No. _________

In the Supreme Court of the United States
_______________
BARRY MICHAELS,
Petitioner,
v.
JEFFERSON B. SESSIONS III, ATTORNEY
GENERAL OF THE UNITED STATES, and
THOMAS E. BRANDON, as DEPUTY DIRECTOR,
HEAD OF THE BUREAU OF ALCOHOL,
TOBACCO, FIREARMS AND EXPLOSIVES,
Respondents.
________________
On Petition for a Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit
__________________
PETITION FOR A WRIT OF CERTIORARI
____________________
MICHAEL E. ZAPIN, ESQ.
Counsel of Record
20283 State Rd 7, Suite 400
Boca Raton, FL 33498
(561) 367-1444
michaelezapin@gmail.com

 i

QUESTIONS PRESENTED
Two important, unresolved federal questions arose
from this Court’s landmark decision, District of
Columbia v. Heller, 554 U.S. 570 (2008) (“Heller”
throughout). The questions resonate throughout the
circuit courts with uneven resolution and application,
adversely affecting millions of felons including
Petitioner, that have served their sentences and have
returned to free society, living responsible lives in full
compliance with the law. Depending on how these
questions are answered, determines whether a felon
is entitled to lodge an as-applied challenge to the
constitutionality of a felon disarmament law such as
18 U.S.C. §922(g)(1).
The questions presented are as follows:
1.
What does the phrase “law-abiding, responsible
citizens” mean?
2.
What does it mean to say that “longstanding
prohibitions on the possession of firearms by felons”
are “presumptively lawful regulatory measures?”

 ii

LIST OF PARTIES

Petitioner and Plaintiff below

•

Barry Michaels

Respondents and Defendants below

•
Jefferson B. Sessions III, Attorney General of
The United States (Successor to Lorretta Lynch –
originally named in U.S. District Court action)
•
Thomas E. Brandon, As Deputy Director, Head
of The Bureau Of Alcohol, Tobacco, Firearms And
Explosives

 iii

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ………………..……

i

LIST OF PARTIES ……………………………….

ii

TABLE OF AUTHORITIES ……………………..

v

OPINIONS BELOW ………………………………

1

JURISDICTION …………………………………..

1

CONSTITUTIONAL AND STATUTORY
PROVISIONS ……………………………………...

2

STATEMENT OF THE CASE ………………….

6

A. Statutory Background …………………. ..

6

B. Factual Background .…………………… ..

7

C. Proceedings Below …………………...…...

9

REASONS FOR GRANTING THE PETITION..

12

I. There are Conflicts Among the Courts of
Appeals as to Whether a Felon May Lodge
an As-Applied Challenge to The
Constitutionality of Felony Dispossession
Laws such as 18 U.S.C. §922(g)(1) ……...
12
A. The First Third, Seventh, Eighth
and D.C. Circuits permit (or would
permit) such as-applied
challenges …………………………… 12

 iv

B. The Fourth, Ninth and Tenth
Circuits reject such as-applied
challenges ……………………………

14

II. This is the Only Case to Come Up Before
this Court that Poses the Two Questions
Presented, and the Answers Will
Determine Whether Millions of Felons
Living Responsible Lives in Compliance
with the Law Have an Opportunity to
Prove Their Entitlement to the
Fundamental Second Amendment Right
in Defense of Hearth and Home ………

16

CONCLUSION …………………….……………

19

APPENDIX TABLE OF CONTENTS

Page
APPENDIX A - Ninth Circuit Court of
Appeals 3/29/2018 Order Denying Petition
for Rehearing. …………………………………….

1a

APPENDIX B - Ninth Circuit Court of
Appeals 4/6/18 Mandate …………………...…..

3a

APPENDIX C - Ninth Circuit Court of

 v

Appeals 11/3/17 Memorandum ………………..

5a

APPENDIX D - U.S. District Court
1/27/17 Judgment in a Civil Case …………….

8a

APPENDIX E - U.S. District Court of Nevada
1/26/17 Order Granting Motion to Dismiss,
Denying Counter-Motion to Amend ………….

