Amicus Curiae Brief — Kenneth E. Flick, Petitioner v. Merrick B. Garland, Attorney General

No. 20-902

90

IN THE

Supreme Court of the United States

________________

KENNETH E. FLICK,

v.

Petitioner,

ROBERT M. WILKINSON, ACTING ATTORNEY GENERAL,

Respondent.

________________

On Petition for Writ of Certiorari to

the Eleventh Circuit Court of Appeals

_________________________________________________

BRIEF OF THE CATO INSTITUTE, REASON

FOUNDATION, INDIVIDUAL RIGHTS

FOUNDATION, AND INDEPENDENCE INSTITUTE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

_________________________________________________

February 4, 2021

Ilya Shapiro

Counsel of Record

Trevor Burrus

Spencer Davenport

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

Additional counsel listed on signature page

i

QUESTION PRESENTED

Whether 18 U.S.C. § 922(g)(1) is unconstitutional

as applied to someone who committed a nonviolent

crime more than 30 years ago?

ii

TABLE OF CONTENTS

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 ................. 7

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,

Which Has Dire Consequences for

Second Amendment Rights ....................... 17

C. Restrictions of Fundamental Rights

Need to Be Grounded in

Constitutional Text and History ............... 22

CONCLUSION ........................................................ 24

iii

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) .................. 8

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) .............................. 7

District of Columbia v. Heller,

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

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

Flick v. Att’y Gen.,

812 F. Appx. 974 (11th Cir. 2020) .......................... 4

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) .................................. 14

Holloway v. Sessions,

349 F. Supp. 3d 451 (M.D. Pa. 2018) ................... 18

Jenkins v. Georgia, 418 U.S. 153 (1974) ................. 21

Kachalsky v. Cty. of Westchester,

701 F.3d 81 (2d Cir. 2012) ................................ 8, 10

Kaemmerling v. Lappin,

553 F.3d 669 (D.C. Cir. 2008) ................................ 9

iv

Page(s)

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ......................... passim

Medina v. Whitaker,

913 F.3d 152 (D.C. Cir. 2019) .................... 5, 12, 20

Nev. Dep’t of Human Res. v. Hibbs,

538 U.S. 721 (2003) .............................................. 16

R. A. V. v. St. Paul, 505 U.S. 377 (1992) ................. 22

Rogers v. Grewal, 140 S. Ct. 1865 (2020) .................. 8

Rosen v. United States, 245 U.S. 467 (1918) ............. 6

Rummel v. Estelle, 445 U.S. 263 (1980) .................. 17

Silvester v. Becerra, 138 S. Ct. 945 (2018) ................ 2

United States v. Torres-Rosario,

658 F.3d 110 (1st Cir. 2011) ........................... 15, 18

United States v. Yates, 574 U.S. 528 (2015) ............ 13

Voisine v. United States, 136 S. Ct. 2272 (2016) ....... 7

Statutes

18 U.S.C. § 921(a)(20)(A) ......................................... 14

18 U.S.C. § 922(g)(1) ................................................ 11

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

Act of Feb. 2, 1811, ch. 158, § 2, in 4 Laws of the

State of Delaware (Bradford & Porter eds., 1816) 6

Ala. Code § 3438 (1852) ............................................. 5

Ala. Code. § 13A-11-70(1) ........................................ 16

Iowa Code § 1630 (1851) ............................................ 5

Kan. Stat. Ann. § 21-6304 ........................................ 16

v

Page(s)

