute applies the ban to all felons.
Our court of appeals' ruling in Binderup
resolved this tension by overruling Barton's opening for individuals to challenge the federal
firearm prohibition based on their post-deprivation conduct.
We dismiss Mr. Jefferies's Fourteenth Amendment claim.
Mr. Jefferies alleges the United States' enforcement of § 922(g)(4) violates his equal
protection and due process rights under the Fourteenth Amendment.
granted Mr. Jefferies relief from the state ban on firearm possession, any due process claim is
Mr. Jefferies alleges § 922(g)(4) is an "unconstitutionally broad ban" on the class of
"individuals who have ever been involuntarily committed." 114 For equal protection, Mr. Jefferies
must allege the United States treated him "differently from a similarly situated party and the
[United States'] explanation for the differing treatment does not satisfy the relevant level of
scrutiny." 115 Our court of appeals explained "[a]n essential element of a claim of selective
treatment under the Equal Protection Clause is that the comparable parties were 'similarly
situated.' Persons are similarly situated under the Equal Protection Clause when they are alike
'in all relevant aspects."' 116
Mr. Jefferies's allegation is unclear as to who the comparable parties are and how the
United States treated them differently.
Mr. Jefferies's equal protection allegations can be
construed in two ways. If Mr. Jefferies is alleging he is treated differently than other individuals
subject to § 922(g)(4) based on their involuntary commitment, his claim fails because he does
not allege how the United States applied the ban on possessing firearms differently to him and
other individuals who were involuntarily committed.
If Mr. Jefferies is alleging he and other "individuals who have ever been involuntarily
committed" are together the class the United States treats differently, we cannot possibly discern
the comparable party. We can only assume the comparable parties would be any individual
subject to ban on possessing firearms under federal law. Mr. Jefferies's equal protection claim
still fails because Mr. Jefferies does not allege how "individuals who have ever been
involuntarily committed" are treated differently than other individuals who have been banned
from possessing firearms by the United States. Mr. Jefferies's claim also fails because he cannot
show how a group of people encompassing every person subject to a federal law banning him or
her from possessing firearms are similarly situated "in all relevant aspects." 117 Congress bans
firearm possession for a myriad of reasons, and for equal protection purposes, we cannot say a
person banned because he or she renounced his or her citizenship is similarly situated "in all
relevant aspects" to an individual banned based on his or dishonorable discharge from the Armed
Services. 118 While they are similar in both are banned from possessing firearms, the most
important aspect, the operative conduct meriting their bans, is not similar.
Mr. Jefferies also references the closed off avenue for relief from §922(g)(4) provided by
§ 925(c), however, that avenue of relief applies to all firearm prohibitions and is, similarly,
closed off to individuals banned under other sections so he cannot allege differing treatment
based on §925(c).
We dismiss Mr. Jefferies's equal protection claim under the Fourteenth Amendment
because he does not allege how the United States treated him differently from a similarly situated
We dismiss Mr. Jefferies's as-applied Second Amendment challenge because he fails to
distinguish his involuntary commitment for being a danger to himself from the class of
individuals Congress prohibited, the class being those involuntarily committed because they are
a danger to themselves or others. Mr. Jefferies also fails to state a claim for a Fifth Amendment
violation because Mr. Jefferies is not constitutionally entitled to process before the United States
subjects him to the prohibition under § 922(g)(4). Mr. Jefferies fails to allege an equal protection
claim under the Fourteenth Amendment because he does not allege how the United States treated
him differently from a similarly situated party.
Complaint, ECF Doc. No. 1, ~ 34.
Id. ~~ 36-37.
Id. ~ 38.
Id. ~~ 40-41.
Id. ~ 42.
Id. ~~ 23.
Exhibit A to Complaint, ECF Doc. No. 1 at 20.
Id. The rest of her narrative is not filed in this Court.
Exhibit B to Complaint, ECF Doc. No. 1 at 26-28.
Id. at 28.
Complaint, ECF Doc. No. 1, ~~ 26-28. ·
Id. ~ 35.
Id. ~ 29.
In deciding a motion to dismiss under Rule 12(b)(6), we accept all well-pleaded allegations in
the complaint as true and draw all reasonable inferences in favor of the non-moving party, but
we "are not compelled to accept unsupported conclusions and unwarranted inference, or a legal
conclusion couched as a factual allegation." Castleberry v. ST! Group, 863 F.3d 259, 263 (3d
Cir. 2017) (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)). "To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face."' Edinboro Coll. Park Apartments v. Edinboro Univ.
