Third Circuit decision on 2nd Amendment “perfectly tailored” for Supreme Court after Barrett confirmation

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The Supreme Court has become notoriously skittish about Second Amendment cases in the years after Heller. That may change now after a Third Circuit ruling upheld a ban on firearm ownership for felons, even those convicted of non-violent crimes. In a 2-1 decision, the court ruled that a tax-evasion conviction was sufficient for a lifetime removal of Second Amendment rights:

Lying on her tax returns will cost a woman her right to own a firearm for a lifetime, the Third Circuit affirmed Tuesday.

The case, which was argued before the federal appeals court last year in Philadelphia, centers around Lisa Folajtar, who pleaded guilty in 2011 to making false statements on her tax returns. Since lying to the government is a felony, the conviction carries additional gun restrictions beyond her sentence of probation and a $10,000 fine.

Divided 2-1 Tuesday, the Third Circuit found that “those who commit serious crimes are excluded from the Second Amendment’s protections,” and that reinstating Folajtar’s gun rights would negate the gravity of her offense.

“Consistent with our precedents, we hold that the legislature’s designation of an offense as a felony is generally conclusive in determining whether that offense is serious,” Justice Thomas Ambro, a Clinton appointee, wrote for the majority. “Because we determine the felony here is a serious crime, Folajtar is not protected by the Second Amendment, and her as-applied challenge fails.”

At issue in this case is the Second Amendment’s standing as an individual right, argues Jonathan Turley, the basis for the Heller decision. Folajtar “falls into the still grey area” of Heller, Turley writes, especially since the court recognized the right of states to prohibit felons from owning firearms in McDonald two years later.

If the Second Amendment is a fully incorporated individual civil right, however, the law and the courts should arguably use strict scrutiny in reviewing the constitutionality of laws that infringe on it. Broadly speaking, that requires a formula that requires states to show a valid public interest in play and the use of the narrowest policy to attain it. The public interest in such bans on ex-felon gun ownership is clearly that of public safety, but the application of such bans on non-violent ex-felons would not be a reasonably tailored measure to achieve it. There is no rational basis to assume a danger from someone who filed a false tax return alone, arguably.

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Turley believes that newly minted Justice Amy Coney Barrett will want to delve into that very question, and her addition might finally push the court to grant cert in this and other Second Amendment cases:

It is hard to ignore the analogy to one of now Justice Barrett’s prior decisions as an appellate judge in Kanter v. Barr. Rickey Kanter was convicted of one count of felony mail fraud for defrauding Medicare in connection with therapeutic shoe inserts. The Seventh Circuit panel split 2-1 with Barrett in dissent. Focusing on the “history and tradition” of such restrictions, Barrett also took on the voting rights and jury service point with a key distinction:

“The problem with this argument is that virtue exclusions are associated with civic rights—individual rights that “require[ ] citizens to act in a collective manner for distinctly public purposes.” See Saul Cornell, A New Paradigm for the Second Amendment , 22 LAW & HIST. REV. 161, 165 (2004). For example, the right to vote is held by individuals, but they do not exercise it solely for their own sake; rather, they cast votes as part of the collective enterprise of self-governance. Similarly, individuals do not serve on juries for their own sake, but as part of the collective enterprise of administering justice…

Heller , however, expressly rejects the argument that the Second Amendment protects a purely civic right. Moore v. Madigan , 702 F.3d 933, 935 (7th Cir. 2012). It squarely holds that “the Second Amendment confer[s] an individual right to keep and bear arms,” Heller , 554 U.S. at 595, 128 S.Ct. 2783 (emphasis added), and it emphasizes that the Second Amendment is rooted in the individual’s right to defend himself—not in his right to serve in a well-regulated militia, id. at 582–86, 128 S.Ct. 2783.”

Folajtar is “Kanter revisited,” Turley writes. He also links it to a Brett Kavanaugh dissent on the DC Circuit on a ban against semi-automatic weapons and limits on magazine capacities. Both Barrett and Kavanaugh might be eager to revisit these issues in light of Heller, and it would only take two more justices to grant cert. Clarence Thomas and Samuel Alito would likely be slam-dunks to vote for cert, and Neil Gorsuch may as well.

If so, look out:

If Barrett and Kavanaugh can get two other justices to accept certiorari, this could be a decision that approaches Heller itself in constitutional importance.

There may not be anything John Roberts can do to prevent it, either. At the very least, it will make for a very interesting argument to follow.

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5 Comments

  1. No! that’s inherently wrong, for states for even violent felons do offer relief in order to get their rights back after a certain amount of years. A friend of mine did. He, after 12 years which was two extra years than what is required by the state just in case, but after 12 years he was able to petition the court to get his voting and firearms rights back. It only cost him $5.00 for the pack from city hall and $80.00 from a lawyer for help in how to fill it out. And then all that he had to do after. The federal ATF ban doesn’t override what states can, because of the wording in the ATF site.
    He’s had his gun rights back now for over 8 years and has passed background checks. So yes it does work!
    But this is good for if they could lift penalties at the Federal level then that would be good.
    Or put money into the fund that is already written into the ATF site’s form for relief from owning firearms, but Repubs and Democraps both never fund that so the ATF doesn’t do it. If Repubs and Democraps would fund that part of what the ATF already has then whatever this ruling wouldn’t matter for they could after time get not only their states rights back but at the federal level as well.

  2. I do not know what Pensalvanias laws are, for they may not offer what I said above, but in his case, my friend, it can work depending on the state’s statutes.
    Technically speaking though. Repubs and Democraps should not support these laws of felons not owning firearms for it hits them as well, or can. Supporting infringements of any kind is a violation of what was written and meant.
    Once a person gets out whether it’s a violent offense or non-violent felons should either nationally get their rights back or after a certain amount of time, they go without offending, and should not have to petition the courts to get them back. Gun Owners of America support this kind of thinking, but the NRA doesn’t. hypocrites.
    Bans on gun ownership only began in 1938 when the federal Govt passed the second nail in the coffin in our second amendment. The NFA act of 1933 was the first. We if smart and true to the second amendment should want all of that repealed but we won’t be.
    Remember it’s shall not be infringed and those and any other laws since are infringements.

  3. Funny how so called tax evasion can cost you the loss of gun ownership for life. Doing business with China and Ukraine making tens of millions isn’t a crime at all. Lord help us, we’re surly in need of common sense and wisdom.

  4. Does this mean that if I lie on my tax returns, I lose my right to freedom of speech, etc? Why is everything focused on our losing our 2nd amendment rights?

  5. This is just another way to make criminals out of gun owners . By charging gun owners with felonies ,they reduce the number of gun owners . So now they look for non related laws to charge gun owners. They are not honest Americans!

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