Amy Coney Barrett Thinks the Second Amendment Prohibits Blanket Bans on Gun Possession by People with Felony Records

Jacob Sullum of Reason wrote an interesting piece highlighting Amy Coney Barrett, President Donald Trump’s latest nominee for the Supreme Court, and her pro-Second Amendment record.

Sullum started out by detailing the case of a business owner, Rickey Kanter:

Rickey Kanter, who owned a Wisconsin company that sold therapeutic shoes and footwear inserts under the brand name Dr. Comfort, pleaded guilty in 2011 to one count of mail fraud for shipping inserts he falsely claimed were approved by Medicare to a podiatrist in Florida. Kanter received a prison sentence of a year and day, followed by two years of supervised release. He also paid a $50,000 fine and agreed, in a separate civil settlement, to pay Medicare a $27 million reimbursement.

However, Kanter’s punishment went beyond jail time, which Sullum noted:

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But that was not the end of his punishment, since his felony conviction meant that he permanently lost the constitutional right to possess firearms.

The ban on gun ownership by people with felonies on their personal records is viewed as unconstitutional according to Amy Coney Barrett. She demonstrated her support for this view in a 37-page dissent written for a 2019 decision by the U.S. Court of Appeals in the 7th Circuit. Barrett’s opinion is indicative of a judge that understands the true meaning of the Second Amendment.

In the landmark 2008 decision District of Columbia v. Heller, the Supreme Court nominally recognized that the Second Amendment upholds gun ownership for the purpose of self-defense. On top of that, the majority opinion brought attention to some “presumptively lawful regulatory measures,” which included “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” However, Barrett and her two partners on a 7th Circuit panel came to an agreement that Heller did not decide the question of whether the Second Amendment authorizes the government to disarm someone like Kanter.

“The constitutionality of felon dispossession was not before the Court in Heller, and because it explicitly deferred analysis of this issue, the scope of its assertion is unclear,” Barrett wrote in the decision. “For example, does ‘presumptively lawful’ mean that such regulations are presumed lawful unless a historical study shows otherwise? Does it mean that as-applied challenges are available? Does the Court’s reference to ‘felons’ suggest that the legislature cannot disqualify misdemeanants from possessing guns? Does the word ‘longstanding’ mean that prohibitions of recent vintage are suspect?”

Barrett concluded by referencing the history of state governments passing gun control legislation to allegedly disarm “dangerous” people:

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.

In essence, Kanter defrauded Medicare and taxpayers. However, such crimes do not indicate that Kanter has violent tendencies that pose an imminent threat to public safety.

The blanket ban on firearms possession for people with felony records is “wildly overinclusive,” Barrett observed, citing UCLA law professor Adam Winkler. “It includes everything from Kanter’s offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses,” she wrote.

In addition, Barrett wrote “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.” The Supreme Court nominee added, “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.”

Barrett concluded with a strong reassurance for those who believe in the Second Amendment and want it extended to rogue municipalities and states:

While both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not ‘put[] the government through its paces,’ but instead treats the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’

Second Amendment supporters can rest easy knowing that Trump’s latest Supreme Court nominee is a solid pro-Second Amendment judge. The Supreme Court has been a mixed bag as far as Second Amendment decisions are concerned, but it still remains crucial to have impartial judges who can at least put the brakes on activist judges that are always looking to undermine U.S. law.

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