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Supreme Court equal justice under law

From the Firearms Policy Foundation . . .

Today, Firearms Policy Foundation (FPF) announced the filing of two amicus briefs with the United States Supreme Court in the cases of Holloway v. Rosen and Folajtar v. Rosen. Both briefs were drafted and submitted by longtime Second Amendment attorney and scholar David Hardy.

The first petition was brought by Raymond Holloway, Jr., who was convicted of a nonviolent misdemeanor for driving under the influence nearly twenty years ago. Mr. Holloway has been law-abiding ever since, but he is nonetheless prohibited by federal law from possessing a firearm for the rest of his life. Holloway’s counsel argued in his petition that the Court should hear the case because the lifelong ban violates Holloway’s Second Amendment rights, and to further clarify the field of Second Amendment law.

FPF’s amicus brief in Holloway supported the petition by arguing that the Supreme Court should accept the case to stop lower courts from treating the Second Amendment as a second-class right. The brief also focused on the arbitrariness of the federal firearms prohibition as applied to misdemeanants. In fact, as the brief explains, under Pennsylvania law, Holloway’s driver’s license was suspended for only 18 months. Yet, he is forever forbidden from possessing a firearm even though his misdemeanor offence had nothing to do with firearms.

The second petition was brought by Lisa Folajtar, who was convicted of willfully making a materially false statement on a tax return. Ms. Folajtar has been law-abiding ever since her conviction for the nonviolent crime in 2011. Folajtar’s counsel argued in her petition that there is no historical basis for disarming nonviolent persons, so the federal law prohibiting Ms. Folajtar from possessing a firearm is unconstitutional as applied to her.

FPF filed an amicus brief in support of Ms. Folajtar analyzing the history of firearm prohibitions. Going back to the English Bill of Rights of 1688, the brief highlights the antiquity of the Anglo-American right to arms—even compared to other liberties guaranteed by the United States Constitution. The brief then examines the right to arms in colonial America, showing that only those disloyal to the new American government were disarmed, due to the threat they posed as potential enemy combatants. At the Constitution ratifying conventions, state proposals would have allowed for the disarmament of only dangerous individuals or those in actual rebellion. From then throughout the early twentieth century, only violent persons were ever disarmed. In sum, violent and potentially dangerous persons have traditionally been disarmed in America, but peaceable persons like Ms. Folajtar have always been permitted to keep and bear arms.

“The Supreme Court has ruled that the right to arms is a fundamental constitutional right, but the government, and the lower courts, refuse to treat it like one,” said Hardy. “Indeed, they refuse to treat it as a right at all. What is the reason for disarming these people? A proclivity toward armed violence? Can anyone seriously claim that driving under the influence shows a proclivity toward armed robbery? Or that violating the tax code is proof of an inclination to murder? If citizens are to be stripped of their constitutional rights, the reason should at least be something that would make sense to a third-grader.”

“These two cases give the Court an opportunity to address the lower courts’ systemic,  disparate treatment of currently prohibited categories of individuals and their ability to exercise their Second Amendment rights, along with the opportunity to clarify the test that the lower courts should be applying to Second Amendment challenges,” said FPF Vice-President Jonathan Jensen. “The briefs filed by FPF help inform the Court as to the historical underpinnings of those who were typically prohibited from possessing arms, consistent with the Second Amendment’s text as informed by history and tradition.”

FPF was joined on both briefs by the California Gun Rights Foundation, Second Amendment Foundation, and Madison Society Foundation.


Firearms Policy Foundation ( is a grassroots 501(c)3 nonprofit public benefit organization. FPF’s mission is to protect and defend the Constitution of the United States and the People’s rights, privileges, and immunities deeply rooted in this Nation’s history and tradition—especially the inalienable, fundamental, and individual right to keep and bear arms.

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  1. Stupid laws should have never been passed in the first place. People look pretty stupid standing there arguing over such matters…To make sense of it all follow the money.

  2. In the current political climate, it seems SCOTUS is so cowardly that they cannot be counted on to preserve the intent of the Constitution and Bill of Rights. I hope I am wrong, but even the conservatives on the court are apparently cowed by the Left.

    • LifeSavor,

      When I first heard that the U.S. Supreme Court rejected the 2020 Election lawsuit that Texas filed, I was angry and also thought that the Supreme Court lacked courage.

