kanter v. barr 437 · 10/2/2020 · governmental objective of reducing gun violence, and thus did...

437KANTER v. BARRCite as 919 F.3d 437 (7th Cir. 2019)

ter. We conclude § 107(2) is constitutional.The judgment of the district court is RE-

VERSED.

,

Rickey I. KANTER, Plaintiff-Appellant,

v.

William P. BARR, Attorney Generalof the United States, et al.,

Defendants-Appellees.

No. 18-1478

United States Court of Appeals,Seventh Circuit.

Argued September 7, 2018

Decided March 15, 2019

Background: Convicted nonviolent felonbrought action against Attorneys Generalfor the United States and the State ofWisconsin, alleging that federal and statefelon dispossession statutes violated theSecond Amendment as applied to felon.The United States District Court for theEastern District of Wisconsin, William C.Griesbach, Chief District Judge, 2017 WL6731496, granted defendants’ motions todismiss and for judgment on the pleadings.Felon appealed.

Holding: The Court of Appeals, Flaum,Circuit Judge, held that felon disposses-sion statute did not violate the SecondAmendment as applied to felon.

Affirmed.

Barrett, Circuit Judge, filed dissentingopinion.

1. Federal Courts O3578, 3587(2)Court of Appeals reviews de novo a

district court’s ruling on a motion to dis-miss for failure to state a claim or motionfor judgment on the pleadings. Fed. R.Civ. P. 12(b)(6), 12(c).

2. Federal Courts O3666, 3667On de novo review of district court’s

ruling on a motion to dismiss for failure tostate a claim or motion for judgment onthe pleadings, Court of Appeals accepts allwell-pleaded facts as true and draws rea-sonable inferences in the plaintiffs’ favor.Fed. R. Civ. P. 12(b)(6), 12(c).

3. Federal Civil Procedure O1049, 1772To avoid dismissal on motion to dis-

miss for failure to state a claim or motionfor judgment on the pleadings, a complaintmust state a claim to relief that is plausibleon its face. Fed. R. Civ. P. 12(b)(6), 12(c).

4. Weapons O106(3)Threshold question under two-step

test for Second Amendment challenges iswhether the regulated activity falls withinthe scope of the Second Amendment. U.S.Const. Amend. 2.

5. Weapons O107(2)Determining whether regulated activi-

ty falls within the scope of the SecondAmendment is a textual and historical in-quiry; if the government can establish thatthe challenged law regulates activity fall-ing outside the scope of the right as origi-nally understood, then the regulated activi-ty is categorically unprotected, and the lawis not subject to further Second Amend-ment review. U.S. Const. Amend. 2.

6. Weapons O106(3)Under two-step test for Second

Amendment challenges, if historical evi-dence is inconclusive or suggests thatregulated activity is not categorically un-protected, then there must be a second

438 919 FEDERAL REPORTER, 3d SERIES

inquiry into the strength of the govern-ment’s justification for restricting or reg-ulating the exercise of Second Amend-ment rights. U.S. Const. Amend. 2.

7. Weapons O106(3)At step two of two-step test for Sec-

ond Amendment challenges, court evalu-ates the regulatory means the governmenthas chosen and the public-benefits end itseeks to achieve; rigor of the review isdependent on how close the law comes tothe core of the Second Amendment rightand the severity of the law’s burden on theright. U.S. Const. Amend. 2.

8. Weapons O106(3)Severe burdens on Second Amend-

ment right to keep and bear arms requirea very strong public-interest justificationand a close means-end fit; lesser burdens,and burdens on activity lying closer to themargins of the right, are more easily justi-fied. U.S. Const. Amend. 2.

9. Weapons O106(3)If challenged law regulates activity

protected by Second Amendment, govern-ment has the burden of justifying its lawunder a heightened standard of scrutiny;rational-basis review does not apply. U.S.Const. Amend. 2.

10. Weapons O106(3)Federal felon dispossession statute

was substantially related to importantgovernmental objective of reducing gunviolence, and thus did not violate the Sec-ond Amendment as applied to non-violentfelon, where government offered severalstudies finding connection between non-violent offenders and risk of future violentcrime, and felon was convicted of a seri-ous federal felony, namely, defrauding thefederal government out of hundreds ofthousands of dollars, which was broadlyunderstood to be criminal and reflectedsignificant disrespect for the law. U.S.

Const. Amend. 2; 18 U.S.C.A.§§ 922(g)(1), 1341.

Appeal from the United States DistrictCourt for the Eastern District of Wiscon-sin. No. 16-cv-1121—William C. Gries-bach, Chief Judge.

Mark A. Cameli, Malinda J. Eskra, At-torneys, Reinhart Boerner Van DeurenS.C., Milwaukee, WI, Monica Ann Mark,Attorney, Reinhart, Boerner, Van Deuren,Madison, WI, for Plaintiff-Appellant.

Michael L. Drezner, Attorney, Depart-ment of Justice, Civil Division, FederalPrograms Branch, Patrick Nemeroff, At-torney, Department of Justice, Civil Divi-sion, Appellate Staff, Washington, DC,Jonathan H. Koenig, Attorney, Office ofthe United States Attorney, Milwaukee,WI, Luke N. Berg, Attorney, Office of theAttorney General, Wisconsin Departmentof Justice, Madison, WI, for Defendants-Appellees.