10a

TABLE OF AUTHORITIES

Page
CASES
Binderup v. Atty. Gen.,
836 F.3d 336 (3d Cir. 2016) ………………………..

13

District of Columbia v. Heller,
554 U.S. 570 (2008) …………………………..

passim

Hamilton v Pallozzi,
848 F.3d 614 (2017) …….. ……………………..

14

In re United States,
578 F.3d 1195, 1200 (10th Cir. 2009) ……….

15

Schrader v. Holder,
704 F.3d 980, 992 (D.C. Cir. 2013) …………..
Sessions v Binderup,

14

 vi

No. 16-847 (June 26, 2017)

…………………

13

United States v. Barton,
633 F.3d 168, 174 (3d Cir.2011) ………………

14

United States v. Booker,
644 F .3d 12, 24 (1st Cir. 2011) ………………

6

United States v. Brown,
436 Fed.Appx. 725, 726 (8th Cir. 2011) ……..

14

United States v. Chovan,
735 F.3d 1127, 1136-38 (9th Cir. 2013) ………

12

United States v. McCane,
573 F.3d 1037 (10th Cir. 2009) …….…………

15

United States v. Phillips,
827 F.3d 1171, 1176 (9th Cir. 2016) ………

passim

United States v. Torres-Rosario,
658 F.3d 110 (1st Cir. 2011) …………………...

12

United States v Vongxay,
594 F.3d 1111 (9th Cir. 2010) …………..…

passim

United States v. Williams,
616 F.3d 685, 692 (7th Cir. 2010) …………

13

United States v. Woolsey,
759 F.3d 905, 909 (8th Cir. 2014) ………….

13

 vii

STATUTES
An Act to Strengthen the Federal Firearms Act
Federal Firearms Act of 1938, [18 U.S.C. §
922(g)(1)]5

…………………………………………… 7

5 U.S.C. §702 ………………………………………..2, 10
5 U.S.C. §703 …………………………………….…3, 10
15 U.S.C. §78 …………………………………………..…8
17 U.S.C. § 240.10b-5 …………………………………...8
18 U.S.C. §921(20) ……………………………………3, 7
18 U.S.C. §922(g)(1) .................……………..

passim

26 U.S.C. §7206(1) ………………………………….

8

28 U.S.C. §1331 ……………….………………………..10
28 U.S.C. §1343 ……………….………………………..10
28 U.S.C. § 1346 …………….………………………….10
28 U.S.C. § 2201(a) …………...……………………

10

28 U.S.C. §2202 ……….……………………………

10

Fed. R. Civ. P 12(b) ……………………………… 9, 10
Nev. Rev. Stat. Ann. §202.360(1)(b) ……………

10

 1

OPINIONS BELOW

Petitioner Barry Michaels (“Petitioner”) prays
that a writ of certiorari issue to review the judgment
in favor of respondents Jefferson B. Sessions III,
Attorney General of The United States and Thomas E.
Brandon, As Deputy Director, Head of The Bureau Of
Alcohol, Tobacco, Firearms And Explosives
(“Respondents”) below:
•
Michaels v. Sessions, et.al., No. 17-15279 (9th
Cir.) (November 3, 2017) (unreported) (App. 3a)
•
Michaels v. Lynch, et.al., 2:16-cv-00578-JADPAL (U.S. District Court of Nevada) (January 26,
2017) (unreported) (App 7a)

JURISDICTION
This Court’s jurisdiction is invoked under 28
U.S.C. § 1254(1). The Ninth Circuit Court of Appeals
entered its judgment on November 3, 2017 and denied
a petition for rehearing on March 29, 2018.

