Supreme Court equal justice under law
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Supreme Court equal justice under law


About a year ago, we were all primed for the Supreme Court to deliver a long-awaited decision that would finally end the Second Amendment’s “second class status.” The unpredictable and unreliable Justice Kennedy had been replaced on the Court by Justice Kavanaugh, cert had been granted in New York State Rifle & Pistol Assn v. City of New York, and it was about to be argued.

There were also a bunch of other Second Amendment test cases being held by the Supreme Court, waiting for consideration in light of the NYSRPA ruling. Or so we hoped. From all appearances, it appeared that there was a solid five vote majority to put a decisive end to lower courts effectively disregarding Heller.

Of course, thanks to the abject spinelessness of Chief Justice John Roberts, our hopes were dashed. Effectively, we were back to the Kennedy-era standoff with Roberts replacing Kennedy as the unpredictable pivot vote.

Now, with RBG replaced by apparent Second Amendment stalwart Amy Coney Barrett, it appears that there really are five reliable votes (along with Thomas, Alito, Gorsuch and Kavanaugh) to put some teeth in the Second Amendment, even if Roberts continues his devolution into an invertebrate. But the Supreme Court can only act by deciding a case that comes before it, and many potential cases can be derailed by procedural and prudential obstacles (for example, recall what happened in NYSRPA). To get the kind of decision the pro-2A world has been waiting for, it will take the right test case.

Supreme Court 2A second amendment
Courtesy Jeff Hulbert

Fortunately, there are now two cases on deck that I think may do the trick. Last week, a cert petition was filed in Holloway v. Barr, and sources tell me that one will shortly be filed in Folajtar v. Attorney General. Both of these cases are being shepherded by the Firearms Policy Coalition, which has quietly been doing a superb job in bringing test cases across the country.

So what are those cases about, and why do I think these may be the vehicle that may finally do the trick?

Legal Background

Under 18 U.S.C. § 922(g)(1), if you are convicted of a crime punishable by imprisonment for a term exceeding one year, you are permanently prohibited from possessing any firearm or ammunition. This does not apply, however, to antitrust convictions, or to state misdemeanors punishable by less than two years imprisonment (18 U.S.C. § 921(a)(20)).

This broad prohibition comes to us courtesy of the Gun Control Act of 1968. Previously, the 1938 National Firearms Act had only prohibited possession by those convicted of a “crime of violence,” which was also the yardstick historically utilized by states and localities.

While not directly ruling on it, the Heller decision indicated that “longstanding prohibitions on the possession of firearms by felons” were “presumptively lawful.”   Left unresolved were the issues of what constituted a “longstanding prohibition,” and whether the “presumption” that such laws were legal under the Second Amendment could be rebutted (and if it could, what the standard is for doing so).


Raymond Holloway pleaded guilty in 2005 to a DUI charge. However, because he had an earlier dismissed misdemeanor DUI charge, Pennsylvania law treated his 2005 charge as a first degree misdemeanor, punishable by up to five years imprisonment. Holloway received the mandatory minimum sentence (90 days confinement on a work-release program, $1,500 fine, five years probation), which he completed. He went on to get a college degree and has a successful career as an educator, with no further legal problems.

In 2016, Holloway applied to purchase a firearm. Despite the fact that his Pennsylvania misdemeanor conviction did not disqualify him from owning a firearm under Pennsylvania state law, his application was nevertheless denied due to § 922(g)(1).

Holloway sued, asserting that the lifetime stripping of his Second Amendment rights for a nonviolent misdemeanor conviction pursuant to § 922(g)(1) was unconstitutional. He asserted what is known as an “as applied” challenge; i.e., “I’m not attacking the constitutionality of the overall statute – I’m claiming that enforcing it against someone in my particular circumstances is unconstitutional.”

The district court found for Holloway, ruling that even under intermediate scrutiny, there was insufficient evidence to justify a lifetime ban based on a nonviolent misdemeanor conviction (particularly one that would not have been disqualifying in the vast majority of states). For you law nerds out there, yes, I’m simplifying the district court’s “as applied” analysis, which gets rather complicated due to the muddled state of Third Circuit law.

