Amicus Curiae Brief — Raymond Holloway, Jr., Petitioner v. Merrick B. Garland, Attorney General, et al.

No. 20-782

IN THE

Supreme Court of the United States

________________

RAYMOND HOLLOWAY, JR.,

v.

Petitioner,

JEFFREY A. ROSEN, ACTING ATTORNEY GENERAL, ET AL.,

Respondents.

________________

On Petition for Writ of Certiorari to

the Third Circuit Court of Appeals

_________________________________________________

BRIEF OF THE CATO INSTITUTE, REASON

FOUNDATION, INDIVIDUAL RIGHTS

FOUNDATION, INDEPENDENCE INSTITUTE, AND

THE CENTER TO KEEP AND BEAR ARMS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

_________________________________________________

January 7, 2021

Ilya Shapiro

Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

Additional counsel listed on signature page

i

QUESTION PRESENTED

Does a lifetime firearms prohibition based on a

nonviolent misdemeanor conviction violate the

Second Amendment?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

ARGUMENT ............................................................. 4

I.

THE VIRTUE TEST IS INAPPROPRIATE

FOR INDIVIDUAL RIGHTS ............................. 4

A. The Virtue Test Has Only Been Used

for Collective Rights .................................... 4

B. Categorically Stripping Individual

Rights from Felons Would Be

Unacceptable in Other Contexts ................. 6

II. THE VIRTUE TEST ILLEGITIMATELY

ALLOWS LEGISLATURES TO DETERMINE

THE SECOND AMENDMENT’S SCOPE ....... 10

A. Applying the Virtue Test to Individual

Rights Would Lead to Absurd Results ...... 11

B. There are Few Limits on What a

Legislature Can Make a Felony,

Which Has Dire Consequences for

Second Amendment Rights ....................... 13

C. Regulation of a Fundamental Right

Needs to Be Based in Constitutional

Text and History ........................................ 17

CONCLUSION ........................................................ 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bannon v. United States, 156 U.S. 464 (1895) ........ 11

Binderup v. Att’y Gen.,

836 F.3d 336 (3d Cir. 2016) ........................... passim

Bonidy v. U.S. Postal Serv.,

790 F.3d 1121 (10th Cir. 2015) .............................. 6

District of Columbia v. Heller,

554 U.S. 570 (2008) ....................................... passim

Ewing v. California, 538 U.S. 11 (2003)............ 14, 15

Ex parte Wilson, 114 U.S. 417 (1885) ...................... 11

Folajtar v. Att’y Gen., No. 19-1687,

2020 U.S. App. Lexis 37006

(3d Cir. Nov. 24, 2020)................................... passim

Holloway v. Att’y Gen.,

948 F.3d 164 (3d Cir. 2020) ........................... passim

Holloway v. Sessions,

349 F. Supp. 3d 451 (M.D. Pa. 2018) ................... 14

Hudson v. Palmer, 468 U.S. 517 (1984) .................... 9

Jerome v. United States, 318 U.S. 101 (1943) ......... 11

Kachalsky v. Cty. of Westchester,

701 F.3d 81 (2d Cir. 2012) ...................................... 6

Kaemmerling v. Lappin,

553 F.3d 669 (D.C. Cir. 2008) ................................ 7

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) ... passim

McDonald v. City of Chicago,

561 U.S. 742 (2010) .............................................. 17

iv

Page(s)

