CLAIM: “Amy Coney Barrett Wants Felons to Have Guns, But Not Votes” – The New Republic, Sep. 26, 2020
VERDICT: FALSE. The headline distorts her dissent in a case about the Second Amendment and non-violent felons.
President Donald Trump formally nominated Amy Coney Barrett to the Supreme Court on Saturday, and the attacks have already begun.
The New Republic‘s Matt Ford wrote an article that is being widely circulated on social media that claims Barrett “wants felons to have guns, but not votes.” The headline is a gross distortion of a dissenting opinion that Barrett wrote in Kanter vs. Barr, a case she heard on the U.S. Court of Appeals for the Seventh Circuit last year.
Before diving into the details, it is worth noting two facts. First, the Fourteenth Amendment — the same amendment that guarantees the right to vote — also allows states to abridge that vote “for participation in rebellion, or other crime.” The Second Amendment contains no such caveat: it says that the right to keep and bear arms “shall not be infringed.” That does not mean it is unlimited, but it is noteworthy that the Constitution specifically treats the right to vote somewhat differently.
Second, at no point in her entire opinion does Barrett call for felons to be deprived of the right to vote. In fact, she notes: “a state can disenfranchise felons, but if it refrains from doing so, their voting rights remain constitutionally protected.” Nor does she “want” felons to have guns. She specifically says throughout her dissent that violent felons may lose their rights.
Ford’s article is more nuanced than the misleading headline, but for some reason he did not link directly to the opinion, so readers might judge for themselves. That could be a mere oversight, but in an age where “fake news” travels faster than the truth, it is an unfortunate one.
Now, the details. The case is about a man who was convicted for a non-violent felony. Under Wisconsin law, he is not allowed to own a firearm. A three-judge panel of the Seventh Circuit upheld the law. The two judges in the majority noted that the historical record was unclear as to whether the Second Amendment excluded felons for lacking “civic virtue”: “If …as most scholars have concluded, the founders conceived of the right to bear arms as belonging only to virtuous citizens, even nonviolent felons like Kanter would fall outside the scope of the Second Amendment.” They noted there was significant disagreement: “If the founders were really just concerned about dangerousness, not a lack of virtue, nonviolent felons like Kanter arguably fall within the scope of the Second Amendment’s protections.” They decided that it did not matter, because the felon-dispossession statute was substantially related to an important government interest — i.e. protecting public safety.
Barrett disagreed with the majority’s view of the historical record (original emphasis):
History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward— legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.
The historical evidence does, however, support a different proposition: that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category simultaneously broader and narrower than “felons”—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.
Barrett then walked through a careful historical analysis, observing:
Those who ratified the Second Amendment would not have assumed that a free man, previously convicted, lived in a society without any rights and without the protection of law. This is not to say that felons could not lose rights under another theory. Indeed, state legislatures did explicitly exclude felons from the enjoyment of particular rights. … But history confirms that the basis for the permanent and pervasive loss of all rights cannot be tied generally to one’s status as a convicted felon or to the uniform severity of punishment that befell the class.
She then addressed the majority’s point about “virtue,” noting that it was historically applied to other rights, but not the right to bear arms: “While scholars have not identified eighteenth or nineteenth century laws depriving felons of the right to bear arms, history does show that felons could be disqualified from exercising certain rights—like the rights to vote and serve on juries—because these rights belonged only to virtuous citizens.”
She explained why the Second Amendment is different, citing the Heller precedent (original emphasis):
The problem with this argument is that virtue exclusions are associated with civic rights—individual rights that “require citizens to act in a collective manner for distinctly public purposes.”… For example, the right to vote is held by individuals, but they do not exercise it solely for their own sake; rather, they cast votes as part of the collective enterprise of self-governance. Similarly, individuals do not serve on juries for their own sake, but as part of the collective enterprise of administering justice. Some scholars have characterized the right to keep and bear arms as a civic right, because it was “one exercised by citizens, not individuals …, who act together in a collective manner, for a distinctly public purpose: participation in a well regulated militia.” … Heller, however, expressly rejects the argument that the Second Amendment protects a purely civic right. … It squarely holds that “the Second Amendment confer[s] an individual right to keep and bear arms,” Heller, 554 U.S. at 595 (emphasis added), and it emphasizes that the Second Amendment is rooted in the individual’s right to defend himself—not in his right to serve in a well-regulated militia.
In sum, the available evidence suggests that the right to arms differs from rights that depend on civic virtue for enjoyment. The Second Amendment confers an individual right, intimately connected with the natural right of self- defense, and not limited to civic participation (i.e., militia service).
Barrett went on to say that while the government has a “very strong” interest in keeping guns out of the hands of dangerous people, the felon-dispossession statute may be too broad when it comes to non-violent felons. In this case, Wisconsin had failed to show that the felon, who was convicted of mail fraud, was likely to be dangerous to public safety.
Ford’s concern is that “in searching for a rationale to justify a sweeping expansion of gun rights, [Barrett] appears to have unnecessarily minimized the nature and significance of voting rights in general.” That is a legitimate argument, though an uncharitable reading of her opinion. Ford’s dispute would appear to be with the Fourteenth Amendment, not Barrett.
Without the headline, Ford’s article might be taken as a good-faith challenge to Barrett’s record. Perhaps he wrote it in that spirit. The headline, however, is completely false, and inexcusable — a bit of clickbait calculated to inflame opposition.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.