Amicus Curiae Brief — Lisa M. Folajtar, Petitioner v. Merrick B. Garland, Attorney General, et al.

No. 20-812

IN THE

Supreme Court of the United States

________________

LISA M. FOLAJTAR,

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, AND INDEPENDENCE INSTITUTE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

_________________________________________________

January 14, 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

ii

QUESTION PRESENTED

Whether 18 U.S.C. § 922(g)(1), which permanently

prohibits almost all felons—even nonviolent ones—

violates the Second Amendment.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... ii

TABLE OF AUTHORITIES .................................... iv

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ............................................................. 3

I.

THE VIRTUE TEST IS INAPPROPRIATE

FOR INDIVIDUAL RIGHTS ............................. 3

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. The Felony Label Is Manipulable and

Leads to Disparate Outcomes for the

Same Offense ............................................. 11

B. There Are Few Limits on What a

Legislature Can Make a Felony and

That Has Dire Consequences for

Second Amendment Rights ....................... 14

C. Restrictions of Fundamental Rights

Need to Be Grounded in

Constitutional Text and History ............... 19

CONCLUSION ........................................................ 21

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. United States ex rel. McCann,

317 U.S. 269 (1942) .............................................. 12

Ass’n of N.J. Rifle & Pistol Clubs, Inc. v.

Att’y Gen. N.J., 910 F.3d 106 (3d Cir. 2018).......... 6

Bannon v. United States, 156 U.S. 464 (1895) ........ 12

Binderup v. Att’y Gen.,

836 F.3d 336 (3d Cir. 2016) (en banc) ........... 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

Ex parte Wilson, 114 U.S. 417 (1885) ...................... 12

Folajtar v. Att’y Gen., No. 19-1687, 2020 U.S. App.

Lexis 37006 (3d Cir. Nov. 24, 2020) .............. passim

Gratz v. Bollinger, 539 U.S. 244 (2003)................... 10

Holloway v. Att’y Gen.,

948 F.3d 164 (3d Cir. 2020) .................................. 13

Holloway v. Sessions,

349 F. Supp. 3d 451 (M.D. Pa. 2018) ................... 15

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

Jenkins v. Georgia, 418 U.S. 153 (1974) ................. 18

Kachalsky v. Cty. of Westchester,

701 F.3d 81 (2d Cir. 2012) ................................ 6, 10

Kaemmerling v. Lappin,

553 F.3d 669 (D.C. Cir. 2008) ................................ 8

v

Page(s)

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

Medina v. Whitaker,

913 F.3d 152 (D.C. Cir. 2019) ........................ 11, 17

R. A. V. v. St. Paul, 505 U.S. 377 (1992) ................. 19

Rogers v. Grewal, 140 S. Ct. 1865 (2020) .................. 6

Rummel v. Estelle, 445 U.S. 263 (1980) .................. 14

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

United States v. Yates, 574 U.S. 528 (2015) ............ 12

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

Statutes

18 U.S.C. § 1301 ....................................................... 13

18 U.S.C. § 921(a)(20)(A) ......................................... 15

Other Authorities

Adam Winkler, Scrutinizing the Second

Amendment, 105 Mich. L. Rev. 683 (2007) .......... 12

Alexander C. Barrett, Taking Aim at Felony

Possession, 93 B.U. L. Rev. 163 (2013) ................ 13

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) ............................ 17, 21

vi

Page(s)

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

Matt Zapotosky, “Michael Cohen Released from

Federal Prison Over Coronavirus Concerns,”

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

Mike Chase, How to Become a Federal Criminal:

An Illustrated Handbook for the Aspiring

Offender (2019) ..................................................... 19

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)........... 13

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

Ex-Felon and Ex-Prisoner Population,

1948 to 2010 (2011) .............................................. 21

Thomas M. Cooley, A Treatise on the

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

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,” 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 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 Institute’s

briefs and scholarship by Research Director David

Kopel were cited last term in New York State Rifle &

Pistol Association v. City of New York (Alito, J.,

dissenting), and Rogers v. Grewel (Thomas, J.,

dissenting from denial of cert.).

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 felony can be completely barred for life

from exercising her fundamental Second Amendment

right to keep and bear arms. The federal government

argues that under 18 U.S.C. § 922(g)(1), felons lose

their Second Amendment rights.

The government justifies this position by arguing

that the right to bear arms was limited to “virtuous”

citizens. In District of Columbia v. Heller, this Court

found that the core right protected by the provision is

individually held rather than collectively. 554 U.S.

