Unconstitutional to Ban All Felons from Becoming Precious Metals Dealers

So holds last week’s Barletta v. Rilling (D. Conn. Sept. 26, 2013), in a decision that — if upheld — may pave the way for similar decisions with regard to bans on gun ownership by (nearly) all felons. The court applies the “rational basis” test, under which nearly all legal classifications are upheld, but concludes that this classification fails even that highly deferential test:

A rational nexus between a conviction for any and every felony offense and the fitness to act as a precious metals dealer simply does not exist. The legislature has not drawn any distinctions beyond the classification of felon; it has not written the statute to conform to the legitimate state interest of protecting the public from unscrupulous dealers. Many unsuitable applicants can obtain licenses, yet many suitable applicants cannot.

Felony crimes range widely, and many do not implicate the purposes identified by the State as justifying the ban. Federal felonies include mishandling of environmental pollutants, draft dodging, and certain offenses involving fish, wildlife and plants. State felonies include violating a sexton’s burial duties, illegally assisting a disabled voter, injuring a peace officer animal, and violating pollution requirements. See OLR Research Report, 2012-R-0358, Unclassified Felonies (2012). Many, if not most, of the hundreds of federal felonies and more than 265 Connecticut felonies, have no tendency whatsoever to predict unsuitability for licensure based on the interests that the State claims section 21-100(a)’s felony bar was enacted to protect.

At the same time, many misdemeanors reflect conduct that seems to be more relevant to the state’s legitimate goals than the conduct underlying many felonies. For example, illegal sale of used motor vehicle parts, illegal ticket scalping, issuing a bad check, and forgery are all misdemeanors. Moreover, the fortuity of plea bargaining may reduce felonious conduct to a misdemeanor conviction—or not, depending on the quality of legal counsel, the exercise of prosecutorial discretion, and the proclivities of different judges. These realities highlight the under-inclusiveness of the use of a felony bar to licensure. Failing to include every possible criminal violation in the statute does not make the statute unconstitutional. But this failure does underscore the irrationality and arbitrariness of the statute’s classification.

The classification is overbroad in two other ways; it fails to distinguish among felons in terms of when they were convicted and how severely they were sentenced. Persons sentenced to probation are treated the same as those sentenced to lengthy prison sentences. “The purposes for the enforcement of the criminal laws are the punishment and the rehabilitation of the guilty.” By absolutely banning convicted felons from receiving a precious metals license, the ban prohibits consideration of the nature and severity of the crime, the nature and circumstances of an applicant’s involvement in the crime, the time elapsed since conviction, and the degree of the applicant’s rehabilitation. The statute does not provide any other criterion, even “good moral character,” to deny a precious metals license….

The statute is irrational because the ban on felons is insufficiently related to the purpose of the statute. Without a meaningful relationship between the absolute bar on felons from holding a precious metals license and the legitimate state interest of protecting the public from unscrupulous precious metals dealers, the ban violates the Equal Protection Clause. Cf. Green v. Missouri Pacific Railroad, 523 F.2d 1290, 1298 (8th Cir. 1975) (“We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed…. To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.”).

The State’s goals are legitimate, but the rational basis test requires not merely a legitimate goal but a rational connection between the goal and the classification used to further that goal. The State has not explained how the absolute ban on licensure of felons furthers the goals it has identified. That much it must do to survive even rational basis review. Accordingly, I conclude that the State’s complete ban on felons holding precious metals licenses constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment.

I sympathize with the result — though I think that some continuing restrictions imposed on felons are proper, even after their sentences are up, I think many such laws go too far, and make it unduly hard for felons to make an honest living (and thus stay out of jail). I think the same of the tort law of negligent hiring, which I think has likewise gone too far.

But I doubt that this decision is consistent with the very deferential way that the Court has interpreted the rational basis test when it comes to economic regulations, including professional licensing schemes, so I doubt that the decision will be upheld on appeal. The over- and underinclusiveness to which the court points is generally not seen as reason to strike down an economic regulation, where no well-recognized fundamental right is involved and where no suspect or quasi-suspect classification (such as race, sex, and the like) is involved. And while one could argue that the right to earn a living in a generally lawful occupation should be treated as a fundamental right — some precedents indeed say so — courts have generally not applied any such right in such cases, and this opinion doesn’t rely on any such fundamental right.

If it is upheld, though, I think similar reasoning might well apply to bans on gun possession by felons (especially in jurisdictions in which restoration of such rights is unavailable). There too the ban extends to many felons whose felonies are nonviolent, seem to be little related to any possible tendency to misuse guns, and are many years in the past. Even if felons lack a Second Amendment right, given D.C. v. Heller, they also lack a substantive constitutional right to be a precious metals dealer. But they still have Equal Protection Clause rights, and if the categorical felon/nonfelon distinction violates the Equal Protections Clause as to dealing in precious metals, no matter what offenses they committed and when they committed them, it seems to me that it would likewise violate that Clause as to owning guns.