Lisa Folajtar v. Attorney General USA

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-1687
LISA M. FOLAJTAR,
Appellant
v.
ATTORNEY GENERAL OF THE UNITED STATES;
ACTING DIRECTOR, BUREAU OF ALCOHOL,
TOBACCO, FIREARMS, AND EXPLOSIVES;
DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION; UNITED STATES OF AMERICA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5-18-cv-02717)
District Judge: Honorable Joseph F. Leeson, Jr.
Argued November 12, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: November 24, 2020)
Adam J. Kraut
Joshua Prince (Argued)
Prince Law Offices
646 Lenape Road
Bechtelsville, PA 19505
Counsel for Appellant
Joseph H. Hunt
Assistant Attorney General
William M. McSwain
United States Attorney
Mark B. Stern
Patrick Nemeroff (Argued)
Thais-Lyn Trayer
United States Department of Justice
Civil Division, Room 7217
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellees
Joseph G.S. Greenlee
Firearms Policy Coalition
1215 K Street, 17th Floor
Sacramento, CA 95814
Counsel for Amicus Appellants
Firearms Policy Coalition Inc.; Firearms Policy
Foundation; Firearms Owners Against Crime; Second
Amendment Foundation Inc.
2
OPINION OF THE COURT
AMBRO, Circuit Judge
Lisa Folajtar asks us to decide whether Congress may
prohibit individuals convicted of federal tax fraud from
possessing firearms. To answer this question, we rely on the
general rule that laws restricting firearm possession by
convicted felons are valid. Because we find no reason to
deviate from this longstanding prohibition in the context of tax
fraud, we reject Folajtar’s as-applied constitutional challenge.
Folajtar pled guilty in 2011 to a federal felony: willfully
making a materially false statement on her tax returns, which
is punishable by up to three years’ imprisonment and a fine up
to $100,000. 26 U.S.C. § 7206(1). 1 The Court was more
1
Section 7206 is titled “[f]raud and false statements,” and §
7206(1) is titled “[d]eclaration under penalties of perjury.”
We colloquially refer to any offense under § 7206, including
§ 7206(1), as criminal tax fraud. See Ray A. Knight & Lee G.
Knight, Criminal Tax Fraud: An Analytical Review, 57 Mo.
L. Rev. 175, 179 (1992); see also Kawashima v. Holder, 565
U.S. 478, 483–84 (2012) (explaining that although § 7206(1)
does not include fraud as a formal element, it qualifies under
the Immigration and Nationality Act as a deportable offense
involving fraud or deceit); United States v. Taylor, 574 F.2d
232, 234 (5th Cir. 1978) (“Section 7206(1) is a fraud
statute.”).
3
lenient, sentencing her to three-years’ probation, including
three months of home confinement, a $10,000 fine, and a $100
assessment. She also paid the IRS over $250,000 in back taxes,
penalties, and interest. Folajtar’s conviction left her subject to
18 U.S.C. § 922(g)(1), which prohibits those convicted of a
crime punishable by more than one year in prison 2 from
possessing firearms. 3 Congress enacted the prohibition in the
1960s, thus expanding substantially a 1938 ban prohibiting
2
Because the charge associated with § 922(g)(1) is a “felon in
possession of a firearm,” some refer to any crime subject to §
922(g)(1) as a felony. When we use the term “felony,” we are
typically referring to offenses labeled as a felony by Congress
or the relevant state legislature. The federal definition of a
felony is “a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. §§ 922(g)(1), 3559(a). States
vary in their definition of a felony. Section 922(g)(1) applies
to federal felonies and state convictions (regardless of label)
that satisfy the federal definition of a felony, although it
excludes state misdemeanors punishable by a term of
imprisonment of two years or less. See id. §§ 921(g)(1),
921(a)(20)(B).
3
Section 922(g)(1) is part of a statutory scheme that also bars
eight other groups of persons from possessing guns, including
fugitives, drug addicts, persons previously committed to
mental institutions, persons under a court order prohibiting
them from threatening a partner or child, those with
misdemeanors or convictions for crimes of domestic violence,
undocumented or non-immigrant aliens, persons dishonorably
discharged from the military, and persons who have renounced
their United States citizenship. Id. § 922(g).
4
those convicted of “crimes of violence” 4 from receiving a
firearm. See Omnibus Crime Control and Safe Streets Act of
1968, Pub. L. No. 90-351, tit. IV, § 925, 82 Stat. 197, 233–34;
id. at tit. VII § 1202, 82 Stat. at 236 (codified at 28 U.S.C.
§ 922(g)(1)).
In 2018, Folajtar filed a lawsuit in the District Court
asserting that applying § 922(g)(1) to her violated her Second
Amendment right to possess firearms. The Government
moved to dismiss Folajtar’s suit, arguing that, “[b]ecause
Folajtar pleaded guilty to a federal felony, she is categorically
excluded from the class of citizens entitled to possess a
firearm.” App. Vol. II, 26. Applying our precedents in United
States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and
Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en
banc), the District Court determined that Folajtar did not state
a plausible Second Amendment claim because she was
convicted of a serious crime. She appeals to us.
The District Court had jurisdiction over Folajtar’s
constitutional challenge under 28 U.S.C. § 1331. We have
appellate jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over the dismissal of Folajtar’s complaint under
Fed R. Civ. P. 12(b)(6). Phillips v. Cty. of Allegheny, 515 F.3d
224, 230 (3d Cir. 2008). Consistent with our precedents, we
hold that the legislature’s designation of an offense as a felony
4
The statute in 1938 defined “crime of violence” as murder,
manslaughter, rape, mayhem, kidnapping, burglary,
housebreaking and various types of aggravated assault. See
Federal Firearms Act, ch. 850, § 1(6), 52 Stat. 1250, 1250
(1938).
5
is generally conclusive in determining whether that offense is
serious. Because we determine the felony here is a serious
crime, Folajtar is not protected by the Second Amendment, and
her as-applied challenge to § 922(g)(1) fails.
A. Those who commit serious crimes are excluded
from the Second Amendment’s protections.
The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.”
U.S. Const. amend. II. In District of Columbia v. Heller, 554
U.S. 570 (2008), the Supreme Court interpreted the
Amendment’s right to bear arms as an individual right, at least
for the core purpose of allowing “law-abiding, responsible
citizens to use arms in defense of hearth and home.” Id. at 635.
But that right “is not unlimited.” Id. at 626. Heller “did
not cast doubt on such longstanding regulatory measures as
‘prohibitions on the possession of firearms by felons.’”
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010)
(quoting Heller, 554 U.S. at 626–27). To the contrary, among
the many “presumptively lawful regulatory measures” that it
identified in Heller, the Court included “longstanding
prohibitions on the possession of firearms by felons and the
mentally ill, . . . laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings,
[and] laws imposing conditions and qualifications on the
commercial sale of arms.” 5 Id. at 626–27; see also Doe v.
5
While in a footnote Heller characterized this list of
“longstanding prohibitions” as “presumptively” lawful, 554
6
Governor of Pennsylvania, 977 F.3d. 270, 274 (3d Cir. 2020)
(“We have consistently hewed to the exceptions that Heller
preserved.”). Indeed, the Supreme Court has repeatedly
endorsed the constitutionality of measures prohibiting firearm
possession by felons after Heller. See McDonald, 561 U.S. at
786 (“We repeat [Heller’s] assurances here.”); see also New
York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140
S. Ct. 1525, 1540–41 (2020) (Alito, J., dissenting) (recognizing
historical support for constitutionality of banning firearm
possession by felons); Vartelas v. Holder, 566 U.S. 257, 271
(2012) (referencing Heller’s approval of laws prohibiting
felons from having arms).
Since Heller, we, along with every court to consider the
issue, have rejected challenges that § 922(g)(1) on its face
violates the Second Amendment. See United States v. Barton,
633 F.3d 168, 172 (3d Cir. 2011), overruled on other grounds
by Binderup, 836 F.3d at 349; see also United States v. Bogle,
717 F.3d 281, 281–82 (2d Cir. 2013) (per curiam); Schrader v.
Holder, 704 F.3d 980, 991 (D.C. Cir. 2013); United States v.
Moore, 666 F.3d 313, 318 (4th Cir. 2012); United States v.
Joos, 638 F.3d 581, 586 (8th Cir. 2011); United States v.
Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011); United
States v. Rozier, 598 F.3d 768, 770–71 (11th Cir. 2010); United
States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010); United
U.S. at 627 n.26, McDonald reaffirmed the constitutionality of
these “regulatory measures” without any qualifying language,
561 U.S. at 786. 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.
7
States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010); United
States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009);
United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009);
cf. United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010)
(“Because Congress’s prohibition on felon possession of
firearms is constitutional, it follows that the burdens associated
with the congressionally-created expungement exception in 18
U.S.C. § 921(a)(20) do not violate the Second Amendment.”).
Thus § 922(g)(1) is constitutional as written.
We do, however, permit Second Amendment
challenges to § 922(g)(1) as applied to individuals, Barton, 633
F.3d at 172–73, which we analyze using a two-pronged
approach first announced in Marzzarella, 614 F.3d at 89. See
Holloway v. Att’y Gen., 948 F.3d 164, 171 (3d Cir. 2020);
Binderup, 836 F.3d at 356. First, the challenger bears the
burden of showing that the law hampers “conduct falling
within the scope of the Second Amendment’s guarantee.”
Marzzarella, 614 F.3d at 89. Over time we have refined this
prong to require the challenger to “(1) identify the traditional
justifications for excluding from Second Amendment
protections the class of which [she] appears to be a member,
and then (2) present facts about [her]self and [her] background
that distinguish [her] circumstances from those of persons in
the historically barred class.” Binderup, 836 F.3d at 347 (citing
Barton, 633 F.3d at 173–74). If the challenger cannot meet her
burden at Step One—i.e., she cannot distinguish herself from
the historically barred class—our inquiry is complete and her
challenge fails. But if the challenger can distinguish herself,
we continue to Step Two, with the burden shifting to the
Government to show that the law can survive heightened
scrutiny. Id. at 347–48.
8
Until now we have not had to decide whether
§ 922(g)(1) is unconstitutional as applied to a felony
conviction. However, we have twice considered whether the
provision is unconstitutional as applied to state misdemeanor
convictions. See Holloway, 948 F.3d 164; Binderup, 836 F.3d
336. As noted, we typically would proceed under the first step
of Marzzarella to determine: (1) whether persons with felony
convictions fall within the historical class of those barred from
Second Amendment protection; and (2) whether Folajtar, as
one convicted of a federal tax fraud felony, can distinguish
herself from that class. As we explain below, our precedents
instruct we can collapse these two questions into one: 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?
