A DUI in Pennsylvania could cost you your Second Amendment rights

A drunken driving conviction could mean losing the right to buy and own firearms in Pennsylvania, the U.S. Court of Appeals has decided.

The precedent-setting opinion handed down Friday hinges on the federal government’s definition of a “serious crime” — the level a crime must reach to trigger an individual being barred from buying firearms.

Under federal law, a serious crime is one that can carry a state-prison sentence of two or more years.

In the case of Raymond Holloway Jr. of Montgomery County, that came in the form of a DUI.

Holloway tried in 2016 to buy a firearm and was told a 2005 DUI conviction meant he was barred from doing so, according to the court opinion penned by Judge Patty Shwartz. Holloway filed a lawsuit the following year, suing the U.S. attorney general, the FBI and other officials, claiming a violation of his Second Amendment rights.

Shwartz noted a prior Supreme Court ruling that described drunken drivers — specifically with a blood-alcohol content much higher than the legal limit and those who chronically drive under the influence — as “the most dangerous offenders.”

“Thus,” she wrote, “all branches of the federal government agree that DUIs are dangerous, and those who present a danger may be disarmed.”

The decision is an overreach by the government, said Kim Stolfer, president of Firearm Owners Against Crime, a political action committee that describes itself as a nonpartisan group for gun owners and supporters of the Second Amendment.

“Let’s transpose this from the Second Amendment to the First Amendment and see what happens,” he said.

He said no one should lose their constitutional rights over a misdemeanor offense.

“(The government) is taking away rights from citizens so cavalierly, but they don’t hold the really violent among us accountable,” Stolfer said.

Holloway was first charged with driving under the influence in 2002, at which point he was charged with DUI while at the highest blood-alcohol content, meaning he was at least twice the legal limit of .08. That charge was wiped from his record after he completed an accelerated rehabilitation program.

The 2005 charge — to which Holloway pleaded guilty, court records show — was in connection with another blood-alcohol content reading of at least twice the legal limit. The second time a person is convicted of DUI at the highest rate, it is a first-degree misdemeanor that carries up to five years in prison.

Holloway was sentenced to 90 days — the mandatory minimum — after he pleaded guilty to the 2005 charge.

“The legislature’s mandate that repeat DUI offenders receive at least three months in jail reflects its judgment that such offenses are serious,” Shwartz wrote in the split opinion.

The 2-1 decision overturned a lower court ruling that would have reinstated Holloway’s right to buy and own firearms. The U.S. District Court in central Pennsylvania initially sided with Holloway, agreeing that the DUI was “a non-serious crime” and that disarming Holloway would not “promote the public safety, particularly given his decade of crime-free behavior.”

Judge D. Michael Fisher, in his dissenting opinion for the 3rd U.S. Circuit Court of Appeals, wrote that “serious” in the context of disarming citizens after convictions is not the same as “serious” in the ordinary context.

“Drunken driving is dangerous,” Fisher wrote, “and calling it not ‘serious’ when it comes to the Second Amendment in no way detracts from its ‘seriousness’ in the ordinary understanding of that word.”

Stolfer said Fisher’s dissent is spot on.

“You have the government trying to criminalize everything,” he said, “but at the same time we’re not enforcing anything except on the people who really bear the brunt of the callousness of the court.”