 2

CONSTITUTIONAL AND STATUTORY
PROVISIONS
•

U.S. Const. amend. 2

A well regulated militia being necessary to the
security of a free state, the right of the people to keep
and bear arms shall not be infringed.
•

5 U.S.C. § 702

A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof. An action in a court
of the United States seeking relief other than money
damages and stating a claim that an agency or an
officer or employee thereof acted or failed to act in an
official capacity or under color of legal authority shall
not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the
United States is an indispensable party. The United
States may be named as a defendant in any such
action, and a judgment or decree may be entered
against the United States: Provided, That any
mandatory or injunctive decree shall specify the
Federal officer or officers (by name or by title), and
their successors in office, personally responsible for
compliance. Nothing herein (1) affects other
limitations on judicial review or the power or duty of
the court to dismiss any action or deny relief on any
other appropriate legal or equitable ground; or (2)
confers authority to grant relief if any other statute

 3

that grants consent to suit expressly or impliedly
forbids the relief which is sought.
•

5 U.S.C. § 703

The form of proceeding for judicial review is the
special statutory review proceeding relevant to the
subject matter in a court specified by statute or, in the
absence or inadequacy thereof, any applicable form of
legal action, including actions for declaratory
judgments or writs of prohibitory or mandatory
injunction or habeas corpus, in a court of competent
jurisdiction. If no special statutory review proceeding
is applicable, the action for judicial review may be
brought against the United States, the agency by its
official title, or the appropriate officer. Except to the
extent that prior, adequate, and exclusive opportunity
for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal
proceedings for judicial enforcement.
•

18 U.S.C. §921(a)(20)(A)

(a) As used in this chapter—
(20) The term “crime punishable by imprisonment for
a term exceeding one year” does not include—
(A) any Federal or State offenses pertaining to
antitrust violations, unfair trade practices, restraints
of trade, or other similar offenses relating to the
regulation of business practices, or
(B) any State offense classified by the laws of the State
as a misdemeanor and punishable by a term of
imprisonment of two years or less.

 4

•

18 U.S.C. §922(g)(1)

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one
year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any
controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or
who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been
admitted to the United States under a nonimmigrant
visa (as that term is defined in section 101(a)(26) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(26)));
(6) who has been discharged from the Armed Forces
under dishonorable conditions;
(7) who, having been a citizen of the United States,
has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person
received actual notice, and at which such person had
an opportunity to participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or
child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner

 5

in reasonable fear of bodily injury to the partner or
child; and
(C)
(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate
partner or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such
intimate partner or child that would reasonably be
expected to cause bodily injury; or
(9) who has been convicted in any court of a
misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate
or foreign commerce.
•

18 U.S.C. §925(c)

(c) A person who is prohibited from possessing,
shipping, transporting, or receiving firearms or
ammunition may make application to the Attorney
General for relief from the disabilities imposed by
Federal laws with respect to the acquisition, receipt,
transfer, shipment, transportation, or possession of
firearms, and the Attorney General may grant such
relief if it is established to his satisfaction that the
circumstances regarding the disability, and the
applicant’s record and reputation, are such that the
applicant will not be likely to act in a manner
dangerous to public safety and that the granting of
the relief would not be contrary to the public interest.

 6

Any person whose application for relief from
disabilities is denied by the Attorney General may file
a petition with the United States district court for the
district in which he resides for a judicial review of
such denial. The court may in its discretion admit
additional evidence where failure to do so would
result in a miscarriage of justice. A licensed importer,
licensed manufacturer, licensed dealer, or licensed
collector conducting operations under this chapter,
who makes application for relief from the disabilities
incurred under this chapter, shall not be barred by
such disability from further operations under his
license pending final action on an application for relief
filed pursuant to this section. Whenever the Attorney
General grants relief to any person pursuant to this
section he shall promptly publish in the Federal
Register notice of such action, together with the
reasons therefor.

STATEMENT OF THE CASE
A.

Statutory Background

1.
"Enacted in its earliest incarnation as the
Federal Firearms Act of 1938, [18 U.S.C. § 922(g)(1)]
initially covered those convicted of a limited set of
violent crimes such as murder, rape, kidnapping, and
burglary, but extended to both felons and
misdemeanants convicted of qualifying offenses."
United States v. Booker, 644 F .3d 12, 24 (1st Cir.
2011), cert. denied, 132 S. Ct. 1538 (2012) (citations
omitted); see Federal Firearms Act, ch. 850, §§ 1(6),
2(f) Pub. L. No. 75-785, 52 Stat. 1250,1250-51 (1938).

