The Radical Right To Rights

During his questioning of Judge Amy Coney Barrett, former Connecticut attorney general, now senator, Richard Blumenthal, claimed that Barrett “admitted” her dissent in a Seventh Circuit Second Amendment case, Kanter v. Barr, was “radical.”

“Did I say it was radical in the opinion?” Barrett asked.

“I think you said, quote, ‘it sounds kind of radical to say felons can have firearms.’ That’s a direct quote.”

“I didn’t remember that particular language,” Barrett said, adding that she did not want to nitpick.

“We can look it up,” Blumenthal said.

Blumenthal was in a familiar place. He was wrong. Barrett did suggest her views could be seen as radical during a subsequent discussion at Hillsdale College.

That sounds kind of radical to say felons can have firearms, but I think that’s because what the long-standing prohibitions were, and in fact had been even under federal law until more recently, were that violent felons couldn’t have firearms. And there’s a longstanding, what the history showed me, was that there’s been a longstanding practice of saying that those who have—who pose a threat of violence to the community cannot have firearms. And that makes sense, right? History is consistent with common sense. Those who would be risky with guns, who would pose a danger with guns, then the state can take guns away.

The case addressed whether a defendant convicted of a felony, mail fraud (and not insignificant mail fraud), should be deprived of his Second Amendment rights. As it’s a gun case, it’s inherently overlaid with angst about guns, the public distinction that some constitutional rights are “good” rights, at least when applied to people we like, while the Second Amendment right to bear arms is an evil right because we hate guns.

Others see constitutional rights as an indistinguishable bundle. Either you’re for them or you’re not, and if you’re for them, then you’re for all of them and expect the law to respect the ones you prefer as well as the ones you don’t.

But the specific issue raised by Senator Blumenthal is an important one. Judge Barrett’s dissent, adding nuance to Justice Scalia’s errant paragraph in Heller, which used the word “felon” as a class of individuals for whom the right could be abrogated. Are “felons” today what they used to be? Are “felons” inherently unworthy of rights.

Given that we are in the tens of thousands of felonies that a person could potentially commit, three before lunch for many, that reflect some malum prohibitum offense that’s a felony for no better reason than the prevailing wind at the moment made the word appealing, is that what Nino was talking about when he used the word in Heller? Would using improperly imported ebony be a good reason? What about throwing three undersized fish off a boat and back into the sea? Hey, they’re felonies. What about stealing a loaf of bread after being previously convicted of the same?

Judge Barrett’s point is that the word “felony,” as a stand alone concept, conjures up images of someone doing bad things to someone else, often violent, often harmful. Her point is that image may remain in our national subconscious, but that’s not necessarily what makes a felon today.

While it may make sense to deny a gun to a person who has been proven inclined to violence, does it make sense to deprive a constitutional right to a person for a regulatory violation? Does it make sense to conflate a violent disposition with someone who’s shown no inclination toward violence even if they’re greedy? With the word “felon” covering an astoundingly broad spectrum of conduct, is it enough to rely on the legislative characterization of an offense, generally defined as one for which the potential punishment exceeds one year imprisonment, as a fine enough line to deprive someone of their constitutional rights?

Since the issue in Kanter involved guns, and since so many people hate guns rather than the people who use them illegally to harm others, it both raises a question as well as taints the point. Does Judge Barrett’s concern about the deprivation of a constitutional right to anyone who carries the burden of having been convicted of a felony extend to all constitutional rights, or is it only applicable to the Second Amendment? Is this a “gun” decision or a constitutional rights decision?

Another rights issue for people convicted of a felony is the franchise, with a sudden concern miraculously arising among activists about the deprivation of the right to vote to anyone who carries the burden of a conviction. Many are arguing for the re-enfranchisement of those convicted. States are restoring the right. States are screwing around with the restoration of the right as well.

But Judge Barrett’s nuanced dissent in Kanter is, or should be, cause for joy for activists fighting to restore the right to vote to felons. Just as she tries to parse the meaning of “felon” to differentiate those for whom the deprivation of their Second Amendment right makes sense and those for whom the mere word is sufficient, even if there is no rational connection between their conduct and any potential for dangerousness (and putting aside whether this should be sufficient), this strongly serves the argument that “felons” should not be denied their right to vote. They should be cheering Judge Barrett’s dissent. They should be demanding that all judges be as nuanced and thoughtful in their reluctance to deny anyone a constitutional right.

Blumenthal raised his mistaken accusation to taint Judge Barrett as a radical right-wing gun nut, playing the emotions of his tribe with his anecdotes of Sandy Hook, as her nomination is fraught with the politics of having been nominated by Trump and the Republican hypocrisy of ramming her confirmation through after their empty rhetoric about Judge Merrick Garland. But the only salient question is whether Judge Barrett’s thoughtful distinction about felons applies to all constitutional rights and not just the Second Amendment. If so, this should be a huge point in her favor, and one that anyone who supports constitutional rights should favor.

12 thoughts on “The Radical Right To Rights

  1. Scott Spencer

    It always seemed a bit unfair to me to deny rights to people even after they have done their time. I can see maybe limiting voting rights or gun rights etc while still on parole or probation. If you paid your debt though it never made sense to me.

    Lay opinion with no factual basis. Just feelz….

    1. B. McLeod

      In this age of registries, post-release supervision and Internet outrage mobs (which pursue even the acquitted) when can any convicted felon be said to have “paid their debt”? The lifetime taint has now become part of the “payment.”

    2. Tracie Goldman

      I have always agreed with this too. If they paid their time, debt to society, paid off restitution, etc.
      Although If they admit they would vote for donald Trump again….:)

  2. Keith

    This is a virtuous argument, put forward by a virtuous citizen.
    Imagine someone like that, in the Senate or on the court.

  3. Jim Majkowski

    I noted that Judge Barrett’s nuanced dissent also distinguished between what she called “civic” (voting, jury service) and “individual” (keeping and bearing arms) rights. We return though to when is the judge required (to say “allowed” implies judicial legislation) by the constitution to override the legislature? ACB distinguished dangerousness (ok to forbid firearm possession) from disinclination to subordinate one’s actions to society’s rules and structure (not bad enough). She didn’t address violent misdemeanors curtailing 2dA rights, as Justice Thomas appears to have done (domestic violence convictions trigger a federal ban; in Michigan, an ex-parte personal possession order often forbids firearm possession, on pain of contempt). Cardozo would have held that judicial override is limited to when the legislature’s actions are inconsistent with the concept of “ordered liberty.” Field and the four horsemen were offended when liberty of contract was affected. Black insisted on invoking specific constitutional language. Alito seems ok with restricting abortion and offended by requiring employers to provide others with insurance coverage abhorrent to their religions. Bork, famously, opined that legislatures could forbid marriage itself (and the consequence would have been electoral defenestration, but only that). Where is ACB and is the Senate ok with that? She might be around a long time.

    1. SHG Post author

      Have you considered focusing on one point and expressing a fully developed thought rather than firing your shotgun into the sky?

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