La. Rev. Stat. Ann. § 14:95.1(C) .............................. 16

Mich. Comp. Laws § 28.424 ..................................... 16

Mich. Comp. Laws § 750.224f .................................. 16

Mont. Code Ann. § 45-8-313 .................................... 15

Mont. Code Ann. § 45-8-314 .................................... 15

Mont. Code Ann. § 45-8-321 .................................... 15

N.J. Stat. Ann. § 2C:39-7 ......................................... 16

N.J. Stat. Ann. § 2C:58-3 ......................................... 16

N.J. Stat. Ann. § 2C:58-4 ......................................... 16

N.M. Stat. Ann. § 30-7-16 ........................................ 16

S.C. Code Ann. § 16-23-30 ....................................... 16

Tenn. Code Ann. § 39-17-1307 ................................. 16

Tenn. Code Ann. § 39-17-1316 ................................. 16

Tex. Penal Code § 46.04 ........................................... 16

Wyo. Stat. § 6-8-102 ................................................. 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) ................ 12

Benjamin Weiser & Alan Feuer, “Judge Orders

Cohen Released, Citing ‘Retaliation’ Over Tell

All Book,” N.Y. Times (July 23, 2020) ................... 9

Bureau of Justice Statistics, Felony Sentences in

State Courts (Dec. 2009) ................................. 18, 22

vi

Page(s)

David B. Kopel, The First Amendment Guide to

the Second Amendment,

81 Tenn. L. Rev. 419 (2014) ................................... 8

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

H.R. Rep. No. 102-619 (1992) .................................. 15

Joseph G.S. Greenlee, The Historical Justification

for Prohibiting Dangerous Persons from

Possessing Arms, 20 Wyo. L. Rev. 249 (2020) ....... 7

Matt Zapotosky, “Michael Cohen Released from

Federal Prison Over Coronavirus Concerns,”

Wash. Post (May 21, 2020) ..................................... 9

Mike Chase, How to Become a Federal Criminal:

An Illustrated Handbook for the Aspiring

Offender (2019) ..................................................... 21

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) .............................................. 22

Steven G. Grey, The Unfortunate Revival of Civic

Republicanism, 141 U. Pa. L. Rev. 801 (1993) ...... 6

Thomas M. Cooley, A Treatise on The Constitutional

Limitations (1st ed. 1868) ...................................... 6

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 in cases to combat government overreach.

The Independence Institute is a nonpartisan

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

policy research organization based in Denver. The

Institute’s briefs in Heller and McDonald (under the

name of lead amicus International Law Enforcement

Educators & Trainers Association) were cited by

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., dissental).

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—an

area of growing concern given the thousands of

regulations that carry criminal penalties.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In District of Columbia v. Heller, this Court

affirmed that the core right protected by the Second

Amendment is “an individual right” rather than a

collective right. 554 U.S. 570, 582 (2008). Despite this

pronouncement, lower courts have repeatedly failed

to “afford the Second Amendment the respect due an

enumerated constitutional right.” Silvester v. Becerra,

138 S. Ct. 945, 945 (2018) (Thomas, J., dissental).

Among those failed by the lower courts are those

permanently deprived of a firearm for self-defense

due to a nonviolent offense. The federal government

argues that under 18 U.S.C. § 922(g)(1), Ken Flick

permanently loses his Second Amendment rights

because of his conviction. It does not matter that his

3

crime was nonviolent, that he is rehabilitated, or that

his offense occurred over 30 years ago.

The government justifies this position by arguing

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

citizens. While virtue-based exclusions have been

applied to civic rights such as voting and jury duty,

there is no historical justification for applying the test

to individual rights. Yet for the past decade, lower

courts have applied the virtue test to the Second

Amendment, relegating it to second-class status. But

just as a nonviolent conviction does not suspend an

individual’s First or Fourth Amendment rights, it

should not suspend their Second Amendment rights.

Besides its ahistorical basis, the virtue test is

flawed because the felony label is not the touchstone

to determine an individual’s virtuousness. While at

common law the label was reserved for capital crimes,

today a felony “is whatever the legislature says it is.”

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

Lexis 37006, at *56 (3d Cir. Nov. 24, 2020) (Bibas, J.,

dissenting). A legislature has carte blanche to make

almost any crime a disqualifying one under

§ 922(g)(1) by setting the maximum penalty so that

the offense is “serious.” Id. at *7 (citing Binderup v.