 7

2.
In 1961, Congress amended this Act to prohibit
"any person . . . convicted of a crime punishable by
imprisonment for a term exceeding one year" from
"receiv[ing] any firearm or ammunition which has
been shipped or transported in interstate or foreign
commerce." See An Act to Strengthen the Federal
Firearms Act, Pub. L. No. 87-342,75 Stat.757 (1961);
H.R. Rep. No. 87-1202, at 4-5 (1961).
3.
These prohibitions are codified at 18 U.S.C.
§922(g)(1), which, as amended, prohibits "any
person . . . who has been convicted in any court of, a
crime punishable by imprisonment for a term
exceeding one year" from possess[ing] in or affecting
commerce, any firearm or ammunition."
4.
Excluded from the term “crime punishable by
imprisonment for a term exceeding one year” are “any
Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade,
or other similar offenses relating to the regulation of
business practices,” or “any State offense classified by
the laws of the State as a misdemeanor and
punishable by a term of imprisonment of two years or
less,” and “[a]ny conviction which has been expunged,
or set aside or for which a person has been pardoned
or has had civil rights restored shall not be considered
a conviction for purposes of [the statute], unless such
pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship,
transport, possess, or receive firearms,” 18 U.S.C.

 8

§921(20).
B.

Factual Background

1.
In or about 1973, Petitioner pleaded guilty to
one count of mail fraud for falsifying information on a
credit application for American Express, that involved
approximately six thousand five hundred dollars.
Petitioner pleaded guilty in federal court and was
sentenced to three years’ probation.
2.
Subsequently, in or about 1975, Petitioner
pleaded guilty in state court to one count for kiting
checks – creating a liability owing to Bank of America
in the sum of approximately five to seven thousand
dollars. Although Petitioner’s sentence in the state
court proceeding did not require him to serve any time,
it violated Petitioner’s federal probation, which
triggered an approximate four-month period of
incarceration.
3.
On May 6, 1998, Petitioner pleaded guilty to
one count of securities fraud, in violation of 15 U.S.C.
§§ 78j(b) and 78ff, and 17 U.S.C. § 240.10b-5; and to
one count of subscribing to a false tax return, in
violation of 26 U.S.C. §7206(1). Judgment and
Probation/Commitment Order, United States v.
Michaels, No. 2:97-cr-00799 (C.D. Cal. May 11, 1998).
Petitioner was sentenced to 21 months’ imprisonment,
serving 15, at the Nellis Federal Prison Camp in
North Las Vegas, Nevada, and three years of
supervised release.

 9

4.
Since serving his last sentence nearly twenty
years ago, Petitioner has been responsible and living
his life in compliance with the law. Petitioner earned
his Bachelor of Arts Degree in political science in 2005,
and a Master of Arts Degree in public administration
in 2007, both from the University of Las Vegas.
5.
Petitioner has been involved in small
businesses, has assisted others in developing their
own small business, and has made multiple attempts
for Congress in Nevada’s 3rd Congressional District.
Petitioner is currently an Independent candidate for
the U.S. Senate in this 2018 election.
6.
As a person gaining some notoriety in the
public eye, Petitioner desires to purchase a firearm for
self-defense in his home but refrains from doing so
only because he reasonably fears criminal prosecution
under 18 U.S.C. § 922(g)(1). It is for this reason that
Petitioner filed his underlying action against the
government.
C.

