By LKB
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.
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).
Holloway
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.
Folajtar
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.
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.