by Bob Barr
In a March 2019 decision certain to spur furious badgering from Democrats when she appears before the Senate Judiciary Committee next month, federal Appeals Court Justice (and now Supreme Court Associate Justice nominee) Amy Coney Barrett showed herself to be not only a supporter of the Second Amendment, but a thoughtful and courageous one.
Transactions involving firearms are among the most heavily regulated of all commercial and legal activities in the United States. It therefore is not unusual for a federal judge to issue rulings on one or more matters involving the Second Amendment during their tenure.
In the case of Justice Barrett, a decision by a three-judge panel of the Seventh Circuit Court of Appeals, on which she currently sits, illustrates the depth of her knowledge about the Second Amendment and of federal firearms laws. More important, her dissent in the case of Rickey Kanter v. William Barr, shows that she is remarkably unafraid to go against conventional wisdom in order to apply an historically correct and common-sense based interpretation of both the Bill of Rights and federal gun laws.
At issue in the Kanter case was the long-standing federal law that makes it a crime for anyone who has ever been convicted of a felony offense under either state or federal law to thereafter legally possess a gun. Although the federal ban does not kick in if the felony for which an individual has been convicted was for violating a federal antitrust law or similar trade-restraint provision, and while there is language in the law allowing for the person to apply to have their rights restored, in every practical way, short of a pardon the ban holds for the remainder of the individual’s life.
In virtually every case challenging the gun ban, the federal government routinely argues that the measure is absolutely essential in order to protect the public from persons posing a danger to society. The “danger” flows solely from the person having been convicted of a crime carrying punishment of more than a year in prison. The Kanter case was no exception; he pleaded guilty to a single count of mail fraud, and Uncle Sam declared him a permanent danger to society.
Had Kanter’s fraudulent use of the Postal Service involved shipment of a firearm or ammunition, or if he had a history of violent behavior, the government’s position might make a degree of sense. It is, however, impossible to argue with a straight face that the crime to which Kanter pleaded could conceivably be construed as “dangerous” to anyone at any time under any circumstances. His crime was mailing some “noncompliant” shoe inserts to a podiatrist in Florida from his home in Wisconsin, where he did business as “Dr. Comfort.”
Still, not only did Justice Department lawyers argue straight-faced that mailing a few shoe inserts to a podiatrist in another state made Kanter a danger forevermore, but a federal trial judge and two of three Court of Appeals justices agreed that the government’s argument made constitutional sense.
It is Amy Coney Barrett — the third justice on that three-judge Seventh Circuit panel — who made sense and who correctly applied the intent of the federal law and the clear scope of the Second Amendment’s language as against Mr. Kanter. In her dissent, she noted that there was no evidence whatsoever that Kanter posed a danger to society, and therefore prohibiting him from forever exercising a fundamental right was constitutionally impermissible.
In a rare but refreshing exercise of judicial analysis, Barrett based her dissent on history and common sense. To her, while both common sense and history may allow the government to prohibit “dangerous people from possessing guns,” that power must be based on actual evidence that they are “dangerous,” not merely saying so. For Barrett, fundamental rights such as the right to keep and bear arms as guaranteed by the Second Amendment, are too precious to be swept aside by arbitrary laws recited by government lawyers with no basis in fact.
If Judge Barrett brings that same degree of knowledge and common sense to her deliberations as a Supreme Court Justice, the American people will have been well-served by President Trump’s nomination.
Bob Barr represented Georgia’s 7 District in the U.S. House of Representatives from 1995 to 2003 and was the U.S. Attorney for the Northern District of Georgia from 1986 to 1990. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.