Proceedings Below

1.
In March of 2016, Petitioner filed his complaint
against the Respondents in the U.S. District Court of
Nevada, alleging among other things, that 18 U.S.C.
922(g)(1) was unconstitutional as applied to him as it
unfairly infringed upon his fundamental Second
Amendment right to defend himself in his home.
2.
Respondents filed a motion to dismiss the
complaint, pursuant to Fed. R. Civ. P 12(b)(1) for lack

 10

of subject matter jurisdiction, and 12(b)(6) for failure
to state a claim on which relief could be granted.
3.
Petitioner cross-moved to amend his complaint
to, among other things, name appropriate State
Officials and to articulate appropriate causes of action
against them in their official capacities, to obtain
complete legal redress. Petitioner asserted that Nev.
Rev. Stat. Ann. § 202.360(1)(b) violated Petitioner’s
fundamental Second Amendment rights in similar
fashion to 18 U.S.C. 922(g)(1).
4.
Although Petitioner’s underlying complaint
had asserted the District Court had jurisdiction
pursuant to 28 U.S.C. §§ 1331, 1343(a)(1), 1346(a)(2),
2201(a) and 2202, Petitioner also sought by his crossmotion to assert waiver of immunity, which Petitioner
alleged existed pursuant to 5 U.S.C. §§702-703.
5.
The District Court granted Respondents’
motion to dismiss and denied Petitioner’s crossmotion to amend, finding that Petitioner’s claims
failed as a matter of law. (App.7a)
6.
Relying upon District of Columbia v. Heller,
554 U.S. 570 (2008) and Ninth Circuit precedent,
United States v Vongxay, 594 F.3d 1111 (9th Cir.
2010); United States v. Phillips, 827 F.3d 1171, 1176
(9th Cir. 2016), the District Court found that
Petitioner’s “as applied” challenge was foreclosed, on
the premise and precedent that “felons are
categorically different from individuals who have a

 11

fundamental right to bear arms,” United States v.
Vongxay, 594 F.3d 1111 (9th Cir. 2010).
7.
The District Court stated, “Though the Phillips
court noted that there may be some ‘good reasons to
be skeptical about the correctness of the current
framework of analyzing the Second Amendment
rights of [all] felons,’ it concluded that it was bound by
Heller and Vongxay and upheld the defendant’s
§922(g)(1) conviction.”
8.
Since the District Court deprived Petitioner of
any opportunity to come forward with evidence to
illustrate his trustworthiness for having a firearm in
his home for self-defense as based on his approximate
twenty-year history of living a productive, responsible
life in compliance with the law, Petitioner appealed to
the Ninth Circuit Court of Appeals.
9.
The Ninth Circuit, in its November 3, 2017
Memorandum Opinion (App. 3a), found that the
District Court properly dismissed Petitioner’s action,
since its “prior precedent forecloses [Petitioner’s] asapplied challenge to §922(g)(1)” (relying upon United
States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010)
stating that “felons are categorically different from
the individuals who have a fundamental right to bear
arms,” and upholding § 922(g)(1) against a Second
Amendment challenge; also United States v. Phillips,
827 F.3d 1171, 1174-75 (9th Cir. 2016), rejecting as
foreclosed by precedent the argument that imposing §
922(g)(1) on non-violent felons violates the Second
Amendment).

 12

10.
The Ninth Circuit also rejected as meritless,
Petitioner’s contention that the District Court
committed reversible error by failing to apply strict
scrutiny, relying upon United States v. Chovan, 735
F.3d 1127, 1136-38 (9th Cir. 2013) (holding that a
statute “does not implicate this core Second
Amendment right [if] it regulates firearm possession
for individuals with criminal convictions”).
11.
Petitioner petitioned for panel rehearing and/or
rehearing en banc, and same was denied by the Court
on March 29, 2018. (App. 1a)
REASONS FOR GRANTING THE PETITION
I. There are Conflicts Among the Courts of
Appeals as to Whether a Felon May Lodge an AsApplied Challenge to the Constitutionality of
Felony Dispossession Laws such as 18 U.S.C.
§922(g)(1).
A. The First, Third, Seventh, Eighth and D.C.
Circuits permit (or would permit) such asapplied challenges.

The First Circuit Court in United States v.
Torres-Rosario, 658 F.3d 110 (1st Cir. 2011), opined
that “given ‘the presumptively lawful’ reference in
Heller, the Supreme Court may be open to claims that
some felonies do not indicate potential violence and
cannot be the basis for applying a categorical ban.”

