Explore The NRA Universe Of Websites

APPEARS IN News

Judge Barrett Picks Second Amendment Case as Her “Most Significant” Ruling

Monday, October 12, 2020

Judge Barrett Picks Second Amendment Case as Her “Most Significant” Ruling

The confirmation hearings of Judge Amy Coney Barrett, President Trump’s nominee to the U.S. Supreme Court, are due to begin on October 12th before the Senate Judiciary Committee, chaired by U.S. Senator Lindsey Graham (R-SC).

Judge Barrett was previously nominated by President Trump to the U.S. Court of Appeals for the Seventh Circuit and confirmed in that position by the Senate three years ago. During her tenure on that court, she has participated in deciding over 900 cases.

A 65-page questionnaire completed by the nominee, outlining the details of her academic and legal career, published writings, and more, has been released by the Senate Judiciary Committee. Asked to choose her ten “most significant cases,” Judge Barrett listed her dissent in a Second Amendment case,  Kanter v. Barr (7th Cir. 2019), as her most important ruling.

Her choice is a telling one, as the other cases on her top-ten list cover critical issues like  qualified immunity, employment disability and hostile work environment claims, and the interpretation of federal immigration laws.

A review of her dissent in the Kanter case reveals both a thoughtful and considered approach to Second Amendment jurisprudence and a respect for the right to keep and bear arms.

Kanter arose out of a challenge to “felon dispossession statutes,” being federal and state laws that prohibit a person with qualifying criminal convictions from possessing or receiving a firearm. The federal firearm disability is permanent unless the person has been pardoned, the conviction is expunged or set aside, or the person has had their firearm rights restored. However, the mechanism for restoration of rights based on a federal conviction has been unavailable since 1992, when Congress suspended funding for the program.

Defendant Rickey Kanter operated a company that sold therapeutic shoe inserts, including inserts that had been rejected by Medicare as noncompliant with its standards. Kanter was convicted of federal mail fraud, a felony, after falsely marketing the noncompliant inserts as Medicare-approved.

Once convicted, despite being a one-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions, Kanter remained barred under both Wisconsin and federal law. In his as-applied challenge, he argued this was an unconstitutional violation of his Second Amendment rights.

The two-step analysis used by the Seventh Circuit required an initial determination of whether the law regulates an activity falling outside the scope of the right as originally understood; if so, the activity is unprotected by the Second Amendment. Otherwise, if the historical evidence is inconclusive or indicates the activity is not categorically unprotected, the next step uses some level of judicial scrutiny to evaluate the regulatory means used by the government against the public benefit objective asserted as the reason for restricting Second Amendment rights.

Two of the three judges on the panel opted to sidestep the “difficult issue regarding the historical scope of the Second Amendment,” and instead decided the case by focusing on the means-end scrutiny. Applying the fairly undemanding level of intermediate scrutiny, the majority upheld the law after concluding that prohibiting even nonviolent felons from possessing guns was substantially related to the government interest in preventing gun crime.

Judge Barrett’s dissent carefully examined Founding-era laws regarding felonies and the consequences of a conviction. Despite the government’s assertion that “the historical record supports the conclusion that felons are not entitled to Second Amendment protection,” she found that traditionally, felons serving a term of years had their rights suspended but not extinguished. Status as a convicted felon alone could not support a “permanent and pervasive” loss of firearm rights. Further, the government failed to show how disarming the “immense and diverse category” of non-violent offenders like Kanter (or Martha Stewart) was closely related to the goal of protecting public safety, or how Kanter’s own personal history was related to that interest. All in all, Judge Barrett concluded that the relevant focus was dangerousness: legislatures could disarm those who had demonstrated a proclivity for violence or who would otherwise threaten public safety, but could not completely deprive nonviolent felons of the right to possess arms solely because of their status as felons.

Supreme Court Justice Clarence Thomas has regularly disparaged (here, here and here) “the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.” Faced with a nominee who recognizes the importance of the fundamental right to keep and bear arms, gun control advocates have responded with panic and scaremongering. During the recent vice presidential debate, Senator Kamala Harris (D-CA) was asked point-blank whether a Biden administration would resort to “court-packing” if Judge Barrett was confirmed to the Supreme Court, and refused to give a responsive answer.  

