Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout

The Third Circuit has issued an opinion that has received little attention over the right to bear arms, but it should. The decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored case for major Supreme Court decision. Indeed, the only thing lacking from the 2-1 decision is a mailing label directly to Justice Amy Coney Barrett. In ruling that a non-violent tax conviction can result in the denial of gun ownership, the panel presents a clean case to further define the contours of the individual rights recognized in District of Columbia v. Heller, 554 U.S. 570 (2008). It is also an opportunity that any new justice would relish: after being the lone dissenter on a similar case, Barrett could be the critical vote (and even the author) on the opinion changing the area in line with her prior position.

The Third Circuit case concerns Lisa Folajtar who was denied the right to own a firearm. The reason was her pleading guilty in 2011 to willfully making a materially false statement on her tax returns. The plea led to a sentence of three-years’ probation, including three months of home confinement, a $10,000 fine, and a $100 assessment. She also paid the IRS over $250,000 in back taxes, penalties, and interest.

The case falls into the still grey area around the individual right articulated in 2008. The Supreme Court  recognized that this is not an “unlimited” right under the Constitution while affirming the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635. Moreover, the Court ruled two years later that Heller “did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons.’” McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626–27).

The question is whether this means any and all felons, even those never accused of violent acts.  The law at issue is 18 U.S.C. § 922(g)(1). Originally, in 1938, the Congress prohibited only gun ownership to those who were convicted of “crimes of violence.” See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. IV, § 925, 82 Stat. 197, 233–34; id. at tit. VII § 1202, 82 Stat. at 236 (codified at 28 U.S.C. § 922(g)(1)). That limited the denial of gun ownership to those convicted of murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking and various types of aggravated assault. See Federal Firearms Act, ch. 850, § 1(6), 52 Stat. 1250, 1250 (1938).

That changed in the 1960s when Congress expanded the bar on gun ownership. That however was long before the Heller decision recognized gun ownership as an individual constitutional right.

Judge Thomas Ambro wrote the majority opinion with the support of Judge Cheryl Ann Krause.  Judge Stephanos Bibas dissented. Ambro was appointed by President Bill Clinton and Krause by President Barack Obama.  Bibas was appointed by President Donald Trump.

The majority viewed this determination as appropriately within the discretion of Congress and notes that other core rights can be lost by a felony conviction:

“Indeed, we defer to the legislature’s determination that individuals convicted of felonies may forfeit other fundamental rights, such as the right to vote and to sit on a jury, the former being the essence of our democracy. See 28 U.S.C. § 1865(b)(5); Richardson, 418 U.S. at 56; see also Reynolds v. Sims, 377 U.S. 533, 555 (1964) (“The right to vote . . . is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”). As felons are rarely protected by the Second Amendment, Congress is also normally entitled to require disarmament as a result of a felony conviction without engaging in an evaluation of each felon’s rehabilitation and likelihood to engage in further criminal activity of any kind. See Medina, 913 F.3d at 160–61. Accordingly, Congress has the flexibility to decide which crimes are captured by § 922.”

Judge Bibas however rejected the “near categorial” rule as a misapplication of prior rulings like Heller. He also faulted the sweeping analysis that brushed over the fact that this is a nonviolent offense and that there is no evidence of dangerousness.

“The majority’s extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label. “Unvirtuousness” based on the felony label is a mushy standard that sets no limit. We must not reflexively defer to that label when a fundamental right is at stake, but rather require narrow tailoring to public safety. Felons are more than the wrongs they have done. They are people and citizens who are part of “We the People of the United States.” U.S. Const. pmbl. So they too share in the Second Amendment “right of the people to keep and bear Arms,” subject only to the historical limits on that right. Although Lisa Folajtar was convicted of tax fraud nine years ago, she is not dangerous. Neither the majority nor the Government suggests otherwise. Because she poses no danger to anyone, I respectfully dissent.”

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

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

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

That is why the Third Circuit case could be so important. It is Kanter revisited but Barrett is now a justice, not just a judge.  Her view is also shared by new colleagues like Justice Brett Kavanaugh in his own dissent as a judge on the D.C. Circuit when a panel upheld the ban on semi-automatic rifles and the possession of magazines with more than 10 rounds of ammunition (as well as certain registration requirements).

