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.

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