Alan Gura, Attorney, Gura PLLC, Alex-andria, VA, for Amicus Curiae SecondAmendment Foundation, Incorporated

Megan Brown, Attorney, Wiley ReinLLP, Ilya Shapiro, Attorney, Cato Insti-tute, Washington, DC, for Amicus CuriaeCato Institute

Before Flaum, Ripple, and Barrett,Circuit Judges.

Flaum, Circuit Judge.

Rickey I. Kanter pleaded guilty to onecount of mail fraud under 18 U.S.C.§ 1341. Due to his felony conviction, he isprohibited from possessing a firearm un-der both federal and Wisconsin law. Atissue in this case is whether the felondispossession statutes—18 U.S.C.§ 922(g)(1) and Wis. Stat. § 941.29(1m)—violate the Second Amendment as appliedto Kanter. Even if Kanter could bring an


as-applied challenge, the government hasmet its burden of establishing that thefelon dispossession statutes are substan-tially related to an important governmentinterest. We therefore affirm the districtcourt.

I. Background

A. Federal and Wisconsin Felon Dis-possession Statutes

Section 922(g)(1) prohibits firearm pos-session by persons convicted of ‘‘a crimepunishable by imprisonment for a termexceeding one year.’’ 18 U.S.C. § 922(g)(1).State misdemeanors are included underthe statute if they are punishable by morethan two years in prison.1 Id.§ 921(a)(20)(B). However, the statute ex-cludes anyone convicted of ‘‘any Federal orState offenses pertaining to antitrust viola-tions, unfair trade practices, restraints oftrade, or other similar offenses relating tothe regulation of business practices.’’ Id.§ 921(a)(20)(A). Moreover, ‘‘[a]ny convic-tion which has been expunged, or set asideor for which a person has been pardonedor has had civil rights restored’’ is not aconviction for purposes of the statute. Id.§ 921(a)(20).

Although the firearms prohibition gener-ally applies for life, the statute includes a‘‘safety valve’’ that permits individuals toapply to the Attorney General for restora-tion of their firearms rights. Logan v.United States, 552 U.S. 23, 28 n.1, 128S.Ct. 475, 169 L.Ed.2d 432 (2007). Specifi-cally, the Attorney General 2 may removethe prohibition on a case-by-case basis ifan applicant sufficiently establishes ‘‘thatthe circumstances regarding the disability,

and the applicant’s record and reputation,are such that the applicant will not belikely to act in a manner dangerous topublic safety and that the granting of therelief would not be contrary to the publicinterest.’’ 18 U.S.C. § 925(c).

Since 1992, however, ‘‘Congress has re-peatedly barred the Attorney Generalfrom using appropriated funds ‘to investi-gate or act upon [relief] applications,’ ’’rendering the provision ‘‘inoperative.’’ Lo-gan, 552 U.S. at 28 n.1, 128 S.Ct. 475(quoting United States v. Bean, 537 U.S.71, 74–75, 123 S.Ct. 584, 154 L.Ed.2d 483(2002)). The Committee on Appropriationseliminated funding because the restorationprocedure under § 925(c) was ‘‘a very diffi-cult task’’ that required ATF officials to‘‘spend many hours investigating a particu-lar applicant for relief.’’ H.R. Rep. No. 102-618, at 14 (1992). Even then, there was ‘‘noway to know with any certainty whetherthe applicant [was] still a danger to publicsafety.’’ Id. Accordingly, ATF officialswere effectively ‘‘required to guess wheth-er a convicted felon TTT [could] be entrust-ed with a firearm.’’ Id. Moreover, theywere ‘‘forced to make these decisionsknowing that a mistake could have devas-tating consequences for innocent citizens.’’Id. Ultimately, the Committee determinedthat ‘‘the $3.75 million and the 40 man-years annually spent investigating and act-ing upon these applications for relief wouldbe better utilized by ATF in fighting vio-lent crime.’’ Id. The Committee addressedthe funding issue again in 1995, addingthat ‘‘too many of these felons whose gunownership rights were restored went on tocommit violent crimes with firearms.’’ H.R.Rep. No. 104-183, at 15 (1995).

1. Accordingly, calling the statute a ‘‘felon’’dispossession statute is somewhat of a ‘‘mis-nomer.’’ Carly Lagrotteria, Note, Heller’s Col-lateral Damage: As-Applied Challenges to theFelon-in-Possession Prohibition, 86 FordhamL. Rev. 1963, 1970 (2018).

2. The Attorney General delegated its authorityunder § 925(c) to the Bureau of Alcohol, To-bacco, Firearms and Explosives (‘‘ATF’’). 28C.F.R. § 0.130(a)(1).


In 1981, Wisconsin adopted its own felondispossession law. See Wis. Stat.§ 941.29(1m). Section 941.29(1m) prohibitsan individual from possessing a firearm ifhe has ‘‘been convicted of a felony in’’Wisconsin or ‘‘a crime elsewhere thatwould be a felony’’ in Wisconsin. Id.§ 941.29(1m)(a)–(b).

