Like other journalists, I spent the bulk of this past week reviewing the writings and opinions of Amy Coney Barrett, who became President Donald Trump’s third Supreme Court nominee on Saturday. Her confirmation by the Senate will cement what the appointments of Neil Gorsuch and Brett Kavanaugh already achieved: a profoundly conservative majority on the nation’s highest court for decades to come. Though Trump may lose the election this fall, his imprint on the federal courts will endure well into the second half of this century.
Most of the attention towards Barrett’s paper trail is focused on abortion, and for good reason. Anti-abortion and abortion-rights groups alike expect that she will vote in favor of further restrictions on the procedure, and perhaps even provide a fifth or sixth vote to strike down Roe v. Wade and Planned Parenthood v. Casey. She is also a public critic of Chief Justice John Roberts’ ruling in NFIB v. Sebelius, the 2012 case where he cast the deciding vote to save the Affordable Care Act (ACA). That criticism takes on a new light as she is poised to join the court before it hears yet another case that could see the ACA struck down.
Her potential impact on cases involving LGBT rights, religious freedom, federal regulations, and other high-profile issues are garnering plenty of public attention as well. But one of her opinions that caught my eye was Kanter v. Barr, a Second Amendment case decided last year by the Seventh Circuit Court of Appeals. Barrett’s dissent in that case signaled that she could have an immediate and consequential impact on an entire area of law that has gone under-developed in the Roberts Court, perhaps consciously. Her approach to that case also provided some insight into how she thinks about the Constitution and applies those ideas to modern life.
Like most Second Amendment cases, this one starts with a man who wanted a gun but couldn’t have it. Rickey Kanter was the owner and proprietor of a Wisconsin firm that specialized in therapeutic footwear. In 2004, he submitted a selection of therapeutic shoe inserts to the Centers for Medicare & Medicaid Services (CMS) for review to determine whether the program would reimburse patients who bought them. CMS rejected the initial submission but approved a revised version of them. Kanter, however, sold both the approved and unapproved versions to podiatrists. When he sent a shipment of the unapproved inserts to a podiatrist’s office in Florida, federal prosecutors charged him with mail fraud. He pleaded guilty to a single felony count.
Though he has now served the rest of his sentence, Kanter’s status as a felon excludes him from certain rights and privileges. That includes a permanent ban on lawfully owning a firearm under both federal law and Wisconsin law. Kanter sued the United States and the state of Wisconsin to challenge both provisions, arguing that they violated the Second Amendment. A federal district court rejected his claims in January 2018, and a three-judge panel in the Seventh Circuit upheld the lower-court ruling in a 2-1 decision in March 2019.
The lone dissenting judge was Barrett. In a 38-page dissent, she argued that history and practice from the founding era showed that the Framers did not intend to deny gun ownership to all felons, just those who could be dangerous. “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,” she wrote. “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.”
Federal appeals courts are bound to follow the Supreme Court’s precedents in any given case. But when it comes to the Second Amendment, those precedents are far from settled. In the 2008 case D.C. v. Heller, the court ruled for the first time that the Second Amendment protected an individual right to bear arms unrelated to any militia function. Two years later, in McDonald v. Chicago, the court held that the Second Amendment’s protections also apply to state laws. The two decisions marked a sea change in how the courts interpreted the right to bear arms and cast doubt on a wide swath of gun-related restrictions nationwide.
As the federal courts began to work through these cases, however, the Supreme Court itself stayed curiously quiet on the matter. The justices didn’t take up another case on the Second Amendment until last year, when they agreed to hear a challenge to a handgun restriction in New York City. But even that went nowhere: New York passed a law to invalidate the restriction in question before a ruling could be issued and the court dismissed it as moot in April. Meanwhile, gun-rights proponents continued to vent their frustration. Justice Clarence Thomas complained in June that the court’s refusal to hear a handgun case from New Jersey meant the justices were “prolonging our decade-long failure to protect the Second Amendment.”