Medina v. Whitaker,

913 F.3d 152 (D.C. Cir. 2019) .............................. 16

R. A. V. v. St. Paul, 505 U.S. 377 (1992) ................. 17

Rummel v. Estelle, 445 U.S. 263 (1980) .................. 13

Samson v. California, 547 U.S. 843 (2006) ............... 9

Turner v. Safley, 482 U.S. 78 (1987) ......................... 9

United States v. Torres-Rosario,

658 F.3d 110 (1st Cir. 2011) ................................. 15

Voisine v. United States, 136 S. Ct. 2272 (2016) ....... 6

Statutes

18 U.S.C. § 921(a)(20)(B) ........................................... 4

Fla. Stat. § 798.01 .................................................... 12

N.Y. Penal Law § 255.17 .......................................... 12

Okla. Stat. 21 § 872 .................................................. 12

Other Authorities

Adam Winkler, Scrutinizing the Second

Amendment, 105 Mich. L. Rev. 683 (2007) .......... 11

Alexander C. Barrett, Taking Aim at Felony

Possession, 93 B.U. L. Rev. 163 (2013) ................ 11

Benjamin Weiser & Alan Feuer, “Judge Orders

Cohen Released, Citing ‘Retaliation’ Over

Tell All Book,” N.Y. Times, July 23, 2020 ............. 8

Bureau of Justice Statistics, Felony Sentences

in State Courts (Dec. 2009) ............................ 15, 18

Francis Wharton, Criminal Law (12th ed. 1932) ... 11

v

Page(s)

Matt Zapotosky, “Michael Cohen Released from

Federal Prison Over Coronavirus Concerns,”

Wash. Post, May 21, 2020 ...................................... 8

Paul H. Robinson et al., The Modern Irrationalities

of American Criminal Codes: An Empirical

Study of Offense Grading,

100 J. Crim. L. & Criminology 709 (2010)........... 12

Sarah Shannon et al., Growth in the U.S.

Ex-Felon and Ex-Prisoner Population,

1948 to 2010 (2011) ......................................... 17-18

Thomas M. Cooley, A Treatise on The

Constitutional Limitations (1st ed. 1868) .............. 5

William J. Stuntz, The Pathological Politics of

Criminal Law, 100 Mich. L. Rev. 505 (2001) ...... 14

1

INTEREST OF AMICI CURIAE 1

The Cato Institute was established in 1977 as a

nonpartisan public policy foundation dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was

established to restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences and forums, and

produces the annual Cato Supreme Court Review.

Reason Foundation is a national, nonpartisan,

and nonprofit public policy think tank founded in

1978. Reason’s mission is to advance a free society by

developing, applying, and promoting libertarian

principles. Reason advances its mission by publishing

Reason magazine, website commentary, and policy

research reports. To further Reason’s commitment to

“Free Minds and Free Markets” and equality before

the law, Reason selectively participates as amicus in

cases raising significant constitutional issues.

The Individual Rights Foundation was

founded in 1993 and is the legal arm of the David

Horowitz Freedom Center. The IRF opposes attempts

from anywhere along the political spectrum to

undermine fundamental rights and equality of

rights, and it participates as amicus curiae in cases to

combat overreaching governmental activity.

1 Rule 37 statement: All parties were timely notified and

consented to the filing of this brief. No part of this brief was

authored by any party’s counsel, and no person or entity other

than amici funded its preparation or submission.

2

The Independence Institute is a nonpartisan

public policy research organization based in Denver.

The Institute’s amicus briefs in Heller and McDonald

(under the name of lead amicus International Law

Enforcement Educators & Trainers Association) were

cited in the opinions of Justices Breyer (Heller), Alito

(McDonald), and Stevens (McDonald).

The Center to Keep and Bear Arms is a project

of Mountain States Legal Foundation, a

nonprofit, public interest legal foundation organized

under the laws of Colorado. MSLF was founded in

1977 to defend the Constitution, protect private

property rights, and advance economic liberty. CBKA

was established in 2020 to continue MSLF’s litigation

regarding Americans’ natural right to self-defense.

CBKA represents individuals and organizations

challenging infringements on the constitutionally

protected right to keep and bear arms.

This case interests amici because it addresses the

Second Amendment’s scope, particularly as it applies

to nonviolent offenders who have their fundamental

right to bear arms denied by federal or state law. This

is an area of growing concern given the thousands of

regulations that carry criminal penalties.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case asks whether a citizen convicted of a

nonviolent misdemeanor can be completely barred for

life from exercising his fundamental Second

Amendment right to keep and bear arms. The federal

government contends that under the terms of 18

U.S.C. § 922(g)(1), the Second Amendment does not

3

protect citizens once they have been convicted of a

felony or qualifying misdemeanor.

The government justifies this position by

embracing a theory that the Second Amendment

protects only “virtuous” citizens. But there is no

historical justification for forever depriving

nonviolent offenders of their Second Amendment

rights. Legislatures have the power to prohibit only

dangerous offenders from possessing guns.