Found., 850 F.3d 567, 572 (3d Cir. 2017) (quoting In re Vehicle Carrier Serv. Antitrust Litig.,
846 F.3d 71, 79 n.4 (3d Cir. 2017)). A claim satisfies the plausibility standard when the facts
alleged "allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Maiden Creek Assoc., L.P. v. US. Dep 't ofTransp., 823 F.3d 184, 189 (3d
Cir. 2016) (quoting Ascroft v. Iqbal, 556 U.S. 662, 678 (2009)). While the plausibility standard is
not "akin to a 'probability requirement,"' there nevertheless must be more than a "sheer
possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's
liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'"
Id. (quoting Twombly, 550 U.S. at 557).
Our Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:
(1) "it must 'tak[e] note of the elements [the] plaintiff must plead to state a claim;"' (2) "it should
identify allegations that, 'because they are no more than conclusions, are not entitled to the
assumption of truth;'" and, (3) "[w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief." Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016)
(quoting Iqbal, 556 U.S. at 675, 679).
ECF Doc. No. 7 at 6.
U.S. Const. amend. II.
District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
Id. at 628.
Id. at 628 n.27.
Id. at 626-27.
Id. (citing Heller, 554 U.S. at 628).
United States v. Marzzarella, 614 F.3d 85, 88 (3d Cir. 2010).
Id. at 89.
Id. (internal citations omitted).
Id. at 95.
Id. (citing Heller, 554 U.S. at 628 n.27).
Id. at 97.
Id. at 99.
United States v. Barton, 633 F.3d 168, 169-70 (3d Cir. 2011).
Id. at 174.
Id. (citing Britt v. State, 681 S.E. 2d 320, 323 (N.C. 2009)).
Binderup v. Attorney General United States of America, 836 F.3d 336 (3d Cir. 2016), cert.
denied sub nom. Sessions v. Binderup, 137 S. Ct. 2323 (2017), and cert. denied sub nom.
Binderup v. Sessions, 137 S. Ct. 2323 (2017).
Id. at 339 (quoting§ 922(g)(l)).
Id. (quoting 18 U.S.C. § 92l(a)(20)(B)).
Id. at 340.
Id. at 341 (quoting§ 92l(a)(20)(B)).
Id. at 342.
Id. at 344.
Id. (citing FEC v. Wis. Right to Life, 551 U.S. 449, 464-65 (2007) (applying strict scrutiny to a
statute prohibiting political speech at the core of the First Amendment); United Pub. Workers of
Am. v. Mitchell, 330 U.S. 75, 102-03 (1947) (upholding the constitutionality of prohibitions on
certain political activities by federal employees notwithstanding the First Amendment)).
See id. (citing § 925(c)). This avenue of relief is not currently open because Congress ended
funding for the Attorney General to review relief petitions.
Id. at 346 (quoting Marzzarella, 614 F.3d at 97).
Id. at 347 (citing Barton, 633 F.3d at 173-74).
Id. at 356.
Id. (emphasis added).
Heller, 554 U.S. at 626, 635.
Id. at 627 n.26.
Binderup, 836 F.3d at 343 (citing Heller, 554 U.S. at 631, 635).
18 U.S.C. § 922(g)(4).
27 C.F.R. § 478.11 (2014).
See Binderup, 836 F.3d at 343 (citing Heller, 554 U.S. at 631, 635).
See id.; see also Simpson v. Sessions, No. 16-1334, 2017 WL 1910141 at *4 (E.D. Pa. May 10,
2017) (finding 922(g)(4) is a presumptively lawful ban for people committed to a mental institute
See e.g., Tyler v. Hillsdale County Sheriff's Department, 837 F.3d 678, 689 (6th Cir. 2016) (en
bane) (finding a "lack of conclusive historical support for prohibiting the mentally ill from
possessing firearms); United States v. Yancey, 621 F.3d 681, 685 (7th Cir. 2010) (finding an
"absence of historical statutory prohibitions on firearm possession" before 1968); Clayton E.
Cramer, Mental Illness and the Second Amendment, 46 CONN. L. REV. 1301, 1315 (2014)
(finding a 1932 District of Columbia statute banned guns for the "not sound of mind" and a few
states passed regulations in the 1950s-60s before the federal ban in 1968); Carlton F.W. Larson,
Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit,
60 HASTINGS L.J. 1371, 1376 (2009) ("One searches in vain through eighteenth-century records
to find any laws specifically excluding the mentally ill from firearms ownership. Such laws seem
to have originated in the twentieth century").
Simpson, 2017 WL 1910141 at *5.
Keyes v. Lynch, 195 F. Supp. 3d 702, 718 (M.D. Pa. 2016) (quoting Carlton F.W. Larson, Four
Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60
HASTINGS L.J. at 1377).