Att’y Gen., 836 F.3d 336, 349 (3d Cir. 2016) (en banc)).

By allowing legislatures to determine the scope of the

Second Amendment, court dilute the right’s

fundamentality. This rule is far from narrowly

tailored, labeling almost all felons (and some

misdemeanants) as dangerous because some are.

4

ARGUMENT

I. THE VIRTUE TEST IS INAPPROPRIATE

FOR INDIVIDUAL RIGHTS

Since Heller, lower courts have grappled over the

constitutionality of various laws covering firearms.

This is true for § 922(g)(1), as circuits are split as to

whether as-applied challenges are permitted and, if

so, what test is proper for them.

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. Four circuits 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

might be appropriate to certain communally exercised

rights, it is inappropriate for individual rights. 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). If the government wants to permanently

strip an individual of his rights, it must demonstrate

that the deprivation is only 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 court below did not

reach the merits of Flick’s claim. Instead, it foreclosed

his as-applied challenge by relying solely on its own

precedent. Flick v. Att’y Gen., 812 F. Appx. 974, 975

(11th Cir. 2020) (“Our reasoning in [United States v.

Rozier, 598 F.3d 768 (11th Cir. 2010)] applies equally

to Flick’s as-applied challenge.”). It did not matter

5

that Flick’s conviction was nonviolent, that he was

rehabilitated, or that Georgia restored his civil rights.

All that mattered was his felony conviction.

Like the perfunctory analysis by the court below,

other courts’ analyses are flawed. While several

circuits permit as-applied challenges, to date the

Third Circuit is the only circuit to find § 922(g)(1)

unconstitutionally applied. Binderup v. Att’y Gen.,

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

allow as-applied challenges use a “virtue” or

“seriousness” test that disarms “any person who has

committed a serious criminal offense, violent or

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

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

(quoting Binderup, 836 F.3d at 348); Kanter, 919 F.3d

at 450 (finding that mail fraud is a “serious federal

felony” justifying permanent firearms deprivation);

Medina v. Whitaker, 913 F.3d 152, 160 (D.C. Cir.

2019) (finding that a felony conviction is

determinative and that passage of time or evidence of

rehabilitation are not relevant). In practice, the felony

label acts as a complete bar to as-applied challenges. 2

History shows that the virtue test might be

appropriate in dealing with the rights to vote, serve

on juries, and serve in some public offices. 3 See, e.g.,

2 The other approach 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 Virtue exclusions from civic rights were explicit. See, e.g.,

Ala. Code § 3438 (1852) (limiting jury service to those “esteemed

in the community for their integrity, fair character and sound

judgment”); Iowa Code § 1630 (1851) (“good moral character

6

Binderup, 836 F.3d at 369 n.14 (Hardiman, J.,

concurring)

(noting

the

history

of

felon

disenfranchisement and that jury service and publicoffice eligibility are not fundamental rights); Thomas

M. Cooley, A Treatise on the Constitutional

Limitations 29 (1st ed. 1868) (arguing that

disenfranchising classes of people with a “want of

capacity or of moral fitness” was well-documented).

The virtue theory conceives of the right to 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). 4

[and] sound judgment”); Act of Feb. 2, 1811, ch. 158, § 2, in 4

Laws of the State of Delaware, at 445, 449 (Bradford & Porter

eds., 1816) (“sober, substantial and judicious freeholders, lawful

men, of fair characters”). But there are no explicit virtue

exclusions for the right to bear arms. See Kanter, 919 F.3d at 463

(Barrett, J., dissenting).

Juries are expected to embody the elevated moral judgment

of the community. Because civic rights were to the benefit the

community, there was an emphasis on moral competence and

civic responsibility. Steven G. Grey, The Unfortunate Revival of

Civic Republicanism, 141 U. Pa. L. Rev. 801, 806 (1993).

