90

No. 20-902

IN THE
Supreme Court of the United States
________________

KENNETH E. FLICK,
Petitioner,
v.
ROBERT M. WILKINSON, ACTING ATTORNEY GENERAL,
Respondent.
________________
On Petition for Writ of Certiorari to
the Eleventh Circuit Court of Appeals
_________________________________________________

BRIEF OF THE CATO INSTITUTE, REASON

FOUNDATION, INDIVIDUAL RIGHTS
FOUNDATION, AND INDEPENDENCE INSTITUTE
AS AMICI CURIAE IN SUPPORT OF PETITIONER
_________________________________________________

Ilya Shapiro
Counsel of Record
Trevor Burrus
Spencer Davenport
CATO INSTITUTE
1000 Mass. Ave., NW
Washington, DC 20001
(202) 842-0200
[email protected]
February 4, 2021

Additional counsel listed on signature page

i

QUESTION PRESENTED
Whether 18 U.S.C. § 922(g)(1) is unconstitutional
as applied to someone who committed a nonviolent
crime more than 30 years ago?
ii

TABLE OF CONTENTS
QUESTION PRESENTED ........................................ i
TABLE OF AUTHORITIES .................................... iii
INTEREST OF AMICI CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................... 2
ARGUMENT ............................................................. 4
I. THE VIRTUE TEST IS INAPPROPRIATE
FOR INDIVIDUAL RIGHTS ............................. 4
A. The Virtue Test Has Only Been Used
for Collective Rights .................................... 4
B. Categorically Stripping Individual
Rights from Felons Would Be
Unacceptable in Other Contexts ................. 7
II. THE VIRTUE TEST ILLEGITIMATELY
ALLOWS LEGISLATURES TO
DETERMINE THE SECOND
AMENDMENT’S SCOPE ................................. 10
A. The Felony Label Is Manipulable and
Leads to Disparate Outcomes for the
Same Offense ............................................. 11
B. There Are Few Limits on What a
Legislature Can Make a Felony,
Which Has Dire Consequences for
Second Amendment Rights ....................... 17
C. Restrictions of Fundamental Rights
Need to Be Grounded in
Constitutional Text and History ............... 22
CONCLUSION ........................................................ 24
iii

TABLE OF AUTHORITIES
Page(s)
Cases
Adams v. United States ex rel. McCann,
317 U.S. 269 (1942) .............................................. 12
Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y
Gen. N.J., 910 F.3d 106 (3d Cir. 2018) .................. 8
Bannon v. United States, 156 U.S. 464 (1895) ........ 12
Binderup v. Att’y Gen.,
836 F.3d 336 (3d Cir. 2016) (en banc) ........... passim
Bonidy v. U.S. Postal Serv.,
790 F.3d 1121 (10th Cir. 2015) .............................. 7
District of Columbia v. Heller,
554 U.S. 570 (2008) ....................................... passim
Ex parte Wilson, 114 U.S. 417 (1885) ...................... 12
Flick v. Att’y Gen.,
812 F. Appx. 974 (11th Cir. 2020) .......................... 4
Folajtar v. Att’y Gen., No. 19-1687, 2020 U.S.
App. Lexis 37006 (3d Cir. Nov. 24, 2020) ..... passim
Holloway v. Att’y Gen.,
948 F.3d 164 (3d Cir. 2020) .................................. 14
Holloway v. Sessions,
349 F. Supp. 3d 451 (M.D. Pa. 2018) ................... 18
Jenkins v. Georgia, 418 U.S. 153 (1974) ................. 21
Kachalsky v. Cty. of Westchester,
701 F.3d 81 (2d Cir. 2012) ................................ 8, 10
Kaemmerling v. Lappin,
553 F.3d 669 (D.C. Cir. 2008) ................................ 9
iv
Page(s)

Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) ......................... passim
Medina v. Whitaker,
913 F.3d 152 (D.C. Cir. 2019) .................... 5, 12, 20
Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721 (2003) .............................................. 16
R. A. V. v. St. Paul, 505 U.S. 377 (1992) ................. 22
Rogers v. Grewal, 140 S. Ct. 1865 (2020) .................. 8
Rosen v. United States, 245 U.S. 467 (1918) ............. 6
Rummel v. Estelle, 445 U.S. 263 (1980) .................. 17
Silvester v. Becerra, 138 S. Ct. 945 (2018) ................ 2
United States v. Torres-Rosario,
658 F.3d 110 (1st Cir. 2011) ........................... 15, 18
United States v. Yates, 574 U.S. 528 (2015) ............ 13
Voisine v. United States, 136 S. Ct. 2272 (2016) ....... 7

Statutes
18 U.S.C. § 921(a)(20)(A) ......................................... 14
18 U.S.C. § 922(g)(1) ................................................ 11
18 U.S.C. § 1301 ....................................................... 13
Act of Feb. 2, 1811, ch. 158, § 2, in 4 Laws of the
State of Delaware (Bradford & Porter eds., 1816) 6
Ala. Code § 3438 (1852) ............................................. 5
Ala. Code. § 13A-11-70(1) ........................................ 16
Iowa Code § 1630 (1851) ............................................ 5
Kan. Stat. Ann. § 21-6304 ........................................ 16
v
Page(s)

