As Senators, and more importantly voters, begin reviewing the judicial record of 7th Circuit Judge Amy Coney Barrett after her not so surprising nomination to the Supreme Court, Democrats have launched countless attacks against her Christian faith and rulings on abortion. While they zero in on Barrett’s likelihood of striking down Roe v. Wade if confirmed (spoiler alert: she won’t), her past rulings on the 2nd Amendment are worth mentioning.
Specifically, Barrett’s 2019 dissenting opinion on Kanter v. Barr suggest she may be the most vocal proponent of the 2nd Amendment since Justice Scalia.
Ricky Kanter, a Wisconsin resident convicted of a nonviolent felony, was denied the right to purchase a firearm under both Wisconsin and federal law, and later sued the federal government insisting his 2nd Amendment right was being violated. According to Justia, “Kanter pleaded guilty to mail fraud based on his submission of bills to Medicare for non-compliant therapeutic shoes and shoe inserts. Due to his felony conviction, he is prohibited from possessing a firearm under both federal and Wisconsin law.” They add, “he challenged those felon dispossession statutes under the Second Amendment, as applied to nonviolent offenders.”
Unfortunately for Ricky, the 7th Circuit Court of Appeals voted 2-1 to uphold existing felon dispossession laws, closing off his access to firearm ownership seemingly indefinitely.
However, while that case was a wash, Judge Barrett’s strong dissenting opinion, in which she tore down the argument for blanket bans against felons possessing firearms, gives hope to gun rights activists, affirming her support for the 2nd Amendment while challenging the constitutionality of some background check parameters.
“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote in her dissent. “But that power extends only to people who are dangerous.”
She found that “founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” rather these “virtue based restrictions” are a modern invention that doesn’t fully apply to rights such as the right to free speech, the freedom of religion, or the right to bear arms. The state can only restrict someone’s individuals rights when it’s absolutely necessary to protect public safety.
Because Justice Scalia cemented the right to bear arms as an individual right rather than a civic right in his landmark 2008 Heller v. DC opinion, virtue exclusions do not apply to the 2nd Amendment. Being a convicted felon may carry the certainty of a criminal background; the blanket designation does not tell the state much regarding whether an individual possess a threat. Felons have acted in a legally scandalous manor, but a simple virtue test won’t tell regulators whether the person is both non virtuous and potentially violent, which is the key test Barrett applied.
Virtue exclusions for individual rights must be explicit in founding texts, according to Barrett. They were not found in any early iterations of the right to bear arms from either the founding fathers or in early state Constitutions. “A person convicted of a qualifying crime does not automatically lose his right to keep and bear arms but instead becomes eligible to lose it.”
Early Constitutions for New Hampshire protected the right to bear arms for all citizens besides those caught in active rebellion. The framers did not create a seperate designation for felons, violent or nonviolent.
In early Massachusetts, all peaceful citizens were entitled to the same right, and, using dictionaries from the late 1700’s/early 1800’s, Barrett showed a felony conviction was not a disqualifier for being a peaceful person, instead the definitions required a clear act of aggression.
Though Pennsylvania banned firearm ownership for all people threatening the peace, this was largely understood to be those engaging in violent actions.
An example of prohibiting nonviolent felons from firearm ownership eluded the judge. It’s clear the founders did not envision stripping nonviolent Americans of their constitutional rights. “Founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety,” she wrote. “But neither the convention proposals nor historical practice supports a legislative power to categorically disarm felons because of their status as felons.”
“The broadness of punishment for felonies in the time of the founding suggests people’s rights were restored after their prison terms were served,” whereas today a felony conviction continues to have long lasting handicaps for those released.
In the same sense felons did not lose their right to free speech upon and after their debt to society was paid, Barrett believes the right to bear arms is not necessarily revoked because of a felony conviction. “History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.”
Blanket bans for felons are a “permanent” and “severe” burden that strikes at the core of the 2nd Amendment.
While the majority opinion argued keeping guns out of the hands of felons is within the state’s compelling interest to prevent gun violence, Barrett contends a simple felony, even distinguishing violent from nonviolent, does not give the state sufficient information to gauge whether that person poses a significant danger to the public down the road.
“For example,” Barrett argues, “the characteristics of an individual convicted of a drug-related offense tell us little if anything about the tendency of an individual convicted of perjury—or, for that matter, mail fraud—to commit gun violence.”
“The sheer diversity of crimes encompassed by these statutes makes it virtually impossible for the governments to show that banning all nonviolent felons from possessing guns is closely tailored to the goal of protecting the public safety.”
Currently, background checks for firearm purchases look for any felonies or other incriminating parts of a person’s past to deny their gun purchase. If Barrett’s opinion were in the majority, the entire NICS [National Instant Criminal Background Check System] process would be torn down and reformed as its current method of automatically denying applicants based on whether they’re a felon or not would then be illegal.
Judge Barrett’s opinion may have been overshadowed that day, but if Senate Majority Leader Mitch McConnell can secure the 51 votes needed to confirm her nomination to the Supreme Court, giving Originalists a rare 6-3 majority, her strong stance on the 2nd Amendment would effectuate major change in the coming years.