In looking to the historical justification for limiting the
right to bear arms, we have recognized that many scholars
agreed that “the right to bear arms was tied to the concept of a
virtuous citizenry[;] . . . accordingly, the government could
disarm ‘unvirtuous citizens.’” Binderup, 836 F.3d at 348
(citation omitted); see also Vongxay, 594 F.3d at 1118. Also,
“[s]everal of our sister circuits endorse[d] the ‘virtuous citizen’
justification for excluding felons and felon-equivalents from
the Second Amendment’s ambit.” Binderup, 836 F.3d at 348
(collecting cases). We reasoned that people who committed or
were likely to commit violent offenses “undoubtedly qualify as
‘unvirtuous citizens’ who lack Second Amendment rights.” Id.
Further, citing Heller’s “longstanding prohibitions on the
possession of firearms by felons,” we concluded that “[t]he
category of ‘unvirtuous citizens’ is thus broader than violent
criminals; it covers any person who has committed a serious
9
criminal offense, violent or nonviolent.” Id. (citing Heller, 554
U.S. at 626).
Accordingly, we held that “persons who have
committed serious crimes forfeit the right to possess firearms
much the way they ‘forfeit other civil liberties, including
fundamental constitutional rights [e.g., the right to vote].’” Id.
at 349 (quoting Barton, 633 F.3d at 175). While our dissenting
colleague and Folajtar attempt to define the category of those
excluded from Second Amendment protection solely by
“dangerousness,” we made clear in Binderup that the exclusion
applies to all serious crimes, and there ten judges agreed that
“the correct test at step one for challenges to § 922(g)(1) is
whether the offense is ‘serious,’ not whether the offense is
violent.” Holloway, 948 F.3d at 171 n.7. When examining the
seriousness of a crime, we “presume the judgment of the
legislature is correct and treat any crime subject to § 922(g)(1)
as disqualifying unless there is a strong reason to do
otherwise.” Binderup, 836 F.3d at 351.
B. Our precedents explain that the legislature’s
designation of an offense as a felony is generally
conclusive when evaluating seriousness.
There are “no fixed criteria for determining whether
crimes are serious enough to destroy Second Amendment
rights.” Id. In Binderup, where we held that § 922(g)(1) was
unconstitutional as applied to a challenger convicted of the
state misdemeanor of corrupting a minor (a consensual sexual
relationship with a 17 year old employee) and another who
unlawfully carried a handgun without a license, we observed
that the legislatures classified the challengers’ offenses as
misdemeanors, the crimes were nonviolent, the punishments
10
imposed were lenient, and other jurisdictions also classified
similar crimes as misdemeanors. Id. at 351–53. In Holloway,
we also considered dangerousness of the offense when
applying this approach to reject an as-applied challenge to
another misdemeanor conviction—a DUI. 948 F.3d at 173–
77. 6
Contrary to what the dissent suggests, see Dissenting
Op. 2, we have never held that felonies and state misdemeanors
should be analyzed similarly or that the considerations we
examined in Binderup and Holloway should be weighed
equally. Instead, we consistently viewed the legislature’s
classification of the offense as a powerful consideration.
Binderup, 836 F.3d at 352 (explaining the legislature’s label
for an offense is a “powerful expression” of its view). Our
decision in Binderup was “limited to the cases before us, which
involve[d] state-law misdemeanants . . . . This is important
because when a legislature chooses to call a crime a
misdemeanor, we have an indication of non-seriousness that is
lacking when it opts instead to use the felony label. We [were]
not confronted with whether an as-applied Second Amendment
challenge can succeed where the purportedly disqualifying
offense is considered a felony . . . .” Id. at 353 n.6. And while
the dissent is correct we left the issue of disarming felons open,
see Dissenting Op. 5, we remarked that while a successful as-
6
A blink response may be that violence and dangerousness are
the same. Though there is overlap, they are not. In Binderup,
we described the consideration of “violence” as whether “the
offense had the use or attempted use of force as an element.”
836 F.3d at 352. In Holloway, we clarified that certain offenses
like DUIs are dangerous although the “use or threatened use of
violence is not an element of [the crime].” 948 F.3d at 174.
11
applied challenge by a felon is possible, the challenger’s
burden would be “extraordinarily high.” Id. Thus the
legislature’s decision to label an offense a felony is generally
conclusive in our analysis of seriousness, and while we do not
foreclose the possibility that a legislature could be overly
punitive and classify as a felony an offense beyond the limits
of the historical understanding, a “non-serious felony” would
be rare. 7
Our differing treatment of felonies and misdemeanors
remains true to Heller’s instruction that “longstanding
prohibitions on the possession of firearms by felons” were
“presumptively lawful regulatory measures” constraining the
scope of the right. 554 U.S. at 626–27 & n.26; Barton, 633
F.3d at 171 (“Heller's list of ‘presumptively lawful’ regulations
is not dicta.”); see also Binderup, 836 F.3d at 359 n.3
(Hardiman, J., concurring in part) (reading Heller’s discussion
of lawful regulations as a limitation integral to its holding). 8
7
In Binderup, the dissent argued that all crimes subject to §
922(g)(1) are disqualifying because their maximum possible
punishment was conclusive proof of their seriousness. That,
we said, “puts the rabbit in the hat” because some
misdemeanors “may be ‘so tame and technical as to be
insufficient to justify the ban.’” Binderup, 836 F.3d at 350
(quoting Torres–Rosario, 658 F.3d at 113).
8
While our dissenting colleague attempts to cast doubt on
Heller’s general exclusion of felon disarmament laws from the
scope of the right to arms, labeling it an “aside,” Dissenting
Op. 5, that characterization falls far short of reality. Recall that
the Supreme Court reaffirmed two years later in McDonald that
12
This approach further aligns with our earlier reasoning that
“[m]isdemeanors are, and traditionally have been, considered
less serious than felonies.” Id. at 351 (quoting Baldwin v. New
York, 399 U.S. 66, 70 (1970)). The latter “were—and
remain—the most serious category of crime [as] deemed by the
legislature.” Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir.
2019) (Sentelle, J.).
Our approach is also consistent with that of our sister
circuits and state courts. See id. at 155 (“[N]o circuit has held
the law unconstitutional as applied to a convicted felon.”); see
also id. at 154 (“[F]elons are not among the law-abiding,
responsible citizens entitled to the protections of the Second
Amendment.”); Eugene Volokh, Implementing the Right to
Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. Rev. 1443,
1498 (2009) (collecting cases) (“Dozens of state court
decisions likewise take the view that felons (even those
convicted of nonviolent felonies) lack a constitutional right to
keep and bear arms.”). Thus, while those convicted of felonies
may bring as-applied challenges to § 922(g)(1), they are
unlikely to succeed in all but the exceptional case.
As we elaborate below, the precedents of the Supreme
Court, our and other circuits, which hold that felonies are
serious enough to ban firearm possession, find support in
history and the general deference courts accord to a
legislature’s policy determination of what is serious.
it “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’” 561
U.S. at 786.
13
1. History confirms that felons committed serious
crimes.
A felony unquestionably encompasses a broader array
of crimes today than it did in 1791. Nonetheless, at the Second
Amendment’s ratification felonies comprised “the most
serious category of crime[s,]” just as they do now. Medina,
913 F.3d at 158 (citing Hamilton v. Pallozzi, 848 F.3d 614, 626
(4th Cir. 2017)). We inherited the term from England, where
in its earliest form it referred to a “breach of the feudal
obligations between lord and vassal,” the consequence of
which was “forfeiture of goods and the escheat of the fief.”
Will Tress, Unintended Collateral Consequences: Defining
Felony in the Early American Republic, 57 Clev. St. L. Rev.
461, 463 (2009). As the term evolved to refer to a broader
category of crimes, felons faced serious consequences: From
at least twelfth-century on in England, felonies were
punishable by death or the loss of goods and land. Id. at 463–
64.
Although the number of felonies at common law is
limited, 9 legislatures quickly began to expand the list. Francis
Bacon, writing in the seventeenth century, lists at least thirty-
four felonies punishable by death and forfeiture. Many of these
crimes are violent, such as burglary, rape, arson, and murder;
but others are not, including unlawful hunting and repeated
forgery. See Francis Bacon, Preparation for the Union of Laws
9
The nine traditional felonies at common law are murder,
manslaughter, arson, burglary, robbery, rape, sodomy,
mayhem, and larceny. See Tress, supra, at 464 (citing Francis
Wharton, Treatise on the Criminal Law of the United States 1
(Philadelphia, James Kay, Jun. & Brother 1846)).
14
of England and Scotland, in 2 The Works of Francis Bacon
163–64 (Basil Montagu ed., Cary & Hart 1844); see also
Medina, 913 F.3d at 158 (citing 4 William Blackstone,
Commentaries on the Laws of England *95 (Harper ed. 1854)).
Harsh punishment for felonies continued into the eighteenth
century even as the number of crimes that qualified expanded.
Blackstone writes that “no less than a hundred and sixty
[offenses] have been declared by act of parliament [ ] to be
felonies.” 4 William Blackstone, Commentaries *18.
American colonists imported the English concept of
felonies and their consequences into their legal systems. The
death penalty was ubiquitous in the Founding Era, see Baze v.
Rees, 553 U.S. 35, 94 (2008) (Thomas, J., concurring) (citing
Stuart Banner, The Death Penalty: An American History 23
(2002)), used even to punish non-violent felonies such as
forgery and horse theft. Medina, 913 F.3d at 158 (citing
Banner, supra, at 18); see also John D. Bessler, Cruel &
Unusual: The American Death Penalty and the Founders’
Eighth Amendment 56–57 (2012) (listing crimes the First
Congress made “punishable by hanging, including treason,
murder on federal land, forgery, [dealing in] forged securities,
counterfeiting, and piracy on the high seas”); Kathryn Preyer,
Penal Measures in the American Colonies: An Overview, 26
Am. J. Legal Hist. 326, 330–32, 342, 344, 345–47 (1982)
(discussing the use of capital punishment in eighteenth-century
Virginia, Massachusetts, Pennsylvania, and New York). The
widespread, continued condemnation of felons, including
those who committed non-violent offenses, to death
demonstrates that in 1791 Americans understood felons, as a
group, to commit serious crimes.