La. Rev. Stat. Ann. § 14:95.1(C) .............................. 16

Mich. Comp. Laws § 28.424 ..................................... 16
Mich. Comp. Laws § 750.224f .................................. 16
Mont. Code Ann. § 45-8-313 .................................... 15
Mont. Code Ann. § 45-8-314 .................................... 15
Mont. Code Ann. § 45-8-321 .................................... 15
N.J. Stat. Ann. § 2C:39-7 ......................................... 16
N.J. Stat. Ann. § 2C:58-3 ......................................... 16
N.J. Stat. Ann. § 2C:58-4 ......................................... 16
N.M. Stat. Ann. § 30-7-16 ........................................ 16
S.C. Code Ann. § 16-23-30 ....................................... 16
Tenn. Code Ann. § 39-17-1307 ................................. 16
Tenn. Code Ann. § 39-17-1316 ................................. 16
Tex. Penal Code § 46.04 ........................................... 16
Wyo. Stat. § 6-8-102 ................................................. 15

Other Authorities
Adam Winkler, Scrutinizing the Second
Amendment, 105 Mich. L. Rev. 683 (2007) .......... 12
Alexander C. Barrett, Taking Aim at Felony
Possession, 93 B.U. L. Rev. 163 (2013) ................ 12
Benjamin Weiser & Alan Feuer, “Judge Orders
Cohen Released, Citing ‘Retaliation’ Over Tell
All Book,” N.Y. Times (July 23, 2020) ................... 9
Bureau of Justice Statistics, Felony Sentences in
State Courts (Dec. 2009) ................................. 18, 22
vi
Page(s)

David B. Kopel, The First Amendment Guide to

the Second Amendment,
81 Tenn. L. Rev. 419 (2014) ................................... 8
Francis Wharton, Criminal Law (12th ed. 1932) ... 12
H.R. Rep. No. 102-619 (1992) .................................. 15
Joseph G.S. Greenlee, The Historical Justification
for Prohibiting Dangerous Persons from
Possessing Arms, 20 Wyo. L. Rev. 249 (2020) ....... 7
Matt Zapotosky, “Michael Cohen Released from
Federal Prison Over Coronavirus Concerns,”
Wash. Post (May 21, 2020) ..................................... 9
Mike Chase, How to Become a Federal Criminal:
An Illustrated Handbook for the Aspiring
Offender (2019) ..................................................... 21
Paul H. Robinson et al., The Modern Irrationalities
of American Criminal Codes: An Empirical Study
of Offense Grading,
100 J. Crim. L. & Criminology 709 (2010)........... 13
Sarah Shannon et al., Growth in the U.S. Ex-Felon
and Ex-Prisoner Population,
1948 to 2010 (2011) .............................................. 22
Steven G. Grey, The Unfortunate Revival of Civic
Republicanism, 141 U. Pa. L. Rev. 801 (1993) ...... 6
Thomas M. Cooley, A Treatise on The Constitutional
Limitations (1st ed. 1868) ...................................... 6
1

INTEREST OF AMICI CURIAE 1

The Cato Institute was established in 1977 as a
nonpartisan public policy foundation dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A.
Levy Center for Constitutional Studies was
established to restore the principles of limited
constitutional government that are the foundation of
liberty. Toward those ends, Cato publishes books and
studies, conducts conferences and forums, and
produces the annual Cato Supreme Court Review.
Reason Foundation is a national, nonpartisan,
and nonprofit public policy think tank founded in
1978. Reason’s mission is to advance a free society by
developing, applying, and promoting libertarian
principles. Reason advances its mission by publishing
Reason magazine, website commentary, and policy
research reports. To further Reason’s commitment to
“Free Minds and Free Markets,” Reason selectively
participates as amicus in cases raising significant
constitutional issues.
The Individual Rights Foundation was
founded in 1993 and is the legal arm of the David
Horowitz Freedom Center. The IRF opposes attempts
from anywhere along the political spectrum to
undermine fundamental rights, and it participates
as amicus in cases to combat government overreach.
The Independence Institute is a nonpartisan

1 Rule 37 statement: All parties were timely notified and

consented to the filing of this brief. No part of this brief was
authored by any party’s counsel, and no person or entity other
than amici funded its preparation or submission.
2

policy research organization based in Denver. The

Institute’s briefs in Heller and McDonald (under the
name of lead amicus International Law Enforcement
Educators & Trainers Association) were cited by
Justices Breyer (Heller), Alito (McDonald), and
Stevens (McDonald). The Institute’s briefs and
scholarship by Research Director David Kopel were
cited last term in New York State Rifle & Pistol
Association v. City of New York (Alito, J., dissenting),
and Rogers v. Grewel (Thomas, J., dissental).
This case interests amici because it addresses the
Second Amendment’s scope, particularly as it applies
to nonviolent offenders who have their fundamental
right to bear arms denied by federal or state law—an
area of growing concern given the thousands of
regulations that carry criminal penalties.

INTRODUCTION AND
SUMMARY OF ARGUMENT
In District of Columbia v. Heller, this Court
affirmed that the core right protected by the Second
Amendment is “an individual right” rather than a
collective right. 554 U.S. 570, 582 (2008). Despite this
pronouncement, lower courts have repeatedly failed
to “afford the Second Amendment the respect due an
enumerated constitutional right.” Silvester v. Becerra,
138 S. Ct. 945, 945 (2018) (Thomas, J., dissental).
Among those failed by the lower courts are those
permanently deprived of a firearm for self-defense
due to a nonviolent offense. The federal government
argues that under 18 U.S.C. § 922(g)(1), Ken Flick
permanently loses his Second Amendment rights
because of his conviction. It does not matter that his
3

