The question of who gets to keep and bear arms is an issue that Heller left unsettled when it announced an individual right in 2008. Since then, lower courts have generally rejected challenges to the federal law barring felons from possessing firearms. Indeed, courts are unanimous that facial challenges to the law fail, but there is some disagreement about as-applied challenges. The disagreement stems mainly from debate over the justification for denying some classes of people the right to arms. In the context of past criminal convictions, that disagreement takes place most sharply over whether the historical principle restricts the right to the virtuous or whether it only requires one not to be dangerous. The virtue versus danger debate resurfaced directly in the Third Circuit’s decision earlier this week in Folajtar v. Barr. In a dissenting opinion, Judge Bibas subscribed to the dangerousness rationale expounded in Justice Barrett’s dissenting opinion as a Seventh Circuit judge in Kanter v. Barr.
Lisa Folajtar was convicted of federal tax fraud in 2011. She received a sentence of probation, several months of home confinement, and a fine. That conviction made her subject to the lifetime bar on firearm possession in 18 U.S.C. § 922(g)(1). Wanting to get her gun rights back, she brought suit in 2018, arguing that the statute violates the Second Amendment as applied to her. After the district court denied her relief, a Third Circuit panel affirmed. Judge Ambro wrote the majority opinion, joined by Judge Krause; Judge Bibas dissented.
The majority began by explaining how Heller itself set limits around the scope of the right. Heller said that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” among other laws. Some courts have described this as dicta and others have noted Heller called these “presumptively lawful” regulations. Interestingly, and in a move I haven’t seen before, the Folajtar majority noted in a footnote that while Heller did describe these laws as “presumptively lawful,” the McDonald plurality repeated this list without also repeating the presumptive language. Instead of concluding that meant the laws were per se constitutional, the panel went on to say, “We understand Heller’s presumption language as leaving open the possibility that a truly exceptional ‘felony’ may fall outside the scope of the historical bar and follow the same approach here.” The Third Circuit is one of the few to allow as-applied challenges to the prohibitor.
The test for as-applied challenges in the Third Circuit is two-pronged. First, the challenger must show that the law burdens conduct within the scope of the Second Amendment. To do so, she must identify the justifications for prohibiting firearms to the class “of which she appears to be a member” and then show why she is different from the members of that class. The panel concluded that this inquiry can be simplified into one question: “Has the plaintiff overcome the generally conclusive rule that a felony conviction is serious, so that it falls outside the historical class of offenses that render felons excluded from Second Amendment protections?” Second, if the challenger succeeds at step one, the burden shifts to the government to show the law passes heightened scrutiny.
Under Third Circuit precedent, including Holloway, which we have discussed on the blog, the historical justification relies on notions of the virtuous citizenry, and anyone who commits a “serious” offense can thus be disarmed. The panel concluded that the legislature’s designation of a crime as a felony is “generally conclusive when evaluating seriousness.” While the circuit viewed state-law misdemeanors that fell within 922(g)(1) more stringently, the felony label made this case different.
Felonies, noted the majority, are the most serious classification of offenses known to the criminal law. This was true at the Founding and is still true today, even though the number of qualifying offenses has greatly expanded in the last 250 years. “Thus, even as the term evolved and expanded, felonies continued to reflect the category of serious crimes committed by those outside the virtuous citizenry.” This approach to the question of seriousness, wrote the panel, is appropriately deferential to the democratic branches in defining “what types of conduct reflect so serious a breach of the social compact as to justify the loss of Second Amendment rights.” The approach also avoids the difficulties of an approach focused on “dangerousness,” which would involve complex and problematic line-drawing problems. Not only that, but the approach is consistent with Third Circuit precedent and the unanimous voice of other circuits. In a jab at the dissent—and perhaps at the increasing number of newly filed challenges to previously settled precedent—the court said, “[i]f stare decisis means anything, it means that we cannot, without gravely impugning the stability and legitimacy of the judiciary, revisit the position so recently espoused by a majority of our en banc court and by two panels since.” Finally, the majority disputed the dissent’s historical evidence about restricting arms. The court cited examples that run counter to the dissent’s exclusive focus on “dangerousness” as the overriding consideration. “The dissent’s cherry-picked history only shows that dangerousness was one reason to restrict firearm possession, but it hardly was the only one.”
The panel concluded that Folajtar could not overcome the presumption that her crime was a serious one. It therefore ended the inquiry at step one. Without ruling out the possibility of an exceptional case, most of those whose convictions are denominated felonies are outside the scope of the right. (Since the court ended the inquiry at step one, analysis that faults the panel for holding the government to “a low burden” are a bit off target.)
In dissent, Judge Bibas argued that “[t]he historical touchstone is danger, not virtue.” He dismissed the relevance of Heller’s carveout—“Heller limited its remark to ‘longstanding’ bans. Longstanding bans are centuries old, not within living memory.” Noting that the federal ban did not extend to non-violent crimes until 1961, he left Heller an apparently dead word on this subject.
He then began with history, writing that “the Second Amendment’s scope depends on its history.” In reciting that history, he noted that he “draw[s] heavily on then-Judge Barrett’s research.” But he made clear that the danger test did not mean only those who previously committed violent acts could be disarmed. Rather, disloyalty and rebellion were also grounds for fearing danger. “Loyalists [to the Crown] were potential rebels who were dangerous before they erupted into violence.” Similarly, “[r]ebels posed a risk of insurrection and so were dangerous.”
The virtue theory, he insisted, was not supported by history. He looked first at the academic sources cited in the Third Circuit’s prior decision in Binderup and concluded that those sources don’t have solid historical foundations. As an aside: I’m baffled by the dismissal of academic sources that reached a contrary conclusion to Heller on whether the Second Amendment protects an individual right. To my mind, if the history is probative about the founders’ understanding of who gets to keep and bear arms (e.g., those possessing republican virtue), then it does not matter that Heller reached a different conclusion to a different question (whether the right extends to any activities unconnected to service in a militia). (Some other judges have done this same sort of culling of the historical case law, including Ninth Circuit Judge O’Scannlain in the original panel opinion in Peruta that was later vacated by the en banc court.) After the academic sources, Judge Bibas rejected the other circuits’ invocation of the virtue theory as lacking any foundation or as in reality supportable on a danger rationale. “In short,” he concluded, “all these articles and cases show that the virtue theory is flimsy. Most of the evidence dovetails with dangerousness.”
Judge Bibas next considered the nature of felonies, arguing that the majority’s rule doesn’t fit with history or with respect for a fundamental right. He noted that the death penalty for felonies at common law tells us nothing about what rights former felons possess now that capital punishment and felony convictions have been decoupled. He also argued that the felony label is too vague and manipulable to serve as the dividing line. “[T]oday, a felony is whatever the legislature says it is. The category is elastic, unbounded, and manipulable by legislatures and prosecutors.” Judge Bibas therefore concluded that because there is no evidence that Folajtar is dangerous, the bar as applied to her is unconstitutional.
There’s another prohibited person case at the Supreme Court right now—Torres v. United States–that could give the chance to weigh in on the danger versus virtue justification. But if the court passes on that case and later finds an appetite, Folajtar presents the question very cleanly.