 13

The Third Circuit in Binderup v. Atty. Gen., 836
F.3d 336 (3d Cir. 2016) (en banc), petition for
certiorari denied, Sessions v Binderup, No. 16-847
(June 26, 2017), affirmed two lower court judgments
that
upheld
as-applied
challenges to
the
constitutionality of 18 U.S.C. §922(g)(1), finding that
the statute unlawfully infringed upon the Second
Amendment rights of both challengers. Although the
challengers’ underlying offenses were considered
felonies under the federal statute, the court went to
great lengths to distance the challengers from more
“serious” felons, rationalizing that under the state
court framework, the crimes committed were not that
serious, constituting just misdemeanors, although
admittedly, potentially punishable by three to five
years of imprisonment. Propensity for violence (or
lack thereof) was a significant factor in the court’s
decision to affirm.
The Seventh Circuit in United States v.
Williams, 616 F.3d 685, 692 (7th Cir. 2010), relying
upon Heller, found that felon disarmament bans were
only “presumptively lawful,” meaning that “there
must exist the possibility that the ban could be
unconstitutional in the face of an as-applied
challenge.”
The Eighth Circuit in United States v. Woolsey,
759 F.3d 905, 909 (8th Cir. 2014), was dealing with a
violent offender, and although it rejected the
challenger’s as-applied challenge, it did so because
the challenger had failed to present facts about
himself and his background that distinguished his

 14

circumstances from those of persons historically
barred from Second Amendment protections and did
not allege, e.g., that his prior felony conviction was for
a nonviolent offense or that he is was no more
dangerous than a typical law-abiding citizen (relying
upon United States v. Brown, 436 Fed.Appx. 725, 726
(8th Cir. 2011) (per curiam) (unpublished) and United
States v. Barton, 633 F.3d 168, 174 (3d Cir.2011)).
The D.C. Circuit in Schrader v. Holder, 704
F.3d 980, 992 (D.C. Cir. 2013), was grappling with
“common law misdemeanants” as the challengers, and
although it held that “disarmament of common-law
misdemeanants as a class is substantially related to
the important governmental objective of crime
prevention, we reject plaintiffs' constitutional
challenge,” the court opined that “[w]ithout the relief
authorized by section 925(c), the federal firearms ban
will remain vulnerable to a properly raised as-applied
constitutional challenge brought by an individual who,
despite a prior conviction, has become a "law-abiding,
responsible citizen entitled to ‘use arms in defense of
hearth and home. Heller, 554 U.S at 635, 128 S.Ct.
2783.’”
B. The Fourth, Ninth and Tenth Circuits reject
such as-applied challenges.

The Fourth Circuit in Hamilton v Pallozzi, 848
F.3d 614 (2017), held that “conviction of a felony
necessarily removes one from the class of ‘law-abiding,
responsible citizens’ for the purposes of the Second

 15

Amendment,” absent certain narrow exceptions (e.g.,
being pardoned). “A felon cannot be returned to the
category of ‘law-abiding, responsible citizens’ for the
purposes of the Second Amendment” and “evidence of
rehabilitation, likelihood of recidivism, and passage of
time are not bases for which a challenger might
remain in the protected class of ‘law-abiding,
responsible citizen.’”
The Ninth Circuit in Petitioner’s own case
below, held that “felons are categorically different
from individuals who have a fundamental right to
bear arms,” relying upon United States v Vongxay,
594 F.3d 1111 (9th Cir. 2010); United States v.
Phillips, 827 F.3d 1171, 1176 (9th Cir. 2016), and
rejected Petitioner’s as-applied challenge as
“foreclosed” by such precedent.
The Tenth Circuit in the case of In re United
States, 578 F.3d 1195, 1200 (10th Cir. 2009) (citing
United States v. McCane, 573 F.3d 1037 (10th Cir.
2009)) stated, “We have already rejected the notion
that Heller mandates an individualized inquiry
concerning felons pursuant to § 922(g)(1).”
These cases demonstrate a level of disparity in
the due process afforded felons that lodge as-applied
challenges. The case sub judice presents this Court
with a pressing need and an opportunity to provide
uniformity among the circuits as to the redress to be
afforded a felon such as Petitioner.