      Looking on it now, the simple fact of the matter is that we have an Electoral College which chooses the President of the United States and the states’ Legislatures can choose/send their Electors to the Electoral College any way they please. Take Pennsylvania for example. The Pennsylvania Legislature has the authority to send any Electors they want. If the Pennsylvania Legislature was convinced that the majority of their residents wanted Trump to be President and concurred that was a reasonable choice, they could send Electors to choose Trump regardless of what the real or fraudulent vote count was in their state. For whatever reason or reasons, the Pennsylvania Legislature decided to send Electors to choose Biden — which they have authority to do under the U.S. Constitution.

      Whether or not the vote count in Pennsylvania was accurate is almost a moot point since the Pennsylvania Legislature gets the ultimate say. And that is a Pennsylvania problem, not a U.S. Supreme Court problem. The relatively easy solution for Pennsylvania voters is to vote our their Legislature which thought it was okay to allow voting/counting shenanigans and send Biden Electors to the Electoral College. And the same applies to the other four battleground states which allowed shenanigans and decided the outcome of the election.

      • “Pennsylvania Legislature has the authority to send any Electors they want.”

        Yeah, that’s a problem, however….

        Soon, the legislatures will not even have to bother choosing electors. The national reciprocity “national popular vote take all” method of selecting electors will relieve the state legislatures of the odious and politically distasteful chore.

      • Idiot. 10wks later you’re still clueless. The Penn electors where NOT selected in accorance with Penn Law (as passed by the Pennsylvania Legislature).

    • DUI can be a felony. A conviction that can be punishable by more than a year will strip you of your rights, even if you were sentenced to no time.

    • Misdemeanor with a potential punishment of a year or more in jail, even if you were fined and not incarcerated.

      Yep, I’d say deprivation of civil rights over that qualifies as excessive.

    • You are 100% wrong. All Holloway was convicted of was a DUI. Read the damn briefs.

      Because Holloway had a previous (dismissed) DUI charge, PA law made it a felony for which he *could* have been sentenced to more than a year in jail. (This is not the case in the vast majority of states.) Even though he was actually sentenced to the statutory minimum (a few weeks on a work-release program plus probation), under the ‘68 GCA the fact that he *could* have been sentenced to more than a year incarceration made him a prohibited person.

    • New age progs (MOMS) class a DWI with multiple murders.

      If the progs allow these two individuals to VOTE (and certainly they can) there is no rational reason to suspend their 2nd rights.

  3. “You don’t lose 2A just for a DUI.. There is more to this story.”

    18 U.S.C. 921(a)(20).

    One loses 2A rights for a crime punishable by imprisonment for a term exceeding one year…even if the actual sentence is for less than one year. If you are convicted in a state where misdemeanors are more serious than a ticket, and punishable for 366 days, you lose your fundamental, constitutionally protected, natural, civil and human right to use a firearm in self-defense (or any other legal purpose).

    • If you’re declared a habitual drunk that can do it. DUI has been raised from a traffic violation to almost attempted murder or assault and that’s not even with an accident. At the very least it’s a huge money maker. At least it was until Covid fines came along.

      • In Florida you can lose your firearms rights at third conviction. If you have been arrested 3 times for DWI you probably do have a problem.

      • You get a death sentence or 20years in a dank dungeon in some countries for drunk driving…I knew a guy who’s newborn baby got a crushed skull from a drunk a-hole. He has permanent limp. His little girl was born on the same day as my son in 1977.His wife shared a room with my wife at the time. No death sentence-except for the baby!

  4. Oh man who hasn’t “fibbed” on a tax return?!? Setting the bar exceedingly low…my son has a felony for the dumbest non-violent “offense”. I broached the subject of restoring his rights but he said “that takes $”. I concur but he doesn’t show any real interest. And he’s 43. I’ll follow this closely!


  6. I’m no lawyer, and I might learn something here, but a first time DUI does not keep someone from purchasing a fireweaponmgunm, does it? Three DUI’s is a felony however, some States have a fade out , some do not, ( sucks don’t it).
    Lying on a Federal Tax yahootie, I’m pretty sure that’s a straight up felony.
    Can a Felon have their gunm rights restored. Most certainly, time and money, lots of money, and a lenient Judge.
    But this. Domestic Violence conviction, a misdemeanor. No fireweaponmgunm’s for life, doesn’t matter how much you stomp your feet hold your breath and piss your pantsing you do. Your not getting them back.

    • Depends on state law. In Holloway’s situation, one DUI *conviction* was enough to permanently strip him of his rights forever. In just about every other state, however, that’s not the case.

      But if, for example, California passes a law making “hate speech” or some other wrongthink a misdemeanor and sets the maximum penalty to be 366 days in the pokey, then even if they never sentence anyone to the max, the conviction DQ’s you from legally touching a firearm or ammunition forever.