crime was nonviolent, that he is rehabilitated, or that

his offense occurred over 30 years ago.
The government justifies this position by arguing
that the right to bear arms is limited to “virtuous”
citizens. While virtue-based exclusions have been
applied to civic rights such as voting and jury duty,
there is no historical justification for applying the test
to individual rights. Yet for the past decade, lower
courts have applied the virtue test to the Second
Amendment, relegating it to second-class status. But
just as a nonviolent conviction does not suspend an
individual’s First or Fourth Amendment rights, it
should not suspend their Second Amendment rights.
Besides its ahistorical basis, the virtue test is
flawed because the felony label is not the touchstone
to determine an individual’s virtuousness. While at
common law the label was reserved for capital crimes,
today a felony “is whatever the legislature says it is.”
Folajtar v. Att’y Gen., No. 19-1687, 2020 U.S. App.
Lexis 37006, at *56 (3d Cir. Nov. 24, 2020) (Bibas, J.,
dissenting). A legislature has carte blanche to make
almost any crime a disqualifying one under
§ 922(g)(1) by setting the maximum penalty so that
the offense is “serious.” Id. at *7 (citing Binderup v.
Att’y Gen., 836 F.3d 336, 349 (3d Cir. 2016) (en banc)).
By allowing legislatures to determine the scope of the
Second Amendment, court dilute the right’s
fundamentality. This rule is far from narrowly
tailored, labeling almost all felons (and some
misdemeanants) as dangerous because some are.
4

ARGUMENT
I. THE VIRTUE TEST IS INAPPROPRIATE
FOR INDIVIDUAL RIGHTS
Since Heller, lower courts have grappled over the
constitutionality of various laws covering firearms.
This is true for § 922(g)(1), as circuits are split as to
whether as-applied challenges are permitted and, if
so, what test is proper for them.
Section 922(g)(1) makes it unlawful for any
person convicted of “a crime punishable by
imprisonment for a term over one year” to possess a
firearm. Four circuits employ a virtue-based test to
limit the right to keep and bear arms to those who
have not committed a felony. Although a virtue test
might be appropriate to certain communally exercised
rights, it is inappropriate for individual rights. There
is “no evidence that virtue exclusions ever applied to
individual, as opposed to civic, rights.” Kanter v. Barr,
919 F.3d 437, 463 (7th Cir. 2019) (Barrett, J.,
dissenting). If the government wants to permanently
strip an individual of his rights, it must demonstrate
that the deprivation is only as broad as necessary for
the government to achieve its interest.
A. The Virtue Test Has Only Been Used for
Collective Rights
In denying petitioner relief, the court below did not
reach the merits of Flick’s claim. Instead, it foreclosed
his as-applied challenge by relying solely on its own
precedent. Flick v. Att’y Gen., 812 F. Appx. 974, 975
(11th Cir. 2020) (“Our reasoning in [United States v.
Rozier, 598 F.3d 768 (11th Cir. 2010)] applies equally
to Flick’s as-applied challenge.”). It did not matter
5

that Flick’s conviction was nonviolent, that he was

rehabilitated, or that Georgia restored his civil rights.
All that mattered was his felony conviction.
Like the perfunctory analysis by the court below,
other courts’ analyses are flawed. While several
circuits permit as-applied challenges, to date the
Third Circuit is the only circuit to find § 922(g)(1)
unconstitutionally applied. Binderup v. Att’y Gen.,
836 F.3d 336 (3d Cir. 2016) (en banc). Courts that
allow as-applied challenges use a “virtue” or
“seriousness” test that disarms “any person who has
committed a serious criminal offense, violent or
nonviolent.” Folajtar v. Att’y Gen., No. 19-1687, 2020
U.S. App. Lexis 37006, at *7 (3d Cir. Nov. 24, 2020)
(quoting Binderup, 836 F.3d at 348); Kanter, 919 F.3d
at 450 (finding that mail fraud is a “serious federal
felony” justifying permanent firearms deprivation);
Medina v. Whitaker, 913 F.3d 152, 160 (D.C. Cir.
2019) (finding that a felony conviction is
determinative and that passage of time or evidence of
rehabilitation are not relevant). In practice, the felony
label acts as a complete bar to as-applied challenges. 2
History shows that the virtue test might be
appropriate in dealing with the rights to vote, serve
on juries, and serve in some public offices. 3 See, e.g.,

2 The other approach is to look at the dangerousness of the

offense. Under this approach, the legislature may disarm only

those who have “demonstrated a proclivity for violence or whose
possession of guns would otherwise threaten the public safety.”
Kanter, 919 F.3d at 454 (Barrett, J., dissenting).
3 Virtue exclusions from civic rights were explicit. See, e.g.,
Ala. Code § 3438 (1852) (limiting jury service to those “esteemed
in the community for their integrity, fair character and sound
judgment”); Iowa Code § 1630 (1851) (“good moral character
6

Binderup, 836 F.3d at 369 n.14 (Hardiman, J.,

concurring) (noting the history of felon
disenfranchisement and that jury service and public-
office eligibility are not fundamental rights); Thomas
M. Cooley, A Treatise on the Constitutional
Limitations 29 (1st ed. 1868) (arguing that
disenfranchising classes of people with a “want of
capacity or of moral fitness” was well-documented).
The virtue theory conceives of the right to bear arms
as one that “was exercised for the benefit of the
community (like voting and jury service), rather than
for the benefit of the individual (like free speech or
free exercise)” and thus “belonged only to virtuous
citizens.” Kanter, 919 F.3d at 462–63 (Barrett, J.,
dissenting). 4