15
Given this, “it is difficult to conclude that the public, in
1791, would have understood someone facing death and estate
forfeiture to be within the scope of those entitled to possess
arms.” Medina, 913 F.3d at 158. Americans in the Founding
Era also believed “[i]t is because the people are civilized, that
they are with safety armed.” David B. Kopel, The Posse
Comitatus and the Office of Sheriff: Armed Citizens
Summoned to the Aid of Law Enforcement, 104 J. Crim. L. &
Criminology 761, 794 (2014) (quoting the diplomat and
Jeffersonian Republican Joel Barlow). They saw the armed
citizenry, in other words, as a bulwark of liberty, see Robert E.
Shalhope, The Armed Citizen in the Early Republic, 49 Law &
Contemp. Probs. 125, 131–32 (1986), in contrast to felons who
could not be trusted, see Kopel, supra, at 789 n.154 (noting that
under English law the sheriff could traditionally summon
armed citizens to pursue fleeing felons, including thieves).
Thus, the eighteenth-century American’s right to bear arms
was intimately tied to long-standing practices that explicitly
separated the class of armed law-abiding citizens from felons.
“[N]o one . . . denies these historically grounded and sensible
explanations behind the exceptions: Legislatures have
authority . . . to impose lifetime gun-possession bans on felons
as a safety measure and as a legitimate consequence of a felony
conviction[.]” Tyler v. Hillsdale Cty. Sheriff's Dep't, 837 F.3d
678, 708 (6th Cir. 2016) (Sutton, J., concurring).
By the turn of the nineteenth century, Americans began
to revise the penalties for felonies, reducing their severity and
increasing the use of incarceration. See Tress, supra, at 473.
The First Congress outlawed forfeiture of estate as a
punishment for felons under federal law. Austin v. United
States, 509 U.S. 602, 613 (1993). States passed laws replacing
capital punishment with incarceration, using the term “felony”
16
to denote crimes that required time in prison to “reform[] [ ]
the convict’s character,” in contrast to less serious crimes “that
only required a sharp reminder to obey the law.” Tress, supra,
at 468. The punishment for felons extended to forfeiture of
certain fundamental rights, including the right to vote. See
Richardson v. Ramirez, 418 U.S. 24, 51 (1974) (noting that the
act admitting Arkansas in 1868 provided it could
disenfranchise those convicted of felonies at common law “as
a punishment for such crimes.”). Thus, even as the term
evolved and expanded, felonies continued to reflect the
category of serious crimes committed by those outside the
virtuous citizenry.
2. Our approach accords proper deference to the
legislature’s determination.
Our approach is not only consistent with history and
tradition, but further safeguards the separation of powers by
allowing democratically constituted legislatures, not unelected
judges, to decide in most cases what types of conduct reflect so
serious a breach of the social compact as to justify the loss of
Second Amendment rights. “When the legislature,” in this
case Congress, “designates a crime as a felony, it signals to the
world the highest degree of societal condemnation for the act,”
Medina, 913 F.3d at 160. In upholding Congress’s decision to
disarm individuals who commit felonies, we respect the
legislatures’ choices about which crimes count as serious and
preserve the states’ traditional autonomy to “define crimes
[and] punishments.” Danforth v. Minnesota, 552 U.S. 264,
280 (2008). This ensures that disarmament decisions reflect
the views and values of our communities, as well as the
expertise and experience of legislatures “‘far better equipped
than the judiciary’ to make sensitive public policy judgments.”
17
See Kachalsky v. Cty. of Westchester, 701 F.3d 81, 97 (2d Cir.
2012) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
665 (1994)); United States v. Skoien, 614 F.3d 638, 640 (7th
Cir. 2010) (Easterbrook, J.) (observing that “the legislative role
did not end in 1791” and that, in some cases, the Second
Amendment “leav[es] to the people’s elected representatives
the filling in of details”).
Indeed, we defer to the legislature’s determination that
individuals convicted of felonies may forfeit other fundamental
rights, such as the right to vote and to sit on a jury, the former
being the essence of our democracy. See 28 U.S.C. §
1865(b)(5); Richardson, 418 U.S. at 56; see also Reynolds v.
Sims, 377 U.S. 533, 555 (1964) (“The right to vote . . . is of
the essence of a democratic society, and any restrictions on that
right strike at the heart of representative government.”). As
felons are rarely protected by the Second Amendment,
Congress is also normally entitled to require disarmament as a
result of a felony conviction without engaging in an evaluation
of each felon’s rehabilitation and likelihood to engage in
further criminal activity of any kind. See Medina, 913 F.3d at
160–61. Accordingly, Congress has the flexibility to decide
which crimes are captured by § 922. 10 For instance, it
10
Folajtar also cites 18 U.S.C. § 925(c), which allows those
prohibited from possessing firearms under § 922(g)(1) to apply
to the Attorney General for relief. We explained in Binderup
that this program is “a matter of legislative grace; the Second
Amendment does not require that those who commit serious
crimes be given an opportunity to regain their right to keep and
bear arms in that fashion.” 836 F.3d at 350. Further,
Congress’s decision to defund the program exemplifies that a
18
determined that those convicted of antitrust felonies should not
be covered by the statute because those crimes were only
classified as felonies in a handful of states and were not
felonies under federal law. See 18 U.S.C. § 921(a)(20)(A); S.
Rep. No. 89-1866, at 77 (1966).
Practical considerations confirm the wisdom of this
approach. Perhaps most important, our holding avoids the
administrative difficulties that would result from applying a
dangerousness standard to felonies. Should the dissent’s
proposal prevail, district courts would face the unenviable task
of weighing the relative dangerousness of hundreds of offenses
already deemed sufficiently serious to be classified as
felonies. Would the selling of mislabeled food or drugs, for
example, count as a dangerous offense? See 21 U.S.C.
§ 331. What about prescribing opioids without a legitimate
medical purpose? See 21 U.S.C. § 841(a). Or allowing toxic
chemicals to leach into a public waterway? See 33 U.S.C.
§ 1319(c)(2)(B).
This problem is not alleviated by describing the
category as “crimes of violence” rather than “dangerous”
offenses, as some have suggested. See Dissenting Op.
24; Binderup, 836 F.3d at 370 (Hardiman, J.,
concurring). “[I]ndeterminacy about how to measure the risk
posed by a crime [and] indeterminacy about how much risk it
robust system of as-applied challenges to § 922(g)(1) is
unworkable. Id. at 403 (Fuentes, J., concurring in part and
dissenting in part) (“Congress effectively wr[o]te § 925(c) out
of the statute books . . . [b]ecause it concluded that the task of
granting individual applications for relief from § 922(g)(1) was
too prone to error.” (emphasis omitted)).
19
takes for the crime to qualify as a violent felony . . . produce[ ]
more unpredictability and arbitrariness than the Due Process
Clause tolerates.” Johnson v. United States, 576 U.S. 591, 598
(2015); accord United States v. Davis, 588 U.S. ––––, 139 S.
Ct. 2319, 2336 (2019); Sessions v. Dimaya, 584 U.S. –––– ,
138 S. Ct. 1204, 1223 (2018). Under our approach, those who
commit felonies are on notice that they are committing a
serious offense, and, with rare exceptions, that they thereby
forfeit their rights under the Second Amendment. By giving
primary weight to the legislature’s determination, our approach
is no doubt more administrable.
C. The dissent’s focus on dangerousness alone is too
narrow.
Even if we put aside administrative concerns, the
dissent’s position that only dangerousness should be
considered in our analysis would raise serious institutional
concerns given the clearly established precedents in our Circuit
and elsewhere. And in any event the dissent adopts an overly
narrow view of danger that is inconsistent with historical
readings.
In addition to parting with the overwhelming consensus
among our sister circuits, see supra 13, the dissent’s standard
would require us to ignore the Supreme Court’s general
exclusion of all felons from the scope of the Second
Amendment right, see Heller, 554 U.S. at 626–27; McDonald,
561 U.S. at 786; contradict our own precedents making clear
that seriousness of the offense defines the historical class for
criminal offenses, see Binderup, 836 F.3d at 350 (Ambro, J.);
id. at 387 (Fuentes, J., concurring in part and dissenting in
20
part); Holloway, 948 F.3d at 171; and stray too far into the
province of the legislative branch. This we should not do.
The dissent is largely rehashing the same sources and
arguments as Judge Hardiman’s Binderup concurrence. See
Dissenting Op. 6–9. But our Court has repudiated three times
in just the past four years that concurrence’s narrow focus on
dangerousness. Ten of the fifteen judges to participate in
Binderup rejected it, making explicit their conclusion was part
of Binderup’s holding and not a dictum. See 836 F.3d at 356
(“[T]he following is the law of our Circuit . . . . [A] challenger
must prove that he was not previously convicted of
a serious crime[.]” (emphasis added)). A subsequent panel of
our Court similarly recognized that “the historical justification
for disarming felons was because they had committed serious
crimes, [and the] risk of violent recidivism was
irrelevant.” Beers v. Att’y Gen., 927 F.3d 150, 156 (3d Cir.
2019), judgment vacated on other grounds, Beers v. Barr, 140
S. Ct. 2758 (Mem.) (May 18, 2020).
And again, earlier this year, we reiterated that
in Binderup “ten judges agreed that the correct test . . . is
whether the offense is ‘serious,’ not whether the offense is
violent.” Holloway, 948 F.3d 171 n.7. If 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. As the Chief Justice recently
explained, stare decisis “must give way only to a rationale that
goes beyond whether the case was decided correctly.” June
Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2134 (2020)
(Roberts, C.J., concurring). We see no such ground for
21
revisiting Binderup, Beers, or Holloway today, and the dissent
highlights none.
We need not fully repeat the historical analysis in our
precedents but note for completeness that the dissent’s
dangerousness standard is also inconsistent with history.
While colonial Virginia permitted the constable to “take away
Arms from such who ride, or go, offensively armed, in Terror
of the People,” and bring the person and their arms before a
Justice of the Peace, see George Webb, The Office of Authority
of a Justice of Peace 92–93 (1736), other colonies did not
require violence or dangerousness for disarmament. For
example, Connecticut prohibited those who defamed or libeled
acts of Congress from keeping arms. See G.A. Gilbert, The
Connecticut Loyalists, 4 Am. Hist. Rev. 273, 282 (1899).
Similarly, Pennsylvania law required any “person [who]
‘refuse[d] or neglect[ed] to take the oath or affirmation’ of
allegiance to the state . . . to deliver up his arms to agents of
the state, and he was not permitted to carry any arms about his
person or keep any arms or ammunition in his ‘house or
elsewhere.’” Saul Cornell & Nathan DeDino, A Well
Regulated Right: The Early American Origins of Gun Control,
73 Fordham L. Rev. 487, 506 (2004) (quoting Act of Apr. 1,
1778, ch. LXI, § 5, 1777-1778 Pa. Laws 123, 126).