On appeal, over a vigorous dissent by Judge Fisher, a Third Circuit panel reversed, finding that the “potential for danger and risk of harm to self and others” for a state DUI offense was a sufficient justification to remove the Second Amendment rights from one who violated that law. (The court conveniently ignored that Pennsylvania legislators, who passed the DUI law yet did not making it disqualifying under state law, obviously disagreed with this assessment.) After the Third Circuit narrowly denied a petition to rehear the case en banc, on December 3 Holloway filed a cert petition with the Supreme Court.


Lisa Folajtar plead guilty in 2011 to willfully making a false statement on her tax return, leading to a sentence of three years probation, three months home confinement, a $10,000 fine, and paying the IRS over $250,000 in back taxes, penalties, and interest. However, because tax fraud is punishable by a sentence of up to three years imprisonment, this conviction made her a prohibited person under § 922(g)(1). In 2018, she filed suit, challenging the lifetime ban based on a nonviolent felony as unconstitutional as applied. The district court dismissed her case as not stating a plausible claim.

Over a colorful and powerful dissent by Judge Bibas, a Third Circuit panel affirmed, finding that any felony conviction is sufficiently serious to justify a blanket ban on possession by felons, and that the court should defer to the legislature’s decision over whether an offense is sufficiently serious to warrant permanently stripping an offender’s Second Amendment rights.

Of course, the opinion ignores that the 1968 GCA was passed decades before Heller recognized an individual Second Amendment right. The idea that Congress in 1968 actually decided or intended to permanently prohibit all felons from
exercising a fundamental constitutional right that had not yet been recognized, and that the court should defer to this illusory “decision,” is fatuous.

The court thus effectively applied only “rational basis” scrutiny — the lowest level under which the government almost always prevails — to Folajtar’s Second Amendment claims. The Folajtar decision was announced on November 24, 2020, but my sources indicate that a cert petition will be filed shortly.

Why These Cases May Attract The Court

The question of whether § 922(g)(1)’s ban on all covered offenders, regardless of whether the crime was nonviolent or the offender not dangerous, has resulted in a massive split between the circuits. Resolving such circuit splits are the Supreme Court’s main job, and thus the splits make Holloway and Folajtar attractive candidates to start with.

The Second, Fourth, Fifth, Tenth, and Eleventh Circuits apply a blanket rule, holding that § 922(g)(1) is conclusively presumed to be lawful, and thus no challenge to it can be raised.

Supreme Court
The massive bronze doors of the Supreme Court are seen in Washington. (AP Photo/J. Scott Applewhite)

The Third, Fourth, Ninth, and D.C. Circuits take a different approach, based on a historical analysis that states traditionally prohibited possession of arms by those found to be “unvirtuous.” Thus, if an offense is serious enough to mark the violator as an “unvirtuous citizen,” stripping the offender of his Second Amendment rights is constitutional. As demonstrated by Folajtar, this approach effectively results in “rational basis” review, in which the government will almost always win.

The First, Sixth, and Eighth Circuits, as well as numerous dissents in other circuits, find that the “longstanding prohibitions” of felons possessing arms involved offenses that marked the offender as dangerous; i.e., a person who would be a danger to the public. Under this approach convictions for offenses that do not fit this bill cannot strip a citizen of his Second Amendment rights.

The Seventh Circuit initially adopted the “unvirtuous citizen” approach. However, a few years later, it backed away from that approach, in response to a powerful dissent. This dissent provided a historical analysis that destroyed the idea that the “longstanding prohibitions” were based on the concept of “unvirtuousness,” and proved that such prohibitions were actually based on “dangerousness.”

Who authored this tour de force dissent?

Amy Comey Barrett.

Her historical analysis was very similar to that in another dissent in a Second Amendment case. In that one, a judge on the DC circuit went through the history of firearms regulation in America, and based on that historical analysis dissented from the court’s upholding DC’s ban on semi-automatic rifles and standard capacity magazines.

Who wrote that dissent?

