Is the Seventh Circuit Quietly "Breaking New Doctrinal Ground"?

  • Date:
  • June 11, 2019

As this blog highlighted last week, the Seventh Circuit in Kanter v. Barr rejected a fraudster’s attempt to have the court declare 18 U.S.C. § 922(g)(1), the felon dispossession statute, unconstitutional as applied to him. It did the same thing last Thursday in Hatfield v. Barr. But did it also upend its normal inquiry?

Like Ricky Kanter, Larry Hatfield committed fraud to get government money. Unlike Kanter, Hatfield served no prison time and took less than $2,000, compared to more than $375,000 for Kanter. But the Seventh Circuit panel (Easterbook, Flaum, Sykes) unanimously concluded that Kanter controlled the outcome and foreclosed Hatfield’s claim. That’s where the agreement stopped. Judge Easterbook, writing for the majority, dispensed with the two-step inquiry Kanter, and the Seventh Circuit more broadly, typically undertakes. Instead, he flatly rejected the notion that one who served no prison time ought to enjoy any kind of presumption that his crime or his circumstances warranted individualized review:

We now hold that §922(g)(1) may be applied to a felon convicted of fraud, whose maximum sentence exceeded a year, even if the actual punishment was less. Heller and McDonald treat felon‐dispossession statutes as valid; the Justices did not make anything of how much time any given felon spent in prison.

For that reason, Hatfield bore the burden of proving that he should be exempt from these laws. As Judge Easterbook put it, “Lawyers love to play games with burden‐shifting, but Hatfield’s effort to avoid the subject is unavailing. He is the plaintiff, and plaintiffs bear the burden of production and the risk of non‐persuasion.”

According to Judge Sykes, writing in a partial concurrence, that approach is wrong.

Kanter assumed that nonviolent felons are within the scope of the Second Amendment’s protections and applied intermediate scrutiny, requiring the government to demonstrate that disarming someone like Rickey Kanter—a person convicted of a nonviolent fraud felony—is substantially related to an important public-safety interest.

She would have simply concluded that Kanter controlled the outcome without “[b]reaking new doctrinal ground.”

Despite the virtue vs. dangerousness dispute discussed in Kanter (and expounded upon by Judge Barrett in dissent), there’s no hint of that debate in Hatfield. Judge Easterbook suggests that Heller made felon dispossession laws constitutional full stop. Barring any empirical evidence showing a particular person, or one who committed a particular crime, is “to a constitutionally dispositive degree less dangerous than other felons, [he] must accept that the Supreme Court’s norm applies to him.”