Massachusetts also disarmed “such Persons as are notoriously
disaffected to the Cause of America, or who refuse to associate
to defend by Arms the United American Colonies.” Id. at 507(quoting Act of Mar. 14, 1776, ch. VII, 1775-1776 Mass. Acts
31, 31).11
11
The dissent contends that these latter three laws were about
dangerousness. Dissenting Op. 7–8. Not so. Refusing to
22
Later, at their ratification conventions, several states
proposed amendments limiting the right to bear arms to both
law-abiding and “peaceable” citizens. The Anti-Federalists in
Pennsylvania issued the Address and Reasons of Dissent of the
Minority of the Convention of the State of Pennsylvania to
Their Constituents, which proposed that “the people have a
right to bear arms for the defense of themselves and their own
State or the United States, or for the purpose of killing game;
and no law shall be passed for disarming the people or any of
them unless for crimes committed, or real danger of public
injury from individuals . . . .” 2 Bernard Schwartz, The Bill of
Rights: A Documentary History 662, 665 (1971) (emphasis
added). “Heller identified . . . [this report] as a ‘highly
influential’ ‘precursor’ to the Second Amendment.” Binderup,
836 F.3d at 349 (citation omitted). Other states proposed
similar amendments. New Hampshire proposed that
“Congress shall never disarm any citizen, unless such as are or
have been in actual rebellion,” see 1 Debates in the Several
State Conventions on the Adoption of the Federal Constitution
326 (Jonathan Elliott ed., 2d ed. J.B. Lippincott 1891), and
Massachusetts submitted that “the said Constitution be never
construed . . . to prevent the people of the United States[] who
are peaceable citizens . . . from keeping their own arms . . . .”
See Schwartz, supra, at 681. While the dissent attempts to
shoehorn all of these proposals and laws into the silo of
dangerousness, a more accurate reading recognizes that while
some ratification and legislative bodies at the Founding
focused on the dangers that certain people posed, others
swear an oath, defaming acts of Congress, or failing to defend
the colonies do not of themselves qualify as dangerous. The
same is true of the examples cited by the dissent of refusing to
swear allegiance or loyalty to the sovereign.
23
disarmed a broader portion of the populace based on
“virtuousness” and the seriousness of the crime, just as we
explained in Binderup. Neither we nor the dissent has
unearthed any evidence that the laws or proposed amendments
were then thought to be unconstitutional.
No doubt some of the laws at the Founding were
concerned about dangerousness. The dissent’s cherry-picked
history only shows that dangerousness was one reason to
restrict firearm possession, but it hardly was the only one. It is
hence insufficient to highlight those laws disarming the
dangerous when the constitutional coverage is broader.
The dissent claims that the felon-in-possession
provision is wildly overinclusive. See Dissenting Op. 25. To
the contrary, it is the dissent’s dangerousness-focused
approach that is wildly underinclusive in failing to explain
many Founding Era firearms regulations. What concerned the
Framers was that “virtuous citizens” retain the right to bear
arms, Binderup, 836 F.3d at 348; they had no interest in
extending the same guarantee to those who act counter to
society’s welfare, whether by violent or non-violent acts. That
is why Connecticut disarmed libelers, see Gilbert, supra at 282,
and why Pennsylvania Anti-Federalists proposed stripping all
criminals of the right to bear arms, see Schwartz, supra at 665.
None of these restrictions narrowly target citizens who
committed inherently violent or dangerous crimes.
And there is good reason not to trust felons, even non-
violent ones, with firearms. As one of our sister circuits
observed, nonviolent offenders are at higher propensity for
committing violent crimes. See Kanter v. Barr, 919 F.3d 437,
449 (7th Cir. 2019) (noting several studies establishing a
24
connection between non-violent offenses and a risk of future
violent crime). The dissent claims that these studies “lump tax
fraudsters together with burglars and drug dealers[,]”
Dissenting Op. 25, but supplemental tables to the U.S.
Department of Justice report cited in Kanter clarified the data
by explicitly separating fraud offenders from both burglars and
drug offenders, as well as those who committed robbery or
larceny. See Matthew R. Durose, et al., U.S. Dep’t of Justice,
Bureau of Justice Statistics, Supplemental Tables: Most
Serious Commitment Offense and Types of Post-Release
Arrest Charges of Prisoners Released in 30 States in 2005, at
t.2 (2016). About thirty percent of burglars and twenty-five
percent of drug offenders who were sentenced to at least a year
of imprisonment were subsequently arrested for a violent crime
within five years of their release from state prison, compared
with about twenty percent of fraud or forgery offenders. Id.The dissent admits that “disarming burglars and drug dealers
makes sense,” Dissenting Op. 25, but the small difference in
the risk of future violent crime between those crimes and fraud
cannot support the dissent’s position that the legislature can use
these “rules of thumb” to disarm burglars and drug dealers, but
not felons for fraud crimes.
As the dissent would have it, the Second Amendment
mandates that those who have flouted the laws of the land and
shown utter disregard for the welfare of their fellow citizens—
felons like Bernard Madoff (convicted of various counts of
fraud, perjury and money laundering in connection with the
largest Ponzi scheme in history), Jeffrey Skilling (the CEO of
Enron convicted of fraud and insider trading), and Jordan
Belfort (author of The Wolf of Wall Street convicted of fraud
and stock market manipulation)— must be trusted with a
firearm if their felonies were “merely” white-collar (read non-
25
dangerous) crimes. The above-referenced laws reflect
otherwise, and we decline to hold that legislatures may regulate
only the firearm possession of dangerous felons when the
constitutional coverage extends to all those who cannot be
trusted to carry firearms responsibly because they committed
serious crimes.
D. Folajtar does not overcome the general rule that her
felony is a serious crime.
As felony status is generally conclusive evidence that
the offense is serious, we ask whether Folajtar’s offense is so
exceptional for it to fall outside the historical bar. She asserts
that her felony conviction is distinguishable from the
“longstanding prohibitions on the possession of firearms by
felons” in Heller, 554 U.S. at 626, because it is not among the
nine English common law felonies or the felony convictions
requiring disarmament in the 1938 Federal Firearms Act. We
are unpersuaded. 12 As we explained in Binderup, “the
category of serious crimes changes over time as legislative
12
Folajtar also urges us to reconsider our holding that the
passage of time cannot restore a convicted felon’s Second
Amendment rights. As we are bound by Binderup, 836 F.3d at
349–350, we decline to consider this request as well. See also
Medina, 913 F.3d at 160 (“Nor can [an individual’s] present
contributions to his community, the passage of time, or
evidence of his rehabilitation un-ring the bell of his
conviction.”); Hamilton, 848 F.3d at 626 (“[E]vidence of
rehabilitation, likelihood of recidivism, and passage of time are
not bases for which a challenger might remain in the protected
class of law-abiding, responsible citizen[s].” (internal
quotation marks and citation omitted)).
26
judgments regarding virtue evolve.” 836 F.3d at 351. Hence
“exclusions need not mirror limits that were on the books in
1791.” Id. (quoting Skoien, 614 F.3d at 641).
In any case, Folajtar’s felony is not obviously less
serious than the historical felonies as she would suggest. To
violate 26 U.S.C. § 7206(1), a defendant must, while “under
the penalties of perjury,” submit a tax return that “[s]he does
not believe to be true and correct as to every material matter.”
By making a tax return that she knew to be false, Folajtar
willfully deprived the Government of its property. This act is
no less serious than larceny, one of the nine common law
felonies, or forgery, one of the first felonies in the United
States. See supra 14–15; see also Hamilton, 848 F.3d at 627
(“Theft, fraud, and forgery are not merely errors in filling out
a form or some regulatory misdemeanor offense; these are
significant offenses reflecting disrespect for the law.”);
Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005)
(Easterbrook, J.) (“Crimes entailing deceit or false statement
are within the core of the common-law understanding of ‘moral
turpitude.’”). Indeed, a conviction for violating § 7206(1)
“necessarily entail[s] deceit.” Kawashima, 565 U.S. at 485(holding that a violation of § 7206(1) can be serious enough to
be an aggravated felony and deportable offense under the
Immigration and Nationality Act); see also Jordan v. De
George, 341 U.S. 223, 229 (1951) (holding that defrauding the
United States of tax on distilled spirits is a serious crime
involving moral turpitude). Thus, we can be confident that
Folajtar’s offense falls outside “the scope of the Second
Amendment’s guarantee” to possess firearms, Marzzarella,
614 F.3d at 89, and we need not proceed to Step Two of the
Marzzarella analysis.
27
Our decision, like those of some of our sister circuits,
does not adopt a blanket rule categorically foreclosing an as-
applied challenge to § 922(g)(1) for a felony conviction, and
we do not rule out the possibility of an exceptional federal or
state felony unmoored from the bar’s historical underpinnings.
See, e.g., Hamilton, 848 F.3d 614; Kanter, 919 F.3d 437;
Medina, 913 F.3d 152. But that is not the case before us today.
Unlike the dissent’s examples of felonies, see Dissenting Op.
21–22 (noting that opening a bottle of ketchup is a felony in
New Jersey, reading another person’s email without
permission is a felony in Pennsylvania, and uttering obscene
language on radio communications is a federal felony), tax
fraud, akin to falsifying information on a bank loan application
in Medina, is a felony that “reflect[s] grave misjudgment.”
Medina, 913 F.3d at 158 (internal quotation marks and citation
omitted).
* * * * *
Legislatures have always regulated the right to bear
arms. Heller, 554 U.S. at 626; 1 William Blackstone,
Commentaries *139 (describing the English right to bear arms,
which protected the right “of having arms for their defence,
suitable to their condition and degree, and such as are allowed
by law”); Lawrence Rosenthal, The Limits of the Second
Amendment Originalism and the Constitutional Case for Gun
Control, 92 Wash. U. L. Rev. 1187, 1210 (2015) (noting that
at the Founding laws disarmed certain groups, such as those
unwilling to swear allegiance to the Revolution). Heller
recognizes that the Second Amendment permits a broad bar for
felons, and our historical analysis confirms that generally
conclusive ban. When Folajtar committed a federal felony of
materially misstating her tax liability, a serious crime, she
28
removed herself from the constitutionally protected class of
“law-abiding citizens.” Thus her claim fails at Marzzarella
Step One.
