Judge Barrett on Gun Rights

Judge Barrett wrote only a single opinion directly addressing gun rights. Her opinions in other cases – particularly Biegert v. Molitor, United States v. Watson, United States v. Moody, and United States v. Briggs – might also indicate her views on legal issues relating to gun rights.

Kanter v. Barr (2019)

Judge Barrett placed this case first on her list of the most important opinions she wrote as a judge of the Court of Appeals for the 7^th Circuit. She described the opinion as follows:

Rickey Kanter challenged the application of federal and state felon dispossession laws to prevent him—a nonviolent offender—from owning a firearm, arguing that these laws violated his Second Amendment rights. He had previously been convicted of mail fraud for selling therapeutic shoe inserts while misrepresenting them as Medicare-approved. A panel of the Seventh Circuit held that the application of the statutes was substantially related to the important governmental objective of preventing gun violence. I dissented. Looking to the Founding-era history, l explained that legislatures have the power to prohibit dangerous people from possessing guns, but that power extends only to people who are dangerous, not to nonviolent felons like Mr. Kanter.

[2020 Questionnaire at 30-33]

Rickey Kanter had once run a company that manufactured special shoe inserts for those with specific medical needs. Most of his products were paid for by Medicare. Many of those were not up to Medicare’s standards and Medicare had previously refused to buy them. Nevertheless, Mr. Kanter continued to sell them to Medicare patients, falsely representing them as Medicare approved. When he was found out, Mr. Kanter had pleaded guilty to a count of mail fraud and been sentenced to a year and a day in prison (as well as to two years of supervised release and to pay a lot of money). [4-5] He had committed no crimes before that and, several years later, had not been convicted of any further crimes. [5, 23] Yet because he had been convicted of mail fraud, which is a felony, he was not legally permitted to own a gun.

Kanter sued to change that. 18 U.S.C. § 922(g) prohibited anybody who had been imprisoned for more than a year from possessing or receiving a firearm. Although there were exceptions, none applied to Kanter. Likewise, Wisconsin law (Wis. Stat. § 941.29(1m)) rendered it unlawful for a convicted felon to own a gun. [2-4] Kanter sued, arguing that these laws violated the Second Amendment as they applied to him. Judge William Griesbach granted summary judgment for the federal government, holding that the felon dispossession laws were justified by the government’s interest in preventing gun violence. [5-6]

The question before the Court of Appeals for the 7^th Circuit was simple: did the Second Amendment permit the government to prohibit Mr. Kanter from owning any firearms? No court of appeals had ever found the felon dispossession law facially unconstitutional. [8] Many circuits had held that the law was constitutional under all circumstances. [9] Three other circuits had permitted challenges to particular applications of the law but never actually found it to be unconstitutional. [10-11] In just one case, Binderup v. Attorney General, had a court of appeals found the statute to be unconstitutional as applied. [11-14] The 7^th Circuit itself had never upheld such a challenge [11] but it had developed a framework for evaluating them. First, the Court analysed whether an activity was protected by the Second Amendment. If it possibly was, the Court required the government to justify the burden on Second Amendment rights, with a rigorousness that depended on how strongly protected the activity was. [6-8]

Both the majority of this panel and the dissent applied the same framework. Judge Flaum, writing for the majority, held that this statute was constitutional as applied to Mr. Kanter. Judge Barrett dissented, arguing that it was not. Rather than describing the opinions sequentially, it would be better to compare the two.

The first question was whether the activity in question, firearm possession by a non-violent felon, was protected by the Second Amendment. More simply, were felons categorically precluded from the exercise of Second Amendment rights? Neither the majority nor Judge Barrett placed too much weight on the Supreme Court’s statements in District of Columbia v. Heller implying that they were. [14-15, 32] The 7^th Circuit itself had not decided the question. [15] The majority found that previous statements by the 7^th Circuit and considerable legal scholarship suggested that the Second Amendment protected only “virtuous” citizens, which did not include those who had been convicted of a felony. [15-16 and note 6 on page 16] (Judge Barrett countered that some of these scholars meant that only violent felons were beyond the Second Amendment. [Note 14 on page 58]) If so, then – as other courts of appeals had concluded – felons were excluded from the Second Amendment. [16-18] The majority recognised that the historical analysis was conflicted, however, and that there was evidence and scholarship supporting the view that the Second Amendment applied to non-violent felons. [18-19 and note 8 on page 18] The majority concluded, as it usually did, that it could resolve the controversy at the next step so did not need to reach a conclusion. [19 and note 9 on page 19]

