Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Matthew Whitaker, acting U.S. attorney general, speaks during the Rural and Tribal Elder Justice Summit in Des Moines, Iowa, U.S., on Wednesday, Nov. 14, 2018.
The U.S. Supreme Court said Monday it will not take up a 2nd Amendment case that could have made guns more widely available to felons.
The case was also significant for a legal question it has raised that is entirely unrelated to the underlying gun rights issue: whether acting Attorney General Matthew Whitaker was constitutionally appointed.
The high court has largely avoided taking on high-profile legal disputes since the contentious confirmation of Justice Brett Kavanaugh in October.
The justices took no action on Monday in a slew of cases that touch on divisive cultural issues such as President Donald Trump's attempts to terminate the Deferred Action for Childhood Arrivals program as well as his ban on transgender troops serving openly in the military. The court is unlikely to take on many new cases after this week.
The gun case involved Barry Michaels, a Nevada Democrat who ran unsuccessfully for the U.S. Senate seat last year. Michaels, who describes his past as "checkered," pleaded guilty to several nonviolent federal crimes including mail fraud and securities fraud.
Michaels decided to get his act together during a stay in federal prison. Once released, he managed a variety of businesses, including a pizza parlor, and several unsuccessful bids for Congress.
Because of his rising star on the political scene, Michaels has said, he sought a gun for self-defense. But federal law prohibits the possession of firearms by felons. And in 2008, the Supreme Court held that "longstanding prohibitions on the possession of firearms by felons" are presumptively lawful.
Michaels argued that the 2008 decision also left open the possibility that felons are entitled to purchase weapons by cementing "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
Michaels has argued that he is both a felon and a law-abiding citizen. Therefore, he said, he is entitled to a gun.
A federal judge in Nevada dismissed Michaels' complaint. In October 2017, a three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed that decision. Michaels disputed those holdings and took his appeal to the justices.
"Several of the Circuit Courts and their inferior courts have reached the conclusion that felons as a class, can never be law-abiding and responsible," his attorney, Tom Goldstein, wrote in a brief asking the court to take up the case.
"It is the humble beginnings of the creation of 'second-class' citizenship in this country," he argued.
Gun rights activists and conservative legal scholars frequently argue that regulations on firearms seek to interpret the 2nd Amendment as a "second-class" right.
Whitaker constitutionality challenge
In an unusual maneuver, Goldstein also used the case to raise the question of whether Trump's acting attorney general, Matthew Whitaker, was constitutionally appointed.
Trump appointed Whitaker in November after forcing out Jeff Sessions. Critics immediately pounced on the appointment, arguing that it was unlawful because Whitaker had not been confirmed by the Senate to the post he held at the time of his elevation to acting attorney general.
Goldstein made his client's gun rights case into a vehicle for resolving the issue and urged the justices to resolve both matters. He did so simply by asking the court to change the name of the case.
He asked the court to name the case Barry Michaels v. Rod Rosenstein, rather than Barry Michaels v. Matthew Whitaker. In briefs, Goldstein acknowledged that his argument was unusual but said he saw the issue as urgent.
"Yes, the Court can blink at that reality, decline to act, and move on," Goldstein wrote in one November brief. "But history will regret that it did."
The court declined Goldstein's request to change the name of the case in addition to the underlying 2nd Amendment question.
The Senate Judiciary Committee is scheduled to consider the nomination of William Barr, Trump's permanent attorney general nominee, during hearings starting Tuesday morning.