The dissent’s concern for the rehabilitation of convicted
criminals is commendable, and we agree with our dissenting
colleague that, as illustrated by nineteenth-century state and
federal legislatures’ decisions to reduce the use of capital
punishment and focus on the rehabilitation of convicted
criminals, society need not implement the law according to the
outer boundaries of what is constitutional. But the choice
society has made in this case, by way of Congress’s enactment
of the felon-in-possession statute and the tax felony statute
under which Folajtar was convicted, lies within those
boundaries. Thus, if Folajtar and others in her position wish to
seek recourse, it is to the legislature, and not to the judiciary,
that their efforts should be directed. We thus affirm.
29
BIBAS, Circuit Judge, dissenting.
Today, the majority holds that the Government may disarm
all felons except when it may not. My colleagues endorse a
near-categorical rule with a hint of an escape hatch and clothe
everything with the authority of Heller and Binderup. Maj. Op.
6, 10–14. But the clothes do not fit. Neither case decided
whether nondangerous felons should lose their Second Amend-
ment rights. And a closer look at the majority opinion shows
that it strays from Binderup’s method of analyzing as-applied
challenges.
To see the majority’s missteps, we must be clear about what
it holds: It is essentially a blanket ban. When a legislature la-
bels a crime a felony, that label is “generally conclusive,” and
the Government may disarm felons. Maj. Op. 6. Though in
theory a few felonies might be too minor to count, the majority
never defines this caveat. All it says is that such felonies are
“rare exceptions.” Maj. Op. 20.
Yet abdicating to labels is unfaithful to our precedent. The
three-judge opinion in Binderup scrutinized limits on Second
Amendment rights by looking at four factors: whether the
crime is violent, whether it is a felony, whether other jurisdic-
tions agree that it is serious, and whether the sentence imposed
is severe. 836 F.3d at 351–53. Holloway added a fifth factor
related to violence: dangerousness. 948 F.3d at 172–77; Maj.
Op. 11. And under the five-judge Binderup concurrence, we
would focus “on the legitimate (i.e., traditional) concern that
justifies the dispossession of certain offenders: we cannot trust
them not to commit violent crimes with firearms.” 836 F.3d at
374. Both tests weigh danger, either directly or through the lens
of violence. Yet today, the majority sets aside dangerousness,
violence, the sentence imposed, and cross-jurisdictional con-
sensus.
Instead, the majority shears the multi-factor test in
Binderup and Holloway down to a single factor: whether the
legislature labeled the crime a felony. It emphasizes that its rule
defers to the legislature and is administratively convenient.
These were the same arguments made by the Binderup dissent.
836 F.3d at 400–03 (Fuentes, J., dissenting). There, the dissent
pushed for a categorical rule like the one the majority adopts
today. Id. at 388. It rejected the possibility of as-applied chal-
lenges. A majority of our Court, however, let as-applied chal-
lenges proceed and succeed.
As an original matter, the majority’s rule also conflicts with
the historical limits on the Second Amendment. Those limits
protect us from felons, but only if they are dangerous. Yet the
majority endorses a near-blanket ban. It allows disarming vir-
tually all felons, even nondangerous ones, based on two related
historical claims: First, it argues that the right to bear arms was
limited to the virtuous. Second, it asserts that at the Founding,
felons were unvirtuous because they had committed serious,
indeed capital, crimes.
Both claims overread the history. The historical touchstone
is danger, not virtue. Though the majority relies largely on
scholars and other circuits for its theory, its layers and layers
of citations are mainly inapt. Most of the historical sources in-
volved people who were dangerous. And most of the articles
and cases rely on one another, adopt historical readings re-
jected by Heller, or even repudiate the majority’s rule. When
2
one sees through the layers, the emperor is not quite naked, but
at most he is wearing a loincloth.
The majority makes no more headway by arguing that fel-
onies are serious. Today, because the felony label is arbitrary
and manipulable, many felonies are far less serious than those
at common law. Even historically, there is no evidence that all
felons were disarmed as part of their punishment. Gun re-
strictions on those jailed and awaiting execution tell us nothing
about criminals who had paid their debts to society and been
freed. Most punishments were temporary. We punished the
crime, not the criminal. The colonists did not treat ex-cons as
a permanently exiled underclass, forever branded “unvirtu-
ous.”
The majority’s extreme deference gives legislatures unre-
viewable power to manipulate the Second Amendment by
choosing a label. “Unvirtuousness” based on the felony label
is a mushy standard that sets no limit. We must not reflexively
defer to that label when a fundamental right is at stake, but
rather require narrow tailoring to public safety.
Felons are more than the wrongs they have done. They are
people and citizens who are part of “We the People of the
United States.” U.S. Const. pmbl. So they too share in the Sec-
ond Amendment “right of the people to keep and bear Arms,”
subject only to the historical limits on that right. Although Lisa
Folajtar was convicted of tax fraud nine years ago, she is not
dangerous. Neither the majority nor the Government suggests
otherwise. Because she poses no danger to anyone, I respect-
fully dissent.
3
I. THE HISTORY OF THE SECOND AMENDMENT ALLOWS
DISARMING ONLY DANGEROUS FELONS
As my colleagues agree, the Second Amendment’s scope
depends on its history. Historically, limitations on the right
were tied to dangerousness. In England and colonial America,
the Government disarmed people who posed a danger to
others. Violence was one ground for fearing danger, as were
disloyalty and rebellion. Though the Binderup plurality es-
poused the virtue theory, the articles and cases that it cited
mostly fit the dangerousness test. In any event, those sources
rest on one another, promote a reading of the history rejected
by Heller, or even repudiate the rule the majority adopts today.
The right historical test is not virtue, but dangerousness.
A. Precedent does not settle the historical test for
disarming felons
The majority begins with a mistaken premise. The Supreme
Court has not addressed the historical pedigree of laws disarm-
ing felons. Yet the majority reads Heller as upholding the
“longstanding prohibitions on the possession of firearms by
felons.” Maj. Op. 6 (quoting Heller, 554 U.S. at 626). But
Heller limited its remark to “longstanding” bans. Longstanding
bans are centuries old, not within living memory. See Heller,
554 U.S. at 626 (citing Blackstone and 19th-century cases).
The federal felon-in-possession ban, however, did not begin to
reach beyond violent crimes until 1961. An Act to Strengthen
the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757(1961).
4
Heller’s aside also described the bans “as only ‘presump-
tively lawful.’ ” Binderup, 836 F.3d at 350 (opinion of Ambro,
J.) (quoting Heller, 554 U.S. at 626–27 & n.26). “Unless
flagged as irrebuttable, presumptions are rebuttable.” Id. And
its remark was dictum. Heller did not and had no occasion to
resolve when governments may disarm felons. So like the
Seventh Circuit, we should “refuse[ ] to read too much into the
[Heller] Court’s ‘precautionary language.’ ” Kanter v. Barr,
919 F.3d at 445 (quoting Skoien, 614 F.3d at 640).
Our own cases likewise do not resolve the historical ques-
tion for felons. The three-judge opinion in Binderup expressly
left open the issue of disarming felons. 836 F.3d at 353 n.6.
Later, a panel in Beers read Binderup to say that “the historical
justification for disarming felons was that they were ‘unvirtu-
ous.’ ” 927 F.3d at 156 (quoting Binderup, 836 F.3d at 348),
vacated, 140 S. Ct. 2758 (2020) (mem.). But Beers was va-
cated, so it is not precedent. And Holloway dropped a footnote,
relying on the now-vacated decision in Beers to “set forth the
Binderup majority holdings.” 948 F.3d at 170–71 & n.5. So
that footnote was built on sand that has since washed away.
Plus, neither panel decision did a Marks analysis of the frac-
tured opinions in Binderup. Marks v. United States, 430 U.S.
188, 193 (1977). And none of our cases involved felons. See
Beers, 927 F.3d at 152 (mentally ill persons); Doe, 977 F.3d at
274 (same); Holloway, 948 F.3d at 168 (first-degree misde-
meanant); see also id. at 174–75 (stressing that the felony/mis-
demeanor label is hardly dispositive).
5
Thus, the issue of disarming felons is open. Precedent does
not settle its historical limits. Rather, we must analyze the his-
tory ourselves and ask: Were all felons, dangerous and non-
dangerous alike, equally excluded from the Second Amend-
ment? No, they were not.
B. Historically, Second Amendment rights were limited for
dangerous—but not nondangerous—felons
The history of felon disarmament is well canvassed by
Judge Hardiman’s concurrence in Binderup, 836 F.3d at 367–
74, as well as then-Judge Barrett’s dissent in Kanter, 919 F.3d
at 453–64. Their analyses show that the limit on the Second
Amendment right was pegged to dangerousness, not some
vague notion of “virtue.” I draw heavily on then-Judge
Barrett’s research below, which goes well beyond the sources
in Binderup. Both English and early American law, through the
Founding, reflected the dangerousness test.
1. English and early American laws disarmed the danger-
ous. Stripping the right to bear arms does have ancient origins.
In England, royal officers could seize arms from those who
were “dangerous to the Peace of the Kingdom.” Militia Act of
1662, 13 & 14 Car. 2, c.3, § 13. And they could seize arms from
and imprison “people who [went] armed to terrify the King’s
subjects.” Sir John Knight’s Case, 87 Eng. Rep. 75, 76 (K.B.
1686), both quoted in Kanter, 919 F.3d at 456–57 (Barrett, J.,
dissenting). Both sources authorized disarming the dangerous.
The American colonies had similar laws. They were partic-
ularly fearful of the disloyal, who were potentially violent and
6
thus dangerous. Some colonies, like Virginia and Massachu-
setts, disarmed Catholics “on the basis of allegiance, not on the
basis of faith,” “with the intent of preventing social upheavals”
and “rebellion.” Robert H. Churchill, Gun Regulation, the Po-
lice Power, and the Right to Keep Arms in Early America: The
Legal Context of the Second Amendment, 25 Law & Hist. Rev.
139, 157 (2007); Alexander DeConde, Gun Violence in Amer-
ica 22–23 (2001), both quoted in Kanter, 919 F.3d at 457
(Barrett, J., dissenting).
During the American Revolution, Massachusetts and Penn-
sylvania disarmed loyalists to the Crown who refused to swear
allegiance to the state or the United States to “eliminate[ ] the
opportunity for [them] to violently protest the actions of the
[state] government.” Cornell & DeDino at 506–07. Connecti-
cut likewise disarmed seditious loyalists because “the welfare
of the people was jeopard[iz]ed through the hostile influence
of Tories.” Gilbert at 281–82. It did so on the advice of the
Continental Congress to “secure every person, who, going at
large, might in their opinion endanger the safety of the colony
or liberties of America.” Id. at 281. And after Shays’s Rebel-
lion, the Massachusetts legislature made rebels “who had taken
up arms against the state” swear allegiance and give up their
arms for three years before they could be pardoned. Cornell &
DeDino at 507–08.
