A 2A Game Of "Telephone"

There’s some confusion and misinformation going around about a legal challenge to the prohibition on felons owning firearms and the U.S. Supreme Court, and on today’s Bearing Arms’ Cam & Co I do my best to bring some clarity to what’s really going on with the case and the potential for SCOTUS to weigh in.

The confusion seems to have stemmed from a story in the New York Times on Monday headlined “Justice Barrett’s Vote Could Tilt the Supreme Court on Gun Rights,” which highlights a recent decision out of the Third Circuit involving a woman named Lisa Folajtar, a felon who pleaded guilty to tax evasion and lost her right to keep and bear arms in the process. The case is reminiscent of a case that Justice Amy Coney Barrett was involved in back when she was on the Eleventh Circuit Court of Appeals called Kanter vs. Barr, in which a man named Rickey Kanter sued to regain his Second Amendment rights after being convicted of mail fraud.

Barrett was on the three judge panel that heard the case, and argued that Kanter should have his rights restored, because historically, the Founders were more concerned about whether someone was dangerous than if someone had merely been convicted of a non-violent felony offense when it came to depriving them of their right to keep and bear arms. Barrett’s views didn’t sway the two other judges in the case, however, and Rickey Kanter’s appeal was denied in a 2-1 decision.

Last week, the Third Circuit also rejected Lisa Folajtar’s request to have her rights restored, and it’s likely that the case will be appealed to the Supreme Court. At the moment, however, the Court hasn’t received the case, much less considered it in conference or granted cert. Still, after legal analyst Jonathan Turley wrote about the Folajtar case last week, calling it a case that seems tailor-made for Justice Barrett, many media outlets have seized on the case as if it’s a foregone conclusion that this will be the next Second Amendment case heard by the high Court.

After the Times amplified Turley’s argument that the case is ripe for Supreme Court review other media outlets followed suit, but many of them downplayed the fact that the Court has yet to receive petition to hear the case. A headline at The Daily Caller proclaimed that “Justice Barrett’s Vote Already Looking To Be Decisive In First Big Gun Rights Case In Years,” while Vanity Fair declared that Barrett “may soon rule in a case that could expand gun rights,” referring to Folajtar.

What virtually every one of these media outlets is ignoring (and likely unaware of) is the fact that the Supreme Court is already scheduled to consider another case involving a question of whether or not non-violent felons should lose their Second Amendment rights in its conference on December 11th, long before Folajtar will come before the justices.

That case, called Torres vs. United States, was brought by Israel Torres, an Arizona man convicted of two DUI offenses in Arizona in 2003 and 2010. Those felony convictions resulted in Torres losing his right to keep and bear arms, and his home was raided in 2017 by federal law enforcement officers who seized several firearms belong to Torres, who in turn was charged in federal court with being a felon in possession of firearms.

Why have all of the media outlets that breathlessly reported on Folajtar ignored the Torres case? My guess is that they’re simply unaware of the existence of Torres, to say nothing of the fact that the Supreme Court has already assigned it to the December 11th conference.

It appears to me like these media outlets have been engaged in a digital version of the old game of “Telephone” where a whispered phrase is repeated from one person to another, changing along the way. Turley’s original post about Folajtar didn’t mention the similar Torres case, so none of the reporting that’s been based on Turley’s analysis mentions it either. The Folajtar case, meanwhile, has gone from being a case that has strong potential to be picked up by the Supreme Court to a virtual certainty for SCOTUS review, at least if you only read the headlines.

This is another reminder of the fact that most media outlets don’t have reporters that are dedicated to covering the Second Amendment as an issue, so they lack the institutional knowledge that could bring additional details and context to their reporting. It’s true that Folajtar seems like a case that would pique the interest of Justice Amy Coney Barrett, but the fact remains that she and the other eight justices will be taking a look at Torres first. If there are four justices who are willing to take another look at the lifetime loss of Second Amendment rights for non-violent felons, Torres would seem to have the inside track, though you wouldn’t guess it by reading the New York Times or any of the media outlets that based their own reports on the Times’ original story.