980 F.3d 897
3rd Cir.2020Background
- Lisa Folajtar pled guilty in 2011 to violating 26 U.S.C. § 7206(1) (willfully filing a materially false tax return); the court sentenced her to probation, home confinement, and fines, and she paid substantial back taxes and penalties.
- Her conviction qualifies as a federal felony (punishable by >1 year), bringing her within 18 U.S.C. § 922(g)(1), which prohibits firearm possession by persons convicted of crimes punishable by more than one year.
- Folajtar sued in district court asserting an as-applied Second Amendment challenge to § 922(g)(1); the government moved to dismiss, arguing felons are categorically excluded.
- The district court dismissed under Third Circuit precedent (Marzzarella and Binderup); Folajtar appealed to the Third Circuit.
- The Third Circuit panel applied its Marzzarella two-step and Binderup precedents, concluded that felony status is generally conclusive of seriousness, held tax-fraud is a serious felony akin to historical fraud/forgery/theft, and affirmed dismissal of her claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(1) as applied to Folajtar's federal tax-fraud conviction violates the Second Amendment | Folajtar: her nonviolent tax-fraud felony does not fall within the historical class of persons who were disarmed and thus she retains Second Amendment protection | Government: Heller and subsequent precedent permit prohibitions on felons; a felony conviction places her outside the protected class | Held: Rejected. Court concluded tax fraud is a serious felony and Folajtar falls outside Second Amendment protection |
| Whether a legislature's designation of an offense as a felony is dispositive in assessing whether the offense is "serious" for Second Amendment purposes | Folajtar: felony label alone should not be dispositive—courts must consider dangerousness, sentence, and historical analogues | Government: The felony label is a powerful, generally conclusive indicator of seriousness; courts should defer to legislative judgment | Held: The panel held the felony designation is generally conclusive; exceptions are possible but rare and must be extraordinary |
| Whether the proper historical baseline for disarming is "dangerousness" (risk of future violence) or broader "seriousness/virtue" | Folajtar/dissent: historical practice disarmed dangerous persons; nondangerous felons should not be permanently disarmed | Majority: history and precedent support a broader category tied to "serious" offenses (including nonviolent serious crimes); Heller preserved felon disarmament | Held: Majority adopted seriousness/virtue framing over a pure dangerousness test and declined to adopt a dangerousness-only standard |
| Whether Folajtar’s specific § 7206(1) tax-fraud offense is an exceptional felony that preserves Second Amendment protection | Folajtar: tax fraud is nonviolent and unlike historical felonies or longstanding disarmament categories | Government: Fraud/deceit historically serious (theft/forgery analogues); § 7206(1) entails deceit and deprivation of government property | Held: The court concluded tax fraud is comparable to historical serious crimes (theft/forgery) and is not an exceptional felony—claim fails at step one |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognized individual right to bear arms for self-defense but identified longstanding prohibitions—e.g., felon disarmament—as presumptively lawful)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporated Second Amendment against the states and reiterated Heller's preservation of longstanding regulatory measures)
- United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (announced two-step framework for as-applied Second Amendment challenges)
- Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc) (held some misdemeanants retain Second Amendment rights; treated legislative labeling as powerful but left open narrow exceptions for felonies)
- United States v. Barton, 633 F.3d 168 (3d Cir. 2011) (rejected facial challenge to § 922(g)(1))
- Holloway v. Attorney General, 948 F.3d 164 (3d Cir. 2020) (applied Binderup factors to reject an as-applied challenge to a misdemeanor DUI conviction)
- Medina v. Whitaker, 913 F.3d 152 (D.C. Cir. 2019) (held felons are generally not among the law-abiding, responsible citizens entitled to Second Amendment protection; rehabilitation/time do not restore the right)
- Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (addressed nonviolent-felony as-applied challenge and discussed empirical links between certain nonviolent offenses and future violent recidivism)