570, 582 (2008). While virtue-based exclusions have

3

been applied to civic rights such as voting and jury

duty, there is no historical justification for applying

the test to individual rights. The proposed virtue test

would relegate the Second Amendment to secondclass status. Just as a nonviolent conviction does not

suspend an individual’s First or Fourth Amendment

rights, it should not suspend their Second

Amendment rights.

The virtue test becomes more worrisome as it is

tethered to the felony label—a mushy standard that

legislatures can manipulate. A legislature seeking to

prevent possession of firearms could make almost any

crime a disqualifying felony under § 922(g)(1) by

setting the maximum penalty so that the offense is

“serious.” Folajtar v. Att’y Gen., No. 19-1687, 2020

U.S. App. Lexis 37006, at *7 (3d Cir. Nov. 24, 2020)

(citing Binderup v. Att’y Gen., 836 F.3d 336, 349 (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

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 been deeply

divided on Second Amendment questions. This is true

for § 922(g)(1) as to whether as-applied challenges are

permitted, the proper standard of review, and

whether a “virtue” test should be applied.

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

person convicted of “a crime punishable by

4

imprisonment for a term over one year” to possess a

firearm. Four circuit courts employ a virtue-based

test to limit the right to keep and bear arms to those

who have not committed a felony. Although a virtue

test can be appropriate to certain communal rights, it

is inappropriate for individual rights like the one

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

employed the virtue test which allows for the

disarmament of “any person who has committed a

serious criminal offense, violent or nonviolent.”

Folajtar, No. 19-1687, 2020 U.S. App. Lexis 37006, at

*7 (quoting Binderup, 836 F.3d at 348). While

previous Third Circuit decisions used a multifactor

test to determine seriousness, the majority here

reduced the test to a single factor: whether the

legislature labeled the crime a felony. Id. at *26

(“[F]elony status is generally conclusive evidence that

the offense is serious.”). 2

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).

2

5

History shows that the virtue test can be

appropriate in dealing with the rights to vote, serve

on juries, and serve in public office. 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 disenfranchising 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 one 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 thus “belonged only to virtuous

citizens.” Kanter, 919 F.3d at 462–63 (Barrett, J.,

dissenting). Four circuits have imported the virtuebased 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. The scholarship that the four

virtue-test-applying

circuits

came

pre-Heller.

Folajtar, No. 19-1687, 2020 U.S. App. Lexis 37006, at

*42–50 (Bibas, J., dissenting). As other amici argue,

there is no evidence to support the idea that virtue

exclusions ever applied to individual rights. Given the

importance of history to the Court’s Second

Amendment jurisprudence, it is inappropriate to use

an ahistorical test to strip people of an individual

right.

6

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). The Tenth Circuit does not

treat the Second Amendment equal with the right to

marry. Bonidy v. U.S. Postal Serv., 790 F.3d 1121,

1126 (10th Cir. 2015) (“The risk inherent in firearms

. . . distinguishes the Second Amendment right from

other fundamental rights . . . such as the right to

marry and the right to be free from viewpoint

discrimination.”). Other circuits refuse to import

substantive First Amendment principles into Second

Amendment jurisprudence. See, e.g., Kachalsky v.

Cty. of Westchester, 701 F.3d 81, 91 (2d Cir. 2012);

Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney Gen.

N.J., 910 F.3d 106, 124 n.28 (3d Cir. 2018). This is

despite the Court’s direction in Heller and McDonald

to consider Second Amendment issues with the same

care afforded other individual rights. Rogers v.

Grewal, 140 S. Ct. 1865 (2020) (Thomas, J., dissental)

(“Instead of following the guidance provided in Heller,

these courts minimized that decision’s framework.”).

This does not mean that all restrictions on Second

Amendment rights are unconstitutional. History

shows that the right to keep and bear arms “was 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 those who

pose a genuine danger to the public, but any

deprivation must be narrowly tailored. The

Constitution would not allow a permanent

7

deprivation of every felon’s First or Fourth

Amendment right simply because the offense was

“serious.” The Second Amendment should receive the

same respect, to protect against attempts to infringe

on fundamental constitutional rights.

1. Felons maintain their First Amendment rights.

No court would strip a felon’s First Amendment

rights solely because of their lack of virtuousness.

This past May, the U.S. Bureau of Prisons released

Michael Cohen, President Trump’s former attorney,

as authorities tried to slow the spread of COVID-19 in

federal prisons. Matt Zapotosky, “Michael Cohen

Released from Federal Prison Over Coronavirus

Concerns,”

Wash.

Post,

May

21,

2020,

https://wapo.st/3hNv57O. He was ordered 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 the

government retaliated against Cohen solely “because

of his desire to 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 virtue test to Cohen, they would only look

at his felony conviction to determine whether he still

had his First Amendment rights. Courts do not apply

such a standard though.

