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Litigation Highlight: New Second Amendment Cert Petition

By on December 4, 2020 Categories: ,

The especially active gun-rights organization, Firearms Policy Coalition, has filed a new cert petition this week in Holloway v. Barr. As we’ve highlighted before on the blog, Holloway is another as-applied challenge to the federal firearm prohibitor. This one (like the Folajtar case from a few weeks ago) takes place in one of the few circuits to recognize the validity of as-applied challenges in this context, but the court in this case concluded that the DUI misdemeanant had committed a serious crime and therefore could not claim Second Amendment protection.

Here’s from the petition’s statement of the case, explaining why the petitioner believes it represents a strong vehicle for cert:

The lifetime firearms ban in 18 U.S.C. § 922(g)(1)—which applies to most felons and many misdemeanants—is the most litigated Second Amendment issue since District of Columbia v. Heller, 554 U.S. 570 (2008). And it has created the most conflicts among lower courts.

Because Heller deemed felon disarmament laws “presumptively lawful,” id. at 626–27 n.26, many lower courts have held that felon bans cannot be challenged—even by misdemeanants affected by such bans. Courts that allow challenges are unclear about how a challenge may be successful. While these courts agree that challengers must distinguish themselves from the historically barred class, they disagree over who was historically barred. Some judges believe that only dangerous persons can be disarmed. Others believe that persons can be disarmed for lacking virtue.

This case presents an excellent vehicle to clarify whether and how prohibited persons can bring successful as-applied challenges to laws forever denying their fundamental right to keep and bear arms. Holloway is subject to a lifetime firearms ban due to a 2005 misdemeanor conviction for driving under the influence—although he retained all firearm rights under state law, his conviction falls within the scope of the federal felon ban. Holloway is neither dangerous nor a felon. And his law-abiding history since the 2005 conviction shows that he is completely rehabilitated. This Court should grant certiorari to restore Holloway’s rights and resolve the widespread conflict among the lower courts.

The Supreme Court is also considering a similar cert petition in the Torres case next Friday, so in one of these cases we may soon see what the newly reorganized Court has to say about who can exercise the right to keep and bear arms.