The majority misreads the disarming of loyalists as about
virtue, because refusing to swear loyalty was not a dangerous
action. Maj. Op. 22–23 & n.11. That misses the point. Loyalists
were potential rebels who were dangerous before they erupted
7
into violence. The colonists understandably feared that loyal-
ists endangered both them and the nascent Republic as the loy-
alists struggled to keep America in the British fold. To ensure
peace and safety, the colonies had to disarm them. The touch-
stone was not virtue, but danger.
2. The proposals from the state ratifying conventions do
not support a broader rule. Little evidence from the Founding
supports a near-blanket ban for all felons. I cannot find, and the
majority does not cite, any case or statute from that era that
imposed or authorized such bans. See Kanter, 919 F.3d at 454
(Barrett, J., dissenting). Instead, the majority cites proposals
made during the constitutional ratifying conventions of three
colonies. Maj. Op. 23–24. Yet this evidence is thin and mostly
consistent with focusing on dangerousness.
New Hampshire limited its proposal to danger. Its conven-
tion proposed: “Congress shall never disarm any citizen, unless
such as are or have been in actual rebellion.” 1 Elliott at 326
(emphasis added). Rebels posed a risk of insurrection and so
were dangerous.
Massachusetts’s convention likewise was concerned about
danger. Its proposal, never adopted, would have guaranteed the
right to keep arms to “peaceable citizens.” 2 Schwartz at 675,
681. “Peaceable” meant “[f]ree from war; free from tumult”;
“[q]uiet; undisturbed”; “[n]ot violent; not bloody”; “[n]ot quar-
relsome; not turbulent.” 1 Samuel Johnson, A Dictionary of the
English Language (5th ed. 1773), quoted in Kanter, 919 F.3d
at 455 (Barrett, J., dissenting). Breach of the peace was a “vio-
lation of the public peace, as by a riot, affray, or any tumult
8
which is contrary to law, and destructive to the public tranquil-
ity.” Breach, Noah Webster, An American Dictionary of the
English Language (1828), quoted in Kanter, 919 F.3d at 455
(Barrett, J., dissenting). So Massachusetts’s proposal would
have disarmed those who caused physical disruptions and
threatened public safety. It did not refer to “virtue.”
The strongest support for a near-blanket exclusion comes
from the proposal of the Pennsylvania minority. It would have
guaranteed the right of arms “unless for crimes committed, or
real danger of public injury from individuals.” 2 Schwartz at
665. But that is only one piece of evidence. Read broadly, it
would nullify our holding in Binderup, which recognized the
Second Amendment rights of minor misdemeanants. In any
event, the proposal does not clarify the meaning of the Second
Amendment: it was suggested by a minority of the Pennsylva-
nia ratifying convention that failed to persuade its own state,
let alone others. A single failed proposal is too dim a candle to
illumine the Second Amendment’s scope.
C. The virtue theory is not supported by history
The majority disregards the traditional dangerousness lim-
itation. Instead, it reads the history as limiting the right to keep
and bear arms to those who are virtuous. See Maj. Op. 9–10,
24. My colleagues are in good company; many other circuits
have adopted that theory too. Even so, it is unfounded.
The majority draws its virtue theory from the Binderup plu-
rality, which claimed: “[M]ost scholars of the Second Amend-
ment agree that the right to bear arms was tied to the concept
of a virtuous citizenry and that, accordingly, the government
9
could disarm ‘unvirtuous citizens.’ ” 836 F.3d at 348 (alteration
in original) (quoting United States v. Yancey, 621 F.3d 681,
684–85 (7th Cir. 2010) (per curiam)). To support that claim,
the Binderup plurality cited eight academic articles and deci-
sions of six other circuits. 836 F.3d at 348–49. Though the list
looks long and impressive, that impression is misleading. On
close inspection, each layer lacks historical support or even un-
dermines the majority’s near-categorical rule.
1. The academic sources have no solid historical founda-
tion for the virtue theory. Start with the academic sources.
They are like the layers of a matryoshka doll, each nested layer
successively larger with little at the core. Once we take them
apart, none proves that felons’ lack of virtue excludes them
from the Second Amendment.
To begin, three of the articles collapse into one. The first
cites no primary historical sources other than the state ratifying
conventions discussed above, and the other two cite that article
without adding anything:
• First is Don B. Kates, Jr., Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 Mich.
L. Rev. 204 (1983) (Kates, Handgun Prohibition).
Kates writes that “[f]elons simply did not fall within the
benefits of the common law right to possess arms” be-
cause they faced forfeiture of all goods and usually the
death penalty. Id. at 266. He also states that the Found-
ers did not “consider[ ] felons within the common law
right to arms or intend[ ] to confer any such right upon
them.” Id. As support, he cites only the Massachusetts,
10
New Hampshire, and Pennsylvania ratifying conven-
tions. Id. at 266 n.267. As discussed, Massachusetts and
New Hampshire’s conventions did not propose to dis-
arm all felons; Pennsylvania’s minority proposal failed
to persuade its own convention. Thus, the article does
not support its key assertion. And as I discuss below, the
status of felons awaiting execution tells us nothing
about convicts who have completed their sentences.
• Second is another Don B. Kates, Jr., article: The Second
Amendment: A Dialogue, 49 Law & Contemp. Probs.
143 (Winter 1986) (Kates, Dialogue). Kates writes this
time that “the right to arms does not preclude laws dis-
arming the unvirtuous citizens (i.e., criminals).” Id. at
146. His only source for this claim? His own previous
article. Id. at 146 n.19 (citing Kates, Handgun Prohibi-
tion, at 266). The point remains unsupported.
• Third is Glenn Harlan Reynolds, A Critical Guide to the
Second Amendment, 62 Tenn. L. Rev. 461 (1995).
Reynolds quotes Kates’s Dialogue to show that felons
had no right to bear arms. Id. at 480 (quoting Kates, Di-
alogue, at 146). He does not discuss any historical
sources himself. So the point is still unsupported.
Another three of the articles do not even discuss felons or
crimes. These articles also rest on the collective-rights theory
that Heller rejected:
• Start with David Yassky, The Second Amendment:
Structure, History, and Constitutional Change, 99
11
Mich. L. Rev. 588 (2000). Yassky asserts that “[t]he av-
erage citizen whom the Founders wished to see armed
was a man of republican virtue.” Id. at 626. He bases
that assertion on his understanding that the Second
Amendment is not an individual right, but one tied to an
organized militia. Id. at 627. Heller, of course, later re-
jected Yassky’s reading of the history. 554 U.S. at 582,
592–602. And Yassky does not discuss felons or crimes.
• Next is Saul Cornell, “Don’t Know Much About His-
tory”: The Current Crisis in Second Amendment Schol-
arship, 29 N. Ky. L. Rev. 657 (2002) (Cornell, Current
Crisis). Cornell argues that the Founders understood the
right to bear arms “as a civic right.” Id. at 679. Like
Yassky, he reads it as limited to “militia service,” not as
an individual right. Id. The right, he says, “was not
something that all persons could claim, but was limited
to those members of the polity who were deemed capa-
ble of exercising it in a virtuous manner.” Id. Thus, as
with Yassky, Cornell’s collective-rights reading con-
flicts with Heller. Plus, his evidence does not support
the conclusion he reaches. He cites Pennsylvania’s Test
Acts of 1777, which required citizens to take loyalty
oaths. See id. at 680 (citing Saul Cornell, Commonplace
or Anachronism, 16 Const. Comment. 221, 229 (1999)).
Those who refused were disarmed as “persons disaf-
fected to the liberty and independence of this state.”
Cornell, Commonplace or Anachronism, at 228. That
fits the general Founding-era fear that rebels were dan-
gerous. So his evidence does not show that virtue, rather
12
than danger, was the touchstone. He also does not dis-
cuss felons or crimes.
• Last is Saul Cornell & Nathan DeDino, A Well Regu-
lated Right: The Early American Origins of Gun Con-
trol, 73 Fordham L. Rev. 487 (2004). Cornell and
DeDino write that “the Second Amendment was
strongly connected to the republican ideologies of the
Founding Era, particularly the notion of civic virtue.”
Id. at 492. They read the right as a collective one tied to
the militia, not about individual self-defense. Id. at 496–
98. As with the previous two articles, their reading of
the right as collective (not individual) conflicts with
Heller. And they do not discuss crimes or disarming
felons. Nor do they delve into primary sources to show
that the colonists excluded nondangerous felons from
that right as unvirtuous citizens. Instead, they recognize
that the Founders were “deeply immersed in” the Eng-
lish common-law tradition. Id. at 492. As discussed,
English law disarmed the dangerous, not the unvirtuous.
Finally, two of the articles undermine the virtue theory and
the majority’s broad ban. Indeed, the first one says that today’s
result is “next to absurd”:
• Consider Don B. Kates & Clayton E. Cramer, Second
Amendment Limitations & Criminological Considera-
tions, 60 Hastings L.J. 1339 (2009). Kates and Cramer,
citing many of the sources above, state that “the right to
arms was inextricably and multifariously linked to that
of civic virtu (i.e., the virtuous citizenry).” Id. at 1359
13
(citing Cornell & DeDino at 492; Kates, Handgun Pro-
hibition at 231–33; and Robert E. Shalhope, The Armed
Citizen in the Early Republic, 49 Law & Contemp.
Probs. 125, 128 (1986), which does not mention felons
or crime). They rely on the Massachusetts ratifying con-
vention as proof that the Founders “would have deemed
persons convicted of any of the common law felonies”
to be unvirtuous. Id. at 1360 (emphasis added). But then
they say that it would be “next to absurd to suggest” that
gun rights should be stripped because of minor felony
convictions, like “income tax evasion.” Id. at 1363.
Kates and Cramer’s article thus contradicts the major-
ity’s rule today.
• The same is true of C. Kevin Marshall, Why Can’t
Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub.
Pol’y 695 (2009). It is unclear why the Binderup plural-
ity cited this article; it does not even mention virtue.
Marshall undermines the virtue theory and the major-
ity’s near-blanket ban. He argues that the law stripped
the right only from those who posed a “genuine present
danger to others.” Id. at 728. Canvassing primary
sources, he maintains that the English right to arms and
the common law at the time of the Founding did not
categorically disarm felons for life. See id. at 697, 714–
28. True, some felons could be disarmed—but only “to
some extent, for some time.” Id. at 728.