B. Factual Background

Kanter lives in Mequon, Wisconsin. Hewas previously the owner, operator, andCEO of Rikco International, LLC. RikcoInternational, which did business as ‘‘Dr.Comfort,’’ manufactured therapeutic shoesand inserts for individuals with diabetesand severe foot disease. The company mar-keted the shoes and inserts to podiatrists,who in turn sold them to individual con-sumers. Most of the shoes and insertswere billed to, and paid for by, Medicare.Medicare only paid for inserts that metcertain thickness and hardness standards.

In April 2004, Kanter submitted his in-serts to Medicare to determine whetherthey met those requirements. Medicare re-jected Kanter’s inserts because they weretoo thin. Kanter then submitted revisedsamples, which Medicare approved. How-ever, Kanter continued to sell the noncom-pliant inserts while representing that theywere Medicare-approved. All told, Medi-care paid Kanter’s company $375,000 forthe noncompliant inserts.

On May 24, 2011, Kanter pleaded guiltyto one count of mail fraud under 18 U.S.C.§ 1341 based on a shipment of the non-compliant inserts to a podiatrist in Florida.Section 1341 carries a maximum penalty oftwenty years in prison and a $250,000 fine.Kanter was sentenced to one year and oneday in prison and two years of supervisedrelease. He was also ordered to pay acriminal penalty of $50,000, and he reim-bursed Medicare over $27 million in a re-lated civil settlement.

Kanter has since served his time andpaid his criminal penalty, and he has notbeen charged with any additional criminalactivity. However, because of his felonyconviction, he is permanently prohibitedfrom owning a firearm under federal andWisconsin law.

C. Procedural Background

Kanter brought suit in the Eastern Dis-trict of Wisconsin, arguing that 18 U.S.C.§ 922(g)(1) and Wis. Stat. § 941.29(1m)are unconstitutional under the SecondAmendment as applied to him. The UnitedStates moved to dismiss his claim underRule 12(b)(6), and Wisconsin moved forjudgment on the pleadings under Rule12(c). In response, Kanter moved for sum-mary judgment, arguing that his status asa nonviolent offender with no other crimi-nal record meant that both statutes wereunconstitutional as applied to him.

The district court granted defendants’motions and denied Kanter’s motion. In sodoing, the district court held that, evenassuming felons are entitled to SecondAmendment protection, the application ofthe federal and Wisconsin felon disposses-sion laws to Kanter is substantially relatedto the government’s important interest inpreventing gun violence. The court rea-soned that Congress and the Wisconsinlegislature are entitled to categorically dis-qualify all felons—even nonviolent felonslike Kanter—because both have found thatsuch individuals are more likely to abusefirearms. The court also noted that this‘‘bright line categorical approach TTT al-lows for uniform application and ease ofadministration.’’ The district court enteredjudgment on January 2, 2018, and thisappeal followed.

II. Discussion

[1–3] We review de novo a districtcourt’s ruling on a motion to dismiss for


failure to state a claim and a motion forjudgment on the pleadings. LandmarkAm. Ins. Co. v. Hilger, 838 F.3d 821, 824(7th Cir. 2016). In doing so, ‘‘we accept allwell-pleaded facts as true and draw rea-sonable inferences in the plaintiffs’ favor.’’Roberts v. City of Chicago, 817 F.3d 561,564 (7th Cir. 2016). To avoid dismissal,‘‘the complaint must ‘state a claim to reliefthat is plausible on its face.’ ’’ Id. (quotingBell Atl. Corp. v. Twombly, 550 U.S. 544,570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007)).

A. Legal Standard 3

The Second Amendment states: ‘‘A wellregulated Militia, being necessary to thesecurity of a free State, the right of thepeople to keep and bear Arms, shall not beinfringed.’’ U.S. Const. amend. II. In Dis-trict of Columbia v. Heller, the SupremeCourt identified the ‘‘core’’ of the SecondAmendment as ‘‘the right of law-abiding,responsible citizens to use arms in defenseof hearth and home.’’ 554 U.S. 570, 634–35,128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).Accordingly, the Court concluded thatWashington D.C.’s ban on handgun posses-sion in the home violated the SecondAmendment. Id. at 635, 128 S.Ct. 2783.

However, the Court also made clear that‘‘the right secured by the Second Amend-ment is not unlimited.’’ Id. at 626, 128S.Ct. 2783. Although the Court did not‘‘undertake an exhaustive historical analy-sis TTT of the full scope of the SecondAmendment,’’ it said that ‘‘nothing in [its]opinion should be taken to cast doubt onlongstanding prohibitions on the posses-sion of firearms by felons and the mentallyill.’’ Id. It described such prohibitions as‘‘presumptively lawful regulatory meas-ures.’’ Id. at 627 n.26, 128 S.Ct. 2783. Two

years later, in McDonald v. City of Chica-go, the Court ‘‘repeat[ed] [its] assurances’’that felon dispossession laws remain valid.561 U.S. 742, 786, 130 S.Ct. 3020, 177L.Ed.2d 894 (2010) (plurality opinion).

