With Briefing Concluded, FPC Second Amendment Lawsuit Now Awaits Supreme Court Action

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WASHINGTON, D.C. (March 30, 2021) — Today, Firearms Policy Coalition (FPC) announced that certiorari-stage briefing has concluded with the U.S. Supreme Court in FPC’s Folajtar v. Attorney General Garland case, a Second Amendment lawsuit about the scope of the right to keep and bear arms that has drawn much media coverage in major outlets including Forbes, Reason, Fox News, National Review, and Chicago Sun-Times.

“The 3rd Circuit decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored cases for a major Supreme Court decision,” wrote Jonathan Turley, the Shapiro professor of public Interest law at George Washington University and a practicing criminal defense attorney, in a November editorial. “Indeed, the only thing lacking from the 2-1 ruling is a mailing label directly to Justice Barrett.”

The reply brief, available at GunBanCase.com, was authored by David Thompson, Peter Patterson, John Ohlendorf, and Steven Lindsay of Cooper & Kirk, PLLC, FPC Director of Constitutional Studies, Joseph Greenlee, FPC  Senior Director of Legal Operations, Adam Kraut, and Joshua Prince of Civil Rights Defense Firm, P.C.

“As the government admitted in its Response, the circuit courts are divided over the prohibited persons issue. And the fact that three petitions involving prohibited persons are currently pending before the Court demonstrates how common the issue is,” said FPC’s Greenlee. “It is more important than ever for the Court to provide clarity and prevent peaceable persons from being unjustly denied their constitutional rights any longer.” 

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The latest brief encourages the Supreme Court to review a wrong-decided Third Circuit opinion holding that the Gun Control Act’s lifetime ban on possession of firearms applied to nonviolent individuals does not violate the Second Amendment. With the reply now filed, the case is likely to be distributed for the Court’s April 16 conference, joining another similar FPC case, Holloway v. Attorney General Garland.

A decade ago, Ms. Folajtar was convicted of a non-violent felony for falsifying information on a tax return. She has been law-abiding ever since, but federal law (18 U.S.C. 922(g)(1)) nevertheless prohibits her from possessing a firearm for the rest of her life. In 2018, Ms. Folajtar filed an as-applied Second Amendment challenge to the lifetime ban in the Eastern District of Pennsylvania District Court. After the court ruled against her, she appealed the decision to the Third Circuit Court of Appeals, where, over a powerful 28-page dissent by Judge Stephanos Bibas, the panel majority upheld the ban as well. The panel majority disregarded the original understanding of the Second Amendment and instead held that people could be denied the right to keep and bear arms if they lacked “virtue.” But as Judge Bibas explained in his dissent, historical evidence shows that the founders never intended for peaceable persons like Ms. Folajtar to be disarmed—only dangerous persons likely to use firearms for illicit purposes. And virtue had nothing to do with it.

Ms. Folajtar petitioned the Supreme Court for certiorari on December 11, 2020. Ms. Folajtar’s petition argued that the Court should hear the case because the lifelong ban violates her Second Amendment rights, and to further clarify the field of Second Amendment law. The government filed a response on March 17, 2021, arguing that because “[f]ederal law has long restricted the possession of firearms by certain categories of individuals,” the government can continue to restrict possession by other categories of individuals, even if today’s categories differ from those historically restricted. 

In the reply brief filed today, Ms. Folajtar emphasized the need for the Court to reinforce the “original meaning of the Second Amendment’s protections,” and the need to “clear up the conflict and confusion that has prevailed among the lower courts.” In sum, a peaceable person like Ms. Folajtar should not be prohibited from possessing arms under any court’s test, because the founders never intended for people like her to be excluded from the right.

Firearms Policy Coalition and its FPC Law team are the nation’s next-generation advocates for the right to keep and bear arms and adjacent liberties, actively litigating dozens of major lawsuits including federal Second Amendment challenges to California’s ban on “assault weapons” (Miller v. Becerra), Maryland’s ban on “assault weapons” (Bianchi v. Frosh), California’s handgun “roster” and self-manufacturing bans (Renna v. Becerra), Maryland’s firearm carry ban (Call v. Jones), New Jersey’s firearm carry ban (Bennett v. Davis), New York City’s firearms carry ban (Greco v. New York City), the federal ban on the sale of handguns and handgun ammunition by federal firearm licensees (FFLs) to adults under 21 years of age (Reese v. BATFE), and others, with dozens more cases being prepared. To follow these and other legal cases FPC is actively working on, visit the Legal Action section of FPC’s website or follow FPC on Instagram, Twitter, Facebook, YouTube.

Firearms Policy Coalition (firearmspolicy.org) is a 501(c)4 nonprofit organization. FPC’s mission is to protect and defend constitutional rights—especially the right to keep and bear arms—advance individual liberty, and restore freedom through litigation and legal action, legislative and regulatory action, education, outreach, grassroots activism, and other programs. FPC Law is the nation’s largest public interest legal team focused on Second Amendment and adjacent fundamental rights including freedom of speech and due process, conducting litigation, research, scholarly publications, and amicus briefing, among other efforts.

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