[and] sound judgment”); Act of Feb. 2, 1811, ch. 158, § 2, in 4

Laws of the State of Delaware, at 445, 449 (Bradford & Porter
eds., 1816) (“sober, substantial and judicious freeholders, lawful
men, of fair characters”). But there are no explicit virtue
exclusions for the right to bear arms. See Kanter, 919 F.3d at 463
(Barrett, J., dissenting).
Juries are expected to embody the elevated moral judgment
of the community. Because civic rights were to the benefit the
community, there was an emphasis on moral competence and
civic responsibility. Steven G. Grey, The Unfortunate Revival of
Civic Republicanism, 141 U. Pa. L. Rev. 801, 806 (1993).
4 Compare the exclusion of felon jurors to felon witnesses.
At common law, felons were disqualified as witnesses. In Rosen
v. United States, 245 U.S. 467, 471 (1918), this Court found that
a felon was competent to testify, concluding that “the truth is
more likely to be arrived at by hearing the testimony of all
persons of competent understanding who may seem to have
knowledge of the facts involved in a case, leaving the credit and
weight of such testimony to be determined by the jury or by the
court.” The difference is that jury service is a civic right exercised
7

But Heller expressly rejected the notion that the

right to keep and bear arms was a collective right,
holding instead that “the Second Amendment
confer[s] an individual right to keep and bear arms.”
Heller, 554 U.S. at 595. The scholarship that the four
virtue-test-applying circuits relied on came pre-
Heller. Folajtar, No. 19-1687, 2020 U.S. App. Lexis
37006, at *42–50 (Bibas, J., dissenting). From the
colonial period through the Early Republic and the
19th century, there were no laws that disarmed
peaceable citizens based on a supposed lack of virtue.
Rather, disarmament laws focused on dangerousness.
See Joseph G.S. Greenlee, The Historical Justification
for Prohibiting Dangerous Persons from Possessing
Arms, 20 Wyo. L. Rev. 249 (2020). Given the
importance of history to the Court’s Second
Amendment jurisprudence, it is inappropriate to use
an ahistorical test to strip people of individual rights.
B. Categorically Stripping Individual Rights
from Felons Would Be Unacceptable in
Other Contexts
Courts “treat no other constitutional right so
cavalierly” as they do the Second Amendment. Voisine
v. United States, 136 S. Ct. 2272, 2291 (2016)
(Thomas, J., dissenting). The Tenth Circuit does not
treat the right to bear arms as equally important as
the right to marry. Bonidy v. U.S. Postal Serv., 790
F.3d 1121, 1126 (10th Cir. 2015) (“The risk inherent
in firearms . . . distinguishes the Second Amendment
right from other fundamental rights . . . such as the
right to marry and the right to be free from viewpoint

for the community, while bearing witness is part of a defendant’s

personal Sixth Amendment right of compulsory process.
8

discrimination.”). Although the Court in Heller often

cited First Amendment principles as guides to Second
Amendment interpretations, some lower courts have
refused to do so. See, e.g., Kachalsky v. Cty. of
Westchester, 701 F.3d 81, 91 (2d Cir. 2012); Ass’n of
N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910
F.3d 106, 124 n.28 (3d Cir. 2018). This despite the
Court’s direction in Heller and McDonald to consider
the Second Amendment with the same care afforded
other rights. Rogers v. Grewal, 140 S. Ct. 1865 (2020)
(Thomas, J., dissental) (“Instead of following the
guidance provided in Heller, these courts minimized
that decision’s framework.”). See generally David B.
Kopel, The First Amendment Guide to the Second
Amendment, 81 Tenn. L. Rev. 419 (2014).
This does not mean that no Second Amendment
restrictions are permitted. History shows that the
right to keep and bear arms “was not unlimited, just
as the First Amendment’s right of free speech was
not.” Heller, 554 U.S. at 595. We can and should
continue restrictions on firearms for those who pose a
genuine danger, but any deprivation must be
narrowly tailored. After all, the Constitution would
not allow a permanent deprivation of every felon’s
First or Fourth Amendment right simply because the
offense was “serious.”
1. Felons maintain their First Amendment rights.
No court would strip a felon’s First Amendment
rights solely because of their lack of virtuousness.
This past May, the U.S. Bureau of Prisons released
Michael Cohen, President Trump’s former attorney,
as authorities tried to slow the spread of COVID-19 in
federal prisons. Matt Zapotosky, “Michael Cohen
9

Released from Federal Prison Over Coronavirus

Concerns,” Wash. Post, May 21, 2020,
https://wapo.st/3hNv57O. Cohen was ordered back to
prison, however, after tweeting that he was writing a
book. In a hearing on this reimprisonment, Judge
Alvin Hellerstein released Cohen, saying that the
government retaliated against him solely “because of
his desire to exercise his First Amendment rights.”
Benjamin Weiser & Alan Feuer, “Judge Orders Cohen
Released, Citing ‘Retaliation’ Over Tell All Book,”
N.Y. Times, July 23, 2020, https://nyti.ms/3rVF9jy. If
the circumstances were different and the court
applied the virtue test to Cohen, it would only have
looked at his felony conviction to determine whether
he still had his First Amendment rights.
2. Suspending Fourth Amendment rights for
felons would also be unconstitutional.
Courts don’t treat the Fourth Amendment so
cavalierly either. Protections against “unreasonable”
searches apply both to those with and without a
criminal record. No court would allow legislatures to
deprive all felons of their Fourth Amendment rights
even though it would arguably improve public safety.
Proponents of the near-blanket ban on firearm
possession for nonviolent felons point to recidivism
rates. See Folajtar, No. 19-1687, 2020 U.S. App. Lexis
37006, at *25; Kanter, 919 F.3d at 449 (highlighting
several studies showing a connection between
nonviolent offenders and risk of future violent crime);
Kaemmerling v. Lappin, 553 F.3d 669, 683 (D.C. Cir.
2008) (“[C]ertain groups—such as property
offenders—have an even higher recidivism rate than
10