[4, 5] After Heller, we developed atwo-step test for Second Amendment chal-lenges. ‘‘The threshold question is whetherthe regulated activity falls within the scopeof the Second Amendment.’’ Ezell v. Cityof Chicago, 846 F.3d 888, 892 (7th Cir.2017) (‘‘Ezell II’’). ‘‘This is a textual andhistorical inquiry; if the government canestablish that the challenged law regulatesactivity falling outside the scope of theright as originally understood, then ‘theregulated activity is categorically unpro-tected, and the law is not subject to fur-ther Second Amendment review.’ ’’ Id.(quoting Ezell v. City of Chicago, 651 F.3d684, 703 (7th Cir. 2011) (‘‘Ezell I’’)).

[6–9] However, ‘‘if the historical evi-dence is inconclusive or suggests that theregulated activity is not categorically un-protected[,] then there must be a secondinquiry into the strength of the govern-ment’s justification for restricting or regu-lating the exercise of Second Amendmentrights.’’ Id. (quoting Ezell I, 651 F.3d at703). At step two, we evaluate ‘‘the regula-tory means the government has chosenand the public-benefits end it seeks toachieve.’’ Id. (quoting Ezell I, 651 F.3d at703). The rigor of the review is dependenton ‘‘how close the law comes to the core ofthe Second Amendment right and the se-verity of the law’s burden on the right.’’ Id.(quoting Ezell I, 651 F.3d at 703). ‘‘Severeburdens’’ on this core right ‘‘require a verystrong public-interest justification and aclose means-end fit; lesser burdens, andburdens on activity lying closer to the

3. Because ‘‘the federal and state prohibitionsare equivalent in effect’’ as to Kanter, ourSecond Amendment analysis of the two stat-

utes is the same. Baer v. Lynch, 636 F. App’x695, 698–99 (7th Cir. 2016).


margins of the right, are more easily justi-fied.’’ Id. The government has the burden‘‘of justifying its law under a heightenedstandard of scrutiny; rational-basis reviewdoes not apply.’’ Id. We have consistentlydescribed step two as ‘‘akin to intermedi-ate scrutiny’’ and have required the gov-ernment to show that the challenged stat-ute is substantially related to an importantgovernmental objective. United States v.Meza-Rodriguez, 798 F.3d 664, 672 (7thCir. 2015) (citing cases).

B. As-Applied Second AmendmentChallenges

Relying on the ‘‘presumptively lawful’’language in Heller and McDonald, everyfederal court of appeals to address theissue has held that § 922(g)(1) does notviolate the Second Amendment on its face.See, e.g., United States v. Davis, 406 F.App’x 52, 53–54 (7th Cir. 2010); UnitedStates v. Bogle, 717 F.3d 281, 281–82 (2dCir. 2013) (per curiam); United States v.Moore, 666 F.3d 313, 318–19 (4th Cir.2012); United States v. Barton, 633 F.3d168, 172 (3d Cir. 2011), overruled on othergrounds by Binderup v. Att’y Gen., 836F.3d 336 (3d Cir. 2016) (en banc); Schraderv. Holder, 704 F.3d 980, 989–91 (D.C. Cir.2013), cert. denied, 571 U.S. 989, 134 S.Ct.512, 187 L.Ed.2d 365 (2013); United Statesv. Joos, 638 F.3d 581, 586 (8th Cir. 2011);United States v. Khami, 362 F. App’x 501,508 (6th Cir. 2010), cert. denied, 560 U.S.934, 130 S.Ct. 3345, 176 L.Ed.2d 1238(2010); United States v. Battle, 347 F.App’x 478, 480 (11th Cir. 2009) (per cu-riam); United States v. McCane, 573 F.3d1037, 1047 (10th Cir. 2009), cert. denied,559 U.S. 970, 130 S.Ct. 1686, 176 L.Ed.2d179 (2010); United States v. Smith, 329 F.App’x 109, 110–11 (9th Cir. 2009); UnitedStates v. Anderson, 559 F.3d 348, 352 (5thCir. 2009).

However, courts of appeals are split asto whether as-applied Second Amendmentchallenges to § 922(g)(1) are viable. On theone hand, the Fifth, Sixth, Ninth, Tenth,and Eleventh Circuits have suggested that§ 922(g)(1) is always constitutional as ap-plied to felons as a class, regardless oftheir individual circumstances or the na-ture of their offenses. See Stimmel v. Ses-sions, 879 F.3d 198, 210 (6th Cir. 2018)(‘‘[W]e have upheld § 922(g)(1), which di-sarms even non-violent felons.’’ (citingUnited States v. Carey, 602 F.3d 738, 741(6th Cir. 2010), cert. denied, 562 U.S. 895,131 S.Ct. 322, 178 L.Ed.2d 145 (2010)));United States v. Scroggins, 599 F.3d 433,451 (5th Cir. 2010), cert. denied, 562 U.S.867, 131 S.Ct. 158, 178 L.Ed.2d 95 (2010)(rejecting as-applied Second Amendmentchallenge and holding that felon disposses-sion laws are constitutional even if theoffense was nonviolent in nature); UnitedStates v. Rozier, 598 F.3d 768, 771 (11thCir. 2010), cert. denied, 560 U.S. 958, 130S.Ct. 3399, 177 L.Ed.2d 313 (2010) (con-cluding that ‘‘statutes disqualifying felonsfrom possessing a firearm under any andall circumstances do not of-fend the Sec-ond Amendment,’’ and holding that§ 922(g)(1) is ‘‘a constitutional avenue torestrict the Second Amendment right ofcertain classes of people,’’ including con-victed felons); United States v. Vongxay,594 F.3d 1111, 1115 (9th Cir. 2010), cert.denied, 562 U.S. 921, 131 S.Ct. 294, 178L.Ed.2d 193 (2010) (rejecting nonviolentfelon’s as-applied Second Amendment chal-lenge to § 922(g)(1) because ‘‘felons arecategorically different from the individualswho have a fundamental right to beararms’’); In re U.S., 578 F.3d 1195, 1200(10th Cir. 2009) (‘‘We have already reject-ed the notion that Heller mandates anindividualized inquiry concerning felonspursuant to § 922(g)(1).’’ (citing McCane,573 F.3d at 1047)).


