Bench Memos

Law & the Courts

Judicial Winning: Amy Coney Barrett

Amy Coney Barrett (The Federalist Society via YouTube)

Amy Coney Barrett, now a judge on the U.S. Court of Appeals for the Seventh Circuit, is well-known to conservatives. Many remember that during her confirmation, she endured an ugly episode of anti-Catholic bigotry at the hands of California senator Dianne Feinstein, who infamously said to the then-nominee: “The dogma lives loudly within you, and that’s of concern.”

Since taking the bench, Judge Barrett has been a champion of originalism.

In the 2019 case of Kanter v. Barr, Judge Barrett dissented from a panel opinion that turned away a nonviolent felon’s Second Amendment challenge to federal and state laws prohibiting him from owning a gun. The challenger argued that the laws — which ban all felons, violent and nonviolent, from gun possession — were too broad in that they swept in low-risk people like him (the man had been convicted of Medicare-related mail fraud).

The court sided instead with the government, holding that while the fit between the government objective of reducing violent crime and the group of people banned from obtaining guns was not perfect, it did not need to be a perfect fit. As the court held, “a reasonable fit” is all that was needed for the law to be constitutional — little solace for the individual dispossessed of his Second Amendment rights.

Judge Barrett disagreed, discussing the relationship between felons and the right to bear arms at the Founding, and showcasing a serious commitment to originalism as a means of finding the correct answer to a constitutional question.

Judge Barrett drew an important distinction between civic rights, such as voting and jury service, and individual rights such as possessing a gun. She noted that individuals exercise the right to vote and serve on juries not for their own sake, but “as part of the collective enterprise of self-governance [and] administering justice.” By contrast, as the Supreme Court found in the case of District of Columbia v. Heller, the Second Amendment confers an individual right to keep and bear arms, rooted in a right to self-defense. This raises the bar: The government can take away civic rights from “unvirtuous” citizens even if they are not dangerous, but individual rights are a different story.

Judge Barrett allowed that history “demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” but cautioned that the “power extends only to people who are dangerous.” That is not necessarily the same thing as “felon,” particularly nonviolent ones. And given that the government “failed to show, by either logic or data, that disarming [the plaintiff] substantially advances” an interest in protecting the public from gun violence, Judge Barrett would have found the law unconstitutional as applied to this particular person.

Happily, courts are becoming more vigilant against overly broad gun-control laws, even in places as unlikely as the Ninth Circuit. With President Trump’s transformation of the federal judiciary, expect arguments such as those in Judge Barrett’s Kanter dissent to win the day more often.

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