Judge Barrett's dissent in Kanter v. Barr

[zukiphile]

Her name may come up again when a vacancy arises on the Sup Ct. You may recall her senate confirmation hearing in which Sen. Feinstein took exception to the evidence of her roman catholicism in her writing.

Barret's analysis extends the logic of the an individual right in this context in a manner I don't recall getting much attention in the past.

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.
***
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.

http://media.ca7.uscourts.gov/cgi-b...1478:J:Flaum:aut:T:fnOp:N:2309276:S:0#page=27

 

[Aguila Blanca]

LOGIC!

Burn the witch!

I know I have mentioned in conversations, but I don't recall if I've posted it here, that even in the days of the "wild west" people who were released from prison were allowed to go right out and buy a gun. The blanket prohibition on possession of firearms by ALL convicted felons is a recent innovation, and Judge Barrett is absolutely correct (IMHO) that it makes zero sense to prohibit non-violent people from being allowed to possess the means with which to defend themselves. The idea that kiting a check when barely out of teen-age should deprive a woman of potentially effective means of deterring rape for life is comical. (Just as one possible example.)

 

[Brownstone322]

Amy Coney Barrett is a smart lady, and I appreciate that kind of logic. Had the Kavanaugh nomination faltered (and it certainly could have), I expected her to be the stand-in nominee, simply because the Democrats would have been denied their current weapon of choice — to characterize any and all high-stakes political opponents as "sex offenders." (And please don’t infer that I’m a Republican or even a conservative, because I am not.)

In any event, that was a sound dissent, and it’s hard to argue with.

 

[sigarms228]

Thanks for posting this. I am concerned bout Judge Barrett as she has no record that I could find on the Second Amendment and this is a good start though I hope to see more such opinions of her's on Second Amendment Rights in the near future.

 

[silvermane_1]

LOGIC!

Burn the witch!

I know I have mentioned in conversations, but I don't recall if I've posted it here, that even in the days of the "wild west" people who were released from prison were allowed to go right out and buy a gun. The blanket prohibition on possession of firearms by ALL convicted felons is a recent innovation, and Judge Barrett is absolutely correct (IMHO) that it makes zero sense to prohibit non-violent people from being allowed to possess the means with which to defend themselves. The idea that kiting a check when barely out of teen-age should deprive a woman of potentially effective means of deterring rape for life is comical. (Just as one possible example.)

Good point there Aguila Blanca about the bolded part, but back then folks had more "common sense", as to say if they(prision releasee/one whom repaid their debt to society) are not dangerous enough to be removed from society permanently, then they aren't dangerous enough to be prohibited from owning firearms.

 

[JN01]

Good point there Aguila Blanca about the bolded part, but back then folks had more "common sense", as to say if they(prision releasee/one whom repaid their debt to society) are not dangerous enough to be removed from society permanently, then they aren't dangerous enough to be prohibited from owning firearms.

I would agree that prohibiting all felons and some misdemeanants from legal gun possession is overly broad and needs to be remedied.

I believe that the restriction is warranted for some violent categories of crime, though there should be some mechanism for restoring those rights.

Criminals who are released from prison are not certified to be "no longer dangerous to society". Isn't true now, wasn't true in the old days. You can't keep someone locked up beyond the expiration of their sentence. Parole boards can be manipulated by inmates seeking release, more so when prison overcrowding is an issue.

Murderers, rapists, and robbers often re-offend. State laws prohibiting them from legally possessing arms will not prevent them from getting one, but offers a path to putting them back behind bars where they can't victimize the public. Short of giving everyone who commits those categories of violent offenses a life sentence (which the courts would undoubtedly strike down) this is the next best way to incapacitate them.

 

[doofus47]

Well, considering that pretty much over-watering your yard is nowadays a felony, this sort of review was overdue.
Good on her.

 

[silvermane_1]

I would agree that prohibiting all felons and some misdemeanants from legal gun possession is overly broad and needs to be remedied.

I believe that the restriction is warranted for some violent categories of crime, though there should be some mechanism for restoring those rights.

Criminals who are released from prison are not certified to be "no longer dangerous to society". Isn't true now, wasn't true in the old days. You can't keep someone locked up beyond the expiration of their sentence. Parole boards can be manipulated by inmates seeking release, more so when prison overcrowding is an issue.

