OSD 83: You can't predict the future, but you can plan for it
If you like guns and like reading court opinions, you're going to have a busy few weeks.
Justice Ginsburg’s passing on Friday was momentous because of her stature, and also momentous because of the questions that it opened up. Who gets appointed when, how that’ll shake out, and all that sort of stuff. Punditry is not our wheelhouse, and in any case, we don’t know any more about those questions than you do. Whatever happens there will happen, and we’ll work with it.
But one place we can shed some light is Second Amendment jurisprudence. Specifically that of the prediction markets’ pick for likeliest nominee, Amy Coney Barrett. Judge Barrett sits on the Seventh Circuit Court of Appeals, and last year she was on the panel of judges that heard Kanter v. Barr.
Jake Charles at Duke University neatly summarized that case like so:
Rickey Kanter previously owned a business that made therapeutic shoes for diabetics and individuals with serious foot disease. He lied about the physical specifications of the shoes, claiming they met federal requirements when they did not, and was later convicted of mail fraud for bilking Medicare out of hundreds of thousands of dollars. That conviction rendered him incapable of owning a gun. He argued that because his conviction was not for a crime of violence, applying the firearm prohibition to him violated his Second Amendment rights.
In a 2-1 decision, the Seventh Circuit upheld the blanket lifetime ban on gun possession for nonviolent felons. Judge Barrett was the 1. Leaning on the “text, history, and tradition” test for Second Amendment interpretation, she started her dissent like this:
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.
18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.
The dissent isn’t fiery or showy—it’s technical, straightforward, and airtight. It would be nice to excerpt more of it here, but to be honest none of the excerpts really jump out. It’s just plain ol’ persuasive, step-by-step legal writing. And it lays out a robust view of the Second Amendment that many states’ restrictions would probably not survive contact with.
Just one way things could go. Stay frosty, read up, and we’ll roll with things as they happen. Make it a great week, gang.
P.S. For more on guns and the Supreme Court, check out “OSD 69: SCOTUS out, time to build”.
This week’s links
Why everyone likes lever actions
It’s pretty much guaranteed we’ll signal-boost Lucky Gunner’s YouTube videos.
How to create scientific myths without really trying
On publication bias and related pitfalls.
Inside the bribes-for-carry-permits system in the Santa Clara County, CA sheriff’s office
Behind the scenes of this developing story—and the criminal charges around it—from the heart of Silicon Valley.
TFB’s Build of the Week contest
Show ‘em what you’ve got.
Active Response Training
Good nitty-gritty blog from Greg Ellifritz.
Jocko Willink on why he doesn’t comment on politics
Couldn’t have said it better ourselves.
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