People For the American Way

Confirmed Judges, Confirmed Fears: Amy Coney Barrett Tries to Overturn Law Banning People Convicted of Felonies from Possessing Firearms

News and Analysis
Confirmed Judges, Confirmed Fears: Amy Coney Barrett Tries to Overturn Law Banning People Convicted of Felonies from Possessing Firearms

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In March 2019, Trump Seventh Circuit Judge Amy Coney Barrett dissented from a decision by two other Republican appointees and argued that the long-standing federal law that bars people convicted of felonies from possessing firearms was unconstitutional as applied to an individual convicted of mail fraud. As the majority pointed out, not a single other federal appeals court has agreed with that view.

In Kanter v. Barr, an individual convicted of felony federal mail fraud filed a lawsuit, claiming that it was unconstitutional to apply to him the federal and state laws that ban people convicted of felonies from possession of firearms. His claim was dismissed by a federal district court, and that decision was affirmed 2-1 by a panel of the Seventh Circuit Court of Appeals. Judges Joel Flaum and Kenneth Ripple, both appointed by President Reagan, concluded that, in accord with the governing standard in cases concerning such constitutional claims, the government had established that the laws were “substantially related to the important governmental objective of keeping firearms away from those convicted of serious crimes.”

Judge Barrett did not disagree with that overall standard. She claimed, however, that the government had not introduced sufficient evidence that “disarming all nonviolent felons” substantially advances the government’s interest or that “Kanter himself shows a proclivity for violence.” To prevent the Second Amendment from being treated as a “second-class right,” a phrase similar to that used by other Trump judges in firearms cases, she argued that the laws were unconstitutional as applied to Kanter.

The majority made clear that it was not treating the Second Amendment as a “second-class right,” but carefully explained why it was joining every other federal appellate court that had ruled on such issues in rejecting Kanter’s claim. Most courts, the majority noted, had rejected the idea of as-applied challenges to such laws because of the great difficulty in evaluating “countless variations in individual circumstances.” Even among those courts like the Seventh Circuit that permit such challenges, the majority went on, no court had “ever actually upheld such a challenge” by a person convicted of a felony.

The majority went on to consider historical evidence about whether the right to bear arms during colonial times had included people convicted of felonies. Barrett had claimed that unlike the right to vote or to serve on juries, there was not clear evidence that any colonial-era legislatures had categorically barred people who had been convicted of felonies from owning guns. The majority disagreed, noting that both a prior Seventh Circuit decision and most historians had concluded that “the founders conceived of the right to bear arms as belonging only to virtuous citizens,” and that even people convicted of non-violent crimes fell outside the scope of the Second Amendment.

Nevertheless, the majority went on to carefully analyze Kanter’s arguments, and concluded that the government had shown that “prohibiting even nonviolent felons like Kanter” from possessing guns was “substantially related to its interest in preventing gun violence.” The majority pointed to prior court statements, including by the Seventh Circuit, determining that although “most felons are nonviolent,” a person with a felony conviction is more likely than those with no criminal history to “engage in illegal and violent gun use.” The majority noted that the government had pointed to a number of studies that echoed that conclusion, including one that found that even handgun purchasers with one prior misdemeanor on their record “were nearly 5 times as likely” as those with no previous criminal convictions “to be charged with new offenses involving firearms or violence.”

In short, while fully respecting history and precedent in connection with the Second Amendment, the Reagan appointees in the majority in Kanter upheld the laws prohibiting people convicted of serious felonies, whether violent or not, from possessing firearms in order to prevent gun violence, contrary to Barrett’s dissent.


Amy Coney Barrett, Confirmed Judges Confirmed Fears, gun violence prevention, Lower Federal Courts, Protecting Lower Courts