Flick v. Wilkinson

February 4, 2021 • Legal Briefs

Ken Flick is a notable inventor and entrepreneur, owning over 150 U.S. patents. He is active in his community and has donated millions of dollars to charity. Despite this, he has permanently lost his right to keep and bear arms from felony convictions in 1987 for counterfeiting and importing cassette tapes. 

According to federal law, a person convicted of a “a crime punishable by imprisonment for a term exceeding one year” is prohibited from possessing any firearm or ammunition. Because Ken’s convictions were punishable by over a year, he is forever prohibited from owning a gun.

He filed suit in federal court and argued that his Second Amendment rights should not have been stripped because he does not pose a threat to public safety. The Eleventh Circuit rejected his constitutional challenge. The panel relied on past precedent to hold that challenges to felon‐​in‐​possession prohibitions can’t be brought based on individual circumstances.

Cato, joined by the Reason Foundation, the Individual Rights Foundation, and the Independence Institute, filed an amicus brief to urge the Supreme Court to review Flick’s case. The question of who gets to possess firearms was left unsettled after Heller. The Eleventh Circuit and other courts do not permit as‐​applied challenges. Other circuits permit as‐​applied challenges; however, only the Third Circuit has found a single instance when the felon firearms ban unconstitutionally applied. This is because courts use an ahistorical “virtue” or “seriousness” test that disarms those who have committed a serious crime. Courts view the legislature’s designation of a crime as a felony as generally conclusive in determining seriousness. But there are many felonies—such as financial fraud, tax evasion, and other white‐​collar crimes—that do not indicate violent tendencies.

We ask the Court to treat the Second Amendment with the same respect that it gives to individual rights such as the First and Fourth Amendment. Felons have long been denied “collective” rights, such as voting and serving on a jury, which require citizens to act as part of a collective enterprise. But the Supreme Court has announced that the Second Amendment is an individual right. Therefore, courts err in using a collective‐​rights test to determine the scope of the Second Amendment. 

Looking at the felony label is a poor test to determine the seriousness of an offense as it is vague and manipulable. While the maximum punishment of a crime gives a sense for the crime’s seriousness, it treats all offenders the same without engaging in meaningful review. Moreover, legislatures possess the power to define the scope of the Second Amendment as courts defer to how legislatures label an offense. In an era of overcriminalization, this means that millions of individual’s rights to self‐​defense will be unconstitutionally removed. By using the virtue test, courts are not affording the Second Amendment its proper respect. The Court should overrule the Eleventh Circuit, clarifying that the Second Amendment cannot be treated as a second‐​class right.

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About the Authors
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.