Amy Coney Barrett on Guns

With just a few years on the bench, Judge Barrett has already developed a surprisingly deep record on guns and the Second Amendment. These cases suggest a special solicitude for gun owners and users—and not just for the paradigmatic “law-abiding, responsible” ones. Indeed, in her Second Amendment and criminal law cases, she has several times sided in favor of someone who broke the law against the government’s attempts to disarm, seize, or imprison them for an extended amount of time. These decisions demonstrate her originalist approach to constitutional interpretation and a textualist approach to statutory interpretation. They also reveal a jurist who does not reflexively side with law enforcement or prosecutors. In that respect, she may end up finding herself more closely aligned with someone like a libertarian-leaning Justice Gorsuch than a more law-enforcement friendly Justice Alito on cases that implicate guns and criminal justice (see, for example, United States v. Davis and Rehaif v. United States where Justices Gorsuch and Alito found themselves on opposite sides). What follows are highlights from a deep dive into the significant gun cases that Judge Barrett decided as a circuit judge.

One of the cases receiving the most attention is her dissent in a Second Amendment case, Kanter v. Barr (Mar. 15, 2019). Indeed, in her Senate Judiciary questionnaire, Judge Barrett listed Kanter first in the list of “most significant cases” she heard while a judge. I previously wrote about the case shortly after it came down. Now it has taken on even greater significance, and a closer look seems warranted. At issue in the case was the constitutionality of applying 18 U.S.C. § 922(g)(1)—the federal law that prohibits most felons from possessing firearms for life—to a man who had previously been convicted of mail fraud. Reagan-appointee Judge Joel Flaum wrote for the panel majority, upholding the law.

Judge Flaum applied the traditional two-part framework, which looks first to see whether the law even burdens activity protected under the Second Amendment and then, if so, whether the law withstands some type of heightened scrutiny. At the first step, Judge Flaum noted that historians, legal scholars, and other circuit judges had considered the Second Amendment to be connected to the concept of a virtuous citizenry. As such, the founders would have accepted limits on possession by those groups not capable or exercising virtue, such as children or the mentally ill, as well as by those who had shown themselves not virtuous, such as by breaking the law. Ultimately, though, the majority decided that the historical evidence was not conclusive, and proceeded to assume that Kanter fell within the scope of the Second Amendment and step one and assessed whether the law still passed scrutiny at step two. Because Heller said that nothing in its opinion should be read to cast doubt on disarming felons, a regulation it called “presumptively lawful,” the majority applied intermediate scrutiny. The majority concluded that the law was reasonably related to the government’s important interest in preventing gun violence. The government need not adduce proof that Rickey Kanter himself was dangerous; it could apply the rule to a class as a whole (how else could a “rule” apply?), and the government had introduced sufficient evidence that even nonviolent offenders had a higher risk of future violent crime.

Judge Barrett, in a 37-page dissent, found no uncertainty in the historical record. According to her reading of the history, legislatures only had the power to strip dangerous people of the right to keep and bear arms. She reached that conclusion by rejecting the three arguments the government put forward for its authority to disarm all felons: (1) some founding-era legislatures deprived felons of the right, (2) because states put felons to death at the founding, it could clearly disarm them, and (3) founding-era legislatures permitted only virtuous citizens to have guns, not lawbreakers.

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As this overview shows, the key gun-related cases in which Judge Barrett has written opinions run the gamut from a prominent Second Amendment dissent to those in a range of criminal law contexts. Given her short tenure on the Seventh Circuit so far, it is probably too soon to conclude that these rulings allow us to distill her theory of firearms law, or even know whether she has a single definable one yet. But from these cases it is nonetheless evident that Judge Barrett takes gun rights seriously and recognizes that the ubiquity of firearms in American life requires adjustments to police practices, criminal procedure doctrine, and substantive criminal law.