      As I previously wrote ( both Holloway and Folajtar are so over the top that I think they have a very good chance of being granted cert. And unlike NYSR&PA, highly unlikely Congress could or would amend the ‘68 GCA to try and moot it (hopefully, one of them asked for nominal damages, which would preclude mootness even if the law was changed).

      • Minor correction: in my hypo, the state misdemeanor would have to have a max possible punishment of two years to be disqualifying. But the principle is the same — under the GCA, all a state has to do is criminalize something trivial as a misdemeanor and provide a max sentence of 2 years. Even if they never seek that relief, it gives them a legal hammer to strip your 2A rights.

        • “…under the GCA, all a state has to do is criminalize something trivial as a misdemeanor and provide a max sentence of 2 years.”

          Watch the Dims closely….there is now no way to stop them from changing the GCA to “Or been formally arrested for a violation of law, whether or not brought to trial, or convicted.

        • Sam:
          Precisely why they need to grant cert on this, and make it clear that only convictions of crimes of violence against a person can strip 2A rights.

        • “Precisely why they need to grant cert on this, and make it clear that only convictions of crimes of violence against a person can strip 2A rights.”

          An attractive sentiment, however….

          Federalism depends on states acting independent of the central committee on certain matters. We seem to want the 9th and 10th amendments to apply when convenient to us, but demand national law to override 9 and 10 when we don’t like the choices made in individual states.

          This may seem arcane and irrelevant to modern society, but those two amendments are there as a blatant order to the federal government, from sovereign states that the constitution is prescriptive, not proscriptive. The purpose of 9 and 10 was to tell the power hungry that the constitution does not permit central committee action unless specifically delegated. Currently, 9 and 10 are muddied waters. Do we really want to contribute to the sludge?

        • Sam:
          Conceptually and philosophically, I agree with you. But the ships of incorporation of the Bill of Rights to the states, and essentially unbridled federal power (see Wickard) sailed decades ago. (And don’t even get me started on Baker v. Carr, which utterly and irrevocably destroyed the most fundamental principles of “let the states do their thing.”)

          I don’t like it but that’s the legal reality we have found ourselves in all my life. Your postulation essentially says we should ignore that legal reality and not demand that the other side play by the same rules they have crammed down our throats for decades. (Indeed, the best way to make the left rediscover the virtues of federalism is to make them do exactly that.)

          Put differently, I’ll be willing to consider arguments for allowing varying state standards in this area on 9th/10th Amendment grounds as soon as the left similarly concedes that states should be “free to decide for themselves” on things like NFA weapons. As they will never do that, it is folly to let them play by a different set of rules.

        • The intent of bringing in the 9th and 10th amendments was simply to get people to examine themselves, and latent hypocrisy. Yes, indeed, turn the Leftist tools against them. But don’t claim any moral purity for saying one thing, and doing another.

          In the end, simple legislation, even on a national scale, is simply mere legislation, subject to the winds of power. The consistent problem conservatives and constitutionalists have is the belief that things can be settled once and for all; set and forget, if you will. The enemies of the state can never achieve settlement, and do not desire it. Settling an issue once and for all takes that issue “off the table”. Constant political war is stasis for Leftists.

        • Uh, no.

          Where precedential law is settled (as it is against the Ninth and Tenth Amendment interpretations you favor and the incorporation / federalism interpretations I favor), it’s not hypocrisy to argue “hey, I continue to think the Court’s jurisprudence on this is wrong and ought to be revisited, but until that happens you have to apply that settled precedent to the other side as well.” That’s how the rule of law works.

    • “But this. Domestic Violence conviction, a misdemeanor. No fireweaponmgunm’s for life…”

      Nope. I generally (almost always) agree with you, but not this. There is nothing in the Constitution that authorizes a life sentence masquerading as a limited sentence, plus lifetime forfeiture of anything. Nor is there constitutional support/authority to enable thought police, and pre-crime lifetime punishment.

      It is a shopworn mantra, but if a person is too dangerous to exercise all of their constitutionally protected natural, human and civil rights, that person need to be sentenced to “life without parole”, regardless of the underlying crime.

  7. ” In sum, violent and potentially dangerous persons have traditionally been disarmed in America, but peaceable persons like Ms. Folajtar have always been permitted to keep and bear arms.”

    Great, let them exploit “potentially dangerous persons”, as in, anyone who owns a gun…

    • “Great, let them exploit “potentially dangerous persons”, as in, anyone who owns a gun…”

      Hasn’t that been the anti-gun claim for at least the last 10yrs?


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