Turley: Third Circuit decision on 2nd Amendment "perfectly tailored" for Supreme Court after Barrett confirmation

The Supreme Court has become notoriously skittish about Second Amendment cases in the years after Heller. That may change now after a Third Circuit ruling upheld a ban on firearm ownership for felons, even those convicted of non-violent crimes. In a 2-1 decision, the court ruled that a tax-evasion conviction was sufficient for a lifetime removal of Second Amendment rights:


Lying on her tax returns will cost a woman her right to own a firearm for a lifetime, the Third Circuit affirmed Tuesday.

The case, which was argued before the federal appeals court last year in Philadelphia, centers around Lisa Folajtar, who pleaded guilty in 2011 to making false statements on her tax returns. Since lying to the government is a felony, the conviction carries additional gun restrictions beyond her sentence of probation and a $10,000 fine.

Divided 2-1 Tuesday, the Third Circuit found that “those who commit serious crimes are excluded from the Second Amendment’s protections,” and that reinstating Folajtar’s gun rights would negate the gravity of her offense.

“Consistent with our precedents, we hold that the legislature’s designation of an offense as a felony is generally conclusive in determining whether that offense is serious,” Justice Thomas Ambro, a Clinton appointee, wrote for the majority. “Because we determine the felony here is a serious crime, Folajtar is not protected by the Second Amendment, and her as-applied challenge fails.”

At issue in this case is the Second Amendment’s standing as an individual right, argues Jonathan Turley, the basis for the Heller decision. Folajtar “falls into the still grey area” of Heller, Turley writes, especially since the court recognized the right of states to prohibit felons from owning firearms in McDonald two years later.


If the Second Amendment is a fully incorporated individual civil right, however, the law and the courts should arguably use strict scrutiny in reviewing the constitutionality of laws that infringe on it. Broadly speaking, that requires a formula that requires states to show a valid public interest in play and the use of the narrowest policy to attain it. The public interest in such bans on ex-felon gun ownership is clearly that of public safety, but the application of such bans on non-violent ex-felons would not be a reasonably tailored measure to achieve it. There is no rational basis to assume a danger from someone who filed a false tax return alone, arguably.

Turley believes that newly minted Justice Amy Coney Barrett will want to delve into that very question, and her addition might finally push the court to grant cert in this and other Second Amendment cases:

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.”


Folajtar is “Kanter revisited,” Turley writes. He also links it to a Brett Kavanaugh dissent on the DC Circuit on a ban against semi-automatic weapons and limits on magazine capacities. Both Barrett and Kavanaugh might be eager to revisit these issues in light of Heller, and it would only take two more justices to grant cert. Clarence Thomas and Samuel Alito would likely be slam-dunks to vote for cert, and Neil Gorsuch may as well.

If so, look out:

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

There may not be anything John Roberts can do to prevent it, either. At the very least, it will make for a very interesting argument to follow.

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David Strom 6:40 PM | February 29, 2024