WASHINGTON, D.C. (January 14, 2021) — Today, Firearms Policy Foundation (FPF) announced the filing of two amicus briefs with the United States Supreme Court in the cases of Holloway v. Rosen and Folajtar v. Rosen. Both briefs were drafted and submitted by longtime Second Amendment attorney and scholar David Hardy.
The first petition was brought by Raymond Holloway, Jr., who was convicted of a nonviolent misdemeanor for driving under the influence nearly twenty years ago. Mr. Holloway has been law-abiding ever since, but he is nonetheless prohibited by federal law from possessing a firearm for the rest of his life. Holloway’s counsel argued in his petition that the Court should hear the case because the lifelong ban violates Holloway’s Second Amendment rights, and to further clarify the field of Second Amendment law.
FPF’s amicus brief in Holloway supported the petition by arguing that the Supreme Court should accept the case to stop lower courts from treating the Second Amendment as a second-class right. The brief also focused on the arbitrariness of the federal firearms prohibition as applied to misdemeanants. In fact, as the brief explains, under Pennsylvania law, Holloway’s driver’s license was suspended for only 18 months. Yet, he is forever forbidden from possessing a firearm even though his misdemeanor offence had nothing to do with firearms.
The second petition was brought by Lisa Folajtar, who was convicted of willfully making a materially false statement on a tax return. Ms. Folajtar has been law-abiding ever since her conviction for the nonviolent crime in 2011. Folajtar’s counsel argued in her petition that there is no historical basis for disarming nonviolent persons, so the federal law prohibiting Ms. Folajtar from possessing a firearm is unconstitutional as applied to her.
FPF filed an amicus brief in support of Ms. Folajtar analyzing the history of firearm prohibitions. Going back to the English Bill of Rights of 1688, the brief highlights the antiquity of the Anglo-American right to arms—even compared to other liberties guaranteed by the United States Constitution. The brief then examines the right to arms in colonial America, showing that only those disloyal to the new American government were disarmed, due to the threat they posed as potential enemy combatants. At the Constitution ratifying conventions, state proposals would have allowed for the disarmament of only dangerous individuals or those in actual rebellion. From then throughout the early twentieth century, only violent persons were ever disarmed. In sum, violent and potentially dangerous persons have traditionally been disarmed in America, but peaceable persons like Ms. Folajtar have always been permitted to keep and bear arms.
“The Supreme Court has ruled that the right to arms is a fundamental constitutional right, but the government, and the lower courts, refuse to treat it like one,” said Hardy. “Indeed, they refuse to treat it as a right at all. What is the reason for disarming these people? A proclivity toward armed violence? Can anyone seriously claim that driving under the influence shows a proclivity toward armed robbery? Or that violating the tax code is proof of an inclination to murder? If citizens are to be stripped of their constitutional rights, the reason should at least be something that would make sense to a third-grader.”
“These two cases give the Court an opportunity to address the lower courts’ systemic, disparate treatment of currently prohibited categories of individuals and their ability to exercise their Second Amendment rights, along with the opportunity to clarify the test that the lower courts should be applying to Second Amendment challenges,” said FPF Vice-President Jonathan Jensen. “The briefs filed by FPF help inform the Court as to the historical underpinnings of those who were typically prohibited from possessing arms, consistent with the Second Amendment’s text as informed by history and tradition.”
FPF was joined on both briefs by the California Gun Rights Foundation, Second Amendment Foundation, and Madison Society Foundation.
Firearms Policy Foundation (www.firearmsfoundation.org) is a grassroots 501(c)3 nonprofit public benefit organization. FPF’s mission is to protect and defend the Constitution of the United States and the People’s rights, privileges, and immunities deeply rooted in this Nation’s history and tradition—especially the inalienable, fundamental, and individual right to keep and bear arms.