December 6, 2017 5:29PM

Supreme Court Continues Its Gun‐​Shy Ways

By Trevor Burrus and Matthew Larosiere

Over a decade ago, James Hamilton was convicted of a felony in Virginia, for which he served no jail time. Since then, the state of Virginia has restored all of his civil rights, including the right to possess firearms. In the years since then, Hamilton has worked as an armed guard, firearms instructor, and protective officer for the Department of Homeland Security. Despite never exhibiting any violent tendencies and leading a stable family, the state of Maryland, where Hamilton now resides, forbids him from possessing firearms because of that decade-old Virginia conviction.

Hamilton challenged Maryland’s absolute prohibition on the possession of firearms by felons as applied to him, arguing that, while there may be reasons for forbidding some felons from owning firearms, the prohibition made no sense when applied to him, a person who committed a non-violent felony over a decade ago. The Fourth Circuit, however, decided that Hamilton was not eligible to bring an as-applied challenge to Maryland’s law, leaving states in the Fourth Circuit wide latitude to abuse the constitutional rights of a huge class of citizens and leaving those citizens with no way to vindicate their rights.

On petition to the Supreme Court, Cato submitted a brief as amicus curiae, arguing for the court to hear Hamilton’s case. We argued that, by allowing the Fourth Circuit to defer to state legislatures in defining who is and is not entitled to Second Amendment protection, the Fourth Circuit allowed Maryland to define the scope of a constitutional right, in direct contravention of Supreme Court precedent, specifically Heller. In general, lower courts have shown tremendous zeal in treating the Second Amendment as a second-class right—even after Heller and McDonald—and those concerns are magnified here, where the Fourth Circuit ruled that a person cannot even bring an as-applied challenge to a law that burdens the exercise of a constitutional right. The Fourth Circuit justified its position by quoting Supreme Court language referring to felon-in-possession bans as “presumptively constitutional.” However, that is not how the Fourth Circuit has treated this law. A restriction that is not capable of being defeated is not “presumptively lawful,” it is absolutely and inviolably lawful, and thus we urged the Supreme Court to step in and rein in this abuse by the lower court. The Supreme Court declined.

Hamilton is another in a long line of Second Amendment cases that the Supreme Court has refused to hear, including one just last week challenging Maryland's "assault weapons" ban. Hamilton is particularly unfortunate because, if taken far enough, states could deny large portions of their citizens the right to keep and bear arms without any way to remedy their loss. Hamilton’s case was a great vessel for the Supreme Court to clarify Heller and McDonald and finally force the circuit courts to make Second Amendment decisions with some modicum of consistency. A decade-old, non-violent, non-firearm-related felony for which Hamilton served no time is no reason to strip him of the basic human right of effective self-defense.