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.
To the first point, she dismissed the relevance of three proposals for right-to-arm provisions in the Bill of Rights put forward after the ratification of the Constitution by New Hampshire, Massachusetts, and Pennsylvania. (Ironically, Heller found these sources quite probative of what the founding generation wanted with respect to gun rights; Judge Barrett, on the other hand, emphasized that these were proposals that went nowhere.) She further read the historical practice as only targeting violent offenders or those who risked public safety—which she implicitly understood as posing risk of physical harm.
On the second point, about the consequences of a felony conviction at the founding, she argued that although felonies were punishable by death at common law, that was already changing by the time of the Second Amendment’s ratification. As the number of felonies grew, the punishment for violation decreased and they no longer faced the loss of all rights upon conviction.
As to the third point, about the requirement for virtue, Judge Barrett thought Heller foreclosed this view. She acknowledged the many scholars who connect the founding-era right to keep and bear arms with a virtuous citizenry, but concluded that the founding-era only applied the virtue limitation to civic rights, like voting and serving on juries, not to “individual rights” like the Heller-established Second Amendment right. States expressly excluded some convicted criminals from voting and serving on juries, but early state constitutions and statutes did not do the same for gun rights.
From this history, Judge Barrett concluded that legislatures had the power to disarm those who present a threat to public safety. They can make that decision on a class-wide basis and do not need to rely on individual determinations. And, significantly, legislatures “may do so based on present-day judgments about categories of people whose possession of guns would endanger the public safety.” But a legislature has to justify that designation. Where it burdens a core right permanently, as here, it has to meet a very stringent standard (akin to strict scrutiny). According to Judge Barrett, 922(g)(1) is not tailored to an interest in preventing gun violence because it reaches too far: “It includes everything from Kanter’s offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses.” She further rejected the government’s statistical evidence showing a link between nonviolent prior offenses and future violent crime (those treat the whole nonviolent category together) as well as specifically between mail-fraud convictions and future recidivism (that study didn’t demonstrate whether later crimes were violent). Thus, “[a]bsent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the government[] cannot permanently deprive him of his right to keep and bear arms.”
Judge Barrett concluded her opinion with a swipe at how her colleagues—and those on other courts who had nearly always done the same—treated the Second Amendment. Echoing what has become a strong theme of Justice Thomas’s continual dissents from denial of certiorari in Second Amendment cases, Judge Barrett wrote that the majority (and, by extension, dozens of other judges) were treating the right to keep and bear arms as a “second-class right.”
She later talked about this case in an interview at Hillsdalle College (h/t to Stephen Gutowski for writing on this talk). She reiterated her view that the longstanding tradition was that “those who pose a threat of violence to the community” can’t have firearms; she talked about overcriminalization and how many offenses are now classified as felonies that don’t indicate a risk of harm. “The line,” she said “is really whether someone is dangerous or not.” She also said that “Heller is pretty clear that the scope of the Second Amendment needs to be determined by its history.” This statement is noteworthy and might signal her agreement with Justice Kavanaugh that text, history, and tradition—and not the two-part framework—is the appropriate method for resolving Second Amendment disputes. Yet she also acknowledged in the talk that diving into those founding-era documents “was hard”—there weren’t the amount of amicus briefs that the Supreme Court receives, so she and her clerks had to the work themselves. If she is confirmed, she’ll have many more amicus briefs on the history waiting for her at the Supreme Court.
In addition to Kanter, Judge Barrett also wrote for the panel in a criminal case dealing with guns. In United States v. Watson (Aug. 17, 2018), she concluded that police violated the Fourth Amendment by blocking a car when they responded to a 911 call that reported that a group of four or five “boys” were “playing with guns” by that car. That 911 call did not provide the officers reasonable suspicion for a number of reasons, she said. In relation to the guns, she wrote: “the caller’s report in this case about the presence of guns did not create a reasonable suspicion of an ongoing crime, because carrying a firearm in public is permitted with a license in Indiana.” The reference to “boys,” if read as minors, may have been a crime, but might have just as easily been a generic term for men. And although some types of weapon-use short of firing can be illegal in Indiana “‘playing with guns’ could mean displaying them, which is not criminal conduct.” She further rejected the notion that the fact officers described this as a dangerous part of town could give them reasonable suspicion: “People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods.” She concluded with a note of understanding about the situation police faced:
We recognize that the calculus is complicated when police respond to tips involving firearms, at least in areas where carrying a firearm in public is not itself a crime. On the one hand, police are understandably worried about the possibility of violence and want to take quick action; on the other hand, citizens should be able to exercise the constitutional right to carry a gun without having the police stop them when they do so.
