Does the Second Amendment permit States to deprive someone of the right to bear arms for a misdemeanor offense? The right to bear arms is one that a large portion of Americans consider of the utmost importance. In Holloway v. Barr, a case pending before the United States Supreme Court on a petition for certiorari, Holloway argues that losing his Second Amendment rights due to a nonviolent misdemeanor is a constitutional violation.
A lifetime ban on firearms is a penalty most felons are handed as part of their punishment. The extent to which people who committed past crimes can be banned is an issue ripe with disagreement. Some believe the logic is that dangerous people should not be allowed to have firearms, so violent felons should be prohibited from using them. Another rationale for disarming former felons is that the individual lacks virtue, which is why they should not own a firearm.
What is the law concerning individuals with criminal records owning a firearm?
Halloway was subject to a lifetime ban on owning a firearm that stems from a 2005 D.U.I. conviction, a nonviolent misdemeanor. Holloway had no previous criminal history, and he retained his firearm rights under state law. His ban comes from federal law. The Federal Firearms Act, passed in 1938, prohibits persons convicted of a “crime of violence” from shipping or receiving firearms in interstate commerce. In the 1960s, Congress banned the possession of firearms by people who were convicted of crimes punishable by over one year’s imprisonment (18 U.S.C.U.S.C. § 922(g)(1)). This statute implicates all offensives that are punishable by over one year in prison, regardless of the act being violent or nonviolent.
What happened in Holloway?
In 2005, Holloway pleaded guilty to a DUI in Pennsylvania. Although his criminal record was relatively empty, he had an earlier misdemeanor charge in 2002, later dismissed. He was sentenced to the mandatory minimum and served 90 days in prison, 60 months of probation, and paid a $1,500 fine.
Since his conviction, Holloway had no other run-ins with the law, earning his bachelor’s degree and seemingly turning his life around.
In 2016, Holloway applied to purchase a firearm and was denied, which is where this case comes about. In Pennsylvania, the district court agreed with Holloway and held that prohibiting an individual from owning a firearm for a nonviolent misdemeanor violates the Second Amendment.
The court determined that the logic for his conviction is that he “lacked virtue.” This test comes from a Third Circuit decision that allows courts to strip the right to own a firearm from individuals who are a “class of unvirtuous citizens.” This class can be either people convicted of violent or nonviolent crimes.
The district court determined that Holloway overcame this presumption that the ban’s lawfulness provided that he is not the type of “unvirtuous citizen” who has historically been disarmed.
Holloway’s DUI was considered nonviolent, and he served less than one year for the crime. The district court failed to find that Holloway was “high risk.”
The Third Circuit, on appeal, reversed the district court’s decision. The Third Circuit took a different approach to the severity of a D.U.I. conviction. The Third Circuit determined that a D.U.I. is severe enough to make Holloway an unvirtuous citizen. The court determined that a D.U.I’s potential for danger and risk of harm to self and others is sufficient to remove someone from the protections and privileges of the Second Amendment.
In his petition for cert before the Supreme Court, Holloway argues that the Third Circuit stretches Heller’s language. In Heller, the Supreme Court held that prohibitions on the possession of firearms by felons are presumptively lawful. He argues that this “presumptive lawfulness” does not apply to his case.
Differing interpretations of “presumptive lawfulness.”
The Second, Fourth, Fifth, Tenth, and Eleventh Circuits have treated “presumptively lawful” measures as “conclusively lawful” by not allowing them to be challenged. On the other hand, the Third, Fourth, Ninth, and D.C. Circuits apply a “virtue-based” approach. The circuits endorse the idea that the Second Amendment protects only virtuous citizens. This is what the Founders intended, so citizens today can be disarmed for lacking virtue.
The First, Sixth, and Eighth Circuits take a logic-based approach and use a test based on dangerousness. These Circuits conclude that the primary limitation on the right to bear arms is a danger to other people. Rather than an individual’s mere status as a felon, the person’s dangerousness is what should be considered.
Holloway believes that the Second Amendment protections need a better test to prevent the Second Amendment from being diluted by the courts. This is an interesting issue that I would expect the United States Supreme Court to grant certiorari on. Judges should have some discretion to allow a person to have a license to carry for non-violent offenses when the person has shown that the incident has been put behind them. A one size fits all approach denies individuals the right to carry that do not present a danger to public safety.
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