Murderers, rapists, and robbers often re-offend. State laws prohibiting them from legally possessing arms will not prevent them from getting one, but offers a path to putting them back behind bars where they can't victimize the public. Short of giving everyone who commits those categories of violent offenses a life sentence (which the courts would undoubtedly strike down) this is the next best way to incapacitate them.

Believe it or not there is/was a process there BN01, but it's unfunded and believe or not it's was left "unfunded" by reps with R next names.

 

[Spats McGee]

I'll need to learn more about this judge. I like what I read in the OP.

 

[Thomas Clarke]

I am pleased to see the OP. After reading the case and dissent, it appears clear that the Seventh District followed the consistent direction of the majority of the District Courts findings on felony possession of firearms. Wisconsin has specific remedies for appeal through the AG. Those appeals are granted for non-violent felony possession and misdemeanor convictions. The reason Kanter lost was to my read anyway the fact that he is hardly non violent. He ripped off the taxpaying Americans some $25 Million Dollars and was subject to a 20 year sentence in prison. He is out now, has paid his fines and it was up to Wisconsin to decide to let him possess a gun. Wisconsin, along with a great many states, prefers to have a consistent rule with specific remedies. Kanter lost his simple appeal, Wisconsin and the Seventh District agreed that his appeal on behalf of all on the basis of Heller was not granted. After reading the dissent, I would suggest that Judge Barrett's reliance on Heller is not consistent with her colleagues. Her view that Medicare Fraud of $25 Million is not violent begs the case of what is. I for one support the Second Amendment and for thieves to pay the price for the rest of their lives. Not feeling that Judge Barrett is a good candidate to SCOTUS.

 

[zukiphile]

Her view that Medicare Fraud of $25 Million is not violent begs the case of what is.

On the contrary, her view answers the question of what it is. You may not prefer her answer, but it's a stretch to characterize consumer/regulatory fraud as violence.

Yet, understanding the difference between violent offenses and non-violent ones isn't the interesting part of her dissent. Lots of caselaw can say that a felon of any type is disqualified for life, but she asks what the state's real interest in that is, and examines the claim that the current prohibition is a longstanding one.

That's the kind of analysis that isn't unduly deferential and that you'll find in Duncan recently (in fact, the Court in Duncan addressed several of the elements of the decision in Kanter), and that allowed the Court in Heller to build a decision on its own analysis rather than from Miller. As is true on so many issues, the analysis is more interesting than the conclusion.

 

[Aguila Blanca]

On the contrary, her view answers the question of what it is. You may not prefer her answer, but it's a stretch to characterize consumer/regulatory fraud as violence.

Agreed. It's inconceivable (to me) that medicare fraud (or any similar, white collar crime) could or would be construed or described as "violent." Heinous, perhaps, but certainly not "violent."

Yet, understanding the difference between violent offenses and non-violent ones isn't the interesting part of her dissent. Lots of caselaw can say that a felon of any type is disqualified for life, but she asks what the state's real interest in that is, and examines the claim that the current prohibition is a longstanding one.

Which should properly lead to a discussion of the appropriate level of scrutiny. Or, maybe more accurately, the discussion of the state's real interest should be informed by the discussion of the proper level of scrutiny.

 

[Thomas Clarke]

Duncan v Becerra is not really on point. The 7th Circuit relied on Binderup, Ezell I and II, Skoien, McDonald, Williams, Yancey and McCane for point.

Judge Barrett's dissent is an example of her advocation of New Law. Her position is not supported by most of the circuit courts, as is clearly shown in the decision.

Her call to allow States to apply blanket non violent felon and non violent misdemeanor firearm possession is not supported well. She seeking New Law. The circuit and the courts are clearly in favor of allowing a narrow appeal based on the individual's merit. Stealing $25M from taxpayers, even though he is paying it back does not make him a good poster boy for allowing legal felon possession of firearms. I think there are lots of circumstances where this could be OK, but not for this guy.

 

[zukiphile]

The circuit and the courts are clearly in favor of allowing a narrow appeal based on the individual's merit. Stealing $25M from taxpayers, even though he is paying it back does not make him a good poster boy for allowing legal felon possession of firearms. I think there are lots of circumstances where this could be OK, but not for this guy.

I understand that you don't care for the applicant and what he did. Constitutional cases are most important not for the result for the immediate parties, but for the rule that emerges.

What about a financial crime gives the state any legitimate interest in depriving him of the right to possess arms? Is he a violent person?