The proposed “virtue test” would relegate the

Second Amendment to second-class status. In District

of Columbia v. Heller, this Court found that the core

right protected by the provision is individually held

rather than collective. 554 U.S. 570, 582 (2008). While

virtue-based exclusions have been applied to civic

rights such as voting and jury duty, importing them

into individually held rights would lead to absurd

results. Just as a nonviolent conviction does not

suspend an individual’s First Amendment rights, it

should not suspend his Second Amendment rights.

The virtue test becomes more worrisome as it is

tethered to the maximum punishment of an offense—

a mushy standard that is highly manipulable by any

legislature. A legislature seeking to prevent

possession of firearms could make any crime a

disqualifying felony under § 922(g)(1) by setting the

maximum penalty so that the offense is “serious.”

Holloway v. Att’y Gen., 948 F.3d 164, 168 (3d Cir.

2020) (citing Binderup v. Att’y Gen., 836 F.3d 336 (3d

Cir. 2016) (en banc)). By allowing state legislatures to

determine the scope of the Second Amendment, the

fundamental nature of the right is diluted. This

4

blanket rule is far from narrowly tailored, labeling

almost all felons as dangerous because some are.

ARGUMENT

I. THE VIRTUE TEST IS INAPPROPRIATE

FOR INDIVIDUAL RIGHTS

Since Heller, lower courts have split on how to deal

with Second Amendment challenges. This is true for

922(g)(1), which prohibits felons from possessing

firearms. 2 Four circuit courts have used a virtuebased test to limit the right to keep and bear arms to

those who have not committed a felony. While the

virtue test can be appropriate to certain communal

rights, the test is inappropriate for individual rights

such as the right to keep and bear arms that is

protected by the Second Amendment. There is “no

evidence that virtue exclusions ever applied to

individual, as opposed to civic, rights.” Kanter v. Barr,

919 F.3d 437, 463 (7th Cir. 2019) (Barrett, J.,

dissenting). Any permanent deprivation of an

individual right needs to only be as broad as

necessary for the government to achieve its interest.

A. The Virtue Test Has Only Been Used for

Collective Rights

In denying petitioner relief, the Third Circuit

relied on a virtue-based theory of disarmament that

allows for the disarmament of a “class of ‘unvirtuous

2 Section 922(g)(1) makes it unlawful for any person

convicted of “a crime punishable by imprisonment for a term over

one year” to possess a firearm. Excluded from this is any crime

“classified by the laws of the State as misdemeanor and

punishable by a term of imprisonment of two years or less.” 18

U.S.C. § 921(a)(20)(B).

5

citizens’” who commit “a serious criminal offense,

violent or nonviolent.” Holloway, 948 F.3d at 178

(Fisher, J., dissenting). While the court below applied

a five-factor test to determine whether the crime was

“serious,” it largely relied on the maximum

punishment of the offense to determine whether it

was serious. Id. at 176 (“Pennsylvania’s decision to

impose a mandatory minimum jail term and a

maximum penalty of up to five years’ imprisonment

. . . reflects the seriousness of the offense.”). 3

The virtue test has historically been used in

dealing with rights to vote, serve on juries, and

assemble. See, e.g., Binderup, 836 F.3d at 369 n. 14

(3d Cir. 2016) (Hardiman, J., concurring) (noting the

history of felon disenfranchisement and that jury

service and eligibility for public office are not

fundamental rights); Thomas M. Cooley, A Treatise on

The Constitutional Limitations 29 (1st ed. 1868)

(arguing that the disenfranchisement of certain

classes of people on the basis of “want of capacity or

of moral fitness” was well-documented). The virtue

theory of the Second Amendment conceives of the

right to keep and bear arms as a right that “was

exercised for the benefit of the community (like voting

and jury service), rather than for the benefit of the

individual (like free speech or free exercise)” and

therefore “belonged only to virtuous citizens.” Kanter,

919 F.3d at 462–63 (Barrett, J., dissenting). Four

The other approach taken by judges is to look at the

dangerousness of the offense. Under this approach, the

legislature may disarm only those who have “demonstrated a

proclivity for violence or whose possession of guns would

otherwise threaten the public safety.” Kanter, 919 F.3d at 454

(Barrett, J., dissenting).

