Will Justice Amy Coney Barrett Restore Gun Rights to Non-Violent Felons?

Does the Second Amendment prohibit local, state, and federal governments from restricting the gun rights of people convicted of non-violent felonies? There may be an extra vote on the United States Supreme Court for reinterpreting the Second Amendment to restore gun rights to non-violent felons.

In a recent New Yorker article, Margaret Talbot explored a dissenting opinion written by Associate Justice to the United States Supreme Court, Amy Coney Barret, when she was a federal court of appeals judge espousing precisely this conception of the Second Amendment. Justice Barrett concluded that laws banning all felons — both violent and nonviolent — from possessing firearms violate the Second Amendment when applied to nonviolent felons who have shown no proclivity for violence or are otherwise “dangerous.” Accordingly, Justice Barrett–then Judge Barrett–may hold in some future case that only “dangerous” felons can have their gun rights restricted under the Second Amendment, a decision that would necessarily restore gun rights to many people convicted of misdemeanor domestic battery or nonviolent felonies or subject to certain protection orders/restraining orders.

The case at issue was Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). That case concerned the gun rights of Rickey I. Kanter, a man previously convicted of a non-violent felony, mail fraud. Mr. Kanter argued that the felon dispossession statutes, including 18 U.S.C. § 922(g)(1), violated his Second Amendment rights to bear arms because he was a nonviolent offender. You can read the full opinion below at the link:

The majority opinion concluded that the felon dispossession statutes were not unconstitutional as applied to Mr. Kanter as they are substantially related to the important governmental purpose of keeping firearms away from those convicted of serious crimes.

Justice Barrett, however, disagreed. She wrote as follows:

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.

18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. 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. 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.

Justice Amy Coney Barrett (then-Judge Barrett) in a dissenting opinion in Kanter v. Barr

In other posts, here and here, I have discussed restoration of rights, gun rights, and the interplay between the two. This — new-to-me — update about Justice Barrett’s judicial philosophy and prior opinions on gun rights makes me think, perhaps, we will see a better suited head-on constitutional challenge to the federal statutes dispossessing felons of their Second Amendment rights in the future. And, maybe, just maybe, non-violent felons will find their gun rights restored.

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