Brett Kavanaugh.

Supreme Court watchers have already picked up on this dynamic, noting that Folajtar and Holloway will likely be very attractive to both ACB and Kavanaugh. And there can be little doubt that Thomas, Alito, and Gorsuch – all of whom have been quite vocal about the need for the Court to take a case that ends the “second class status” of the Second Amendment – would be all over this as well.

Indeed, if the Court took these cases, given their usual positions in civil rights and criminal law cases, it would not surprise me if Justice Kagan (and possibly even Breyer) voted with the majority to reverse and remand, although they would certainly dissent from the portion of the opinion that established heightened scrutiny in Second Amendment cases. (Sotomajor is hopeless, as I suspect she would reflexively reject anything that treats the Second Amendment as anything other than constitutional surplusage.)

What would Chief Justice Roberts do?  If these cases are granted cert, I suspect he’d try and triangulate so that as Chief Justice he could assign himself the responsibility of drafting the majority opinion, which he’d likely try to make as narrow and non-confrontational as possible. After all, he would not want Senator Schumer and the Beltway smart set saying unkind things about him.

However, with what appears to now be a five vote block of Second Amendment supporters, Thomas et al. could simply refuse to go along with Roberts’ continued pusillanimity and write their own majority opinion, one that at long last provides for a heightened scrutiny in Second Amendment cases and that blasts the door open on all sorts of legal challenges to various gun control laws.

Indeed, the Firearms Policy Coalition seems to be filling the lower court pipelines with lots of test cases in anticipation of just such a ruling. Pass the popcorn, this should be interesting.


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  1. For the kajillianenth time I ain’t holding my breath. We had high hopes for a 2A party with Drumph too. Lock n load…

    • Seriously. The system is corrupt and broken beyond repair but, like Charlie Brown with Lucy holding the football, “we” keep hoping for SCOTU to give us our rights back…

        • Remember that ban on bump stocks? Remember his willingness to ban suppressors if it came to him? Remember him saying “take the gun’s first”.

          He learned it would hurt him, so he stopped. He’s not your Fucken buddy or a 2A savior. If it hasn’t been for the chaos of 2020, he would’ve passed whatever anti gun bill floated his way.

        • “Remember his willingness to ban suppressors if it came to him? Remember him saying “take the gun’s first”.

          Then remember when he came out after that and said he wouldn’t support ANY gun control legislation INCLUDING red flag laws? You fear his words just like the lefties. The bump stock fiasco was a unique situation which I’ve criticized him for repeatedly here on TTAG.

          “If it hasn’t been for the chaos of 2020, he would’ve passed whatever anti gun bill floated his way.”

          Source? Or did you just pull that out of your Azz based on your feelz?

          “He’s not your Fucken buddy or a 2A savior.”

          I never claimed he was anything remotely close to a 2A savior. Go back and read the comment, or any of my comments. I’m not a fanboy, ideologue, or even a partisan. I call ’em like I see them. You’re just pulling more $hit out of you azz.

        • Wrong. I just refuse to say he has done anything good, because like every politician, it’s good for them, not us. You want some good 2A shit? Join a militia. Prepare for what happens in 2021. The rest about who did what and what we think is irrelevant.

      • When you have politically inept crybaby twerps on this forum doing nothing but holding hands with the democRat Party you can watch your rights sail away. To mr. Lock and Load…Exactly who is your target tough guy? To the crimson punk…Your contribution is? ZIP NADA Nothing.

        Rest assured the two azzhats above see 1968 Gun Control Act and it sailed right through their empty history illiterate heads. When I see Gun Control I see racism and genocide. Gun Control is rooted in racism and genocide and that makes it a racist and nazi based agenda. Gun Control has no place in America and it should be ripped from the books. Are you hearing me USSC et al?

        You can bet the farm the two blowbags I’ve got my sights set on today do not have the balls to say what I say on this forum and left up to them it would be the same old tit for tat losing arguments that leaves your rights in the hands of a few judges and that leaves your 2A Right always on the edge of a cliff.