2. Suspending Fourth Amendment rights for

felons would also be unconstitutional.

Likewise, courts do not treat the Fourth

Amendment so cavalierly. The search-and-seizure

8

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 near-blanket ban on nonviolent

felons, proponents point to recidivism rates,

especially among nonviolent offenders. See Folajtar,

No. 19-1687, 2020 U.S. App. Lexis 37006, at *25;

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

Judge Bibas wrote below, the statistics lump all

nonviolent felons together with burglars and drug

dealers

without

taking

account

individual

characteristics that make some riskier than others.

Folajtar, No. 19-1687, 2020 U.S. App. Lexis 37006, at

*59 (Bibas, J., dissenting). Second, recidivism rates

would also support stripping Fourth Amendment

rights, because the government has a significant

interest in curbing crime. Given that many felons are

likely to reoffend, allowing police to regularly search

felons’ homes would deter future crimes. But 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

9

judgment? Yet courts around the country do blindly

defer to similar legislative judgments on Second

Amendment rights. And just as it would be

unconstitutional to indiscriminately abridge Fourth

Amendment rights, so too for the Second Amendment.

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. “No fundamental

right—not even the First Amendment—is absolute.”

McDonald, 561 U.S. at 802 (Scalia, J., concurring).

While prisoners are incarcerated, the government can

curb their 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 parolees lack 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).

Historical evidence shows 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

(Hardiman, J., concurring). If the Second Amendment

were subject to the virtue test, the government would

not need to show evidence 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 that a nonviolent felon

10

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

The court below justifies its application of the

virtue test by claiming that it “accords proper

deference to the legislature,” as legislatures are “‘far

better equipped than the judiciary’ to make sensitive

public policy judgments.” Folajtar, No. 19-1687, 2020

U.S. App. Lexis 37006, at *15–16 (quoting Kachalsky,

701 F.3d at 97). The court also cites administrative

concerns, arguing that the dangerousness test

endorsed by the dissent would give districts courts the

“unenviable task of weighing the relative

dangerousness of hundreds of offenses already

deemed sufficiently serious to be classified as

felonies.” Id. at *18. But courts can use objective

factors, such has having a clean record since the

offense, to mitigate administrative concerns. As a

fundamental right, the Second Amendment requires

“narrow[] tailor[ing]” rather than a near-blanket rule.

Gratz v. Bollinger, 539 U.S. 244, 275 (2003).

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.

Legislators wanting to limit possession of firearms

can do that by designating almost any offense a

felony. The statute does not account for the nature of

the offense, the length of time elapsed since the

offense, or the punishment actually given to the felon.

11

All that matters is the maximum possible

punishment. While the government should be able to

balance interests and define crimes and sentences,

restrictions on Second Amendment rights should not

turn entirely on the label applied to an offense.

More problematic is that, in blessing the virtue

test, lower courts have paid mere lip service to

concerns about legislatures’ unfettered power. A nearblanket rule that strips fundamental rights based on

any felony is overinclusive.

A. The Felony Label Is Manipulable and

Leads to Disparate Outcomes for the

Same Offense

1. Modern felonies are far removed from

common-law 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). Its application is not limited to

violent crimes and 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).

The court below justified its application of the

virtue test arguing “[w]hen the legislature,” in this case

Congress, “designates a crime as a felony, it signals to

the world the highest degree of societal condemnation

for the act.” Medina, 913 F.3d at 160. If only this were

true. In dissent, Judge Bibas described the definition of

a felony as “elastic, unbounded, and manipulable by

legislatures and prosecutors.” Folajtar, No. 19-1687,

12

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

dissenting). Judge Bibas recognized what this Court

recognized almost 80 years ago: the term “[f]elony . . .

is a verbal survival which has been emptied of its

historic content.” Adams v. United States ex rel.

McCann, 317 U.S. 269, 272 n.2 (1942).

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)). For a crime to be designated as a

felony today, it only needs to be punishable by

imprisonment for a term exceeding one year.

To see how far-removed today’s felonies are from

the common law, consider a few examples. In United

States v. Yates, the Supreme Court reversed a

conviction for impeding a federal investigation, a

violation of 18 U.S.C. § 1519, for a fisherman’s

disposal of three undersized grouper that were 1.25

inches under the required 20-inch size. 574 U.S.

528, 531–35 (2015). Transporting lottery tickets

across state lines when one state forbids lottery

tickets carries a maximum penalty of two years in

prison. 18 U.S.C. § 1301. Finally, 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

13

currently thousands of criminal statutes and

regulations that would allow Congress to disarm

people for statutory felonies that were not

contemplated by the common law.

