Second Amendment Under Threat After New Third Circuit Decision
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).
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.”