violent offenders, and a large percentage of the crimes

nonviolent recidivists later commit are violent.”).
There are two principal problems with the use of
recidivism rates to support firearm bans. First, the
statistics lump all nonviolent felons together with
burglars and drug dealers, without taking account
individual characteristics that make some riskier
than others. Folajtar, No. 19-1687, 2020 U.S. App.
Lexis 37006, at *59 (Bibas, J., dissenting). Second,
recidivism rates would also support stripping Fourth
Amendment rights, because the government has a
significant interest in curbing crime. Given that many
felons are likely to reoffend, allowing police to
regularly search their homes would deter crimes. But
if a legislature abridged Fourth Amendment rights en
masse under the belief that it would improve public
safety, would courts blindly defer to that judgment?
Just as it would be unconstitutional to
indiscriminately abridge Fourth Amendment rights,
so too for the Second Amendment.

II. THE VIRTUE TEST ILLEGITIMATELY

ALLOWS LEGISLATURES TO DETERMINE
THE SECOND AMENDMENT’S SCOPE
Courts justify the application of the virtue test by
claiming that it “accords proper deference to the
legislature,” as legislatures are “‘far better equipped
than the judiciary’ to make sensitive public policy
judgments.” Folajtar, No. 19-1687, 2020 U.S. App.
Lexis 37006, at *15–16 (quoting Kachalsky, 701 F.3d
at 97). Proponents also cite to administrative
concerns, arguing that the alternative dangerousness
test endorsed would give districts courts the
“unenviable task of weighing the relative
11

dangerousness of hundreds of offenses already

deemed sufficiently serious to be classified as
felonies.” Id. at *18. But courts can use objective
factors, such has having a clean record since the
offense, to mitigate administrative concerns.
With § 922(g)(1) tied to the maximum punishment
of an offense, legislatures’ have been given the power
to define the scope of the Second Amendment.
Legislators wanting to limit possession of firearms
can do that by designating almost any offense a
felony. The statute does not account for the nature of
the offense, the length of time elapsed since the
offense, or the punishment given to the felon. All that
matters is the maximum possible punishment. While
the government should be able to balance interests
and define crimes and sentences, restrictions on
Second Amendment rights should not turn entirely on
the label applied to an offense.
More problematic is that, in blessing the virtue
test, lower courts have paid mere lip service to
concerns about legislatures’ unfettered power. A near-
blanket rule that strips fundamental rights based on
any felony is overinclusive.
A. The Felony Label Is Manipulable and
Leads to Disparate Outcomes for the
Same Offense
1. Modern felonies are far removed from
common-law felonies.
Section 922(g)(1) prohibits firearm possession by
persons convicted of crimes “punishable by
imprisonment for a term exceeding one year.” 18
U.S.C. § 922(g)(1). Its application is not limited to
12

violent crimes, applying to nearly all felons and some

misdemeanants, making it “wildly overinclusive.”
Adam Winkler, Scrutinizing the Second Amendment,
105 Mich. L. Rev. 683, 721 (2007).
Courts justify their application of the virtue test
arguing “[w]hen the legislature 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. If only this were true. Dissenting in Folajtar,
Judge Bibas described the definition of a felony as
“elastic, unbounded, and manipulable by legislatures
and prosecutors.” Folajtar, No. 19-1687, 2020 U.S.
App. Lexis 37006, at *56 (Bibas, J., dissenting). Judge
Bibas recognized what this Court recognized almost
80 years ago: the term felony “is a verbal survival
which has been emptied of its historic content.”
Adams v. United States ex rel. McCann, 317 U.S. 269,
272 n.2 (1942).
At common law, the term “applied to only a few
select categories of serious crimes.” Alexander C.
Barrett, Taking Aim at Felony Possession, 93 B.U. L.
Rev. 163, 195 (2013). “Felony” was a category “used to
designate such serious offenses as were formerly
punishable by death, or by forfeiture of the lands or
goods of the offender.” Bannon v. United States, 156
U.S. 464, 468 (1895) (citing Ex parte Wilson, 114 U.S.
417, 423 (1885)).
Moreover, the statutory prohibition for criminal
conviction is not limited to offenses that a legislature
has designated as a felony. The prohibition applies to
any crime, including misdemeanors, for which the
potential maximum sentence is over one year.
13