The First Circuit has not foreclosed as-applied challenges, but it has expressedsome skepticism about them. In UnitedStates v. Torres-Rosario, the court reject-ed the defendant’s as-applied challenge be-cause he had two prior convictions for‘‘serious drug offenses.’’ 658 F.3d 110, 113(1st Cir. 2011), cert. denied, 565 U.S. 1271,132 S.Ct. 1766, 182 L.Ed.2d 549 (2012).However, the court noted that the Su-preme Court ‘‘may be open to claims thatsome felonies do not indicate potential vio-lence and cannot be the basis for applyinga categorical ban,’’ and ‘‘might even beopen to highly fact-specific objections.’’ Id.Yet the First Circuit cautioned that ‘‘suchan approach, applied to countless varia-tions in individual circumstances, wouldobviously present serious problems of ad-ministration, consistency and fair warn-ing.’’ Id.

On the other hand, we, along with theFourth, Eighth, and D.C. Circuits, haveleft room for as-applied challenges to thestatute. See United States v. Williams, 616F.3d 685, 693 (7th Cir. 2010), cert. denied,562 U.S. 1092, 131 S.Ct. 805, 178 L.Ed.2d532 (2010) (‘‘[W]e recognize that§ 922(g)(1) may be subject to an over-breadth challenge at some point because ofits disqualification of all felons, includingthose who are non-violent.’’); Medina v.Whitaker, 913 F.3d 152, 160 (D.C. Cir.2019) (‘‘We need not decide today if it isever possible for a convicted felon to showthat he may still count as a ‘law-abiding,responsible citizen’ ’’ entitled to SecondAmendment protections.); United States v.Woolsey, 759 F.3d 905, 909 (8th Cir. 2014)(‘‘[T]he Eighth Circuit has left open thepossibility that a person could bring asuccessful as-applied challenge to§ 922(g)(1)’’ but rejected defendant’s as-applied challenge because he had multipleviolent felony convictions.); United Statesv. Pruess, 703 F.3d 242, 247 (4th Cir. 2012)(holding that § 922(g)(1) could constitu-

tionally be applied to nonviolent felons, butacknowledging that ‘‘there in theory mightbe an as-applied Second Amendment chal-lenge to [§ ] 922(g)(1) that could succeed’’(citations and internal quotation marksomitted)).

Neither we, nor the Fourth, Eighth, orD.C. Circuits, however, have ever actuallyupheld such a challenge in practice. Infact, we have repeatedly rejected as-ap-plied Second Amendment challenges to§ 922(g). See Baer v. Lynch, 636 F. App’x695, 698 (7th Cir. 2016) (holding that§ 922(g)(1) could constitutionally be ap-plied to individual convicted of felony rob-bery); United States v. Shields, 789 F.3d733, 750–51 (7th Cir. 2015) (concluding that§ 922(g)(1) was constitutional as applied toindividual who had been convicted of threeviolent felonies); Williams, 616 F.3d at693–94 (holding that § 922(g)(1) was con-stitutional as applied to individual convict-ed of felony robbery who ‘‘beat[ ] the vic-tim so badly that the victim required sixty-five stitches’’); United States v. Skoien, 614F.3d 638, 642, 644 (7th Cir. 2010) (en banc)(rejecting as-applied Second Amendmentchallenge to § 922(g)(9) brought by domes-tic violence misdemeanant because vio-lence was ‘‘an element of the offense’’ anddata suggested high rates of recidivism).

Indeed, only one federal court of appealshas upheld an as-applied Second Amend-ment challenge to § 922(g). In a fractureden banc decision, a narrow majority of theThird Circuit (eight out of fifteen judges)held that § 922(g)(1) was unconstitutionalas applied to two individuals convicted of amisdemeanor for corrupting a minor and amisdemeanor for unlawfully carrying ahandgun without a license, respectively.Binderup, 836 F.3d at 340, 356. Because itis the only successful as-applied SecondAmendment challenge in a court of appealsto date—and because Kanter relies heavily


upon it—it is worth examining the case atsome length.

