Bench Memos

Law & the Courts

Judge Barrett on the Second Amendment

(Carlos Jasso/Reuters)

Judge Amy Coney Barrett’s impressive dissent in Kanter v. Barr (pp. 27-64) illustrates both her fidelity to the Supreme Court’s landmark Second Amendment ruling in District of Columbia v. Heller (2008) and her masterful application of the constitutional methodology of originalism.

Rickey I. Kanter pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. As a convicted felon, he was categorically prohibited by federal law and Wisconsin law from possessing a firearm. When he argued that the Second Amendment did not allow those laws to be applied against him, the panel majority rejected his claim.

Based on her extensive marshalling and analysis of the historical evidence, Judge Barrett concludes that the Second Amendment leaves legislatures the power to prohibit dangerous people from possessing guns but that felons do not lose their Second Amendment rights solely because of their status as felons. The federal government and the state of Wisconsin failed to show that disarming all nonviolent felons is carefully tailored to the goal of protecting public safety, nor did they show that mail fraud is substantially related to violent behavior. They also failed to demonstrate that anything else in Kanter’s history or characteristics made him likely to misuse firearms. Therefore, they could not bar him from possessing a firearm.

Most Popular

Elections

Vote Your Conscience

At the 2016 Republican convention, Senator Ted Cruz spoke a controversial phrase: “vote your conscience.” I think about this phrase, this idea, fairly often. I’m not one to give advice on voting (or much else). But when asked for advice, I usually say, “Vote your conscience.” Sweet conscience! One of ... Read More
Elections

Vote Your Conscience

At the 2016 Republican convention, Senator Ted Cruz spoke a controversial phrase: “vote your conscience.” I think about this phrase, this idea, fairly often. I’m not one to give advice on voting (or much else). But when asked for advice, I usually say, “Vote your conscience.” Sweet conscience! One of ... Read More
Music

Stevie Nicks, Like Springsteen, Preaches and Preens

In the 1970s, Stevie Nicks and Bruce Springsteen made impressions on pop-music culture with romantic rock landmarks, Fleetwood Mac’s Rumours album and Springsteen’s Born to Run. But their new 2020 releases, Nicks’s single “Show Them the Way” and Springsteen’s Letter to You film and album, make the ... Read More
Music

Stevie Nicks, Like Springsteen, Preaches and Preens

In the 1970s, Stevie Nicks and Bruce Springsteen made impressions on pop-music culture with romantic rock landmarks, Fleetwood Mac’s Rumours album and Springsteen’s Born to Run. But their new 2020 releases, Nicks’s single “Show Them the Way” and Springsteen’s Letter to You film and album, make the ... Read More
Law & the Courts

Avoiding Judicial Armageddon

This month marks the 58th anniversary of the Cuban Missile Crisis, the geopolitical showdown between the United States and the Soviet Union that brought the world to the brink of nuclear annihilation. We are here today only because cooler heads prevailed in that conflict, leading to the Kennedy-Khrushchev Pact ... Read More
Law & the Courts

Avoiding Judicial Armageddon

This month marks the 58th anniversary of the Cuban Missile Crisis, the geopolitical showdown between the United States and the Soviet Union that brought the world to the brink of nuclear annihilation. We are here today only because cooler heads prevailed in that conflict, leading to the Kennedy-Khrushchev Pact ... Read More
Law & the Courts

The Kavanaugh Court

If Justice Barrett votes as her mentor Justice Scalia did, she will be part of an ascendant conservative majority on the Supreme Court. What kinds of decisions can we expect from this majority? Short answer: Ask Brett Kavanaugh. Contrary to how journalists frame each seat change on the Court, comparing the new ... Read More
Law & the Courts

The Kavanaugh Court

If Justice Barrett votes as her mentor Justice Scalia did, she will be part of an ascendant conservative majority on the Supreme Court. What kinds of decisions can we expect from this majority? Short answer: Ask Brett Kavanaugh. Contrary to how journalists frame each seat change on the Court, comparing the new ... Read More