2. The court below defers to the felony label

even though the government uses that label

arbitrarily.

In justifying the felony-misdemeanor dichotomy,

the court below opined that “when a legislature chooses

to call a crime a misdemeanor, we have an indication of

non-seriousness that is lacking when it opts instead to

use the felony label.” Folajtar, No. 19-1687, 2020 U.S.

App. Lexis 37006, at *9 (quoting Binderup, 836 F.3d at

353 n.6 (en banc)). The lower court’s deference to the

felony label is illegitimate given that the government

has admitted that the “felony-misdemeanor

distinction is ‘minor and often arbitrary.’” See, e.g.,

Binderup, 836 F.3d at 374 (en banc) (Hardiman, J.,

concurring) (quoting Gov’t Binderup Br. 19). Because

a state can define crimes, an individual who commits

a crime in one state might lose her gun rights,

whereas someone who committed the same crime in

another state would retain her rights. This is seen

with DUI laws, as many states treat a second DUI as

an offense that does not implicate § 922(g)(1).

Holloway v. Att’y Gen., 948 F.3d 164, 192 (3d Cir.

2020) (Fisher, J., dissenting). But there are eight

jurisdictions where a second DUI does trigger §

922(g)(1). Id. As a result, the statute’s dependence on

how a state classifies and punishes a crime “results in

an

underinclusive

application

that

raises

constitutional concerns.” Id.

14

The lower court’s deference to the felony label is

even more concerning considering that Congress has

already determined that some serious, nonviolent

felonies do not warrant a lifetime firearm ban. The

definition of the term “felony” used in 18 U.S.C. § 922

excludes “any Federal or State offenses pertaining to

antitrust violations, unfair trade practices, restraints

of trade, or other similar offenses relating to the

regulation of business practices.” 18 U.S.C. §

921(a)(20)(A). There is no principled basis as to why

Folajtar’s nonviolent felony of tax fraud is worthy of a

lifetime firearm ban and an antitrust violation is not.

At the very least, the government must justify

disparate treatment with evidence. Otherwise, the

distinction is entirely arbitrary.

B. There Are Few Limits on What a

Legislature Can Make a Felony and That

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, No. 19-1687, 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).

However, it is different when a fundamental right is

at stake. With § 922(g)(1), the power to determine a

felony also provides the legislature the power to

determine the Second Amendment’s scope. 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

15

and vigorously enforce it. Some may argue that courts

would find the offense of “felony jaywalking” to be a

bridge too far, possibly under the Eighth Amendment.

But if a legislative committee made findings that

purportedly showed jaywalking to be a serious threat

to the community, is it seriously likely our deferential

courts would gainsay the determination? Thus,

legislatures effectively have the power to narrow the

Second Amendment. But “[c]onstitutional 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.

The court’s deference to the felony label to

determine the seriousness of an offense is also

misguided because sentencing reflects a culmination

of factors. While a maximum possible punishment is

“certainly probative” of the offense’s potential

seriousness, the wide range of punishments for an

offense makes the maximum punishment a poor

indicator of the actual seriousness of the defendant’s

personal conduct. 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

(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. Under

the court’s test, it does not matter if the convicted

16

person served time in prison for over a year. The only

thing that matters is the maximum punishment. In

fact, three in ten felony convictions do not result in a

prison sentence. Bureau of Justice Statistics, Felony

Sentences in State Courts, 2006 – Statistical Tables

(Dec. 2009). The judicial decision to impose no

incarceration at all indicates that the offense was not

relatively serious. Here, Lisa Folajtar was sentenced

to three years’ probation for her actions. Despite her

offense not being serious enough to be incarcerated,

she will forever be barred from exercising her Second

Amendment rights.

2. The government’s data on recidivism rates

conflate one-time offenders with repeat

violators.

To justify the blanket ban, the court below said,

“there is good reason not to trust felons, even nonviolent ones, with firearms.” Folajtar, No. 19-1687,

2020 U.S. App. Lexis 37006, at *24. The majority in

Kanter also approvingly cited studies linking

nonviolent convictions to later offenses involving

violence. Kanter, 919 F.3d at 449.

But the cited data do not distinguish between

first-time offenders like Lisa Folajtar and those with

repeat records. Folajtar, No. 19-1687, 2020 U.S. App.

Lexis 37006, at *59 (Bibas, J., dissenting). Moreover,

stripping a person’s fundamental rights based on

projected crimes unrelated to past criminal acts is a

dangerous proposition. Id. All the evidence shows—

and the government does not dispute—that Lisa

Folajtar is now a responsible, law-abiding citizen.