        If Jim Crow was still on the books I suspect there would be clowns on this forum giving it a pass just like the same clowns overlook 1968 Gun Control Act. If it was called the 1968 Racism And Genocide Act they’d probably rollover and play dead for that too.

    • That’s President Donald John Trump. After 4 years of demoCrap libel, slander and rigging an election show some damn respect or stfu.

      • Debbie you have been talking crazy out of your ass since day 1 here. Do your own STFU, we are all longign for it!

        • The Crimson Pirate said, “Do your own STFU, we are all longign for it!”
          Your “we” doesn’t include me and I am sure others.

        • I’m with Crimson. Debbie has sprouted nothing but insanity since day one. Every time I browse the comments and see that she’s posted, my eyes glaze over as I skim whatever nonsense she’s decided to pound out on her keyboard that’s designed to collectively lower all of our IQs.

          In short, I wish she would fuck off or take some much needed anti psychotics.

        • TBF, she makes points. But it’s the same point OVER and OVER and OVER… then it’s “you non trump voters this… you non trump voters that…”

          Get off your fucken knees. Trump doesn’t give a fuck about you. Was he a better choice in 2020? Duh. Is any of the 2 party choices a good one? Fuck no. If people stopped complaining about other “throwing their votes away” and actually voted for a change they might fucking get one. Otherwise, go make change happen. “It’s what the 2A is for” – so fucking put it to work.

    • “We had high hopes for a 2A party with Drumph too.”

      What are your thoughts on Paul Ryan and Mitch McConnell? Did they even try to get a bill to the President’s desk to sign? Or were they too busy working for their rich buddies? Legislatures have the authority to make the laws.

    • Sorry Charlie. The 2 real political parties are…those in power, and those who are not in power. And those in power have no interest in the other group owning guns. There will be no breakthrough in the court system, its not in their interest, is a disfavored right in a broken political system. And its not gonna change, unless it changes for the worse.

    • The Crimson Pirate,

      I was kind of thinking along the same lines.

      I like to think that most people who support our inalienable right to keep and bear arms are incredibly tolerant people — always hoping and trying for the best, most peaceful outcomes. Consistent with such a mentality is begrudgingly allowing infringement of our rights for a while — while taking the high road and trying to work within the confines of constitutional government to eliminate those illegal/extraconstitutional infringements.

      Also consistent with that mentality, there is a limit to such patience and “good will” and eventually good people will put their proverbial foot down and say, “enough is enough!” If the U.S. Supreme Court is unable to do the right thing (either because they shirk their responsibility or because of other forces beyond their direct control) with these cases and finally put our nation back on track to legality and righteousness on the Second Amendment, I think this will be the last straw and good people will indeed move on to the fourth box.

    • Yes, Rudy Giuliani has infected the republican legislators in several states, over the next few weeks we’ll see a blossoming of Covid cases within the republican members, there will be a negative impact upon the control of their various legislative bodies.

      And with 200,000 new cases each day and well over 1000 deaths each day, the elder conservatives will be a declining share of the electorate.

      So when will the prosecution of Hunter Biden begin for the money laundering and pedophilia discovered on his laptop?
      You folks have been promising that for a couple months now, yet there doesn’t seem to be any legal action whatsoever by trumps DOJ, does anybody know what the holdup is?

      How is Hillary doing in prison?

  2. Do not trust judges. Ever. They are part and parcel of the same hypocrisy that we call “government.” They do not exist to protect us. They exist to protect that hypocrisy.

    The judiciary might be the most corrupt branch of government since it pretends to be non-political. And the judges claim it with a straight face.

    • So true. Judges are supposed to be unbiased. In my experience they are some of the most one sided assholes in the government. Them and prosecutors.

        • I knew Judy Scheindlin back in the day. She was an excellent jurist, cerebral and stuck to the letter of the law. She was also much nicer than her TV persona would indicate, but nevertheless was absolutely the wrong person to fvck with.

        • That’s interesting, I certainly hope as a real Judge she wasn’t like her TV persona, then on the other hand might not be a bad idea, imagine the cases that would have been thrown out.