Seven members of the Third Circuit rea-soned that the historical justification fordisarming felons was ‘‘tied to the conceptof a virtuous citizenry,’’ and that ‘‘personswho have committed serious crimes forfeitthe right to possess firearms much theway they forfeit other civil liberties.’’ Id. at348–49 (plurality opinion) (citations and in-ternal quotation marks omitted). Applyingthe civic virtue rationale, three of thosejudges concluded that the challengers’ of-fenses ‘‘were not serious enough to stripthem of their Second Amendment rights.’’Id. at 351. They explained that, althoughthe two offenses were punishable by morethan a year in prison, and thus met thedefinition of a felony in § 922(g), the statelegislatures had enacted them as misde-meanors, and ‘‘a state legislature’s classifi-cation of an offense as a misdemeanor is apowerful expression of its belief that theoffense is not serious enough to be disqual-ifying.’’ Id. Those judges also consideredthat neither of the offenses at issue in-volved violence and that each of the chal-lengers received ‘‘a minor sentence,’’ andthey pointed to the lack of a ‘‘cross-juris-dictional consensus regarding the serious-ness of the [c]hallengers’ crimes,’’ remark-ing that in some states the challengers’conduct was not even illegal. Id. at 352. Atstep two, those three judges concludedthat § 922(g)(1) did not survive intermedi-ate scrutiny because the government reliedon ‘‘off-point statistical studies’’ that in-volved incarcerated felons, not misdemean-ants who had served no jail time. Id. at354.

By contrast, the other five judges whoupheld the as-applied challenge believedthat the exclusion of felons from the scopeof the Second Amendment’s protectionswas not rooted in notions of civic virtue,but rather ‘‘the time-honored principle that

the right to keep and bear arms does notextend to those likely to commit violentoffenses.’’ Id. at 367 (Hardiman, J., concur-ring in part and concurring in the judg-ments). Applying dangerousness as thetouchstone, those judges concluded thatpersons like the challengers who were con-victed of nonviolent offenses fall within thescope of the Second Amendment’s protec-tion. Id. at 375–76. Moreover, those fivejudges believed that § 922(g) was ‘‘cate-gorically unconstitutional’’ when applied to‘‘non-dangerous persons convicted of of-fenses unassociated with violence,’’ suchthat any subsequent means-end scrutiny orjudicial interest balancing was ‘‘inappropri-ate.’’ Id. at 358, 378.

The seven dissenting judges concludedthat as-applied challenges to § 922(g)(1)are never permissible. Id. at 401 (Fuentes,J., concurring in part, dissenting in part,and dissenting from the judgments). Indoing so, they stressed that the majority’sdecision to uphold such a challenge wasunprecedented. See id. at 380–81 (‘‘Theplaintiffs ask us to do something that nofederal appellate court has done be-fore.TTT No federal appellate court has yetupheld a challenge, facial or as-applied, tothe felon-in-possession statute.’’). Theycriticized the majority’s approach becauseit ‘‘saddle[s] district court judges with aseemingly unending obligation to reviewas-applied challenges’’ and ‘‘fail[s] to pro-vide us with any workable standards thatwould make such a regime administrative-ly feasible or doctrinally coherent.’’ Id. at380. According to the dissent, the chal-lengers’ claim failed at step one because‘‘Heller itself tells us that felons are dis-qualified from exercising their SecondAmendment rights,’’ and ‘‘there is no prin-cipled basis TTT for distinguishing felonsfrom misdemeanants who commit crimespunishable by more than two years inprison.’’ Id. at 388. In any event, the dis-senting judges concluded that § 922(g)(1)


survives intermediate scrutiny because thegovernment’s studies established a link be-tween past criminal conduct and the gov-ernment’s important interest in preventingfuture gun violence. See id. at 400–01.With respect to plaintiffs’ contention thatthe studies were not tailored to their spe-cific characteristics, the dissenting judgesexplained that ‘‘[t]he question is notwhether someone exactly like the plain-tiffs poses a threat to public safety,’’ butrather ‘‘whether the fit between the chal-lenged regulation and the asserted objec-tive [is] reasonable, not perfect.’’ Id. at 400(alteration in original) (citation and inter-nal quotation marks omitted).4

With this background in mind, we nowapply our two-step test to this case.

C. Step One: The Historical Evidenceis Inconclusive as to Whether Fel-ons Were Categorically ExcludedFrom the Second Amendment’sScope

The first question is whether nonviolentfelons as a class historically enjoyed Sec-ond Amendment rights. Heller did not an-swer this question. True, ‘‘some of Heller’slanguage does link Second Amendmentrights with the notion[ ] of ‘law-abidingcitizens.’ ’’ Meza-Rodriguez, 798 F.3d at669; see also Heller, 554 U.S. at 634–35,128 S.Ct. 2783 (observing that the ‘‘core’’of the Second Amendment right is ‘‘theright of law-abiding, responsible citizensto use arms in defense of hearth andhome’’ (emphasis added)). The HellerCourt also cautioned that nothing in itsdecision ‘‘should be taken to cast doubt on

longstanding prohibitions on the posses-sion of firearms by felons,’’ which it re-ferred to as ‘‘presumptively lawful.’’ 554U.S. at 626–27 & n.26, 128 S.Ct. 2783.Moreover, the Court mentioned that cer-tain individuals may be ‘‘disqualified fromthe exercise of Second Amendmentrights.’’ Id. at 635, 128 S.Ct. 2783. Howev-er, the Court never actually addressed thehistorical pedigree of felon dispossessionlaws. Accordingly, we have refused to readtoo much into the Court’s ‘‘precautionarylanguage.’’ Skoien, 614 F.3d at 640; seealso Meza-Rodriguez, 798 F.3d at 669(‘‘We are reluctant to place more weighton these passing references than the Courtitself did.’’).5

