Bench Memos

Law & the Courts

Judge Barrett’s Dissent in Second Amendment Case

Judge Amy Coney Barrett (University of Notre Dame/Handout via Reuters)

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. Both federal law and Wisconsin law bar a convicted felon from possessing a firearm.

On Friday, a Seventh Circuit panel ruled (in Kanter v. Barr) that the application of those federal and Wisconsin bars to Kanter did not violate his Second Amendment rights. In an impressive dissent (beginning here), Judge Amy Coney Barrett explained why she disagreed. From her opening paragraphs (emphasis in original):

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward— legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

[The federal and Wisconsin laws] would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter.… Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.

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