3

6

circuits have imported the virtue-based test and

applied it to the Second Amendment.

But Heller expressly rejected the notion that the

right to keep and bear arms was a collective right,

holding instead that “the Second Amendment

confer[s] an individual right to keep and bear arms.”

Heller, 554 U.S. at 595. As other amici argue, there is

no evidence to support that virtue exclusions ever

applied to individual rights. Given the importance of

history in this Court’s Second Amendment

jurisprudence, it is inappropriate to use an ahistorical

test to strip people of an individual right.

B. Categorically Stripping Individual Rights

from Felons Would Be Unacceptable in

Other Contexts

Courts “treat no other constitutional right so

cavalierly” as they do the Second Amendment. Voisine

v. United States, 136 S. Ct. 2272, 2291 (2016)

(Thomas, J., dissenting); see also Kachalsky v. Cty. of

Westchester, 701 F.3d 81, 91 (2d Cir. 2012) (refusing

to import substantive First Amendment principles

into Second Amendment jurisprudence); Bonidy v.

U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir.

2015) (“The risk inherent in firearms and other

weapons distinguishes the Second Amendment right

from other fundamental rights that have been held to

be evaluated under a strict scrutiny test, such as the

right to marry and the right to be free from viewpoint

discrimination.”). No other individual right would be

stripped from felons who paid their debts to society.

This is not to say that there cannot be any

restrictions on the Second Amendment. History

supports that the right to keep and bear arms “was

7

not unlimited, just as the First Amendment’s right of

free speech was not.” Heller, 554 U.S. at 595. We can

and should continue restrictions on firearms to truly

dangerous individuals, but any deprivation must be

narrowly tailored. No court would allow a permanent

deprivation of every felon’s First or Fourth

Amendment right simply because the offense was

“serious.” The fundamental nature of the Second

Amendment should compel this Court to similarly

make sure any restriction is narrowly tailored.

1. Suspending Fourth Amendment rights for

felons would be unconstitutional.

The search-and-seizure provisions of the Fourth

Amendment protect against “unreasonable” searches.

This protection applies both to those with and without

a criminal record. No court would allow legislatures

to deprive all felons their Fourth Amendment rights

even though it would arguably improve public safety.

To justify the blanket ban on nonviolent felons,

proponents point to recidivism rates, especially

among nonviolent offenders. See Folajtar v. Att’y Gen.,

No. 19-1687, 2020 U.S. App. Lexis 37006, at *25 (3d

Cir. Nov. 24, 2020); Kanter, 919 F.3d at 449

(highlighting several studies showing a connection

between nonviolent offenders and risk of future

violent crime); Kaemmerling v. Lappin, 553 F.3d 669,

683 (D.C. Cir. 2008) (“[C]ertain groups—such as

property offenders—have an even higher recidivism

rate than violent offenders, and a large percentage of

the crimes nonviolent recidivists later commit are

violent.”). There are two principal problems with the

use of recidivism rates to support firearm bans. First,

as then-Judge Barrett wrote, the statistics lump all

8

nonviolent felons together without taking account

individual characteristics that make some riskier

than others. Kanter, 919 F.3d at 467–68 (Barrett, J.,

dissenting). Second, recidivism rates would also

support the stripping of Fourth Amendment rights

from felons. The government certainly has a

significant interest in curbing crime. Given that many

felons are likely to reoffend, allowing police to

regularly search the homes of felons could deter felons

from committing crimes. If a state legislature

abridged felons’ Fourth Amendment rights en masse

under the belief that it would improve public safety,

would courts blindly defer to that judgment? Yet

that’s what courts around the country have done to

legislative judgments on Second Amendment rights.

And just as it would be clearly unconstitutional to

abridge felons’ Fourth Amendment rights en masse,

so too for the Second Amendment.

2. Felons also maintain their First Amendment

rights.