Nor has the Seventh Circuit decidedwhether felons were historically outsidethe scope of the Second Amendment’s pro-tection. See Baer, 636 F. App’x at 698.Although the litigants in Williams raisedthat question, we declined to address itand proceeded directly to the intermediatescrutiny analysis. 616 F.3d at 692. In sodoing, we noted that ‘‘[t]he academic writ-ing on the subject of whether felons wereexcluded from firearm possession at thetime of the founding is ‘inconclusive atbest,’ and we refrain[ed] TTT from makinga determination based on contradictoryviews.’’ Id. (quoting Skoien, 614 F.3d at650 (Sykes, J., dissenting)).

To be sure, although we have not ex-pressly decided this issue before, we havesuggested that felons were not historicallyunderstood to have Second Amendmentrights. For example, in Skoien, which in-

4. Both parties appealed to the SupremeCourt, but the Supreme Court denied the peti-tions for writ of certiorari. See Sessions v.Binderup, ––– U.S. ––––, 137 S.Ct. 2323, 198L.Ed.2d 746 (2017) (noting Justices Ginsburgand Sotomayor would grant the petition);Binderup v. Sessions, ––– U.S. ––––, 137 S.Ct.2323, 198 L.Ed.2d 746 (2017) (same).

5. But see Berron v. Ill. Concealed Carry Licens-ing Review Bd., 825 F.3d 843, 847 (7th Cir.2016) (‘‘When holding in [Heller] that theSecond Amendment establishes personalrights, the Court observed that only law-abid-ing persons enjoy these rights, even athome.’’).


volved domestic violence misdemeanants,we explained that some ‘‘categorical limits’’on firearm possession were ‘‘part of theoriginal meaning’’ of the Second Amend-ment. 614 F.3d at 640. Similarly, in UnitedStates v. Yancey, we opined that ‘‘mostscholars of the Second Amendment agreethat the right to bear arms was tied to theconcept of a virtuous citizenry and that,accordingly, the government could disarm‘unvirtuous citizens,’ ’’ including felons. 621F.3d 681, 684–85 (7th Cir. 2010) (per cu-riam) (quoting Vongxay, 594 F.3d at1118).6

If, as we suggested in Yancey and asmost scholars have concluded, the found-ers conceived of the right to bear arms asbelonging only to virtuous citizens, evennonviolent felons like Kanter would falloutside the scope of the Second Amend-ment. Indeed, several courts of appealshave concluded that nonviolent felons areoutside the scope of the Second Amend-ment. For example, in Hamilton v. Palloz-zi, the Fourth Circuit rejected a nonviolentfelon’s as-applied Second Amendment chal-lenge to a state felon dispossession statute,holding that ‘‘conviction of a felony neces-sarily removes one from the class of ‘law-

abiding, responsible citizens’ for purposesof the Second Amendment.’’ 848 F.3d 614,626 (4th Cir. 2017). Explaining that thedefendant could not rebut the presumptionthat he fell outside the category of ‘‘ ‘law-abiding, responsible citizens,’ ’’ the courtfocused on his felony conviction for fraudand theft crimes: ‘‘Theft, fraud, and for-gery are not merely errors in filling out aform or some regulatory misdemeanor of-fense; these are significant offenses re-flecting disrespect for the law.’’ Id. at 627(quoting Heller, 554 U.S. at 635, 128 S.Ct.2783); see also Medina, 913 F.3d at 160(‘‘Whether a certain crime removes onefrom the category of ‘law-abiding and re-sponsible,’ in some cases, may be a closequestion,’’ such as ‘‘a misdemeanor arisingfrom a fistfight TTTT Those who commitfelonies however, cannot profit from ourrecognition of such borderline cases.’’);United States v. Hughley, 691 F. App’x278, 279 (8th Cir. 2017) (per curiam) (‘‘Re-stricting gun possession by felons—evennonviolent ones—differs meaningfully fromrestricting citizens who have not been con-victed of serious offenses from having gunsin their home for self-defense.’’); Vongxay,594 F.3d at 1115–16 (‘‘declin[ing] to make a

6. Indeed, numerous legal historians have en-dorsed this view. See, e.g., Saul Cornell,‘‘Don’t Know Much About History’’ The Cur-rent Crisis in Second Amendment Scholarship,29 N. Ky. L. Rev. 657, 679 (2002) (‘‘Perhapsthe most accurate way to describe the domi-nant understanding of the right to bear armsin the Founding era is as a civic right [that]TTT was limited to those members of the politywho were deemed capable of exercising it in avirtuous manner.’’); Robert Dowlut, The Rightto Arms: Does the Constitution or the Predilec-tion of Judges Reign?, 36 Okla. L. Rev. 65, 96(1983) (‘‘Colonial and English societies of theeighteenth century TTT excluded TTT felons[from possessing firearms].’’); Don B. Kates,Jr., Handgun Prohibition and the OriginalMeaning of the Second Amendment, 82 Mich.L. Rev. 204, 266 (1983) (‘‘Felons simply didnot fall within the benefits of the common lawright to possess arms.’’); Glenn Harlan Reyn-