Id at 719-20; accord Simpson, 2017 WL 1910141 at *5; Yancey, 621 F.3d at 683 ("Congress
enacted the exclusions in§ 922(g) to keep guns out of the hands of presumptively risky people").
27 C.F.R. § 478.11 (2014).
ECF Doc. No. 1 at 19.
Id at 20.
50 P.S. § 7303(b).
ECF Doc. No. 1at27.
See Binderup, 836 F.3d at 343 (measures prohibiting the mentally ill from possessing firearms
"comport with the Second Amendment because they affect individuals or conduct unprotected by
the right to keep and bear arms").
Plaintiffs Response, ECF Doc. No. 7 at 7.
Beers v. Lynch, No. 16-6440, Slip. Op. at 8 (E.D. Pa. Sept. 5, 2017).
Simpson, 2017 WL 1910141 at *6.
Mr. Jefferies' memorandum never distinguishes Binderup or Marzzarella but relies on the
overruled holding in Barton suggesting post-deprivation conduct is relevant. Mr. Jefferies does
rely on the district court's decision in Binderup and its joined case Suarez v. Holder, No. 14-968,
2015 WL 685889 (M.D. Pa. Feb. 18, 2015). During oral argument, Mr. Jefferies' counsel
candidly admitted the obstacles to his argument posed by Binderup and instead focused on the
inability to obtain relief from a §922 (g)(4) prohibition.
Tyler, 867 F.3d at 699.
Id. at 689.
Heller, 554 U.S. at 349-50.
Id. at 350.
Keyes, 196 F. Supp. 3d at 722 (quoting Barton, 633 F.3d at 174).
Barton, 633 F.3d at 174 (internal citation omitted).
Binderup, 836 F.3d at 350.
ECF Doc. No. 1, ~ 3.
Binderup, 836 F.3d at 350.
Id. at 345, 358 (Hardiman, J. concurring in part and concurring in the judgments).
Binderup, 836 F.3d at 350.
United States v. Bean, 537 U.S. 71, 73 (2002).
The Attorney General delegated his authority to review § 925(c) petitions to the Director of
the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). See id. at 74-75.
Id. at 73.
See § 925(c). "Any person whose application for relief from disabilities is denied by the
Attorney General may file a petition with the United States district court for the district in which
he resides for a judicial review of such denial."
Id. at 77; see also Pontarelli v. US. Dept. of the Treasury, 285 F.3d 216, 226 (3d Cir. 2002)
(holding the ATF's failure to process § 925(c) is not a denial to allow judicial review and
Congress's appropriations ban does not "create new jurisdiction for district courts to evaluate
felons' § 925(c) applications absent a 'denial."'). Mr. Jefferies also cannot compel review of his
§ 925(c) petition through a writ of mandamus. In McHugh v. Rubin, the Court of Appeals for the
Second Circuit held an individual cannot petition for a writ of mandamus compelling the United
States to review his application because the United States has no statutory duty to act under §
925(c). "Here, the [United States] is under a statutory duty not to do the act in question."
McHugh v. Rubin, 220 F.3d 53, 57 (2nd Cir. 2000). The court held "Congress could not have
stated more clearly that the [United States] is prohibited from acting on applications submitted
by individuals pursuant to§ 925(c)." Id. at 58.
34 U.S.C. § 40915 (a)(2).
See Keyes v. Lynch, 195 F. Supp. 3d at 711 (Judge Jones held the Pennsylvania's relief
program under 18 Pa.C.S.A. § 6105(±)(1) fails to satisfy the Congress's requirement for "an
independent determination by a reviewing court that the grating of relief from a firearms
disability would not be contrary to the public interest"); Mr. Jefferies agrees arguing
"Pennsylvania has still not implemented a relief from disabilities program." ECF Doc. No. 7-1.
at 16. Mr. Jefferies does not bring claims against Pennsylvania state officials in his complaint
(and we are not sure under what legal theory he could require a state government to act).
See Binderup, 836 F.3d at 340, 350.
See id. at 350.
See Keyes, 195 F. Supp. 3d at 723.
Id. (citing Bell v. United States, 574 Fed.Appx. 59, 59 (3d Cir. 2014) and quoting Bell v.
United States, No. 13-5533, 2013 WL 5763219 at *3 (E.D. Pa. Oct. 24, 2013)).
Complaint, ECF Doc. No. 1, ~ 68.
Real Alternatives, Inc. v. Sec'y Dep't of Health & Human Servs., 867 F.3d 338, 348 (3d Cir.
2017) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985)).
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 273 (3d Cir. 2014) (quoting Startzell v. City
of Phila., 533 F.3d 183, 203 (3d Cir.2008) and Hill v. City of Scranton, 411 F.3d 118, 125 (3d
See 18 U.S.C. § 922(g)(6)-(7).
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