    • “And the judges claim it with a straight face.”

      My dad was a judge. Before that, he was EXTREMELY politically (democrat) active. After becoming a judge, he ran as an independent, and “stopped” being “political.” After retiring, he started working on campaigns again for democrats. So, in his heart, does anyone believe that he stopped being political while he was a judge? Hahahahaha

  3. SCOTUS threw in the towel and the white flag with the NYSRPA case, capitulating to the threat of legislative reorganization instead of standing up to the threat. Roberts hasn’t the balls of a gnat.

  4. Seems like these cases are aimed at a small minority of want to be gun owners. How about some wide sweeping cases that concern all gun owners or the absolute right to own firearms that ‘shall not be infringed.’

    • I agree. While I’m (somewhat) sympathetic to people who have made a mistake and want their 2a rights restored, it doesn’t do anything to protect my rights on a federal level.

      Maybe these two are now upstanding citizens. I can also say that in the majority of cases the best predictor of whether someone will commit crimes is whether that person has previously committed crimes.

    • Agreed. Where is the strict scrutiny case that New York State Rifle & Pistol Assn v. City of New York, was supposed to be?

      This appears to be playing small ball, with tiny incremental changes that will take a generation or longer to fully develop.

      In case you haven’t noticed LKB, Rome is burning.

      (Also would this establish a beach head to restoring voting to felons?) (Why else would “Justice Kagan (and possibly even Breyer) vote with the majority…”?)

    • Yeah. While I agree with them, it certainly should not be the priority. But the courts don’t work on priority. For that you have to look to the legislature.

      And we saw what the priorities were in 2016.

    • Unless they force the use of strict scrutiny on any test that involves a law that treads on the 2nd. That will pour gasoline on every gun rights impacting law passed in the last 50 plus years.

      • And that’s the point. The right test case on a narrow, “easy” issue (a-la NYSR&PA) yields a test (strict scrutiny or THT) that changes the legal landscape completely. That’s why the antis were so freaked out by cert being granted in NYSR&PA.

        For those of you saying, “just go for a broad case that strikes everything down in one stroke,” all I can say an an old federal appellate attorney is that’s not how these things work. Bring such a case and you will swiftly lose in the district court and the courts of appeals, and then you are going to have to hope that the Supreme Court will exercise discretion to take the case. Especially where there is not a circuit split, that’s a long wait for a bus that isn’t coming. Bringing incremental test cases may be a maddeningly slow process (look how long it took to get Heller), but if you want to actually get results rather than just pontificating that’s how you do it.

        Good news is that the FPC gets it, and I’ve been impressed at their acumen in carefully selecting issues and venues for their test cases.

  5. Except for Trump, the republicans have been the Weimar Republic since Reagan.
    There has not been one issue they would fight for. Why would the second amendment be any different ?
    When Obama care was passed (shoved down our throats) Republicans said we need to repeal. Give us the house.
    We elected a republican house and nothing. We need the senate too. We elected a republican senate. Oh no, we can’t do anything without the presidency. We elected a republican president and for 2 years had all 3 branches. What did we get. And to top it off a republican appointed Supreme Court justice reworded the bill to protect it.
    What about the Durham report ?
    Submit or revolution are the only options.
    Yes, we did just re-elect DJT and even that is undone.
    A Supreme Court decision favorable to the second amendment will be undone before the end of Harris’ first term. This is a waste of time.

    • Republicans spent most of the last half of the 20th century fighting the Soviet Union. Once the Berlin Wall was torn down, it’s as if the Republicans suddenly stopped in their tracks and wondered what to do next.

      They never realized that while the Wall may have fallen, communism did not. It just moved its capital from Moscow to almost every American university and the streets of San Francisco.

      The enemy of American existence is no longer across an ocean. It’s now just across the aisle.

  6. “if you are convicted of a crime punishable by imprisonment for a term exceeding one year, you are permanently prohibited from possessing any firearm or ammunition.”

    For *years* I’ve had the opinion the 2A will be attacked by criminalizing behaviors that ordinarily wouldn’t be, in the interest of ‘gun control’.