To see how far-removed today’s felonies are from

the common law, consider a few examples. In United
States v. Yates, the Supreme Court reversed a
conviction for impeding a federal investigation, a
violation of 18 U.S.C. § 1519, for a fisherman’s
disposal of three undersized grouper that were 1.25
inches under the required 20-inch size. 574 U.S.
528, 531–35 (2015). Transporting lottery tickets
across state lines when one state forbids lottery
tickets carries a maximum penalty of two years in
prison. 18 U.S.C. § 1301. Finally, in Pennsylvania,
reading another person’s email without permission is
a third-degree felony, punishable by up to seven
years. Paul H. Robinson et al., The Modern
Irrationalities of American Criminal Codes: An
Empirical Study of Offense Grading, 100 J. Crim. L.
& Criminology 709, 719 n.44, 46 (2010). There are
currently thousands of criminal statutes and
regulations that would allow Congress to disarm
people for statutory felonies that were not
contemplated by the common law.
2. Courts err in deferring to the felony label
when the government uses the label
arbitrarily.
In justifying the felony-misdemeanor dichotomy,
courts opine that “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.” Folajtar, No. 19-1687, 2020 U.S.
App. Lexis 37006, at *9 (quoting Binderup, 836 F.3d
at 353 n.6 (en banc)); Kanter, 919 F.3d at 444. The
lower court’s deference to the felony label is
illegitimate given that the government has admitted
that the “felony-misdemeanor distinction is ‘minor
14

and often arbitrary.’” See, e.g., Binderup, 836 F.3d at

374 (en banc) (Hardiman, J., concurring) (quoting
Gov’t Binderup Br. 19).
Because a state can define how it punishes crimes,
the jurisdiction in which the offense occurs can have
huge consequences on the Second Amendment. An
individual who commits a crime in one state might
lose his gun rights, whereas someone who committed
the same crime in another state would retain his
rights. This is seen with DUI laws, as many states
treat a second DUI as an offense that does not
implicate § 922(g)(1). Holloway v. Att’y Gen., 948 F.3d
164, 192 (3d Cir. 2020) (Fisher, J., dissenting). But
there are eight jurisdictions where a second DUI does
implicate it. Id. As a result, the statute’s dependence
on how a state classifies and punishes a crime “results
in an underinclusive application that raises
constitutional concerns.” Id.
Courts’ deference to the felony label is even more
concerning considering that Congress has already
determined that some serious, nonviolent felonies do
not warrant a lifetime firearm ban. The definition of
the term “felony” used in 18 U.S.C. § 922 excludes
“any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade,
or other similar offenses relating to the regulation of
business practices.” 18 U.S.C. § 921(a)(20)(A). There
is no principled basis as to why Flick’s convictions for
importing and selling counterfeit cassettes over 30
years ago is worthy of a lifetime firearm ban and an
antitrust violation is not. At the very least, the
government must justify the disparate treatment.
Otherwise, the distinction is entirely arbitrary.
15

3. The felony label is no more administrable

than a dangerousness label.
Courts have also rationalized their use of the
virtue test by claiming that it avoids administrative
problems and provides consistency. Kanter, 919 F.3d
at 450; United States v. Torres-Rosario, 658 F.3d 110,
113 (1st Cir. 2011). The D.C. Circuit opined that using
“an amorphous ‘dangerousness’ standard to delineate
the scope of the Second Amendment would require the
government to make case-by-case predictive
judgments.” Medina, 913 F.3d at 159–60. These
courts rely in part on deference to Congress, which
concluded that “the dangerousness inquiry was a
‘very difficult’ and time-intensive task.” Kanter, 919
F.3d at 450; Binderup, 836 F.3d at 403 (Fuentes, J.,
concurring in part, dissenting in part and from the
judgment) (arguing that Congress’s conclusion that
the dangerousness test was unworkable “should have
a profound impact on our tailoring analysis”); H.R.
Rep. No. 102-619, at 14 (1992).
The circuit courts’ leeway in adopting an
overinclusive law based on administrative concerns is
curious considering that states have created more
narrowly tailored laws for felon dispossession. Some
states have taken the “very difficult” approach and
prohibited those who are dangerous from possessing
firearms. See, e.g., Mont. Code Ann. §§ 45-8-313, 45-
8-314, 45-8-321 (prohibiting firearm possession if
conviction involved “dangerous” weapon); Wyo. Stat.
§ 6-8-102 (stripping rights of those convicted of
“violent felony”). Other states follow the
dangerousness approach but provide a list of specific
16

offenses. See, e.g., N.J. Stat. Ann. §§ 2C:39-7, 2C:58-

3, 2C:58-4; 18 Pa. Cons. Stat. §§ 6105.
With fears of recidivism, other states have
implemented blanket bans for a period post-sentence.
See, e.g., Mich. Comp. Laws §§ 28.424, 750.224f
(rights restored three years after completion of
sentence); La. Rev. Stat. Ann. § 14:95.1(C) (ten years
for violent crimes, drug felonies, and sex offenses);
N.M. Stat. Ann. § 30-7-16 (ten years); Kan. Stat. Ann.
§ 21-6304 (distinguishing felonies and providing
restoration timelines).
Finally, some states restrict the way felons can
possess firearms. See, e.g., Tex. Penal Code § 46.04
(felons lose right for five years but can keep a firearm
in their home after that time); Ala. Code. § 13A-11-
70(1) (felons can possess long guns for self-defense but
not handguns); S.C. Code Ann. § 16-23-30 (same);
Tenn. Code Ann. §§ 39-17-1307, 39-17-1316 (same).
These state statutes show that Congress can
create an administrable law that is also more
narrowly tailored. Concerns about judicial economy
concerns do not outweigh Second Amendment rights
or a plaintiff’s access to the courts. As Justice Scalia
put it: “When a litigant claims that [the] legislation
has denied him individual rights secured by the
Constitution, the court ordinarily asks first whether
the legislation is constitutional as applied to him.”
Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 743
(2003) (Scalia, J., dissenting).
Although Congress is in the best position to make
policy judgments, it cannot define a fundamental
right’s scope nor can it legislate outside constitutional
limits. To deal with administrability concerns, courts
17