How and whether a state that would prohibit exercise of a right needs to justify that prohibition is a worthy inquiry.

The circuit and the courts are clearly in favor of allowing a narrow appeal based on the individual's merit.

Where is there evidence of addressing his application on its merits?

The appeal to which you refer is an application to be exempted from a law that otherwise applies to all felons. It looks to be something like a clemency application, an application in which an exec keeps the ordinary operation of law from applying to the applying individual. That Kanter exhausted that remedy and was denied even without any history of violence illustrates the problem Barrett describes, an application of a prohibition without any evidence of a danger that would make the prohibition related to a legitimate state interest.

That other circuit courts disagree with her reasoning and the reasoning in Duncan is part of the point. A framework that gives undue deference to an over-reaching state act isn't one that will be more likely to strike poorly conceived state restrictions, like ten round magazine limits.

Duncan v Becerra is not really on point.

The issues are close enough that parts of the Duncan Order read as if they could be responses to the Kanter majority.

 

[Aguila Blanca]

The reason Kanter lost was to my read anyway the fact that he is hardly non violent. He ripped off the taxpaying Americans some $25 Million Dollars and was subject to a 20 year sentence in prison.

According to the facts presented in the decision, the dollar amount was $375,000, not $25 million.

In April 2004, Kanter submitted his inserts to Medicare to determine whether they met those requirements. Medicare rejected Kanter’s inserts because they were too thin. Kanter then submitted revised samples, which Medicare approved. However, Kanter continued to sell the noncompliant inserts while representing that they were Medicare-approved. All told, Medicare paid Kanter’s company $375,000 for the noncompliant inserts.

Even if the amount had been $25 million, it's still a non-violent crime. It's a white collar crime.

A number of years ago, there was a not-unattractive young woman who worked as a teller in the local branch of my bank. Then one day she was gone. She was arrested, tried, and convicted on embezzling money from the bank. She hadn't been there for more than maybe six months and, as a teller, she couldn't have skimmed for than a few dollars a day. I doubt the total amount she stole amounted to more than $50,000.

But ... it was a felony. She is now a convicted felon, so she can never own a firearm. She can never "possess" a firearm. She can never touch a firearm, or even a cartridge for a firearm.

Am I made ANY safer from violent crime, from "gun" crime, because a young woman who skimmed from her teller's drawer is permanently prohibited from possessing firearms?

Other than the dollar amount, there's no fundamental difference between my bank teller and Kanter. His crime was completely non-violent. I would like to know the basis for your statement "that he is hardly non violent." Such a statement suggests that the facts of the case rather clearly show that he IS violent, and I'm just not seeing anything to suggest that.

 

[Thomas Clarke]

Duncan v Becerra is out of the Ninth Circuit where the issue was about selective hardware prohibitions. The majority held that existing law was unconstitutional.

Kanter V Barr is out the Seventh Circuit where the majority upheld the precedent regarding felon possession of firearms. The issues of law are not the same. The content we are discussion is in dissent. The dissenting judge was not in majority. Her cited precedents are not supportive and her comments are really about deciding new law for Wisconsin and the Circuit.

The Law does not really work that way. Judge Barrett's jurisprudence is not consistent with precedence. She is arguing for new law.

If you review Binderup, Ezell I and II, Skoien, Meza-Rodriguez with McDonald, Williams, Yancey, McCane & Heller, as is well addressed in the majority, you will see that her Brethren are not following her wild geese.

Kanter's pleading convinced Barrett of his merit. Kanter did not convince the Seventh to overturn more than 200 years of precedent and 500 years of common law.

This is not a great case for appeal. If Kanter was a minor felon without the $25M drama and attitude, he might have done better.

I am sure that someone will find a good case of non-violent felon or one year misdemeanor to present the rights of felons to own guns.

I think felons rights are not a subject that will advance Second Amendment support in our nation.

 

[zukiphile]

The dissenting judge was not in majority.

Thanks for the insight.

 

[Aguila Blanca]

Kanter's pleading convinced Barrett of his merit. Kanter did not convince the Seventh to overturn more than 200 years of precedent and 500 years of common law.

???

Felons were not subject to a lifelong prohibition on possession of firearms until the Gun Control Act of 1968. How does that translate into more than 200 years of judicial precedent?

And you repeated the $25 million figure, but the court document still says $375,000. How do you explain that rather significant discrepancy?