Judge Barrett, by contrast, argued that the theoretical question was not whether nonviolent felons were excluded from the Second Amendment – they were not – but whether the Second Amendment permitted the government to strip them of their right to bear arms. [27-31] Judge Barrett argued that the virtue exclusion contemplated by the majority was incompatible with Heller, which held that gun ownership was an individual rather than a civic right, and that historical records would explicitly disclose such an exclusion had it existed. [49-54, note 10 on pages 51-52, and note 12 on pages 53-54] Judge Barrett also argued that history did not indicate that felons were beyond the reach of the Second Amendment. Restrictions on gun ownership before the Constitution was drafted had been directed towards groups perceived as violent or rebellious, not towards criminals. [38-41] No founding-era legislature prohibited felons from carrying guns and no state constitution expressly excluded felons from the right to bear arms. [33-35] Although some conventions had proposed that the Second Amendment exclude certain groups, all of these proposals had been rejected, and Judge Barrett argued that none of them would have prohibited gun ownership by all non-violent felons. [35-38]

Judge Barrett then attempted to refute the argument that felons were implicitly deprived of the right to bear arms because, whether through actual death or through the process known as civil death, it was assumed that felons would be deprived of all rights. Judge Barrett did not seem to accept the premise of this argument, observing that we would not deprive felons of (for example) the right to freedom of speech if the founders had executed all felons. [49] Regardless, Judge Barrett extensively surveyed court decisions and legal commentary on criminal law in the early American colonies. Judge Barrett concluded that, unlike at English common law, felonies were not invariably punished with execution or civil death. [41-48]

The majority then applied the intermediate scrutiny framework, which required the government to prove that the restriction on firearm possession was substantially – not perfectly – related to an important governmental objective. [19-20] The majority suggested that a less rigorous analysis might be appropriate, given that firearm possession by felons was close to the edge of the right protected by the Second Amendment. [Note 10 on page 20] Judge Barrett rejected this argument, finding that permanent disqualification from all gun ownership – including possession at home for lawful self-defence (the “core” of the Second Amendment right) – called for “a very strong public-interest justification and a close means-ends fit”. [56-57 and note 13 on page 56]

The government argued that preventing non-violent felons like Kanter from possessing guns was justified by its interest in preventing violence. Of course, both the majority and Judge Barrett considered this a sufficiently important state interest. [20-21, 57-58] The majority found that prohibiting all felons from owning guns was substantially related to that interest, because judicial statements and statistical studies indicated that even non-violent felons were more likely to commit violent crimes in future than were the general population. [21-22 and note 11 on page 22] The majority argued that the Second Amendment did not require the government to prove that Kanter himself was disposed towards violence, because the fit between means and end only had to be reasonable, not perfect. [23] Additionally, evaluating the dangerousness of every felon (or even every non-violent felon) would impose a huge burden on either the courts or the executive branch. [24-26] The majority did not rule out the possibility that it would be unconstitutional to prohibit some felons from owning weapons but held that Kanter was not one of those felons, because his misconduct had been serious and would have been widely recognised as wrongful. [23-24 and note 12 on page 24]

Judge Barrett opined that a ban on all felons was far too broad to be supported by the Second Amendment. Judge Barrett thought that the Second Amendment allowed the government to criminalise possession of firearms by a class of persons that were dangerous but it had to prove that the class actually was dangerous. [54-56, 57-58] Judge Barrett found that the ban on all felons was “wildly overinclusive” because it reached many criminals whose offences gave no reason to suggest violent proclivities. [58-61] That those crimes might have been generally understood as unlawful and immoral was simply a repetition of the virtue argument. [Note 16 on page 60] Although the government had presented evidence that non-violent felons were more likely to commit violent crimes in future, Judge Barrett considered this evidence still too broad, because it failed to distinguish between non-violent felons: a drug-dealer or drug-abuser might be more inclined towards violence than a fraudster like Kanter. [61] Judge Barrett also found that the more specific studies, purportedly showing a likelihood of violent crime by those convicted of mail fraud, were not sufficient: one linked them to subsequent arrest but not to conviction or to specifically violent crime; the other did link white-collar and violent crimes but only for repeat offenders. [61-62 and note 17 on page 62] Judge Barrett stated that the government could theoretically prove Kanter himself to be dangerous but it had not tried to do so. [62-63]

Therefore, the majority held that the Second Amendment permits the government to withhold guns from non-violent felons. Judge Barrett opined that, in so doing, the majority did not treat the Second Amendment with the respect due a constitutional right. [63-64]