The Constitution treats felons’ gun rights and voting rights differently.
The Constitution treats felons’ gun rights and voting rights differently.
W hen you are convicted of a felony, you lose some of your civil rights. The government can lock you up. But not all rights are restricted in the same way. While you are imprisoned, even your personal, natural rights such as free speech and freedom from searches are more limited. Other consequences follow even after a criminal sentence is served. There are historical reasons why American law and the Constitution have not treated all of those consequences the same way. Free speech and the right against self-incrimination, for example, are fully restored once all aspects of a sentence are fully served. Felons’ rights to own guns and to vote are more restricted, but not in the same ways, and not for the same reasons. This is not something Amy Coney Barrett made up, and it does not reflect well on people who are mad at her for taking the law and history in this area seriously.
There has been a lot of talk at Judge Barrett’s confirmation hearings about her dissent last year in Kanter v. Barr, which argued that the Second Amendment places outer limits on the power of the federal and state governments to bar convicted felons from owning guns. Senator Dick Durbin seemed especially incredulous that Judge Barrett might conclude that the power to strip convicted felons of gun rights is in some ways more limited than the power to strip convicted felons of voting rights. Senator Cory Booker implied that this position is somehow racist. There is a fair disagreement over exactly what limits the Second Amendment places on the loss of gun rights on conviction of a felony. But Durbin, Booker, and other critics are simply ignoring the text and history of the Constitution.
The Kanter Case
Kanter involved a federal statute (and an essentially identical Wisconsin statute) that bars possession of a firearm by anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” or of a state misdemeanor punishable by two years in prison. The statute exempts a handful of non-violent business crimes such as antitrust-law crimes, but not fraud. It also exempts convictions that have been expunged or pardoned, or situations where the defendant “has had civil rights restored.” Individuals subject to the statute could apply individually to the attorney general for their gun rights to be restored on a case-by-case basis.
Rickey Kanter pleaded guilty to Medicare fraud arising from the sale of defective shoe inserts, a property crime that was non-violent, but certainly not harmless. He served a year and a day in prison and two years of supervised release, paid a $50,000 fine, and settled a civil case for $27 million. Kanter had paid his debt to society. There was no reason to think he was violent, but every reason to think he was dishonest and untrustworthy. Under the federal and Wisconsin statutes, he was permanently barred from owning a gun. He sued to challenge the restriction on his Second Amendment right to own a gun.
Under many states’ laws, Kanter would also be barred from voting. 48 states restrict the voting rights of convicted felons, but not all of them do so permanently. Under Wisconsin law, he would be disenfranchised only until his full sentence was completed, although he would need to re-register to vote. His federal lawsuit did not raise the issue of his voting rights.
The federal circuit courts are unanimous that the government has some power to bar convicted felons from owning guns, but they are divided on why, and on how far that power reaches. The Supreme Court has not yet ruled on this issue. In D.C. v. Heller, which recognized the individual Second Amendment right to bear arms, the Court assumed that laws barring felons from owning guns were valid in general and cautioned that it was not overturning those laws. However, nobody before the Court raised the issue directly, so it did not examine their scope.
Some circuits have held that convicted felons do not have any Second Amendment rights, because the right to bear arms was understood at the Founding to be limited to “virtuous citizens,” and so felons who were merely dishonest could lose their rights just as they could lose their right to vote or serve on a jury — duties of citizenship that were assumed to require integrity — for being dishonest. They would be excluded from the class of virtuous citizens, and that is that. Other circuits have held that the right to bear arms does not depend on any assumption of a virtuous citizenry, but is a personal, natural right such as the freedom of speech. Under this theory, felons do not automatically lose their rights, but the government can override their rights because it has a compelling interest in preventing unusually dangerous people from owning guns. Under this latter view, the government must then justify how it has identified dangerous people before restricting their constitutional rights.
The Seventh Circuit declined to decide, in Kanter, between the two standards, because it found that barring serious felons from owning guns was a reasonable way of identifying people too dangerous to own guns even under the latter standard. In part, this was a structural conclusion: The two judges in the majority believed that the courts were not well-equipped to decide which people would be dangerous, and so concluded that it was reasonable for Congress to draw a bright-line rule around all felons and everyone convicted of a misdemeanor serious enough to carry two years of jail time. That would leave particular injustices to be remedied by the attorney general, or by the pardon and clemency powers of the president and state governors. In support of the structural argument, the panel majority noted that Congress previously allowed exceptions to be granted by the Bureau of Alcohol, Tobacco, and Firearms, but repealed that process in 1995 after concluding that it was too difficult and time-intensive, and ended with too many felons having their rights restored and going on to commit violent gun crimes.
Judge Barrett Dissents
Judge Barrett agreed with the general consensus of the courts: “History is consistent with common sense: . . . Legislatures have the power to prohibit dangerous people from possessing guns.” But on the question that divides the circuits, she rejected the “virtuous citizens” theory. In Judge Barrett’s view, felons have personal, natural Second Amendment rights, and the question is whether and when the government has justified denying those rights:
A person convicted of a qualifying crime does not automatically lose his right to keep and bear arms but instead becomes eligible to lose it . . . Heller . . . interpreted the word “people” as referring to “all Americans” . . . Neither felons nor the mentally ill are categorically excluded from our national community. That does not mean that the government cannot prevent them from possessing guns. Instead, it means that the question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather than whether they possess the right at all.
Judge Barrett started with the analytical difficulty of fitting felons into a classification: Felons are not a fixed, unchanging group, any more than the mentally ill are. People can become felons. They can also cease to be convicted felons, if their convictions are overturned. But she also looked at the history.