We’ll learn more about Amy Coney Barrett once the hearings begin, but she’s made her feelings known on another important issue already. Accepting the nomination at the White House on September 26, she declared, “I love the United States, and I love the United States Constitution.”

IN THIS ARTICLE
Supreme Court
TRENDING NOW
Supreme Court Upholds ATF Rule on “Firearms,” Unfinished Receivers and Kits

News  

Monday, March 31, 2025

Supreme Court Upholds ATF Rule on “Firearms,” Unfinished Receivers and Kits

On March 26, in a 7-2 decision (with Justices Clarence Thomas and Samuel Alito dissenting), the United States Supreme Court upheld a Biden administration gun control rule on what constitutes a “firearm” under 18 U.S.C. ...

Trump Administration Revives Federal Firearm Rights Restoration Provision

News  

Friday, March 21, 2025

Trump Administration Revives Federal Firearm Rights Restoration Provision

On March 20, the U.S. Department of Justice (DOJ) published an interim final rule entitled, Withdrawing the Attorney General’s Delegation of Authority. That bland title belies the historic nature of the measure, which is aimed at reviving ...

House Judiciary Committee Votes to Advance Concealed Carry Reciprocity Legislation

News  

Tuesday, March 25, 2025

House Judiciary Committee Votes to Advance Concealed Carry Reciprocity Legislation

On Tuesday, March 25, 2025, the House Judiciary Committee held a markup for several bills, including two NRA-backed bills. With this crucial step in the legislative process now complete, these pieces of legislation can now ...

More Polish Citizens are Carrying Firearms for Self-Defense

News  

Monday, March 31, 2025

More Polish Citizens are Carrying Firearms for Self-Defense

Certain parts of the world—sadly, without any specifically recognized right to arms—have been moving closer to accepting the fact that firearms in the hands of law-abiding citizens is not the inherently dangerous concept promoted by ...

Colorado: FOID Bill Heads to Governor's Desk, TAKE ACTION NOW!

Saturday, March 29, 2025

Colorado: FOID Bill Heads to Governor's Desk, TAKE ACTION NOW!

On Friday, March 28th, Senate Bill 25-003, the semi-auto ban turned FOID-scheme bill, passed the final vote on the Senate floor, concurring in the House amendments. 

Trump DOJ to Investigate Los Angeles County Sheriff’s Department for Permit Delays

News  

Monday, March 31, 2025

Trump DOJ to Investigate Los Angeles County Sheriff’s Department for Permit Delays

The United States Supreme Court, in its landmark Bruen decision recognizing a right to carry in public for self-defense, did not foreclose shall-issue licensing as being consistent with the Second Amendment.

Just One More Step: Australia’s New Weapon Laws

News  

Monday, March 24, 2025

Just One More Step: Australia’s New Weapon Laws

Australia implemented a firearm ban and mandatory confiscation in 1996 pursuant to the National Firearms Agreement, in which nearly 700,000 privately-owned firearms were turned in to the government and destroyed. 

President Trump Works to Expedite D.C. Carry Permits

News  

Monday, March 31, 2025

President Trump Works to Expedite D.C. Carry Permits

On March 27, President Donald J. Trump signed a wide-ranging executive order titled, “Making the District of Columbia Safe and Beautiful.”

NRA Files Lawsuit Challenging Colorado’s Excise Tax on Firearm and Ammunition Sales

News  

Second Amendment  

Monday, March 31, 2025

NRA Files Lawsuit Challenging Colorado’s Excise Tax on Firearm and Ammunition Sales

Today, the National Rifle Association of America (NRA), together with the Firearms Policy Coalition, Second Amendment Foundation, Colorado State Shooting Association, Magnum Shooting Center, and an NRA member, filed a lawsuit challenging Colorado’s 6.5% excise ...

Rhode Island:  Gun Owners Turn Out In Large Numbers To Oppose Semi-Auto Ban

Friday, March 28, 2025

Rhode Island:  Gun Owners Turn Out In Large Numbers To Oppose Semi-Auto Ban

The Statehouse was flooded with yellow as Ocean State gun owners turned out in massive numbers to oppose a sweeping gun ban. On Wednesday, the House Judiciary Committee held a lengthy hearing to consider H.5436, a ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.