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

Assuming that you accept that this is an individual right, I have serious reservations with the sweeping analysis of the Third Circuit.  The panel imposed little burden on Congress to extinguish an individual right other than its own categorical declaration. While no right is absolute, most of us would be outraged if such a low burden was imposed on other individual rights under Constitution.  There is a good-faith debate over whether this is an individual right, but the question raised by this case is whether, as an individual right, it can so easily be set aside — particularly under a law that preceded the Heller decision.  Two justices are likely clearing their desks in anticipation of the arrival of this case from the Third Circuit.

135 thoughts on “Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout”

  1. “There is a good-faith debate over whether this is an individual right,”

    No, not really. There was a fad in the legal community for a while of pretending it wasn’t, but this point of view was motivated entirely by a desire for gun control laws that would violate such an individual right. Nobody who didn’t have that motive for denying it was an individual right found the argument persuasive.

  2. Your thoughts on this are interesting and you may be right about the way this is headed, but I differ with your wording “the second amendment confers.” The BoR confers nothing at all.

    In elitist circles in London, the war of independence was known as the “Presbyterian Rebellion.” Americans were steeped in the theology of continental Calvinism. Covenant is the pattern and paradigm by which creation is ruled. All of it – marriage, government, economics, family.

    King George broke covenant, and forbade weapons (when confiscations began). That violates God’s law. The right of revolution was thus set. Rights come from the Almighty, not the constitution.

    The constitution is a contract and covenant, not a source document for rights. It governs how we agree to behave towards one another. As scholar of law, you should at a minimum be aware of this contextual history.

    1. I don’t know the intellectual history around Enlightment theories of natural rights very well, so the following may be based on a fundamental misunderstanding. That said, if we are thought to be “…endowed with certain unalienable Rights…,” the parties involved in confering that endowment, if you will, are people and that which endows. The relevant parties in a constitution intended to protect that endowment are people and those who might constrain or deprive, namely other people. So I would say that document which specifies and delineates what I’m able to do and have and under what circumstances, is conferring my rights even if it’s doing so in recognition of or upon the basis of a status I have because of what is thought to be my created nature.

      1. You left out the most important part of the clause: ” … endowed by their creator.” You’re attempting to see things through the eyes of 21st century unchurched America. The American revolution was fomented through the pulpits of America, thousands upon thousands of sermons. That’s easy enough to demonstrate.

        1. When you write that I’ve left the most impt part out, which part do you mean? While you’re no doubt right that I’m looking at this question through 21st century eyes, we all are. Even in the 18th century there was considerable variety, was there not, among deists like Jefferson & Franklin, Quakers, etc.?

          Anyway, I thought your original point was interesting It made me consider how people who thought they were endowed w/ rights on either a philosophical or theological basis instantiated them in a given polity. The rights after all were presumably considered everyone’s endowment regardless of time or place.

          In the end, I think a 2nd, conferring step is logically required btwn a generally provided status and the allocation and acceptance of rights and responsibilities that make them actually operative.

          Anyway, thanks for your thoughts.

        2. “The American revolution was fomented through the pulpits of America . . .”

          Where were those pulpits during the Dark and Middle Ages?

    2. I agree with what you said, and I think you are misattributing the phrase “the second amendment confers.” Justice Barrett was quoting Heller in her dissent, so we are at least once removed from “your wording” [Heller , 554 U.S. at 595, 128 S.Ct. 2783].

      1. @Rick,

        I understand your point, and every judge / justice wants to follow stare decisis. Scalia having said it runs along the lines of ignoring the real roots of rights as well. In other words, what I’m saying is that it is out of vogue to see things the way I’m explaining. Lawyers aren’t taught to think that way in school. They’re taught Stanley Fish and Jacques Derrida. I’m saying the cultural milieu is so different now than when the BoR was crafted as to be unrecognizable by the founders. No founder would have written the words “conferred by the BoR.” No one thought that way, regardless of what Scalia said in Heller (which I take to be a weak decision anyway). Heller was an oddball opinion for the simple reason that Scalia pivoted during the course of the decision to make it more palatable to beltway elitists.

    3. And we all know dicta…and orbita dicta. Fact is the precedent says individual right to self defense. They need the stats its they preponderance to prove the categories …. If in an individual rights era we resort to categories. We don’t.

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