4 Compare the exclusion of felon jurors to felon witnesses.

At common law, felons were disqualified as witnesses. In Rosen

v. United States, 245 U.S. 467, 471 (1918), this Court found that

a felon was competent to testify, concluding that “the truth is

more likely to be arrived at by hearing the testimony of all

persons of competent understanding who may seem to have

knowledge of the facts involved in a case, leaving the credit and

weight of such testimony to be determined by the jury or by the

court.” The difference is that jury service is a civic right exercised

7

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 relied on came preHeller. Folajtar, No. 19-1687, 2020 U.S. App. Lexis

37006, at *42–50 (Bibas, J., dissenting). From the

colonial period through the Early Republic and the

19th century, there were no laws that disarmed

peaceable citizens based on a supposed lack of virtue.

Rather, disarmament laws focused on dangerousness.

See Joseph G.S. Greenlee, The Historical Justification

for Prohibiting Dangerous Persons from Possessing

Arms, 20 Wyo. L. Rev. 249 (2020). Given the

importance of history to the Court’s Second

Amendment jurisprudence, it is inappropriate to use

an ahistorical test to strip people of individual rights.

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 right to bear arms as equally important as

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

for the community, while bearing witness is part of a defendant’s

personal Sixth Amendment right of compulsory process.

8

discrimination.”). Although the Court in Heller often

cited First Amendment principles as guides to Second

Amendment interpretations, some lower courts have

refused to do so. 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. Att’y Gen. N.J., 910

F.3d 106, 124 n.28 (3d Cir. 2018). This despite the

Court’s direction in Heller and McDonald to consider

the Second Amendment with the same care afforded

other 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.”). See generally David B.

Kopel, The First Amendment Guide to the Second

Amendment, 81 Tenn. L. Rev. 419 (2014).

This does not mean that no Second Amendment

restrictions are permitted. 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 for those who pose a

genuine danger, but any deprivation must be

narrowly tailored. After all, the Constitution would

not allow a permanent deprivation of every felon’s

First or Fourth Amendment right simply because the

offense was “serious.”

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

9

Released from Federal Prison Over Coronavirus

Concerns,”

Wash.

Post,

May

21,

2020,

https://wapo.st/3hNv57O. Cohen was ordered back to

prison, however, after tweeting that he was writing a

book. In a hearing on this reimprisonment, Judge

Alvin Hellerstein released Cohen, saying that the

government retaliated against him 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, it would only have

looked at his felony conviction to determine whether

he still had his First Amendment rights.

2. Suspending Fourth Amendment rights for

felons would also be unconstitutional.

Courts don’t treat the Fourth Amendment so

cavalierly either. Protections against “unreasonable”

searches apply both to those with and without a

criminal record. No court would allow legislatures to

deprive all felons of their Fourth Amendment rights

even though it would arguably improve public safety.

Proponents of the near-blanket ban on firearm

possession for nonviolent felons point to recidivism

rates. 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

10

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, 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 their homes would deter crimes. But

if a legislature abridged Fourth Amendment rights en

masse under the belief that it would improve public

safety, would courts blindly defer to that judgment?

Just as it would be unconstitutional to

indiscriminately abridge Fourth Amendment rights,

so too for the Second Amendment.

II. THE VIRTUE TEST ILLEGITIMATELY

ALLOWS LEGISLATURES TO DETERMINE

THE SECOND AMENDMENT’S SCOPE

Courts justify the 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). Proponents also cite to administrative

concerns, arguing that the alternative dangerousness

test endorsed would give districts courts the

“unenviable task of weighing the relative

11

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.

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 given to the felon. 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 crimes “punishable by

imprisonment for a term exceeding one year.” 18

U.S.C. § 922(g)(1). Its application is not limited to

12

violent crimes, applying to nearly all felons and some

misdemeanants, making it “wildly overinclusive.”

Adam Winkler, Scrutinizing the Second Amendment,

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

Courts justify their application of the virtue test

arguing “[w]hen the legislature 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. Dissenting in Folajtar,

Judge Bibas described the definition of a felony as

“elastic, unbounded, and manipulable by legislatures

and prosecutors.” Folajtar, No. 19-1687, 2020 U.S.

