Kanter v. Barr
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 16-cv-1121 — William C. Griesbach, Chief Judge. (2019)
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Rule of Law:
A categorical ban on firearm possession for convicted felons is substantially related to the government's important interest in preventing gun violence and does not violate the Second Amendment as applied to an individual convicted of a serious, nonviolent felony.
Facts:
- Rickey I. Kanter was the owner and CEO of Rikco International, which manufactured therapeutic shoe inserts under the name 'Dr. Comfort' for individuals with diabetes.
- Most of the inserts were billed to and paid for by Medicare, which required the inserts to meet certain thickness and hardness standards.
- In 2004, after Medicare rejected his initial inserts for being too thin, Kanter submitted revised, compliant samples for approval.
- Despite receiving approval for the revised samples, Kanter continued to manufacture and sell the original, noncompliant inserts.
- Kanter represented to customers that the noncompliant inserts were Medicare-approved, leading Medicare to pay his company for them.
- Based on a shipment of these noncompliant inserts, Kanter was convicted of one count of mail fraud, a felony.
- As a result of his felony conviction, Kanter is permanently prohibited from owning a firearm under both federal and Wisconsin law.
Procedural Posture:
- Rickey I. Kanter sued the United States and Wisconsin in the U.S. District Court for the Eastern District of Wisconsin.
- Kanter sought a declaration that the federal and state felon-in-possession statutes were unconstitutional as applied to him.
- The United States filed a motion to dismiss, and Wisconsin filed a motion for judgment on the pleadings.
- Kanter filed a cross-motion for summary judgment.
- The district court (trial court) granted the defendants' motions, upholding the statutes' constitutionality as applied to Kanter.
- Kanter appealed the district court's judgment to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does applying federal and state felon-in-possession statutes (18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m)) to prohibit a nonviolent felon from possessing a firearm violate the Second Amendment?
Opinions:
Majority - Flaum, Circuit Judge.
No, applying the felon dispossession statutes to a nonviolent felon does not violate the Second Amendment. The government has met its burden under intermediate scrutiny to show that the statutes are substantially related to the important government interest of preventing gun violence. The court applied its two-step Second Amendment test. At step one, it found the historical evidence regarding whether felons were categorically excluded from the right to bear arms to be inconclusive and proceeded to step two. At step two, the court applied intermediate scrutiny, acknowledging that preventing gun violence is an important government interest. It found the ban was substantially related to that interest, citing studies and judicial statements indicating that even nonviolent felons have a higher propensity for future violent crime than nonfelons. The court rejected Kanter's argument for an individualized assessment of his dangerousness, stating that Congress is not limited to case-by-case exclusions and that a 'reasonable, not perfect' fit is all that is required. Because Kanter was convicted of a serious federal felony reflecting 'significant disrespect for the law,' the statutes were constitutional as applied to him.
Dissenting - Barrett, Circuit Judge.
Yes, applying the felon dispossession statutes to Kanter violates the Second Amendment. The power to prohibit people from possessing guns extends only to those who are dangerous, and legislatures historically disarmed groups only when they were judged to be a threat to public safety. The dissent rejects the idea that Second Amendment rights are limited by a 'civic virtue' requirement, arguing that such limitations historically applied to civic rights like voting, not individual rights like the right to bear arms as defined in Heller. The statutes are 'wildly overinclusive' for covering all felonies, many of which (like Kanter's mail fraud) are not predictive of future violence. Applying a demanding form of intermediate scrutiny, the government failed to show that disarming all nonviolent felons, or Kanter specifically, is substantially related to public safety, as its statistical evidence was too general. Absent evidence that Kanter himself belongs to a dangerous category or bears individual markers of risk, the permanent disqualification is unconstitutional as applied to him.
Analysis:
This decision reinforces the constitutionality of broad felon-in-possession statutes, affirming that even nonviolent felons are not exempt from the ban. The court's application of intermediate scrutiny focuses on the risk of a class of individuals (felons) rather than requiring an individualized assessment of dangerousness, making as-applied challenges difficult for nonviolent offenders. The case is notable for the vigorous dissent from then-Judge Amy Coney Barrett, which presents a detailed originalist argument that the Second Amendment only permits disarming 'dangerous' individuals. This dissent provides a roadmap for future challenges and could influence future Supreme Court jurisprudence on the scope of the Second Amendment.