Likewise, no court would strip a felon’s First

Amendment rights solely because of their lack of

virtuousness. This past year, the U.S. Bureau of

Prisons released Michael Cohen, President Trump’s

former attorney, due to the COVID-19 pandemic.

Matt Zapotosky, “Michael Cohen Released from

Federal Prison Over Coronavirus Concerns,” Wash.

Post, May 21, 2020, https://wapo.st/3hNv57O. He was

sent back to prison, however, after tweeting that he

was finishing up his book about his experience with

President

Trump.

In a

hearing

on

his

reimprisonment, Judge Alvin Hellerstein released

Cohen, saying that Cohen’s subsequent imprisonment

was “retaliatory” solely “because of his desire to

9

exercise his First Amendment rights.” Benjamin

Weiser & Alan Feuer, “Judge Orders Cohen Released,

Citing ‘Retaliation’ Over Tell All Book,” N.Y. Times

July 23, 2020, https://nyti.ms/3rVF9jy.

If the circumstances were different and the court

applied the virtuous citizen test to Cohen, they would

only look at his felony conviction to determine

whether he should be allowed to write his book. No

court would apply such a standard to deprive all

felons of their First Amendment rights.

3. Any restriction on individual rights needs to be

narrowly tailored.

The “right secured by the Second Amendment is

not unlimited.” Heller, 554 U.S. at 626. This is also

true for other individual rights. While incarcerated,

the government can curb prisoners’ First Amendment

rights if the restriction is reasonably related to a valid

penological interest. Turner v. Safley, 482 U.S. 78, 89

(1987). Likewise, prisoners and those on parole do not

have a reasonable expectation to privacy. Hudson v.

Palmer, 468 U.S. 517, 530 (1984) (prisoners can be

searched as a routine matter); Samson v. California,

547 U.S. 843, 850 (2006) (allowing warrantless

searches at any time).

History also supports the claim that the

government can exclude some individuals from

possessing guns. Violent and other dangerous persons

have historically been banned from keeping arms in

several contexts—specifically, persons guilty of

committing violent crimes. See, e.g., Binderup, 836

F.3d at 367–74 (en banc) (Hardiman, J., concurring).

If the Second Amendment were subject to the virtue

test, the government would not need to show evidence

10

that a felon is dangerous. Kanter, 919 F.3d at 463

(Barrett, J., dissenting). But a lifetime prohibition

should be upheld only if the government can

demonstrate with evidence that a nonviolent felon

poses a danger to commit gun violence. Binderup, 836

F.3d at 354 (“[The government] must present some

meaningful evidence, not mere assertions, to justify

its predictive [and here conclusory] judgments.”).

II. THE VIRTUE TEST ILLEGITIMATELY

ALLOWS LEGISLATURES TO DETERMINE

THE SECOND AMENDMENT’S SCOPE

With § 922(g)(1) tied to the maximum punishment

of an offense, legislatures’ have been given the power

to define the scope of the Second Amendment. In

Holloway’s case, Pennsylvania made DUI punishable

up to five years’ imprisonment, triggering § 922(g)(1).

Holloway, 948 F.3d at 187. If he had committed his

crime in a different state, he might still have his

Second Amendment rights.

For legislators wanting to limit possession of

firearms, they can do that by designating any offense

a felony. It does not matter the offense, the individual

circumstances of the offender, or the actual

punishment imposed. All that matters is that the

offense is punishable by one year’s imprisonment.

More problematic is that, in blessing this test, lower

courts have paid only minor lip service to concerns

about the unfettered power placed in the legislatures.

A near-blanket rule that strips a person’s

fundamental rights based on any felony is

overinclusive and cannot be constitutionally

permissible.

11

A. The Virtue Test for Individual Rights

Would Lead to Absurd Results

1. Modern felonies do not resemble commonlaw felonies.

Section 922(g)(1) prohibits firearm possession by

persons convicted of a “crime punishable by

imprisonment for a term exceeding one year.” 18

U.S.C. § 922(g)(1). The statute does not account for

the nature of the offense, just its punishment.

Accordingly, it applies to almost all felons and some

misdemeanants, making it “wildly overinclusive.”