In short, half the articles rest on one another. Not one cites
primary sources (apart from the ratifying conventions) that
support disarming nondangerous felons; the one that delves
14
into primary sources on that point (Marshall) is to the contrary.
Three are not about felons at all. Three rest on collective-rights
readings rejected by Heller. And two oppose the majority’s
near-blanket rule. Far from supporting the majority, the schol-
arship in Binderup—the majority’s key authority (Maj. Op.
9)—undercuts it.
2. Other circuits’ opinions offer no better grounding for
the virtue theory. The other circuits’ opinions relied on by the
Binderup plurality, and thus the majority, also do not soundly
support excluding nondangerous felons based on their lack of
virtue. Most rest on the sources discussed earlier or on nothing
at all. And though many speak of virtue, they are mostly con-
cerned with dangerousness.
To begin, three opinions did not even endorse the virtue
theory:
• In its pre-Heller case, the Fifth Circuit never mentioned
virtue or cited sources discussing it. It upheld a ban on
gun possession because, “[i]rrespective of whether his
offense was violent in nature, a felon has shown mani-
fest disregard for the rights of others.” United States v.
Everist, 368 F.3d 517, 519 (5th Cir. 2004). But it did not
delve into the Second Amendment’s history, as Heller
requires. Instead, it stressed that letting felons have guns
“would otherwise threaten the security of his fellow cit-
izens.” Id. So the concern is felons’ danger, not lack of
virtue.
• The same is true of the First Circuit. Citing several of
the scholars above, that court noted that the Founders
15
sometimes spoke in terms of civic virtue. United States
v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009) (citing Reyn-
olds at 480; Shalhope at 130; Cornell, Current Crisis, at
679; Cornell, Commonplace or Anachronism, at 233;
and the Pennsylvania minority proposal). Yet the First
Circuit did not adopt the virtue theory itself, saying only
that there was “an ongoing debate” on the issue that it
did not have to resolve. Id. at 16. It also rightly under-
stood that any historical virtue limitation would rest on
whether “a certain class of individuals would pose a se-
rious danger to the public.” Id. Again, danger is the key.
• In upholding a ban on gun possession by those con-
victed of domestic violence, the Seventh Circuit never
mentioned virtue. Skoien, 614 F.3d at 642. And though
it cited three sources as support for disarming criminals,
none justifies that conclusion as a historical matter. Id.at 640 (citing the Pennsylvania minority proposal;
Marshall at 700–13; and Stephen P. Halbrook, The
Founders’ Second Amendment 273 (2008) (asserting
that New Hampshire’s proposal must have implicitly
excluded criminals without citing any authority for that
assertion)). It also argued that categorical restrictions
are permissible because “such a recent extension [in the
1960’s] of the disqualification to non-violent felons
(embezzlers and tax evaders, for example) is presump-
tively constitutional, as Heller said in note 26.” Id.(emphasis added). But footnote 26 said nothing about
recent extensions or nonviolent felons. All it said was
that “longstanding prohibitions on the possession of
firearms by felons” are “presumptively lawful.” Heller,
16
554 U.S. at 627 & n.26 (emphasis added). That is no
support for the virtue theory.
Another three of the opinions adopted the virtue theory,
though in cases about violent felons or people who posed dan-
gers for reasons apart from criminal records:
• The Seventh Circuit embraced the virtue theory (mixed
with dangerousness) in upholding a ban on gun posses-
sion by habitual drug users, not felons. Yancey, 621 F.3d
at 683 (upholding 18 U.S.C. § 922(g)(3)). The ban was
needed, it noted, “to keep guns out of the hands of pre-
sumptively risky people” and thus “suppress[ ] armed
violence.” Id. at 683–84. The court analogized habitual
drug users to felons, noting their lack of virtue and the
greater risk that they will become violent. Id. at 684–85.
Banning gun possession by nonviolent felons, it admit-
ted, may be “wildly overinclusive.” Id. at 685. But the
court thought that felons as a category are more danger-
ous, so the government may forbid them to possess
guns. Id. All that was dicta because the case involved
habitual drug users, not nonviolent felons.
• The Eighth Circuit likewise invoked the virtue theory to
justify disarming felons. United States v. Bena, 664
F.3d 1180, 1183–84 (8th Cir. 2011). It rested on the
scholarship and ratifying conventions discussed above.
Id. (citing Kates, Dialogue, at 146; Kates & Cramer, at
1359 & n.120; Reynolds at 480–81; and the proposals
of the Massachusetts and Pennsylvania minority at their
17
ratifying conventions). And because the felony it ad-
dressed was domestic violence, the Eighth Circuit had
no occasion to consider nondangerous felons. See id.• Finally, the Fourth Circuit cited the virtue theory as a
reason to disarm illegal aliens. United States v. Carpio-
Leon, 701 F.3d 974, 979–80 (4th Cir. 2012). It quoted
Yancey and Vongxay and cited many of the articles and
proposals discussed earlier. Id. (citing Reynolds at 480;
Kates, Dialogue, at 143, 146; Yassky at 626; Cornell,
Current Crisis, at 671; Cornell & DeDino at 506; and
the Massachusetts and New Hampshire ratifying con-
ventions). But it connected the virtue rationale to the
idea that illegal aliens, having no allegiance to our
country, could be considered “disloyal or dangerous.”
Id. at 980. The case was about aliens, not felons. And
once again, the touchstone is danger.
Of the other circuits, the Ninth Circuit was the only one to
adopt the virtue theory as a reason to disarm all felons.
Vongxay, 594 F.3d at 1118, cited in Maj. Op. 8, 9. Yet it rested
on the thin scholarship above. Id. (relying on Kates, Dialogue,
at 146; and Reynolds at 480). It also noted the ongoing histor-
ical debate, citing Marshall as to the contrary. Id.In short, all these articles and cases show that the virtue
theory is flimsy. Most of the evidence dovetails with danger-
ousness. The focus on virtue rests on strained readings of co-
lonial laws and ratifying conventions perpetuated by scholars
and courts’ citing one another’s faulty analyses. The only piece
of historical evidence that comes close to endorsing a ban of
all former felons is a Pennsylvania minority proposal that was
18
rejected. None of this proves that the Founders limited the
Second Amendment right to virtuous citizens and excluded all
felons.
II. THE CATEGORY OF FELONIES IS MANIPULABLE AND
LESS SERIOUS THAN IT WAS
Disarming all felons not only ignores history, but also gives
legislatures unfettered power over a fundamental right. Though
felons at the Founding obviously could not have guns while
jailed and awaiting execution, that does not tell us how to treat
felons who serve their sentences and go free. And the label
“felony” is too easy for legislatures and prosecutors to manip-
ulate.
A. The felony label does not entail losing all rights
The majority gives dispositive weight to the felony label
because “even as the term evolved and expanded, felonies con-
tinued to reflect the category of serious crimes.” Maj. Op. 17.
Its notion of “seriousness” rests on the harsh penalties felonies
used to carry: death, both actual and (some would add) civil.
See Maj. Op. 14–17. Because a felon would have been
executed and would have lost all her rights at the time of the
Founding, the majority implies, Folajtar must lose her Second
Amendment rights now.
But even before the Founding, the link between felonies
and capital punishment was frayed. The American colonies
curtailed England’s Bloody Code. See Stuart Banner, The
Death Penalty: An American History 6 (2002); David Garland,
Peculiar Institution: America’s Death Penalty in an Age of
Abolition 115 (2010). Even crimes that were capital in theory
19
often were not in practice. The colonies carried out the death
penalty “pretty sparingly,” and “[p]roperty crimes were, on the
whole, not capital.” Lawrence M. Friedman, Crime and Pun-
ishment in American History 42 (1993). Colonial Pennsylva-
nia, for instance, on average sentenced fewer than two people
per year to die and executed only one of those two per year. Id.Founding Father, law professor, and Supreme Court Justice
James Wilson explained that even though the term “felony”
was “very strongly connected with capital punishment,” “[a]t
the common law, few felonies, indeed, were punished with
death.” James Wilson, 2 The Works of James Wilson 348
(Chicago: James DeWitt Andrews ed., 1896).
As the death penalty became less prevalent, felonies be-
came decoupled from the common-law doctrine of civil death.
“Civil death was a state in which a person ‘though living, was
considered dead.’ ” Kanter, 919 F.3d at 459 (Barrett, J., dis-
senting) (quoting Harry David Saunders, Note, Civil Death—
A New Look at an Ancient Doctrine, 11 Wm. & Mary L. Rev.
988, 988–89 (1970)). For felons, it was “a transitional status in
the period between a capital sentence and its execution,” used
to wrap up the felon’s affairs. Id. (quoting Gabriel J. Chin, The
New Civil Death: Rethinking Punishment in the Era of Mass
Incarceration, 160 U. Pa. L. Rev. 1789, 1797 (2012)). It extin-
guished most of a felon’s civil rights. Chin at 1790.
Because civil death was tied to a death sentence, its mean-
ing had to change as states moved away from capital punish-
ment to imprisonment. Kanter, 919 F.3d at 459 (Barrett, J., dis-
senting). It had been limited to the time before execution, not
designed to run for decades. Id. at 460 (citing Chin at 1797). In
20
the end, courts “settled uncomfortably on an American version
of civil death that required explicit statutory authorization and
deprived a felon of many, but not all, rights.” Id. And for felons
sentenced to less than life, the courts understood their rights as
“merely suspended during the term of the sentence.” Id. at 461
(citing cases from the New York, California, and Virginia Su-
preme Courts).
Thus, “[t]he obvious point that the dead enjoy no rights
does not tell us what the founding-era generation would have
understood about the rights of felons who lived, discharged
their sentences, and returned to society.” Id. at 462. We would
never say, for instance, that because the state used to execute
felons, it may now permanently strip them of their freedom of
speech or religion. Id. at 461–62. It makes no sense to argue
that the historical treatment of felons about to be executed
licenses us to strip surviving felons of their rights once they
have paid their debts to society. We can and should continue
restrictions based on public safety: that is protective, not puni-
tive. But it is harsh to keep stigmatizing ex-cons as “unvirtu-
ous,” as if their criminal record will forever remain an indelible
stain.
B. The felony label is vague and manipulable
Most felonies today are far removed from those capital
crimes at common law. We often see little rhyme or reason in
which crimes are labeled felonies. For instance, a radio talk
show host can become a felon for uttering “any obscene, inde-
cent, or profane language by means of radio communication.”
