Rule Five Second Amendment Friday

Should convicted felons be prohibited from owning guns?  Many staunch Second Amendment supporters would say “yes.”  My reply is, “well, that depends,” and one of the things it depends upon is whether the person in question is a violent felon.  Which brings us to an ongoing Second Amendment court case, one in which the newest Supreme Court Justice may be a deciding vote.  Excerpt:

The Third Circuit Court of Appeals upheld a longstanding precedent on Nov. 24 that convicted felons are not permitted to possess firearms after Lisa M. Folajtar asked the court to decide whether Congress can prohibit individuals like herself who are convicted of tax fraud from legally owning a gun.

The appeals court ruled that they could find “no reason to deviate from this long standing prohibition in the context of tax fraud” and rejected her claim.

Folajtar pled guilty in 2011 to making false statements on her tax returns, according to the court’s ruling. While the crime carries a prison sentence of up to three years,  she was instead sentenced to three-years’ probation, among other sentences. However, current law says that people convicted of a crime punishable by more than one year in prison are prohibited from owning a gun.

Folajtar sued in 2018, arguing that the law violated her Second Amendment right to carry a firearm. The court dismissed her claim, sending Folajtar to appeal to the Third Circuit. However, the divided court ruled that since the felony is a serious crime, she is not protected.

Lawyers for Attorney General William P. Barr told the appeals court that the right to bear arms can be forfeited if the individual has committed a crime.

“The right to keep and bear arms is analogous to other civic rights that have historically been subject to forfeiture by individuals convicted of crimes, including the right to vote, the right to serve on a jury and the right to hold public office.”


The 7th Circuit Court of Appeals ruled in Kanter v. Barr in which the court upheld that Rickey I. Kanter was prohibited from owning a firearm because he committed mail fraud. However, Justice Barrett dissented, arguing that history does not support revoking Second Amendment rights to felons convicted of a non-violent crime.

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote in her 2019 dissent. “But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.”

I’ve long been of the opinion that a felon, once their time is served, should be able to go through a process in which their full civil rights are restored – all of them, including the right to own a gun.  I’ve also long been of the opinion that this should probably be a higher hurdle for people convicted of violent crimes.  Violent felons should be scrutinized rigorously through this process, but sometimes people do change, and there are cases in which former thugs have changed their ways and gone on to become upstanding citizens.

But in this case, where the crime was a white-collar crime, I’m inclined to think that another form of strict scrutiny applies; that being, is this person a danger to themselves or others?  If the answer to that is no, then I can’t see the stripping of their constitutional rights.  Any of them.

It will be interesting to see if this comes to the Supreme Court and, if so, how the various Justices vote.