Adam Winkler, Scrutinizing the Second Amendment,

105 Mich. L. Rev. 683, 721 (2007).

Part of the problem are changes in how crimes are

defined today. At common law, the term “applied to

only a few select categories of serious crimes.”

Alexander C. Barrett, Taking Aim at Felony

Possession, 93 B.U. L. Rev. 163, 195 (2013). “Felony”

was a category “used to designate such serious

offenses as were formerly punishable by death, or by

forfeiture of the lands or goods of the offender.”

Bannon v. United States, 156 U.S. 464, 468 (1895)

(citing Ex parte Wilson, 114 U.S. 417, 423 (1885));

Jerome v. United States, 318 U.S. 101, 108 n.6 (1943)

(citing Francis Wharton, Criminal Law § 26 (12th ed.

1932) (stating the common law felonies were:

“murder, manslaughter, arson, burglary, robbery,

rape, sodomy, mayhem and larceny”)).

Today, a felony is defined by a crime punishable

by imprisonment for a term exceeding one year. Thus,

any crime could be a felony. One dissenting judge

described the definition of a felony as “elastic,

unbounded, and manipulable by legislatures and

12

prosecutors.” Folajtar, 2020 U.S. App. Lexis 37006, at

*56 (Bibas, J., dissenting).

To see how far removed today’s felonies are from

the common law, consider a few examples. Under 18

U.S.C. § 1464, a radio talk show host can become a

felon for uttering “any obscene, indecent, or profane

language by means of radio communication.” In

Pennsylvania, reading another person’s email

without permission is a third-degree felony,

punishable by up to seven years. Paul H. Robinson et

al., The Modern Irrationalities of American Criminal

Codes: An Empirical Study of Offense Grading, 100 J.

Crim. L. & Criminology 709, 719 n.44, 46 (2010).

There are currently thousands of criminal statutes

and regulations that could make someone a felon and

unable to possess a firearm.

2. The virtue test is underinclusive, as different

states treat the same crime differently.

A state’s ability to define their crimes means that

an individual who commits a crime in that state

might lose her gun rights, whereas someone who

committed the same crime in another state would

retain her rights. This is seen with adultery law, as

many states treat adultery as a misdemeanor. See,

e.g., Fla. Stat. § 798.01; N.Y. Penal Law § 255.17. In

other states, adultery is not even a crime. Oklahoma,

however, makes adultery a felony punishable by up to

five years’ imprisonment. Okla. Stat. 21 § 872. This

means that a convicted adulterer in Tulsa would be

prohibited from possessing a gun, whereas an

adulterer from Miami or Buffalo would not.

Pennsylvania is one of only eight jurisdictions in

which a DUI triggers § 922(g)(1). Holloway, 948 F.3d

13

at 192 (Fisher, J., dissenting). If Mr. Holloway had

committed his offense in Florida, he could still possess

firearms. “The statute’s dependence on state criminal

classifications and punishments results in an

underinclusive application that raises constitutional

concerns, regardless of the reasonableness of

disarming recidivist DUI offenders.” Id.

To be sure, driving under the influence is a serious

offense. But the nexus between drunk driving and

firearm possession is underinclusive, as different

states treat the same conduct differently. Second

Amendment rights should not hinge solely on the

state where the offense took place.

B. There Are Few Limits on What a

Legislature Can Make a Felony, Which

Has Dire Consequences for Second

Amendment Rights

1. Legislatures

punishment.

control

the

scope

of

Usually, what a state decides to punish as a crime

is “purely a matter of legislative prerogative.”

Folajtar, 2020 U.S. App. Lexis 37006, at *56 (Bibas,

J., dissenting) (citing Rummel v. Estelle, 445 U.S. 263,

274 (1980); Heller, 554 U.S. at 628 n.27). But it is

different when a fundamental right is at stake. With

§ 922(g)(1), the power to determine a felony also

provides the power to determine the scope of the

Second Amendment. If a legislature wanted to curb

firearm possession, it could designate any minor

offense—say, jaywalking—as punishable by more

than one year’s imprisonment and vigorously enforce

it. This effectively gives the legislature the power to

narrow the Second Amendment. But “[c]onstitutional

14

rights are enshrined with the scope they were

understood to have when the people adopted them,

whether or not future legislatures or (yes) even future

judges think that scope too broad.” Heller, 554 U.S. at

834–35.

