PHILADELPHIA, PA (November 14, 2019) — Today, Firearms Policy Coalition (FPC) and Firearms Policy Foundation (FPF) announced that two FPC- and FPF-backed Second Amendment challenges are fully briefed, argued, and submitted at the Third Circuit Court of Appeals. Key briefs, appellate documents, and audio of the oral arguments for the two cases, Folajtar v. Attorney General Barr, et al. and Holloway v. Attorney General Barr, et al., can be found online at FPClegal.org. A third FPC- and FPF-supported appeal is currently stayed pending the court’s decision in Holloway.
Both Folajtar and Holloway are challenges to the federal government’s lifetime ban on firearm possession for “any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” under 18 U.S.C. § 922(g)(1). The Third Circuit’s jurisdiction includes federal cases arising out of Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands.
In Folajtar, attorneys Joshua Prince and Adam Kraut argued that the federal lifetime ban on gun possession by convicted felons is overbroad and unconstitutional under the Second Amendment, and their client’s prior non-violent felony conviction – “for making a false statement on a tax return almost ten years ago” – is not one that should constitutionally result in a lifetime firearms ban. In 2011, Ms. Folajtar pleaded guilty to making a false statement in her tax return. She was sentenced to three years of probation and a fine, and completed her probation without any violations. At no point was she informed that her conviction would strip her of her fundamental, individual right to keep and bear arms in perpetuity.
The Holloway case – which the federal government appealed after losing to Prince and Kraut in the district court – centers on the Trump Administration’s committed continuation of an Obama-era litigation position: because Mr. Holloway had been convicted of a crime that could have been “punishable by imprisonment for a term exceeding one year,” even though he was not so imprisoned, he is still subject to the federal ban under 18 U.S.C. 922(g)(1).
“As is par for the course, in neither case could the Government provide a shred of evidence supporting that there exists even a rational – let alone, an important or compelling – Government interest in prohibiting them from their constitutional right to purchase and possess firearms and ammunition,” said attorney Joshua Prince. “In Folajtar, there exists a certain irony that the Government contends that a false statement in a tax return is of the ilk to strip an individual of the right to keep and bear arms, when our Founding Fathers took up arms against their English overlords, after refusing to pay the taxes imposed upon them by the King.”
“Historically, only individuals who were violent or likely to be violent were prohibited from possessing firearms,” attorney and FPC Director of Legal Strategy Adam Kraut commented. “Expanding that prohibition to include so-called ‘unvirtuous’ citizens, such as those convicted of falsifying a tax return or other nonviolent offenses, does nothing to prevent armed mayhem. In many instances, these individuals were never informed that their conviction would prevent them from possessing firearms and ammunition under federal law for the remainder of their lives.”
FPC, FPF, and other organizations joined to file an amicus brief in each case. The briefs, available at http://bit.ly/fpc-folajtar and http://bit.ly/fpc-holloway, contain a historical survey and analysis by FPC Director of Research, Joseph Greenlee, using groundbreaking new research by Greenlee, to show that the historical basis for bans on felons is the tradition of disarming dangerous and violent persons, not just those the government broadly classifies as ‘felons’ in its statutes.
“The Supreme Court has made clear that in evaluating a Second Amendment challenge, a court must interpret the Amendment’s text in light of the history and tradition of the founding era,” Greenlee said. “When the right was codified, only dangerous persons—or those perceived as dangerous—had ever been deprived of their right to arms. The federal prohibition at issue in these cases violates the Second Amendment by disarming non-violent people who have demonstrated no propensity for violence.”
Since Mr. Holloway and Ms. Folajtar’s respective convictions were for non-violent crimes, they are distinct from those who have historically been barred from keeping arms. FPC’s amicus briefs trace the historical tradition of disarming dangerous persons from the year 602 A.D. through the enactment of 18 U.S.C. 922. The FPC briefs show that there is no tradition of banning peaceable citizens from owning firearms, and that non-violent felons are ‘peaceable’ in the American and legal tradition. Thus, it argues, there is no historical justification for a ban on Mr. Holloway or Ms. Folajtar and they should retain their Second Amendment right to keep and bear arms.
“These cases could result in restoring fundamental human rights, help millions of Americans, and ultimately save lives,” Combs said. “We are delighted to support Ms. Folajtar and Mr. Holloway in their important litigation to restore their rights and our Constitution’s guarantee of individual liberty against government infringement.”
Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)(4) grassroots nonprofit organization. FPC’s mission is to defend the People’s rights, especially the human right to keep and bear arms, promote individual liberty, and restore freedom.
Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)(3) grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms.