The question posed to the U.S. Supreme Court is if a lifetime firearms ban based on a nonviolent misdemeanor conviction violates the Second Amendment.
The vehicle for the question comes in a petition filed with the nation's high court over the case of Raymond Holloway, Jr by the Firearms Policy Coalition on Thursday.
In 2005, Holloway pleaded guilty to a DUI charge in Pennsylvania -- a first-degree misdemeanor which could have carried as much as five years in prison-- although Holloway was only sentenced to the mandatory minimum of 90 days in a work-release program. In the past 15 years, he completed a psychology degree, worked as an educator, and hasn't had any further problems with either alcohol or the law.
However, he has a lifetime ban under federal law on the legal possession of firearms. That is the problem his case seeks to address with the court.
“Mr. Holloway is but one example of a non-violent individual who has been barred from exercising his Second Amendment Rights for life through Congress’s expansion of individuals who are deemed to be ‘prohibited persons’,” explained FPC’s Adam Kraut, an attorney who is on the case. “However, the total bar on Mr. Holloway, and others like him, only stands when the lower courts ignore the Supreme Court’s edict that Second Amendment challenges are to be evaluated through the Amendment’s text as informed by history and tradition."
Besides Kraut and Pennsylvania-based attorney Joshua Prince, the Holloway case is being represented by legal heavyweight Erik Jaffe, who has participated in over 120 Supreme Court matters and formerly clerked for Supreme Court Justice Clarence Thomas. FPC Director of Research Joseph Greenlee, also on the case, says legal history is on Mr. Holloway's side.
"The Supreme Court has made clear that in evaluating Second Amendment challenges, a court must interpret the Amendment’s text in light of the history and tradition of the founding era,” Greenlee said. “At no point throughout American history, until just recently, would someone like Mr. Holloway forfeit his right to keep and bear arms. We’re optimistic that the Court will accept our case, clarify the historical scope of the right, and restore Mr. Holloway’s rights."
Holloway's case came to the court after he tried to legally purchase a firearm in 2016, unaware that he was a prohibited possessor under federal law. Denied on the routine background check, he brought suit in a U.S. District Court. In the end, the court sided with the would-be gun owner, with Judge Christopher C. Conner saying that there was “no evidence indicating that individuals like Holloway—after over a decade of virtuous, noncriminal behavior—remain so potentially irresponsible that they should be prohibited from owning a firearm.”
However, a split three-judge panel of the U.S. Third Circuit overturned the District court's ruling earlier this year in an opinion that included a 37-page dissent from Judge D. Michael Fisher, a former Attorney General of Pennsylvania who was appointed to the federal bench by President George W. Bush in 2003. Fisher noted that over 30 states would not have treated Holloway's DUI conviction with such a stiff potential sentence resulting in loss of firearm rights and said the lower court's conclusion, "that Holloway’s conduct has not removed him from the scope of Second Amendment protection," was correct.
The case seems ripe for Supreme Court scrutiny and it should be noted that the country's newest associate justice, Amy Coney Barrett, penned a strong dissent last year while on the U.S. 7th Circuit in the case of Kanter v. Barr, a man who was seeking to have his gun rights restored after losing them due to a non-violent felony conviction, namely mail fraud. Primarily, she went against the majority ruling in the decision and supported Mr. Kanter's Second Amendment claim.
In the 1,800 pages of documentation supplied to the Senate Judiciary Committee as part of her confirmation hearings to the Supreme Court, Barrett listed her dissent in Kanter as first in the "10 most significant cases" in which she sat.
"Looking to Founding-era history, I explained that legislatures have the power to prohibit dangerous people from possessing guns, but that power extends only to people who are dangerous, not to nonviolent felons like Mr. Kanter," Barrett stressed.
