Bench Memos

Law & the Courts

Re: Judge Barrett on the Second Amendment

In this post, I briefly outlined Judge Amy Coney Barrett’s impressive dissent in Kanter v. Barr, in which she determined that categorical bans on a felon’s possession of firearms could not be applied to Rickey Kanter, who had 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. Barrett concluded that the federal government and the state of Wisconsin had failed to show that their categorical bans could be applied against all nonviolent felons or that there was anything in Kanter’s history or characteristics that indicated that he was likely to misuse firearms.

Having run across various distortions of Barrett’s position, I will go a bit deeper in this post.

1. In District of Columbia v. Heller (2008), Justice Scalia stated in his majority opinion:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In a footnote appended to that sentence, he referred to “these presumptively lawful regulatory measures.”

2. The panel majority in Kanter observed that the Court in Heller “never actually addressed the historical pedigree of felon possession laws” and that the Seventh Circuit had “refused to read too much into the Court’s ‘precautionary language.’” (P. 15.) It expressly acknowledged that the Seventh Circuit is among the several federal appellate courts that “have left room for as-applied challenges” to the federal ban on firearm possession by a felon. Indeed, it cited and quoted Seventh Circuit precedent for the proposition that “[W]e recognize that § 922(g)(1) [the federal ban] may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.” (P. 10.)

The panel majority recognized that whether nonviolent felons as a class historically enjoyed Second Amendment rights was an open question:

The first question is whether nonviolent felons as a class historically enjoyed Second Amendment rights. Heller did not answer this question. [P. 14.]

The panel majority ultimately concluded that it “need not resolve this difficult question.” (P. 19.) It instead proceeded on the assumption that nonviolent felons have Second Amendment rights and held that the felon-dispossession statutes satisfy intermediate scrutiny and can therefore be applied against Kanter. (Pp. 19-26.)

3. Garrett Epps (whose misrepresentation of Barrett’s position on stare decisis I’ve already refuted) is simply wrong when he claims that Barrett “asserted that Heller didn’t really mean that felon possession laws were constitutional.” (His emphasis.) The question in the case was not whether the laws were constitutionally permissible; it was instead whether the constitutionally permissible laws could be applied against Kanter. Under Barrett’s position, the laws remain enforceable against violent felons as well as against any subcategory of nonviolent felons whose convictions can be shown to be “substantially related to violent behavior” and against any nonviolent felon whose other personal circumstances or characteristics indicate that he would pose a risk to public safety if he possessed a gun.

Indeed, as Barrett points out, her historical analysis indicates that the category of persons who can be disarmed is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” (My emphasis.)

I’ve seen various other claims that Barrett somehow disregards Heller’s statement that felon-dispossession statutes are “presumptively lawful.” Not so. She addresses that statement for a full page (p. 32) and concludes, like the majority, that that statement provides only “a place to start”: “I agree with the majority that Heller’s dictum does not settle the question before us.”

4. Tweeting on the Kanter case, liberal Second Amendment scholar Adam Winkler has stated that he “agree[s] with Barrett” and has “argued that blanket bans on firearm possession by felons goes too far. Some felonies do not suggest violent tendencies (think of Martha Stewart), and the interest in public safety is not advanced by denying those people their rights.” (In the same tweet thread, he says that theirs is not the “mainstream” position among judges who have ruled on the question so far.) Liberal law professor Alan Morrison expressed a similar agreement with Barrett in this recent Federalist Society panel discussion.

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