Legislatures do not act alone in designating which

crimes should be a felony. Prosecutors also have that

power. Prosecutors often persuade legislatures to add

more crimes to that category to give themselves more

plea-bargaining options and leverage. See William J.

Stuntz, The Pathological Politics of Criminal Law,

100 Mich. L. Rev. 505, 523–33, 536–37 (2001).

Moreover, in some states, prosecutors can choose to

prosecute a crime as either a felony or a misdemeanor.

Folajtar, 2020 U.S. App. Lexis 37006, at *56 (citing

Ewing v. California, 538 U.S. 11, 16–17 (2003)

(plurality opinion)).

2. Maximum punishments do not indicate the

seriousness of an offense.

Another shortcoming of using the maximum

possible punishment of an offense to determine the

seriousness of a crime is that sentencing reflects a

culmination of factors. While a maximum possible

punishment is “certainly probative” of the offense’s

seriousness, the wide range of punishments for an

offense makes the maximum punishment a poor

indicator. Holloway v. Sessions, 349 F. Supp. 3d 451,

457 (M.D. Pa. 2018). As the court in Binderup

recognized, judges must not “defer blindly” to

maximum possible punishments because “some

offenses may be ‘so tame and technical as to be

insufficient to justify the ban.’” 836 F.3d at 350–51

15

(quoting United States v. Torres-Rosario, 658 F.3d

110, 113 (1st Cir. 2011)).

When determining a sentence, courts may

consider the history and characteristics of the

defendant, and a judge’s sentence may reflect a

compromise resulting from plea bargaining. This is

reflected here as Holloway’s offense was punishable

by up to five years’ imprisonment, but he received

only the mandatory minimum sentence of 90 days’

confinement on a work-release program. Holloway,

948 F.3d at 176. Yet Holloway is still treated based on

the offense’s most serious punishment.

Under a virtue test, it does not matter if those

convicted served time in prison for over a year. The

only thing that matters is the maximum punishment.

This is especially alarming as a recent study found

that 3 in 10 convicted felons were not sentenced to

prison. Bureau of Justice Statistics, Felony Sentences

in State Courts, 2006 – Statistical Tables (Dec. 2009).

Despite their offense not being serious enough to be

incarcerated, these people will forever be unable to

exercise their Second Amendment rights.

3. There is no apparent constitutional limit to

punishments legislatures can impose.

A legislature could punish a crime so severely it

would violate the Eighth Amendment’s protection

against cruel and unusual punishments. But this is a

high bar to reach, especially since this Court upheld a

25-year sentence for stealing golf clubs under

California’s three-strikes law. Ewing, 538 U.S. 11.

When it comes to prison sentences of over a year, it’s

difficult to imagine courts stepping in.

16

Recognizing that legislatures have seemingly

unfettered power over a fundamental right, lower

courts have contended that the punishment label is

not dispositive and that they “do not foreclose the

possibility that a legislature could be overly punitive

and classify as a felony an offense beyond the limits

of the historical understanding.” Folajtar, 2020 U.S.

App. Lexis 37006, at *10. Despite this

acknowledgment, these same courts have also said

that “a felony is generally conclusive in our analysis

of seriousness.” Id. at *9–10; Medina v. Whitaker, 913

F.3d 152, 155 (D.C. Cir. 2019) (Sentelle, J.) (“[N]o

circuit has held the law unconstitutional as applied to

a convicted felon.”). Courts have also said that a nonserious felony would be “rare,” and the challenger’s

burden would be “extraordinarily high” to prove that

they should have their Second Amendment rights

restored. Folajtar, 2020 U.S. App. Lexis 37006, at *9–

10; Binderup, 836 F.3d at 353.

These courts’ rationale is that 922(g)(1) is explicit

in its punishment. The enumeration of punishment

puts those who commit felonies and qualifying

misdemeanors on notice that they are committing a

serious offense and that they will be forfeiting their

rights under the Second Amendment. Folajtar, 2020

U.S. App. Lexis 37006, at *18.

