Felons Can’t Bear Arms. Third Circuit Tells Tax Criminals: This Means You

A customer looks through a rifle scope as Bob’s Little Sport Shop in Glassboro, N.J., bustles with customers this past March. (Joe Lamberti/Camden Courier-Post via AP)

PHILADELPHIA (CN) — Lying on her tax returns will cost a woman her right to own a firearm for a lifetime, the Third Circuit affirmed Tuesday.

The case, which was argued before the federal appeals court last year in Philadelphia, centers around Lisa Folajtar, who pleaded guilty in 2011 to making false statements on her tax returns. Since lying to the government is a felony, the conviction carries additional gun restrictions beyond her sentence of probation and a $10,000 fine.

Divided 2-1 Tuesday, the Third Circuit found that “those who commit serious crimes are excluded from the Second Amendment’s protections,” and that reinstating Folajtar’s gun rights would negate the gravity of her offense.

“Consistent with our precedents, we hold that the legislature’s designation of an offense as a felony is generally conclusive in determining whether that offense is serious,” Justice Thomas Ambro, a Clinton appointee, wrote for the majority. “Because we determine the felony here is a serious crime, Folajtar is not protected by the Second Amendment, and her as-applied challenge fails.”

Folajtar’s attorney Joshua Prince, of the Civil Rights Defense Firm, had argued in court last year that the Founding Fathers did not believe that failure to pay a tax took away the right to bear arms.

The Trump-appointed U.S. Circuit Judge Stephanos Bibas seemed to lean into this argument in a 28-page dissent. He noted that Second Amendment rights were historically limited for dangerous felons. 

“Nobody claims that Lisa Folajtar poses a danger,” Bibas wrote. “Because neither history nor precedent supports disarming her for tax fraud, I respectfully dissent.”

Folajtar’s attorney said in an email Tuesday that, though disappointed with Tuesday’s result, he and his client are grateful for the dissent by Judge Bibas “that skillfully articulated all the arguments that we made before the court.”  

“There exists a certain irony that the government contends that a false statement in a tax return is of the ilk to strip an individual of the right to keep and bear arms, when our Founding Fathers took up arms against our English overlords, after refusing to pay the taxes imposed upon them by the king,” Prince said. “As Judge Bibas points out, there has never been any longstanding prohibition on the possession of firearms by individuals who make a false statement on a tax return.” 

Bibas argued that after colonialist wrongdoers had paid their debts, they were welcomed back into society. “In short, the colonists recognized no permanent underclass of ex-cons,” he wrote. “They did not brand felons as forever ‘unvirtuous,’ but forgave. We must keep that history in mind when we read the Second Amendment. It does not exclude felons as an untouchable caste.”

But such arguments did not appear to sway Ambro or his concurring colleague, U.S. Circuit Judge Cheryl Ann Krause, an Obama appointee.

“The dissent’s concern for the rehabilitation of convicted criminals is commendable, and we agree with our dissenting colleague that, as illustrated by nineteenth-century state and federal legislatures’ decisions to reduce the use of capital punishment and focus on the rehabilitation of convicted criminals, society need not implement the law according to the outer boundaries of what is constitutional,” Ambro wrote. “But the choice society has made in this case, by way of Congress’s enactment of the felon-in-possession statute and the tax felony statute under which Folajtar was convicted, lies within those boundaries,” the 29-page lead opinion says. “Thus, if Folajtar and others in her position wish to seek recourse, it is to the legislature, and not to the judiciary, that their efforts should be directed.”

Before the panel last year, Justice Department attorney Patrick Nemeroff had stressed that lying to the government has long been a felony because it is a serious crime.

Representatives for the Department of Justice did not respond to a request for comment Tuesday, and Prince did not say whether he and Folajtar plan to appeal. 

“We are currently reviewing all of our options in relation to the decision,” Prince said.

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