App. Lexis 37006, at *56 (Bibas, J., dissenting). Judge

Bibas recognized what this Court recognized almost

80 years ago: the term felony “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)).

Moreover, the statutory prohibition for criminal

conviction is not limited to offenses that a legislature

has designated as a felony. The prohibition applies to

any crime, including misdemeanors, for which the

potential maximum sentence is over one year.

13

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

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. Courts err in deferring to the felony label

when the government uses the label

arbitrarily.

In justifying the felony-misdemeanor dichotomy,

courts opine that “when a legislature chooses to call a

crime a misdemeanor, we have an indication of nonseriousness 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)); Kanter, 919 F.3d at 444. The

lower court’s deference to the felony label is

illegitimate given that the government has admitted

that the “felony-misdemeanor distinction is ‘minor

14

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 how it punishes crimes,

the jurisdiction in which the offense occurs can have

huge consequences on the Second Amendment. An

individual who commits a crime in one state might

lose his gun rights, whereas someone who committed

the same crime in another state would retain his

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

implicate it. 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.

Courts’ 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 Flick’s convictions for

importing and selling counterfeit cassettes over 30

years ago is worthy of a lifetime firearm ban and an

antitrust violation is not. At the very least, the

government must justify the disparate treatment.

Otherwise, the distinction is entirely arbitrary.

15

3. The felony label is no more administrable

than a dangerousness label.

Courts have also rationalized their use of the

virtue test by claiming that it avoids administrative

problems and provides consistency. Kanter, 919 F.3d

at 450; United States v. Torres-Rosario, 658 F.3d 110,

113 (1st Cir. 2011). The D.C. Circuit opined that using

“an amorphous ‘dangerousness’ standard to delineate

the scope of the Second Amendment would require the

government to make case-by-case predictive

judgments.” Medina, 913 F.3d at 159–60. These

courts rely in part on deference to Congress, which

concluded that “the dangerousness inquiry was a

‘very difficult’ and time-intensive task.” Kanter, 919

F.3d at 450; Binderup, 836 F.3d at 403 (Fuentes, J.,

concurring in part, dissenting in part and from the

judgment) (arguing that Congress’s conclusion that

the dangerousness test was unworkable “should have

a profound impact on our tailoring analysis”); H.R.

Rep. No. 102-619, at 14 (1992).

The circuit courts’ leeway in adopting an

overinclusive law based on administrative concerns is

curious considering that states have created more

narrowly tailored laws for felon dispossession. Some

states have taken the “very difficult” approach and

prohibited those who are dangerous from possessing

firearms. See, e.g., Mont. Code Ann. §§ 45-8-313, 458-314, 45-8-321 (prohibiting firearm possession if

conviction involved “dangerous” weapon); Wyo. Stat.

§ 6-8-102 (stripping rights of those convicted of

“violent

felony”).

Other

states follow

the

dangerousness approach but provide a list of specific

16

offenses. See, e.g., N.J. Stat. Ann. §§ 2C:39-7, 2C:583, 2C:58-4; 18 Pa. Cons. Stat. §§ 6105.

With fears of recidivism, other states have

implemented blanket bans for a period post-sentence.

See, e.g., Mich. Comp. Laws §§ 28.424, 750.224f

(rights restored three years after completion of

sentence); La. Rev. Stat. Ann. § 14:95.1(C) (ten years

for violent crimes, drug felonies, and sex offenses);

N.M. Stat. Ann. § 30-7-16 (ten years); Kan. Stat. Ann.

§ 21-6304 (distinguishing felonies and providing

restoration timelines).

Finally, some states restrict the way felons can

possess firearms. See, e.g., Tex. Penal Code § 46.04

(felons lose right for five years but can keep a firearm

in their home after that time); Ala. Code. § 13A-1170(1) (felons can possess long guns for self-defense but

not handguns); S.C. Code Ann. § 16-23-30 (same);

Tenn. Code Ann. §§ 39-17-1307, 39-17-1316 (same).

