NEWS.BLOOMBERG LAW.COM September 28, 2020 – 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.
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. [full article]