18 U.S.C. § 1464. In New Jersey, opening a bottle of ketchup
at the supermarket and putting it back on the shelf is a third-
21
degree felony, punishable by up to five years’ imprisonment.
See Paul H. Robinson et al., Report on Offense Grading in New
Jersey 3 (2011) (citing N.J. Stat. Ann. §§ 2C:40-17a, 2C:43-
6.a(3) (West 2010)). And in Pennsylvania, reading another per-
son’s email without permission is a third-degree felony, pun-
ishable by up to seven years. Paul H. Robinson et al., The Mod-
ern Irrationalities of American Criminal Codes: An Empirical
Study of Offense Grading, 100 J. Crim. L. & Criminology 709,
719 & nn.44, 46 (2010) (citing 18 Pa. Const. Stat. Ann. § 7613
(West Supp. 2010)).
All this goes to show that today, a felony is whatever the
legislature says it is. The category is elastic, unbounded, and
manipulable by legislatures and prosecutors. Prosecutors often
persuade legislatures to add more crimes to that category to
give themselves more plea-bargaining options and leverage.
See William J. Stuntz, The Pathological Politics of Criminal
Law, 100 Mich. L. Rev. 505, 523–33, 536–37 (2001). In some
states, a defendant’s Second Amendment rights might even
hinge on how prosecutors choose to prosecute them. In Cali-
fornia, “wobbler” laws let prosecutors choose between charg-
ing a crime as a felony or a misdemeanor. Ewing v. California,
538 U.S. 11, 16–17 (2003) (plurality opinion).
Normally, we would not inquire too deeply into why a leg-
islature passed a criminal statute or picked a punishment. A
felony’s sentence is “purely a matter of legislative preroga-
tive,” subject only to rational-basis review. Rummel v. Estelle,
445 U.S. 263, 274 (1980); see Heller, 554 U.S. at 628 n.27.
But we defer far less when a fundamental right is at stake.
We recognized as much in Binderup. There, the Government
22
argued that maximum sentences alone suffice to prove that de-
fendants can lose their Second Amendment rights. 836 F.3d at
350 (opinion of Ambro, J.). The three-judge opinion rightly re-
jected that approach. Otherwise, “the Government could make
an end-run around the Second Amendment and undermine the
right to keep and bear arms.” Id. at 350–51.
The Binderup three-judge opinion also recognized that we
must not “defer blindly” to maximum possible punishments
because “some offenses may be ‘so tame and technical as to be
insufficient to justify the ban.’ ” 683 F.3d at 350–51 (quoting
Torres-Rosario, 658 F.3d at 113). So it is “important” to look
at the sentence imposed on a specific defendant. Id. at 352.
That is a truer sign of whether a particular crime is “serious”
or “minor.” Id.
Today, the Government proposes the same blanket rule as
it did in Binderup, just adapted to felonies. The majority now
takes its bait. And it tries to have its cake and eat it too, adopt-
ing a rule that is somehow supposed to be both clear and flex-
ible. It says that some felonies are so “unmoored from the bar’s
historical underpinnings” that they might not require disarming
a felon. Maj. Op. 28. But all we can glean is that this undefined
exclusion is “rare” and “truly exceptional.” Maj. Op. 7 n.5, 20,
28. That gives courts zero guidance. In practice, the exclusion
may well prove illusory.
Under the majority’s extreme deference to felony labels,
much will still depend on the vagaries of states’ criminal codes.
For example, many states treat adultery as a misdemeanor. See,
e.g., Fla. Stat. § 798.01; N.Y. Penal Law § 255.17. In Okla-
homa, however, it is a felony punishable by up to five years’
23
imprisonment. 21 Okla. Stat. § 872. And in Pennsylvania, adul-
tery is not even a crime. Even so, under today’s near-blanket
rule, an Oklahoma adulterer would lose his gun rights in Penn-
sylvania, though a New York adulterer would not. The Second
Amendment right to keep and bear arms should not hinge on
such arbitrary, manipulable distinctions.
Setting aside the undefined exception, the majority’s near-
categorical approach seems simple, clear, and administratively
convenient. Yet those are the same advantages that the
Binderup dissent advanced and the three-judge opinion and
concurrence rejected by allowing as-applied challenges.
Compare Maj. Op. 19–20 and Binderup, 836 F.3d at 409
(Fuentes, J., dissenting), with id. at 353 n.5 (opinion of Ambro,
J.) and id. at 357 n.1 (Hardiman, J., concurring).
The majority’s near-blanket rule is also far from narrowly
tailored. Heller mandates heightened scrutiny, not rational-
basis review. 554 U.S. at 628 n.27. And either strict or inter-
mediate scrutiny calls for narrow tailoring, not convenient
blanket rules. See Gratz v. Bollinger, 539 U.S. 244, 275 (2003)
(holding that the “administrative challenges” of “providing in-
dividualized consideration” do not justify bypassing “narrow[ ]
tailor[ing]”). Legislatures, we have held, must tailor gun re-
strictions to fit a proper objective: here, public safety.
Marzzarella, 614 F.3d at 98.
True, legislatures may use careful rules of thumb to classify
some felonies as dangerous. For instance, though residential
burglary and drug dealing are not necessarily violent, they are
dangerous because they often lead to violence. Quarles v.
24
United States, 139 S. Ct. 1872, 1879 (2019); Harmelin v. Mich-
igan, 501 U.S. 957, 1002–03 (1991) (Kennedy, J., concurring
in part and concurring in the judgment). Disarming burglars
and drug dealers makes sense because their past crimes were
inherently dangerous. But some tailoring is still essential. The
majority errs in adopting a near-blanket rule relying on statis-
tics that lump tax fraudsters together with burglars and drug
dealers, tarring all felons as dangerous simply because some
are. Maj. Op. 25 (citing Kanter, 919 F.3d at 449). Even its sup-
plemental statistics say nothing about criminal records: those
statistics fail to distinguish fraudsters who have prior records
of violence, burglary, or drug dealing from first-time offenders
like Folajtar. Durose at tbl. 2, cited in Maj. Op. 25. And strip-
ping a person’s fundamental rights based on projected crimes
untethered from past dangerous actions is a risky game indeed.
In any event, we should be wary of blessing a “wildly overin-
clusive” form of civil death for all felons, far removed from
history or danger. Yancey, 621 F.3d at 685.
III. RESTORING FELONS TO SOCIETY IS TIED TO
RESTORING THEIR RIGHTS
Finally, felons are people too. A person is not reducible to
her worst act. Once she has paid her debt to society, she should
have a chance to reenter the community as an equal. Restoring
felons to our polity requires restoring their rights.
Judges often play no role in deciding whether to restore cer-
tain rights. Because of some laws’ text or history, legislatures
make many of the judgment calls. Take the Thirteenth Amend-
ment. It authorizes involuntary servitude as punishment for a
crime. Or take the Fourteenth Amendment. Section Two of that
25
amendment authorizes legislatures to deprive felons of the
vote. Richardson, 418 U.S. at 54. Legislatures, not courts, must
decide when to take away and when and how to restore these
rights. Thus, efforts to restore voting rights are properly before
legislatures, not us. See Felon Voting Rights, Nat’l Conf. of
State Legis. (July 28, 2020), https://www.ncsl.org/
research/elections-and-campaigns/felon-voting-rights.aspx.
But when the text or history of a law gives judges a role in
protecting that right, or the law or precedent is unclear, we
should be slow to bless permanent restrictions divorced from
legitimate needs. That is true of the Second Amendment. The
text does not define “the people” as “the virtuous” or “non-
felons.” Nor does its history support disarming nondangerous
felons. On the contrary, restoring felons’ rights to keep and
bear arms is in keeping with our history. In the colonial era,
most punishments were temporary. Only a sliver of convicts
were executed or exiled. Most faced short-term punishments
like warnings, fines, or restitution. Friedman at 37–39; Edgar
J. McManus, Law and Liberty in Early New England: Criminal
Justice and Due Process, 1620–1692, at 167–68, 171, 173–74,
201–10 (1993) (tabulating typical crimes and penalties in sev-
enteenth-century Massachusetts, Connecticut, and Rhode Is-
land).
Once wrongdoers had paid their debts to society, the colo-
nists forgave them and welcomed them back into the fold. In
Middlesex County, Massachusetts, 67 of 73 colonial criminals
studied were reintegrated back into society in documented
ways: they later served as militia officers, public officials,
church elders, and the like. Eli Faber, Puritan Criminals: The
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Economic, Social, and Intellectual Background to Crime in
Seventeenth-Century Massachusetts, in XI Perspectives in
American History 137–44 (Donald Fleming ed. 1978)
(“Although [the Puritans] subjected offenders to public punish-
ments and church confessions, they did not condemn them to
exclusion and isolation for long years to come.”).
The Quaker colonies of the Delaware Valley, today Penn-
sylvania and western New Jersey, likewise readily readmitted
convicts to social prominence. A study of more than a thousand
criminal charges found that after their convictions, recidivists
were about as likely to become church leaders and much more
likely to hold public office than the general population. Wil-
liam M. Offutt, Jr., Of “Good Laws” and “Good Men”: Law
and Society in the Delaware Valley, 1680–1710, at 186–91 &
tbl. 28 (1995) (“[E]ven repetitive charges did not carry a dis-
qualifying stigma.”). That historian concluded: “Clearly, the
criminal law touched in some way every level of this society;
just as clearly such accusations did not ostracize the defendant
from further participation in public life.” Id. at 186.
In short, the colonists recognized no permanent underclass
of ex-cons. They did not brand felons as forever “unvirtuous,”
but forgave. We must keep that history in mind when we read
the Second Amendment. It does not exclude felons as an un-
touchable caste.
* * * * *
Lisa Folajtar asks us to treat her as an equal member of
society. Though her tax-fraud conviction affects some of her
privileges, it does not change her right to keep and bear arms.
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As an original matter, the Second Amendment’s touchstone is
dangerousness. Historically, all citizens enjoyed that right un-
less they posed a danger. Because she is not dangerous, we
should not exclude her from her Second Amendment right.
Even under the multi-factor test, dangerousness, violence,
and the sentence imposed are significant. Yet the majority sets
aside almost all the factors weighed in Binderup. Instead, it
attaches near-dispositive weight to the felony label. Histori-
cally, it is true that felons had no right to guns while they were
jailed and awaiting execution. But that “civil death” does not
fit long after a nondangerous felon reenters society. And most
felonies today are far less serious than capital crimes.
Nobody claims that Lisa Folajtar poses a danger. Because
neither history nor precedent supports disarming her for tax
fraud, I respectfully dissent.
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