 16

II. This is the Only Case to Come Up
Before this Court That Poses the Two Questions
Presented, and the Answers Will Determine
Whether Millions of Felons Living Responsible
Lives in Compliance with the Law Have an
Opportunity to Prove Their Entitlement to the
Fundamental Second Amendment Right in
Defense of Hearth and Home
Heller spoke about two very important
presumptions. The first, is a strong presumption that
the Second Amendment right is exercised individually
and belongs to all Americans. The second, is that
longstanding prohibitions on the possession of
firearms by felons are presumptively lawful
regulatory measures.
It is axiomatic that when speaking of a simple
“presumption” - strong or otherwise - there is an
opportunity to overcome it. If there is not, then it isn’t
a presumption at all, but rather, a conclusion. And
there is hardly an opportunity that can ever be
experienced, without some burden of effort.
Heller chose its words carefully, when labelling
its propositions as presumptions rather than as
conclusions. This Court wisely left the door open on
both counts, presenting the legion of lower courts and
the parties that come before them, with opportunities
to make the case as to why a particular American
would or would not be excluded from those that have
a fundamental Second Amendment right, and equally,

 17

opportunities to make the case as to why a
presumptively lawful prohibition on the possession of
firearms by felons might or might not be
unconstitutional as applied to a particular felon.
The caveat to the first strong presumption that
the Second Amendment right (at its core) belongs to
all Americans, is that any particular American would
have to be “law-abiding and responsible.”
As a threshold determination, we are a country
with only one class of citizenship. There are no special
carveouts for felons. They are included in that class,
assuming they are otherwise American.
It is the caveat where things get a bit thorny.
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.
Their logic dictates that because an individual felon is
a part of that class, no matter how non-violent his
individual underlying felony was, no matter how
strictly in compliance with the law he has lived his
individual life since completion of his sentence, no
matter how many years he has lived his individual life
in such strict compliance, no matter how productive
he has individually spent his time - perhaps in great
service to his community or in great accomplishment
for the benefit of all mankind, no matter how
responsible the office he now individually holds – he
could be chauffeuring the Pope in the Vatican City; he
could even be the President of the United States

 18

(Petitioner himself is presently running for a U.S.
Senate seat) - none of this matters. He will never,
ever be law-abiding and responsible in the eyes of
their law. It is the humble beginnings of the creation
of “second-class” citizenship in this country.
This Honorable Court is not so short-sighted.
Heller was a labor of great vision.
If the
presumptions enunciated in Heller mean anything at
all, they mean that before the government can strip
away
an
individual’s
fundamental
Second
Amendment right, it must meet the burden of that
opportunity by presenting personal facts and personal
circumstances surrounding the individual it is
targeting. Merely providing a historical analysis of
how felons as a class were perceived or treated under
the law, falls way short of the mark.
After all, the presumption of validity that
Heller pointedly speaks to, is one that concerns felon
disarmament laws. There is no reason to believe that
a challenger would be anyone other than a felon, and
Heller had to implicitly recognize this.
In barring individual felons from lodging asapplied challenges to the constitutionality of felon
disarmament laws such as 18 U.S.C. §922(g)(1), those
courts that do so give the government a free pass or
an opportunity without an attendant burden, ignoring
what is really a mandate of Heller.

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Heller of course, did not involve the various
plights of felons, and a more in-depth analysis of those
plights was simply not called for in the Heller case.
The Barry Michaels case, however, is ripe for
such attention.
CONCLUSION
Petitioner respectfully requests this Court to
grant this petition for writ of certiorari.
Respectfully Submitted,
MICHAEL E. ZAPIN, ESQ.
Counsel of Record
20283 State Rd 7, Suite 400
Boca Raton, FL 33498
(561) 367-1444
michaelezapin@gmail.com