    Example – Charged with careless driving? Someone who is careless controlling an automobile can’t be trusted with a gun. That kind of mindset could criminalize a heated argument to make someone a prohibited person.

    If this is the kind of foundation LKB was referring to as being necessary to make the 2A as ‘bullet-proof’ as possible to future attack by Leftist scum I’m all for it.

    I fully expect them to steal the Georgia senate seats. Schumer made a cryptic comment along the lines of “First we take, Georgia, then the world”. He intends to carry out that threat…

    • I wonder if Schumer recognizes the irony. Pretty soon we’ll hear gangs of Schumer Youth singing “Tomorrow Belongs to Me.”

    • What I don’t understand is why the Republican party isn’t pitching an absolute FIT in Georgia. They have a majority in the legislature. They have a Republican Governor. After Stacey Abrams attempted to steal their last gubernatorial election, I don’t understand why they’re not doing SOMETHING to address the rampant fraud. If that means you have a Republican poll watcher for every Democrat Poll worker, so be it. It’d be a lot harder to pull of funny business. Doing nothing and hoping for the best when your political opponents have made it crystal clear that they will use fraud against you seems like suicide. Perhaps they’ve all been bought off?

      • *Maybe* the Ga. legislature will pull a rabbit out of their hat and select their own electors in January. If Michigan and another do that, that throws the election to the House, where each state gets a vote. That means we will win.

        I’m just not seeing a spine out of any of them…

      • “What I don’t understand is why the Republican party isn’t pitching an absolute FIT in Georgia“

        Maybe because all of the BS hearsay from trumps ‘elite strike force’ doesn’t change the result of the will of the people of Georgia?

        Maybe because there are a few Republicans who still have personal and professional integrity?

  7. As usual nothing will happen. We just need to not comply with any news BS that is handed down that does not pass muster…

  8. And onto the next legal battle after that…

    The system that once favored farmers defending freedom is broken beyond repair.

    • Montana Actual (Who lately sounds more like Hanna Montana) says “The system that once favored farmers defending freedom is broken beyond repair.”

      “That system” AKA The Constitution is still the best form of governance in the world. Ever.

      And no The Constitution, In and of itself, is not “broken beyond repair.” But it is thirsty…

      • The constitution does not govern anything. If they want to change it badly enough, they will, and have.

        I agree “it’s thirsty”… but it’s always been deprived of moisture. Now it’s a tumbleweed. The idea is still there, but freedom is not free and it certainly does not involve government.

  9. As of now a felon can have their second amendment rights restored, all it takes is time and money. On the other hand a DV misdemeanor charge, forget it.

  10. It’s a long shot in my opinion. If this was gay marriage, illegal immigration, or some other liberal cause it would be followed like the word of God.

    Gun rights are ignored and decisions like this are also ignored. Hell will freeze over before NJ and N.Y. open up like other states.

  11. Things have not changed – – One may enjoy all the “equal” justice for which he has the resources to pay for. What government writes and signs the SCOTUS justices’ paycheques? Think about it – – We the people are screwed until We refuse to pay the government whores for the privilege of screwing us. The government does not have enough jail cells to house 300 (+) million people if all those people refuse to bankroll the government’s tyranny with their income tax.

  12. Great. We’re going to bat for criminals to regain their forfeited rights? Swing and a miss! Sounds more like a 2A lawyers make-work program than a serious campaign to roll back 2A infringements. I’ll keep my contribution money and spend it on ammunition.

  13. My son made some stupid decisions when he was younger, and is now in the same boat as Holloway, losing his gun rights as a result. I’m pretty sure Holloway, just like my son has had his driving privileges restored, permitted to own and operate the original instrument involved in his crime. I’m glad to see FPC presenting this case and I hope the Supremes will consider it. I miss going hunting with my son. And yes, my contributions have been going to FPC for a couple of years now.

  14. “We need this part of the Government to save our gun rights from that part of the Government, so We, the People are able to stand up against tyrannical Gove… never mind.”


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