Though these courts have argued individuals are

on notice, that does not make the piecemeal

disarming of anyone who transgresses the whims of

the legislature any more acceptable. It is hard to

believe that a near-blanket ban on all felons would

allow exceptions in only rare circumstances. This

“extreme deference gives legislatures unreviewable

power to manipulate the Second Amendment by

17

choosing a label.” Folajtar, 2020 U.S. App. Lexis

37006, at *33 (Bibas, J., dissenting). Such power

would be foreign to any other constitutional right.

C. Regulation of a Fundamental Right Needs

to Be Based in Constitutional Text and

History

The ability of the legislature to define the scope of

the Second Amendment appears even more absurd

when compared to the First Amendment. This Court’s

precedents hold that obscenity and fighting words are

unprotected by the First Amendment. See R. A. V. v.

St. Paul, 505 U.S. 377, 383 (1992). While Congress

can restrict speech that amounts to obscenity or

fighting words, “it may not substantially redefine

what counts as obscenity or fighting words.”

Binderup, 836 F.3d at 372 n.20 (en banc) (Hardiman,

J., concurring). History is what determines the scope

of the right. Yet respondents argue that Congress and

state legislatures have the right to define the types of

criminals excluded from the right to keep and bear

arms. This treats the Second Amendment “as a

second-class right, subject to an entirely different

body of rules than the other Bill of Rights

guarantees.” McDonald v. City of Chicago, 561 U.S.

742, 780 (2010) (plurality).

Today in the United States, about 5 percent of the

population has a felony conviction. See Sarah

Shannon et al., Growth in the U.S. Ex-Felon and ExPrisoner Population, 1948 to 2010, 6–7 (2011))

(finding that there are currently about 15 million “exfelons”). Of the most recent year that BJS published

figures for state felony convictions, 18.2 percent of all

state felony convictions were for violent offenses.

18

Bureau

of

Justice

Statistics,

supra.

The

overwhelmingly majority of convicted felons

committed a nonviolent offense. Yet only a selected

few can exercise their Second Amendment right due

to an ahistorical test based on virtue.

The historical evidence supports a different

proposition: that the legislature may disarm those

who have demonstrated a proclivity for violence or

whose possession of guns would otherwise threaten

the public safety. As then-Judge Barrett noted, “[t]his

is a category simultaneously broader and narrower

than ‘felons’—it includes dangerous people who have

not been convicted of felonies but not felons lacking

indicia of dangerousness.” Kanter, 919 F.3d at 454

(Barrett, J., dissenting). The danger test also justified

the disarming of those who refused to pledge loyalty

to the colonies. “Loyalists were potential rebels who

were dangerous before they erupted into violence.”

Folajtar, 2020 U.S. App. Lexis 37006, at *39 (Bibas,

J., dissenting). Similarly, “[r]ebels posed a risk of

insurrection and so were dangerous.” Id.

The case for keeping firearms away from those

who have demonstrated violent behavior is strong.

But Second Amendment rights cannot be so easily

diluted that the government can strip people of their

rights based on how it designates their crimes. An

amorphous felony standard to determine the scope of

a fundamental right requires narrow tailoring. The

Second Amendment demands more than kowtowing

to the whims of legislatures.

19

CONCLUSION

The Court should use this case to provide clarity

to lower courts about how to evaluate restrictions of

fundamental rights. Neither the text of the Second

Amendment nor its history supports the permanent

disarmament of nonviolent felons.

Respectfully submitted,

Manuel Klausner

LAW OFFICES OF MANUEL S.

KLAUSNER

Wells Fargo Center

333 S. Grand Ave., Ste. 4200

Los Angeles, CA 90071

(213) 617-0414

mklausner@klausnerinc.com

Ilya Shapiro

Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

David B. Kopel

INDEPENDENCE INSTITUTE

727 East 16th Avenue

Denver, CO 80203

(303) 279-6536

david@i2i.org

Cody J. Wisniewski

MOUNTAIN STATES LEGAL

FOUNDATION

2596 South Lewis Way

Lakewood, CO 80227

(303) 292-2021

cody@mslegal.org

January 7, 2021