Supreme Court Considering Whether Felons May Become ‘Law-Abiding and Responsible’

Former U.S. Senate Candidate Barry Michaels has asked the U.S. Supreme Court to consider whether felons may ever become “law-abiding and responsible,” to overcome a felon disarmament statute and possess a firearm.

Michaels pleaded guilty to his first felony, mail fraud for falsifying information on a credit application for American Express, in 1973. He pleaded guilty to his second felony, for kiting checks, in 1975. Twenty-three years later, in 1998, Michaels pleaded guilty to one count of securities fraud and one count of filing a false tax return, for which he was sentenced to 21 months’ imprisonment.

Since release from federal prison, Michaels has earned undergraduate and graduate degrees from the University of Las Vegas and has run for Congress multiple times. Michaels most recently ran as an independent candidate to represent Nevada in the U.S. Senate, garnering 1% of the statewide vote.

Due to his public profile, Michael says, he wants to purchase a firearm for self-defense in his home, but had not done so because he fears criminal prosecution under 18 U.S.C. § 922(g)(1), which makes it unlawful for felons to possess firearms.

In March 2016, Michaels filed his complaint in federal District Court alleging that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to him, for unfairly infringing upon his Second Amendment rights. On the government’s motion, the District Court relied on the Supreme Court’s opinion in D.C. v. Heller, to dismiss Michaels’s claims without a trial. Heller held the Second Amendment protects “the right of law-abiding, responsible citizens” to possess handguns for self-defense, and that felon disarmament are presumptively valid. Michaels disagreed with the District Court and appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit upheld the District Court’s dismissal, relying on its own precedent interpreting Heller that “felons are categorically different from the individuals who have a fundamental right to bear arms.” Michaels therefore filed his petition for a writ of certiorari with the Supreme Court.

In his petition, Michaels argues that the District Court impermissible erred in denying him the opportunity to present evidence that he met Heller’s criteria for overcoming 18 U.S.C. § 922(g)(1) as applied to him. Acknowledging that Heller held “longstanding prohibitions on the possession of firearms by felons are presumptively lawful regulatory measures,” Michaels argues it is “axiomatic” that there must be an opportunity overcome the presumption. Therefore, Michaels concludes, the District Court should have allowed Michaels the opportunity to prove that he was “law-abiding and responsible” and thus covered by the Second Amendment right to purchase a firearm for self-defense.

The Department of Justice filed its response to Michaels’s petition on December 17, 2018, on behalf of Matthew Whitaker and the ATF, although the parties disagree as to who is the proper Acting Attorney General and therefore the properly designated defendant in Michaels’s case. Michaels’s petition will now circulate for Justices to consider. Four Justices must vote in favor of hearing Michaels’s petition for the Court to accept it for adjudication.

The parties’ briefs to the Supreme Court in Michaels v. Whitaker are posted here. FEDagent will post an update when the Supreme Court decides whether to hear the case.


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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