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Barrett Signaled Willingness to Go Farther on Guns Than Scalia

Sept. 27, 2020, 2:01 PM

Supreme Court nominee Amy Coney Barrett argued against blanket bans on convicted felons possessing firearms in a federal appeals court dissent that has won plaudits from gun rights supporters and raised concerns among gun control advocates.

The U.S. Court of Appeals for the Seventh Circuit majority last year upheld the ban in Kanter v. Barr. Barrett’s dissent argued that such blanket bans run afoul of the Second Amendment because there’s no evidence those who commit nonviolent felonies are particularly dangerous.

“There’s much to be said for that argument,” said Adam Winkler of the University of California, Los Angeles, who studies the Second Amendment. But it “clearly puts her well outside the mainstream of judges on this issue,” he said prior to Barrett’s nomination.

It also puts her in the good graces of gun rights supporters.

“From a Second Amendment perspective, Judge Amy Coney Barrett appears to be a strong choice,” Gun Owners of America Senior Vice President Erich Pratt said in an email Friday.

Only Dangerous People

Rickey Kanter was prohibited from possessing a gun under federal and Wisconsin law because of a mail fraud conviction.

Barrett’s dissent questioned whether a mail fraud conviction made Kanter a real risk.

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” she wrote. “But that power extends only to people who are dangerous.”

It might seem overbroad to deny gun rights to someone convicted of insider trading or obstruction of justice like Martha Stewart, Winkler said.

“I personally think that she’s probably right about that but nonetheless we can recognize that scores of judges have addressed this question already and almost all of them disagree with Judge Barrett and have voted to uphold the felon possession ban,” he said.

Even former Justice Antonin Scalia, for whom Barrett clerked, disagreed, Winkler said. In District of Columbia v. Heller, which recognized the right of individuals to possess firearms, Scalia specifically said the ruling “should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons.”

Barrett’s hostility to a ban that’s widely recognized as constitutional and was supported by Scalia shows she “has a very expansive view of the right to bear arms, and is pretty likely to be hostile to gun control efforts,” Winkler said.

‘Second-Class Right’

In her dissent, Barrett said the majority treated the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” She quoted McDonald v. Chicago, the Supreme Court’s 2010 opinion extending the Second Amendment to individual states not just the federal government.

Eric Segall, a law professor at Georgia State University, said it’s “incredibly revealing” that Barrett uses the second-class right language. It showed she was “auditioning for the Supreme Court,” he said.

“We can reasonably assume there’s a Second Amendment right—which we have to assume because of precedent. We can reasonably disagree as a legislative matter on whether felons who commit nonviolent offenses should have guns or not,” Segall said. “If we’re going to vote for that we can have a debate about it. But as a judge, don’t second guess that. That’s crazy.”

Pratt disagreed, saying “gun owners will relish seeing a new addition to the Supreme Court who is ready to hold lower courts accountable for failing to uphold the Constitution and for refusing to follow the Heller and McDonald precedents.”

Unique Methodology

Federal appeals courts and the Supreme Court have struggled with how to determine whether a gun law is constitutionally permissible.

“Lower courts have effectively applied a kind of intermediate scrutiny saying that if the laws are reasonable measures to pursue compelling governmental interests then the gun laws are generally acceptable,” Winkler said.

But Barrett looks to history and tradition instead, echoing Scalia’s Heller decision and Justice Brett Kavanaugh’s Second Amendment decisions.

“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,” Barrett wrote in her dissent in the 2019 case.

Pratt praised the approach, saying it indicates “a willingness to examine and apply the Second Amendment as written, by looking at its text and using history as a guide, instead of engaging in the judge-empowering interest balancing that has run rampant in the lower courts.”

But innovative laws responding to new gun violence problems could be deemed constitutionally impermissible under this methodology, Winkler said. He pointed to red flag laws that seek to temporarily take firearms out of the hands of those going through a crisis that makes them dangerous. “There’s no historical precedent for those,” he said.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com

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