In a concurring opinion, Judge Hamilton noted that “after recent expansions of legal rights to possess and display firearms, the stop in that case was not justified under Terry v. Ohio, 392 U.S. 1 (1968), and the myriad cases applying it.” While the Seventh Circuit in Moore v. Madigan said the Second Amendment protects a right to public carry, the Supreme Court itself has not recognized, in Judge Barrett’s terms, “the constitutional right to carry a gun.”
In another criminal case dealing with unlawful gun possession, United States v. Moody (Feb. 7, 2019), Judge Barrett again wrote for a panel reversing a lower court order—this time on highly deferential plain error review. There, the defendant had stolen more than 100 guns from a train car and sold them to anonymous buyers who told the defendant they had heard about his heist. The district court imposed a sentencing enhancement “for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors.” Writing for the panel, Judge Barrett said there was no evidence the defendant knew or had reason to know the anonymous buyers would be unlawful users or possessors. “[T]he anonymous participants’ interest in off-the-books gun sales might have given Moody reason to believe that their purchases were unlawful, but not that their possession or use of the guns is unlawful,” the latter of which is required for the enhancement to apply.
In United States v. Briggs (Mar. 27, 2019), Judge Barrett wrote for a panel again reversing a lower court’s gun sentence. There, the defendant was arrested with large amounts of drugs and loaded firearms, despite having a disqualifying felony conviction. The district court imposed an enhancement for possessing the guns in connection with a felony drug offense. But, Judge Barrett wrote, the trial court never made a finding about how the guns were connected to the drug possession. “It simply assumed that because the firearms were probably connected to drug trafficking (because of the combination of the cocaine, marijuana, and digital scale), they were probably connected to his mere possession of the cocaine. But that logic doesn’t hold up.”
On the other hand, in United States v. Cherry (Apr. 17, 2019) she wrote for a panel rejecting an “innocent possession” jury instruction as a defense to a charge of being a felon-in-possession of a firearm. In that case, police recovered a firearm on the ground several feet away from the defendant, who had a disqualifying prior conviction. He claimed that he had knocked the gun out of someone else’s hand and had only picked it up briefly before officers arrived on the scene. Writing for the court, Judge Barrett emphasized that the Seventh Circuit has not recognized an innocent-possession defense outside the context of situations like necessity or duress. And, even were it to recognize one, the evidence did not support the instruction here because the defendant did not seek to immediately turn the weapon over to law enforcement, as the instruction would require for innocent possession.
In another case, United States v. Stoller (June 28, 2019), Judge Barrett was on a panel that issued an unsigned order dismissing an appeal for lack of jurisdiction from a defendant seeking clarification on whether his felony conviction barred him from possessing archery equipment, BB guns, and pellet guns. The order noted that the man’s remedy lies elsewhere, such as in a Second Amendment challenge—and cited to Kanter. It noted in a footnote, though, that “[w]e wonder whether Stoller would be the appropriate plaintiff to bring such a challenge, as his lawyer has argued that he is disabled by ‘a major mental illness, Alzheimer’s Dementia.’” It noted that Illinois law bars people will certain mental conditions from firearm possession and said “[c]ourts have time and again noted with approval the longstanding prohibitions on the possession of firearms by felons and those who are not mentally competent”—citing Heller.
Most recently, in United States v. Uriate (Sep. 15, 2020), Judge Barrett dissented from a panel opinion applying the First Step Act to a firearm offense. That Act clarified that for offenses under 18 U.S.C. § 924(c), a second or subsequent conviction carrying a mandatory 25-year sentence could only be imposed after the first conviction had become final, not in the same proceeding as the first conviction (as had been the practice for many years under prior Supreme Court precedent). The Act applied to anyone who for whom a sentence “has not been imposed” at the time it became law. At issue in this case was whether a defendant who had been sentenced, and had his sentence vacated but had not yet been resentenced, could qualify for relief under the Act. The majority said yes. In true textualist style, Judge Barrett invoked various style manuals and relied on grammatical parsing of the language to conclude the Act did not apply. The defendant had been sentenced initially—a sentence had already been imposed—even though that sentence had been vacated. As she said, “a background principle [or resort to congressional purpose] cannot overcome statutory text.” After all, “[s]peculating about congressional desires is a dicey enterprise, which is one reason among many that we should stick to the text.”
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.