PHILADELPHIA (CN) — A lawyer for a woman trying to regain gun rights she lost after lying on her tax returns, a felony, gave the Third Circuit some ironic food for thought at oral arguments Tuesday.
“The founding fathers refused to pay a tax, and they did not believe that failure to pay a tax took away the right to bear arms,” said Joshua Prince, an attorney with the Civil Rights Defense Firm. “In fact they took up arms.”
Prince’s client Lisa Folajtar filed suit last year after she learned that she lost her gun rights in perpetuity because she 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.
Folajtar seeks a gun for self-defense and is fighting for a reversal after a federal judge upheld the government’s felony restrictions on gun ownership.
“Yes, it’s a felony but it’s not violent,” said Prince, her Bechtelsville-based attorney. “Is this a valid basis for stripping someone of their constitutional right?”
U.S. Circuit Judge Stephanos Bibas, one of three judges hearing the case today in Philadelphia, pushed back.
“A lot of crimes, maybe by themselves are not violent crimes, but does the government have to wait until someone shoots someone to find out,” asked Bibas, a Trump appointee.
Prince did not concede the point.
“There is no evidence that an individual who makes a false statement on tax return is likely to turn to violence,” said Prince.
Justice Department attorney Patrick Nemeroff urged the panel to affirm dismissal meanwhile.
“The scope of serious crimes can include nonviolent crimes,” Nemeroff said. “Not only is this a federal felony, this is considered criminal in every state.”
U.S. Circuit Judge Thomas Ambro questioned the seriousness of the offense and how it relates to gun ownership.
“Does that make it so serious that a woman can not have a gun in her home to protect herself,” asked Ambro, a Clinton appointee.
When Nemeroff called it Folajtar’s responsibility to show her crime was not serious, Bibas questioned how serious it could be if she did not go to prison for it.
Pushing the seriousness of the case, Nemaoff stressed that lying to the government has long been a felony.
“The fact that this crime is a felony, this crime is therefore serious in the eyes of the law,” said Nemeroff.
Prince suggested a solution on rebuttal, saying the government should offer a route for nonviolent felons to regain their gun rights.
“There are certain types of offensive that, everyone can agree, they are violent, but there may be cases where the court has to look at in on a case by case basis,” said Prince.
The circuit heard a similar case en banc in 2016, ruling narrowly ruled that the gun-ownership ban was applied unconstitutionally to two men convicted of nonviolent misdemeanors but lost their gun rights because the maximum sentence possible was more than two years imprisonment. Neither Daniel Binderup nor his co-challenger, Julio Suarez, served jail time.
Ambro wrote for the majority in the 8-7 decision.
Prince noted after arguments Tusday that the Binderup decision and the landmark gun case District of Columbia v. Heller are enough for the court to break ground here.
“As Kevin Marshall wrote in ‘Why Can't Martha Stewart Have A Gun?,’: ‘Rationally, there does not seem to be even a legitimate state interest in disarming someone like [Ms. Folajtar], apart from increasing her punishment; yet simple vindictiveness is hard to accept as sufficient ground for stripping someone of a constitutional right,’” Prince said in an email.
Nemaoff did not respond to email seeking comment.
The panel was rounded out by U.S. Circuit Judge Cheryl Ann Krause, an Obama appointee.
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