This is where she compared the treatment of gun rights and voting rights in English and American constitutional text, including the federal Constitution itself. English law had recognized a more limited right to bear arms, and excluded suspect groups such as Catholics. English law did not disarm felons as such, but gave broad powers to the crown to disarm dangerous people, and some of those laws carried over into early colonial practice (including disarming disfavored groups such as slaves). Most felons in 17th-century England were executed, but this was less true in the colonies by the 1770s, so the Founding generation had more living men convicted of property crimes to deal with.
Then, the Founding generation began writing down rights in the federal and state constitutions, in order to give them more vigorous, uniform, and permanent protection. The Second Amendment says nothing about limiting the right to bear arms upon conviction of a crime. Neither did early state constitutional guarantees of gun rights (either the four enacted before 1791 or nine others enacted over the next three decades). Barrett identified three state ratifying conventions that entertained proposals to include such limits in the Second Amendment; none made it into the final text, and the only one of the three that had majority support at its ratifying convention (in New Hampshire) allowed Congress to disarm citizens who “are or have been in actual rebellion.” “Actual rebellion” against the government is fairly far removed from selling bogus shoe inserts.
By contrast, several of these same state constitutions explicitly barred convicted felons from voting. By 1857, 24 of the 31 state constitutions barred convicted felons from voting, and several of these banned them from jury service or being witnesses in court, other civic obligations that were presumed to require honesty. The existence of these provisions, by the way, shows the ahistorical nature of arguments that felon-voting bans were just invented to suppress the African-American vote; very few states had much of a free black voting population in 1857. The overwhelming majority of free convicted felons were thus white.
The idea of voting as essentially a privilege requiring virtue, rather than a natural, inalienable right, was consistent with the narrow scope of the franchise in the Founding era, when only property-holders could vote and, in many states, only white people. The original Constitution left most rules about voting to the states, and did not even mention individual voters. But even with the expansion to universal white male suffrage in the 1830s and the expansion of federal Constitutional guarantees of the vote (however poorly enforced) to black Americans after the Civil War, felons were still often barred from the right to vote. The 14th Amendment, ratified in 1868, threatened to reduce the representation in Congress of any states where “the right to vote [in federal elections is] denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime.”
This was the first time the Constitution mentioned a citizen’s right to vote, and it explicitly left out not only rebels but criminals. Three years earlier, convicts had also been exempted from the 13th Amendment’s ban on forced labor: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” The 14th Amendment’s exclusion was the reason why the Supreme Court, in Richardson v. Ramirez (1974), held that the California constitution’s felon-disenfranchisement rule did not violate the equal-protection clause of the same amendment. The Richardson Court noted that the list of states barring felons from voting had expanded to 29 out of 37 by 1868, and that the Congress at the time required former Confederate states applying for re-admission to Congress to show that they protected the right to vote to all (male, of-age) citizens “except such as may be disenfranchised for participation in the rebellion or for felony at common law.”
Justice William Rehnquist, who wrote the majority opinion in Richardson, struck down discriminatory disenfranchisement in Hunter v. Underwood (1985). Hunter overturned a provision of Alabama’s constitution — enacted in 1901 — that disenfranchised anyone convicted of any “crime of moral turpitude,” which covered many misdemeanors. The plaintiffs in Hunter had been convicted of passing worthless checks. Hunter did not, however, undermine Richardson’s approach to traditional felon disenfranchisement. The law in Hunter, unlike in earlier state constitutions (including Alabama’s 1875 constitution), was openly and avowedly intended to disenfranchise black voters in order “to establish white supremacy in this State,” and included many petty crimes (such as vagrancy, living in adultery, and miscegenation) while excluding more violent ones specifically because it was targeting crimes “believed by the delegates to be more frequently committed by blacks.”
In short, absent an extreme case such as Hunter, there is a long pedigree in the federal and state constitutions for explicit disenfranchisement of felons, and no similar basis in text for stripping felons of their Second Amendment rights, which has generally been seen as a matter of public safety rather than a categorical exclusion. The distinction is partly rooted in old ideas about the vote as a civic duty, and while it may seem odd to many Americans in 2020, it makes some sense. A vote, after all, is powerful only in combination with other votes in the community. A firearm for individual self-defense, by contrast, can make the difference between life and death all by itself. In frontier America, it frequently did. The household gun for self-defense was also often the only line of defense for black Americans during the very years when they were being terrorized out of the right to vote. The people who wrote the Second and 14th Amendments understood this.
The rest of Judge Barrett’s dissent dealt with the public-safety question: Was the federal statute too broad to identify dangerous people? As she noted, it “includes . . . selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses.” She contrasted this to other federal firearm bans specific to drug offenders (who are presumed to be more likely to be addicts prone to recidivism) or illegal aliens (who are presumed to be harder for law enforcement to track), and noted that the government relied on studies of violence by former convicted felons that did not separate out drug offenders. It may well be that the majority has the better argument about the institutional competence of courts and legislatures, but then, Judge Barrett did not foreclose the possibility that the government could come up with better evidence to support the law if it tried.
Either way, the distinction she drew between the traditional, textual treatment of convicted felons’ right to bear arms and their right to vote is nothing novel. It is well-grounded in American constitutional history and Supreme Court precedent, and in line with how some (though not all) federal circuits have viewed the Second Amendment. If that shocks the likes of Dick Durbin and Cory Booker, it is because they have not done their homework.