I think felons rights are not a subject that will advance Second Amendment support in our nation.

That's kind of putting the cart before the horse, IMHO. The Second Amendment is what it is. The question isn't one of using convicted felons to advance 2A rights, the question is whether or not convicted non-violent felons should be deprived of their 2A rights for life, even after their sentence has been completed in full.

 

[Thomas Clarke]

AQ,

The $25M is part of the restitution by Kanter, according to the ruling. To mount your steed, mount the link to the case:

As to your point about restitution to felons of their rights before they committed their crimes, that is not a winning strategy for this case.

I think the cost of the felony is the loss of the right according to the state you live in. In Wisconsin, a felon can petition the court and Attorney General for restitution of their rights. Kanter did this and lost, but gained a champion in Justice Barrett.

The 200+ years in my answer are taken from the dissent by Justice Barrett. The dates and chronology are from her dissent.

Not sure if you have spent the time to read the actual documents and cases cited. You will find that helpful in understanding this issue.

I support our RTBA. I support compliance with all state and federal laws. I support God's forgiveness of felons and miscreants.

 

[zukiphile]

AB, if you don't mind a bit of clean up on this:

Kanter's pleading convinced Barrett of his merit. Kanter did not convince the Seventh to overturn more than 200 years of precedent and 500 years of common law.

???

Felons were not subject to a lifelong prohibition on possession of firearms until the Gun Control Act of 1968. How does that translate into more than 200 years of judicial precedent?

It doesn't, and no reasonable reading of Barrett's dissent leads to a conclusion that it is a conclusion about Kanter's personal merit. Doofus47's quip above succinctly illustrates the shifting nature of a felony over time. Barrett's dissent doesn't require overturning centuries of precedent and common law. Indeed, Barrett herself unpacks the ambiguities of that history. The idea that striking a state statute is "New Law" overlooks the fact that any such decision, including Heller itself is new law when it is published.

And you repeated the $25 million figure, but the court document still says $375,000. How do you explain that rather significant discrepancy?

There is no $25 million dollar restitution figure in the criminal case. Consumer fraud code in my state and in CA include statutory damages. If I sell you a bag of a "dozen apples" and I only put 10 apples in it, you might have actual damages of 35 cents, but statutory damages of $200 for the single act of deception, and I might owe you your attorney's fees. These are civil damages, not criminal restitution.

I think felons rights are not a subject that will advance Second Amendment support in our nation.

That's kind of putting the cart before the horse, IMHO. The Second Amendment is what it is. The question isn't one of using convicted felons to advance 2A rights, the question is whether or not convicted non-violent felons should be deprived of their 2A rights for life, even after their sentence has been completed in full.

Indeed, and since the issue is the correct reach of state power to suspend a recognized right, Kanter's personal appeal isn't the issue.

The majority reasoned that the courts can't get into the business of individualized determinations of dangerousness - that would be difficult - and noted that in a minority of cases non-violent offenders go on to commit a violent crime. Does that give the state a legitimate interest in prohibiting every last one of them from possessing arms? The majority thought so, but Barrett's dissent gave greater scrutiny to the prohibition because of its impact on the core of the right, and distinguished case law on which the majority relied.

The majority in Kanter at p. 23 writes

Of course, not all nonviolent felons will later commit a violent crime with a firearm. In that sense, the statute is “somewhat over-inclusive.” United States v. Chapman, 666 F.3d 220, 231 (4th Cir. 2012). However, that “does not undermine [the statute’s] constitutionality … because it merely suggests that the fit is not a perfect one; a reasonable fit is all that is required under intermediate scrutiny.” Id.; see also Marzzarella, 614 F.3d at 97–98 (analogizing to intermediate scrutiny in First Amendment context).

The state's study concludes that 20% of non-violent offenders will commit a violent offense within several years, but the majority sees counting the non-violent 80% like the violent 20% as "somewhat over-inclusive". Does "somewhat" convey the magnitude of the error? Is that a reasonable fit?

Note the Duncan Court's assessment of the utility of intermediate scrutiny at p.36.

That different laws were challenged in Duncan and Kanter is true, but not pertinent to the similarities in rationale in scrutinizing a state restriction on the right described in the 2d Am. The purpose in bringing up Barrett's dissent in Kanter is to illustrate a willing ness to unpack the underlying issues and apply some substantial scrutiny in 2d Am. cases.