These state statutes show that Congress can

create an administrable law that is also more

narrowly tailored. Concerns about judicial economy

concerns do not outweigh Second Amendment rights

or a plaintiff’s access to the courts. As Justice Scalia

put it: “When a litigant claims that [the] legislation

has denied him individual rights secured by the

Constitution, the court ordinarily asks first whether

the legislation is constitutional as applied to him.”

Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 743

(2003) (Scalia, J., dissenting).

Although Congress is in the best position to make

policy judgments, it cannot define a fundamental

right’s scope nor can it legislate outside constitutional

limits. To deal with administrability concerns, courts

17

can use rules of thumb such as the length of time

between crime and the present, the type of crime, and

the sentence given. As seen here, prohibiting firearms

based solely on the arbitrary felony classification

leads to absurd and unconstitutional results.

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, 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 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

18

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.

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 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 Torres-Rosario, 658 F.3d at 113).

When determining a sentence, courts might

consider the history and characteristics of the

defendant, and a judge’s sentence may reflect a

compromise resulting from plea bargaining. Under

the lower court’s test, it doesn’t matter if the convicted

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, Ken Flick was sentenced to

four months in a halfway house and five years of

probation. For over 30 years, Flick has been a model

citizen, donating millions of dollars to charity and

19

being active in his community. Yet his Second

Amendment rights are defined by the worst thing he

did, more than three decades ago.

2. The government’s data on recidivism rates

conflate one-time offenders with repeat

violators.

Courts also cite to recidivism statistics to justify

the blanket ban. The Third Circuit found that “there

is good reason not to trust felons, even non-violent

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. 919

F.3d at 449. But the cited data do not distinguish

between first-time offenders like Ken Flick 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

Ken Flick is now a responsible, law-abiding citizen.

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

20

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, courts have

acknowledged 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. Yet despite the opportunity to enunciate any

standards for when felony disarmament goes too far,

the courts seem uninterested in providing any.

Medina, 913 F.3d at 161 (“We need not decide today if

it is ever possible for a convicted felon to show that he

may still count as a ‘law-abiding, responsible

citizen.’”); Folajtar, No. 19-1687, 2020 U.S. App. Lexis

37006, at *28 (Bibas, J., dissenting) (“Though in

theory a few felonies might be too minor to count, the

majority never defines this caveat.”). However, courts

also have stated that “a felony is generally conclusive

in our analysis of seriousness” and nonserious

felonies would be “rare.” 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, 913 F.3d at 155. The reason for the

extraordinary/impossible standard is that legislative

classification of a crime as a felony puts people on

notice that they are “committing a serious offense”

and will “forfeit their rights under the Second

21

Amendment.” Folajtar, No. 19-1687, 2020 U.S. App.

Lexis 37006, at *18.

As a practical matter, even the most learned

lawyers 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. 19-1687, 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. A person convicted of

fraud or criminal defamation still enjoys the freedom

of speech. A 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

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

22

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 inapt

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

offense, only a select few can exercise their Second

Amendment right due to an ahistorical virtue test.

23

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 virtue

test, there is no tailoring. Instead, it’s a near-blanket

ban that defers to how the legislature labels a crime.

But the Second Amendment demands more than

kowtowing to legislatures. The proper test is to look

to history which supports that all citizens enjoyed the

Second Amendment unless they posed a danger.

Because Ken Flick is not dangerous, his Second

Amendment rights must be restored to him.

24

CONCLUSION

The Court should grant the petition and use this

case to provide clarity about how to evaluate

restrictions on the Second Amendment.

Respectfully submitted,

Manuel S. 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.us

February 4, 2021

Ilya Shapiro

Counsel of Record

Trevor Burrus

Spencer Davenport

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

David B. Kopel

INDEPENDENCE INSTITUTE

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Denver, CO 80203

(303) 279-6536

david@i2i.org