can use rules of thumb such as the length of time

between crime and the present, the type of crime, and
the sentence given. As seen here, prohibiting firearms
based solely on the arbitrary felony classification
leads to absurd and unconstitutional results.
B. There Are Few Limits on What a
Legislature Can Make a Felony, Which
Has Dire Consequences for Second
Amendment Rights
1. Legislatures control the scope of
punishment.
Usually, what a state decides to punish as a crime
is “purely a matter of legislative prerogative.”
Folajtar, No. 19-1687, 2020 U.S. App. Lexis 37006, at
*56 (Bibas, J., dissenting) (citing Rummel v. Estelle,
445 U.S. 263, 274 (1980); Heller, 554 U.S. at 628 n.27).
However, it is different when a fundamental right is
at stake. With § 922(g)(1), the power to determine a
felony also provides the legislature the power to
determine the Second Amendment’s scope.
If a legislature wanted to curb firearm possession,
it could designate any minor offense—say,
jaywalking—as punishable by more than one year’s
imprisonment and vigorously enforce it. Some may
argue that courts would find the offense of “felony
jaywalking” to be a bridge too far, possibly under the
Eighth Amendment. But if a legislative committee
made findings that purportedly showed jaywalking to
be a serious threat to the community, is it seriously
likely our deferential courts would gainsay the
determination? Thus, legislatures effectively have the
power to narrow the Second Amendment. But
“[c]onstitutional rights are enshrined with the scope
18

they were understood to have when the people

adopted them, whether or not future legislatures or
(yes) even future judges think that scope too broad.”
Heller, 554 U.S. at 834–35.
Deference to the felony label to determine the
seriousness of an offense is also misguided because
sentencing reflects a culmination of factors. While a
maximum possible punishment is “certainly
probative” of the offense’s potential seriousness, the
wide range of punishments for an offense makes the
maximum punishment a poor indicator of the actual
seriousness of the defendant’s personal conduct.
Holloway v. Sessions, 349 F. Supp. 3d 451, 457 (M.D.
Pa. 2018). As the court in Binderup recognized, judges
must not “defer blindly” to maximum punishments
because “some offenses may be ‘so tame and technical
as to be insufficient to justify the ban.’” 836 F.3d at
350–51 (quoting Torres-Rosario, 658 F.3d at 113).
When determining a sentence, courts might
consider the history and characteristics of the
defendant, and a judge’s sentence may reflect a
compromise resulting from plea bargaining. Under
the lower court’s test, it doesn’t matter if the convicted
person served time in prison for over a year. The only
thing that matters is the maximum punishment. In
fact, three in ten felony convictions do not result in a
prison sentence. Bureau of Justice Statistics, Felony
Sentences in State Courts, 2006 – Statistical Tables
(Dec. 2009). The judicial decision to impose no
incarceration at all indicates that the offense was not
relatively serious. Here, Ken Flick was sentenced to
four months in a halfway house and five years of
probation. For over 30 years, Flick has been a model
citizen, donating millions of dollars to charity and
19

being active in his community. Yet his Second

Amendment rights are defined by the worst thing he
did, more than three decades ago.
2. The government’s data on recidivism rates
conflate one-time offenders with repeat
violators.
Courts also cite to recidivism statistics to justify
the blanket ban. The Third Circuit found that “there
is good reason not to trust felons, even non-violent
ones, with firearms.” Folajtar, No. 19-1687, 2020 U.S.
App. Lexis 37006, at *24. The majority in Kanter also
approvingly cited studies linking nonviolent
convictions to later offenses involving violence. 919
F.3d at 449. But the cited data do not distinguish
between first-time offenders like Ken Flick and those
with repeat records. Folajtar, No. 19-1687, 2020 U.S.
App. Lexis 37006, at *59 (Bibas, J., dissenting).
Moreover, stripping a person’s fundamental rights
based on projected crimes unrelated to past criminal
acts is a dangerous proposition. Id. All the evidence
shows—and the government does not dispute—that
Ken Flick is now a responsible, law-abiding citizen.
3. There are relatively few constitutional limits
to punishments legislatures can impose
when dealing with felony sentences of a few
years.
A legislature could punish a crime so severely it
would violate the Eighth Amendment’s protection
against cruel and unusual punishments. But this is a
high bar to reach. See, e.g., Ewing v. California, 538
U.S. 11 (2003) (upholding 25-year sentence for
stealing golf clubs under California’s three-strikes
law). And when a sentence involves “only” several
20

years, Eighth Amendment jurisprudence provides

very little judicial review.
Legislatures have nearly limitless power over
whether to classify legal violations as felonies.
Recognizing the possibility of abuse, courts have
acknowledged the possibility that “a legislature could
be overly punitive and classify as a felony an offense
beyond the limits of the historical understanding.”
Folajtar, No. 19-1687, 2020 U.S. App. Lexis 37006, at
*10. Yet despite the opportunity to enunciate any
standards for when felony disarmament goes too far,
the courts seem uninterested in providing any.
Medina, 913 F.3d at 161 (“We need not decide today if
it is ever possible for a convicted felon to show that he
may still count as a ‘law-abiding, responsible
citizen.’”); Folajtar, No. 19-1687, 2020 U.S. App. Lexis
37006, at *28 (Bibas, J., dissenting) (“Though in
theory a few felonies might be too minor to count, the
majority never defines this caveat.”). However, courts
also have stated that “a felony is generally conclusive
in our analysis of seriousness” and nonserious
felonies would be “rare.” Id. at *9–10. Indeed, the
challenger’s burden for restoration of Second
Amendment rights is “extraordinarily high.” Id.; see
also Binderup, 836 F.3d at 353.
In practice, “extraordinarily high” is a euphemism
for “impossible.” “[N]o circuit has held the law
unconstitutional as applied to a convicted felon.”
Medina, 913 F.3d at 155. The reason for the
extraordinary/impossible standard is that legislative
classification of a crime as a felony puts people on
notice that they are “committing a serious offense”
and will “forfeit their rights under the Second
21

Amendment.” Folajtar, No. 19-1687, 2020 U.S. App.

