Bozelko column: SCOTUS nominee’s dissent on guns for felons deserves more attention
Columns share an author’s personal perspective.
Supreme Court nominee Judge Amy Coney Barrett’s dissent in the 2019 case Kanter v. Barr, an opinion in which she held that people with criminal records for non-violent crimes who haven’t been deemed dangerous should be allowed to possess guns, hasn’t received as much attention in her confirmation hearings as I expected.
Prior to the proceedings before the Senate’s Judiciary Committee, both of my state’s senators sought to malign her for this point. Sen. Chris Murphy (D-Connecticut), Tweeted Oct. 8 that Barrett’s a “blinking red outlier” on her interpretation of the Second Amendment, and Sen. Richard Blumenthal called her “extreme on this issue.” Gun control advocacy organizations said they’re similarly suspicious. Sen. Richard Durbin (D-Illinois) questioned Barrett on the Kanter case but didn’t really drill down on the substance of the text.
Democratic senators consider Barrett’s position - that felony convictions and loss of all rights shouldn’t “go hand in hand,” a point I consider a mainstay of progressive criminal justice reform - fringe.
Keeping a gun out of the hands of a person with a felony conviction is often justified; Barrett’s dissent doesn’t deny that. Rather her take said that the courts, and not the legislature, should determine policy on who is appropriate for gun ownership.
We usually don’t expect policy solutions from the bench, but we have one here. Historically, legislatures have been very - perhaps overly - receptive to National Rifle Association influence and unwilling to keep firearms from felons. As of 2018, 52 senators, including four Democrats, had an A-minus rating or higher from the NRA in approval of their stances on gun rights.
Under the Federal Firearms Act of 1938, felons couldn’t possess firearms. That law was amended though, in 1965, to allow people who’d lost their rights to own a gun to apply to the Bureau of Alcohol, Tobacco and Firearms to restore them if “the circumstances regarding the conviction, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”
While another concerted attempt to delimit felony gun ownership failed in 1986, Congress has been unable to enact legislation that completely prevents people with criminal records from getting their Second Amendment rights back; former Sen. Frank Lautenberg (D-New Jersey) introduced the Stop Arming Felons (SAFe) Act in 1995 but it never received a vote.
That ATF authority to restore felons’ Second Amendment rights lives on in federal statute 18 U.S. Code 925(c); it’s never been repealed even though a report from the Violence Policy Center found that so-called “firearm disabilities” were cured for several people who didn’t deserve the relief - that is, they went on to commit more crimes with one. The only reason why the ATF can’t do this is that, since 1993, it’s been starved of the funds to cover the required background investigations.
Regardless of whether dispossessing people with criminal records of guns is good or not, the Supreme Court has been more effective in preventing people with criminal records from possessing firearms.
In the 2008 decision District of Columbia v. Heller, the late Justice Antonin Scalia, Barrett’s former mentor, wrote the majority opinion invalidating the D.C. statute that required guns kept in the home had to be rendered non-functional, meaning incapable of being used. In a footnote, the majority opinion said that felons and the mentally ill should be blocked from possessing firearms - which necessarily limited felons’ self-defense options.
Since then the Supreme Court has resisted extending possession rights to felons. In 2017, the Court refused to hear the case from the 3rd Circuit Court of Appeals, Binderup v. Attorney General, in which two non-violent offenders sued to possess firearms and the appeals court held that their Second Amendment rights were, in fact, violated by the statute that prevented them from owning guns. Accepting the case could have made that the law of the land; the Court chose not to do it.
The Supreme Court has thrice denied Second Amendment rights to people convicted of misdemeanors related to domestic violence. If there’s any branch of government that will keep guns away from potentially dangerous people, it’s the judiciary, not the legislative branch.
Opposition comes from fear that a Justice Barrett would disturb the restraint the Supreme Court has demonstrated. It’s impossible to say without knowing how Justices Neil Gorsuch and Brett Kavanaugh would have voted in these situations, but the dissents in firearm disability cases involved zero to two votes; Barrett’s voting with them wouldn’t have changed the law.
But none of this addresses the positive side of Barrett’s dissent, namely that she recognized there’s a safe middle ground when it comes to felons’ Second Amendment rights. As former Deputy Assistant Attorney General C. Kevin Marshall wrote in an article in the Harvard Journal of Law and Public Policy titled “Why Can’t Martha Stewart Have a Gun?”: “Although some disability is plainly justified for persons convicted of crimes of violence, a lifetime ban on all keeping of firearms by such felons is also constitutionally dubious.”
Barrett’s dissent forces people like me to face an internal inconsistency: If we really support people with criminal records getting their rights back, then the right to own a gun must be among them. To hold back means that we think 20 million people with felony records are still inherently untrustworthy and their rights to self-defense are frivolous.
Quite frankly, because it hasn’t been assumed that I’m dangerous, Barrett’s opinion demonstrates a magnanimity towards people like me that few other jurists and legislators have. She acknowledged that “civil death” doesn’t and shouldn’t last forever unless a defendant is sentenced to life in prison. Her writings humanize people with felony records far more than many Supreme Court opinions.
Critics like Durbin complain that Barrett’s analysis wouldn’t have extended the same protection to felon voting rights. There’s a simple reason for that: no explicit right to vote is enshrined in the Constitution. That’s the problem. We need to amend the Constitution with one.
Barrett’s positions on other issues give me pause, but I can’t ignore that the Kanter dissent reveals Barrett’s bedrock belief that people convicted of crimes have rights and shouldn’t be automatically barred from any activity that’s constitutionally protected.
Chandra Bozelko writes the award-winning blog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at firstname.lastname@example.org.