That silence has left key aspects of the Second Amendment’s scope unsettled, and gave Barrett an open field in which to work. So what does that tell us about her? Barrett praised Antonin Scalia, for whom she once clerked at the Supreme Court, at the White House on Saturday, telling the audience, “His judicial philosophy is mine too.” Her writings in Kanter proves how much her approach to constitutional law resembles his. Barrett’s dissent is a dense, historical review of how the founding generation viewed felony offenses and gun ownership. It mirrors Scalia’s own majority opinion in Heller, which laboriously reviewed the history of gun ownership in Anglo-American law.
Justices of all ideological stripes draw upon history and precedent to decide cases, of course. But originalists like Scalia and Barrett are known for their insistence on using the original public meaning of the Constitution, whatever that may be, to decide what the Constitution means today. “The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban,” she notes at one point. “But at least thus far, scholars have not been able to identify any such laws.”
Wisconsin and the federal government both argued that the founding-era states tended to execute people for felony offenses, which suggests that lesser forfeitures of rights would have been acceptable. Barrett disagreed. She navigated through the convoluted criminal-law history of the era to note that execution was far from the only punishment at the time, and that “civil death” (the legal term of art for losing rights like voting and jury service) was typically reserved for life sentences and other severe, non-lethal punishments. “Felons serving a term of years did not suffer civil death; their rights were suspended but not destroyed,” she concluded. “In sum, a felony conviction and the loss of all rights did not necessarily go hand-in-hand.”
If the history is so clear, why did the panel’s other two judges disagree with her? According to them, they didn’t need to review it to reach a decision in the case. Rather than delving into the complex history and scholarly disputes, they took what they described as a “prudential approach” to the Wisconsin and federal laws in question. The majority found that the laws served an important government objective of stopping violent crime, and noted that the government provided statistical evidence that people convicted of non-violent felonies were more likely to commit violent crimes in the future. When Kanter cited his own background as proof the law shouldn’t apply to him, the panel urged him to turn to the executive branch or to lawmakers for personal relief.
In other words, where two colleagues saw no need to undertake a probing review of early American history to reach a sweeping conclusion, Barrett saw an imperative to take a different path. Whatever the merits of her approach may be in this case, it also unearthed a curious approach to Americans’ rights in general. People convicted of felony offenses lose more than just the right to own a gun. In many states for at least some period of time, they also lose the right to vote. To resolve the Second Amendment matter, Barrett noted that the governments haven’t “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.”
That distinction, suggesting that the right to vote was not an “individual” right, was no accident. She elaborated on her point later to note that “history does show that felons could be disqualified from exercising certain rights—like the rights to vote and serve on juries—because these rights belonged only to virtuous citizens.” By comparison, she argued that gun ownership was an individual right that could only be suspended based on whether the individual in question was dangerous. Kanter, who was convicted of mail fraud, likely wouldn’t qualify as such. “Civic rights” such as voting and jury service, on the other hand, can be denied based on whether the individual is “virtuous” or not.
From where does this distinction spring? Heller discusses the “individual right” component of Second Amendment at length, but makes no mention of voting rights or virtue. Barrett instead drew upon legal scholars who recast the right to vote in a communal light. “The right to vote is held by individuals, but they do not exercise it solely for their own sake; rather, they cast votes as part of the collective enterprise of self-governance,” she explained. She quoted approvingly from a 2004 law-review article by Saul Cornell that explained further. “Perhaps the most accurate way to describe the dominant understanding of the right to bear arms in the Founding era is as a civic right,” he wrote. “Such a right was not something that all persons could claim, but was limited to those members of the polity who were deemed capable of exercising it in a virtuous manner.”
Others who made this point may have simply noted that there is ample Supreme Court precedent for felon disenfranchisement, and that the Fourteenth Amendment is even written with the practice in mind. (Barrett indeed does just that in an earlier footnote.) But in searching for a rationale to justify a sweeping expansion of gun rights, she appears to have unnecessarily minimized the nature and significance of voting rights in general.
As a dissent in a Seventh Circuit panel decision, her reasoning had no broader impact on Americans or their right to cast a ballot. As part of a Supreme Court opinion, it would have become the law of the land.
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