Hypo #3: Lochenloade, Petitioner v. District of Columbiana, Respondant

Proposed Resolution

This court is called upon to decide the issue:
Does Columbiana's current law, requiring a ten-year waiting period after committing a felony, deny Mr. Lochenloade of his Second Amendment rights?

I

Heath Lochenloade was convicted of committing a felony within the District of Columbiana. His felony was not among those excluded by statute from applying for reinstatement of rights lost as a result of his conviction. Per statute, Mr Lochenloade is eligible to apply for restoration of rights at the end of the ten-year waiting period. At the present time, Mr Lochenloade is approximately half way through the required waiting period.

Mr Lochenloade filed suit in the District Court for the Western District of Columbiana alleging that "Columbiana's law requiring a felon to submit an application for clemency to restore gun rights ...violate[s] that individual's Second Amendment rights." The court decided that the requirement to file an application grants the government excessive discretion.

Upon appeal by the government, the trial court was reserved.

Mr Lochenloade filed a writ of certiorari. The writ has been granted.

II A

As Justice Scalia stated in District of Columbia v. Heller, 554 U.S. 570 (2008), Justice Alito reiterated in McDonald v. City of Chicago, 561 U.S. 742 (2010), and Justice Kavanaugh restated in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022): "... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, ...." Ibid. (Kavanaugh J. concurring).

There is no constitutional impediment to state legislature prohibiting felons from possessing firearms.

II B

The trial court's concern regarding excessive government discretion in issuing a firearms license is well founded. In Bruen,, this court distinguished between "shall issue" and ' “may issue” licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license.' Ibid.. In Bruen, the issue was the discretion exercised in determining whether or not the applicant met the "proper-cause" requirement of the “may issue” licensing laws.

Per State of Columbiana statute, firearms restrictions for felons are non-discretionary. The statute stipulates a ten-year waiting period without exception.

At the present time, Mr Lochenloade is ineligible to file an application for restoration of firearm rights as the ten-year waiting period has not expired.

II C

The powers to define felonies and the associated penalties are reserved to the States by the Tenth Amendment. The legislature of the State of Columbiana has defined the value of goods stolen for a felony offense and the penalties upon conviction. State legislature defined felony penalties may include: loss of property (fines), loss of liberty (imprisionment), and disenfranchisement, in addition to loss of firearms. In ten states, disenfranchisement is permnament. The imposition of a ten-year waiting period is a penalty imposed by the state legislature.

State legislature determination of felonies and their penalties is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) These are political questions over which the courts have no jurisdiction.

III

The ten-year waiting period does not deny Mr Lochenloade his Second Amendment rights.

The ruling of the Court of Appeals is affirmed.