Lexis 37006, at *18.
As a practical matter, even the most learned
lawyers cannot know the full scope of offenses that are
denominated as felonies. See Mike Chase, How to
Become a Federal Criminal: An Illustrated Handbook
for the Aspiring Offender (2019). Even if a mere
mortal could know all the federal and state felonies,
“extreme deference gives legislatures unreviewable
power to manipulate the Second Amendment by
choosing a label.” Folajtar, No. 19-1687, 2020 U.S.
App. Lexis 37006, at *33 (Bibas, J., dissenting).
This Court has long upheld the rule that when
legislatures attach a label that will constrict
constitutional rights, the labeling is subject to careful
scrutiny. See, e.g., Jenkins v. Georgia, 418 U.S. 153
(1974) (while “obscene material” may be prohibited,
Georgia statute that encompassed an R-rated film
went too far). The Court has usually not needed to
police the meaning of “felony.” But whatever the word
“felony” means, it is not a synonym for the permanent
loss of constitutional rights. A person convicted of
fraud or criminal defamation still enjoys the freedom
of speech. A person who has served her full sentence,
including parole, for felony burglary, still enjoys
Fourth Amendment rights in her own home. A police
officer who is convicted of a felony for violating due
process rights still enjoys his own due process rights.
Only one right in the Bill of Rights may be taken
away forever by the whim of what the legislature does
or does not label a “felony.” The petitioner here is not
challenging the lifetime loss of constitutional rights
for convicted felons who have proven themselves to be
22

violently dangerous. The question instead is whether

there are some limits to stripping the practical right
of self-defense from persons who, while once having
poor virtue, have never behaved dangerously.
C. Restrictions of Fundamental Rights Need
to Be Grounded in Constitutional Text
and History
The ability of the legislature to define the scope of
the Second Amendment appears even more inapt
when compared to the First Amendment. In R. A. V.
v. St. Paul, this Court held that obscenity and fighting
words are unprotected by the First Amendment. 505
U.S. 377, 383 (1992). While Congress can restrict
speech that amounts to obscenity or fighting words,
“it may not substantially redefine what counts as
obscenity or fighting words.” Binderup, 836 F.3d at
372 n.20 (en banc) (Hardiman, J., concurring). Yet in
the Second Amendment context, the government
argues that Congress and state legislatures have the
right to define the types of criminals excluded from
the right to keep and bear arms.
This is not a small problem. There are 15 million
ex-felons who have had their Second Amendment
rights stripped. See Sarah Shannon et al., Growth in
the U.S. Ex-Felon and Ex-Prisoner Population, 1948
to 2010, 6–7 (2011)). In the most recent year that BJS
published figures for state felony convictions, 18.2
percent of all state felony convictions were for violent
offenses. Bureau of Justice Statistics, supra. Even
though most convicted felons committed a nonviolent
offense, only a select few can exercise their Second
Amendment right due to an ahistorical virtue test.
23

The historical evidence supports a different

proposition: that the legislature may disarm those
who have demonstrated a proclivity for violence or
whose possession of guns would otherwise threaten
the public safety. As then-Judge Barrett noted, “[t]his
is a category simultaneously broader and narrower
than ‘felons’—it includes dangerous people who have
not been convicted of felonies but not felons lacking
indicia of dangerousness.” Kanter, 919 F.3d at 454
(Barrett, J., dissenting). The danger test also justified
the disarming of those who refused to pledge loyalty
to the colonies. “Loyalists were potential rebels who
were dangerous before they erupted into violence.”
Folajtar, No. 19-1687, 2020 U.S. App. Lexis 37006, at
*39 (Bibas, J., dissenting). Similarly, “[r]ebels posed a
risk of insurrection and so were dangerous.” Id.
The case for keeping firearms away from those
who have demonstrated violent behavior is strong.
Even so, some tailoring is essential. Under the virtue
test, there is no tailoring. Instead, it’s a near-blanket
ban that defers to how the legislature labels a crime.
But the Second Amendment demands more than
kowtowing to legislatures. The proper test is to look
to history which supports that all citizens enjoyed the
Second Amendment unless they posed a danger.
Because Ken Flick is not dangerous, his Second
Amendment rights must be restored to him.
24

CONCLUSION
The Court should grant the petition and use this
case to provide clarity about how to evaluate
restrictions on the Second Amendment.

Respectfully submitted,

Manuel S. Klausner Ilya Shapiro

LAW OFFICES OF MANUEL S. Counsel of Record
KLAUSNER Trevor Burrus
Wells Fargo Center Spencer Davenport
333 S. Grand Ave., Ste. 4200 CATO INSTITUTE
Los Angeles, CA 90071 1000 Mass. Ave., N.W.
(213) 617-0414 Washington, DC 20001
[email protected] (202) 842-0200
[email protected]

David B. Kopel
INDEPENDENCE INSTITUTE
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(303) 279-6536
February 4, 2021 [email protected]