17

3. There are relatively few constitutional limits

to punishments legislatures can impose

when dealing with felony sentences of a few

years.

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. See, e.g., Ewing v. California, 538

U.S. 11 (2003) (upholding 25-year sentence for

stealing golf clubs under California’s three-strikes

law). And when a sentence involves “only” several

years, Eighth Amendment jurisprudence provides

very little judicial review.

Legislatures have nearly limitless power over

whether to classify legal violations as felonies.

Recognizing the possibility of abuse, the majority

below did “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, No. 19-1687, 2020 U.S.

App. Lexis 37006, at *10. However, it also stated that

“a felony is generally conclusive in our analysis of

seriousness.” Id. at *9–10. Indeed, the challenger’s

burden for restoration of Second Amendment rights is

“extraordinarily high.” Id.; see also Binderup, 836

F.3d at 353.

In practice, “extraordinarily high” is a euphemism

for “impossible.” “[N]o circuit has held the law

unconstitutional as applied to a convicted felon.”

Medina v. Whitaker, 913 F.3d 152, 155 (D.C. Cir.

2019) (Sentelle, J.).

The reason for the extraordinary/impossible

standard is that legislative classification of a crime as

18

a felony puts people on notice that they are

“committing a serious offense” and will “forfeit their

rights under the Second Amendment.” Folajtar, No.

19-1687, 2020 U.S. App. Lexis 37006, at *18.

As a practical matter, even the most learned

lawyers today cannot know the full scope of offenses

that are denominated as felonies. See Mike Chase,

How to Become a Federal Criminal: An Illustrated

Handbook for the Aspiring Offender (2019). Even if a

mere mortal could know all the federal and state

felonies, “extreme deference gives legislatures

unreviewable power to manipulate the Second

Amendment by choosing a label.” Folajtar, No. 191687, 2020 U.S. App. Lexis 37006, at *33 (Bibas, J.,

dissenting).

This Court has long upheld the rule that when

legislatures attach a label that will constrict

constitutional rights, the labeling is subject to careful

scrutiny. See, e.g., Jenkins v. Georgia, 418 U.S. 153

(1974) (while “obscene material” may be prohibited,

Georgia statute that encompassed an R-rated film

went too far). The Court has usually not needed to

police the meaning of “felony.” But whatever the word

“felony” means, it is not a synonym for the permanent

loss of constitutional rights. The person convicted of

felony criminal libel still enjoys the freedom of speech.

The person who has served her full sentence,

including parole, for felony burglary, still enjoys

Fourth Amendment rights in her own home. A police

officer who is convicted of a felony for violating due

process rights still enjoys his own due process rights.

Only one right in the Bill of Rights may be taken

away forever by the whim of what the legislature does

19

or does not label a “felony.” The petitioner here is not

challenging the lifetime loss of constitutional rights

for convicted felons who have proven themselves to be

violently dangerous. The question instead is whether

there are some limits to stripping the practical right

of self-defense from persons who, while once having

poor virtue, have never behaved dangerously.

C. Restrictions of Fundamental Rights Need

to Be Grounded 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. In R. A. V.

v. St. Paul, this Court held that obscenity and fighting

words are unprotected by the First Amendment. 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). Yet in

the Second Amendment context, the government

argues that Congress and state legislatures have the

right to define the types of criminals excluded from

the right to keep and bear arms.

This is not a small problem. There are 15 million

“ex-felons” who have had their Second Amendment

rights stripped. See Sarah Shannon et al., Growth in

the U.S. Ex-Felon and Ex-Prisoner Population, 1948

to 2010, 6–7 (2011)). In the most recent year that BJS

published figures for state felony convictions, 18.2

percent of all state felony convictions were for violent

offenses. Bureau of Justice Statistics, supra. Even

though most convicted felons committed a nonviolent

20

offense, only a select few can exercise their Second

Amendment right due to an ahistorical virtue test.

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, No. 19-1687, 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.

Even so, some tailoring is essential. Under the

decision below, there is no tailoring. Instead, it is a

near-blanket ban that defers to how the legislature

labels a crime. But the Second Amendment demands

more than kowtowing to the whims of legislatures.

The proper test is to look to history which supports

that all citizens enjoyed the Second Amendment

unless they posed a danger. Because Lisa Folajtar is

not dangerous, her Second Amendment rights must

be restored to her.

21

CONCLUSION

The Court should grant the petition and use this

case to provide clarity about how to evaluate

restrictions of fundamental rights. Neither the text

nor history of the Second Amendment 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

January 14, 2021

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