olds, A Critical Guide to the Second Amend-ment, 62 Tenn. L. Rev. 461, 480 (1995) (‘‘Oneimplication of this emphasis on the virtuouscitizen is that the right to arms does notpreclude laws disarming the unvirtuous (i.e.criminals) TTTT’’ (citation omitted)). More-over, according to Thomas M. Cooley’s 1868Treatise on Constitutional Limitations, whichthe Heller court described as a ‘‘massivelypopular’’ treatise written by ‘‘[t]he most fa-mous’’ late-nineteenth-century legal scholar,554 U.S. at 616, 128 S.Ct. 2783, certainclasses of people were ‘‘almost universallyexcluded’’ from exercising certain civic rights,including ‘‘the idiot, the lunatic, and the fel-on, on obvious grounds.’’ Thomas M. Cooley,A Treatise on the Constitutional LimitationsWhich Rest Upon the Legislative Power of theStates of the American Union 29 (1st ed.1868).


distinction between violent and non-violentfelons’’ because ‘‘felons are categoricallydifferent from the individuals who have afundamental right to bear arms’’); Rozier,598 F.3d at 771 & n.5 (stating that anonviolent felon’s ‘‘Second Amendmentright to bear arms is not weighed in thesame manner as that of a law-abiding citi-zen’’ and analogizing felon-dispossessionstatutes to felon disenfranchisement laws);United States v. Everist, 368 F.3d 517, 519(5th Cir. 2004) (‘‘Irrespective of whetherhis offense was violent in nature, a felonhas shown manifest disregard for therights of others. He may not justly com-plain of the limitation on his liberty whenhis possession of firearms would otherwisethreaten the security of his fellow citi-zens.’’).7

On the other hand, as Judge Sykes ob-served in her dissent in Skoien, there isscholarly ‘‘disagree[ment] about the extentto which felons TTT were considered ex-

cluded from the right to bear arms duringthe founding era,’’ and ‘‘[t]he historical evi-dence is inconclusive at best.’’ Skoien, 614F.3d at 650 (Sykes, J., dissenting) (empha-sis omitted).8 If the founders were reallyjust concerned about dangerousness, not alack of virtue, nonviolent felons like Kanterarguably fall within the scope of the Sec-ond Amendment’s protections.

Ultimately, we need not resolve this dif-ficult issue regarding the historical scopeof the Second Amendment to dispose ofthis case. Instead, we proceed to themeans-end scrutiny of the government’sobjectives.9

D. Step Two: The Felon Disposses-sion Statutes Survive Intermedi-ate Scrutiny

[10] Categorical prohibitions on thepossession of firearms by felons are ‘‘pre-sumptively lawful,’’ even in disqualifyingnonviolent felons like Kanter. See Skoien,

7. Although Everist was issued before the Hel-ler decision, the Fifth Circuit already recog-nized an individual right to bear arms pre-Heller and reaffirmed the validity of the Ever-ist decision after Heller. See Scroggins, 599F.3d at 451.

8. For support for Judge Sykes’s observationregarding the conflicting scholarship on thehistorical conception of the Second Amend-ment, see, e.g., Carlton F.W. Larson, FourExceptions in Search of A Theory: District ofColumbia v. Heller and Judicial Ipse Dixit, 60Hastings L.J. 1371, 1374 (2009) (‘‘[S]o far as Ican determine, no colonial or state law ineighteenth-century America formally restrict-ed the ability of felons to own firearms.’’); C.Kevin Marshall, Why Can’t Martha StewartHave a Gun?, 32 Harv. J.L. & Pub. Pol’y 695,698 (2009) (‘‘[A]ctual ‘longstanding’ prece-dent in America and pre-Founding Englandsuggests that a firearms disability can be con-sistent with the Second Amendment to theextent that TTT its basis credibly indicates apresent danger that one will misuse armsagainst others and the disability redresses thatdanger.’’); Adam Winkler, Heller’s Catch-22,56 UCLA L. Rev. 1551, 1563 (2009) (‘‘The

Founding generation had no laws TTT denyingthe right to people convicted of crimes.’’).

9. In fact, we usually defer the threshold his-torical scope inquiry and proceed directly tomeans-end scrutiny. See, e.g., Horsley v.Trame, 808 F.3d 1126, 1131 (7th Cir. 2015)(declining to decide whether eighteen- totwenty-year-olds are within the scope of theSecond Amendment); Yancey, 621 F.3d at684–85. One notable exception to our general-ly restrained approach in this area is UnitedStates v. Meza-Rodriguez, 798 F.3d 664 (7thCir. 2015). There, the majority held that un-documented immigrants were historicallywithin the scope of the Second Amendmentbut ultimately concluded that the statute atissue nevertheless survived intermediate scru-tiny. Id. at 669–73. The concurrence advocat-ed for a ‘‘prudential approach’’ since we didnot need to decide the threshold question toresolve the case, and proposed ‘‘reserv[ing]resolution of this challenging constitutionalquestion for a case that compels addressingit.’’ Id. at 673–74 (Flaum, J., concurring in thejudgment). We think that prudential approachis appropriate here.


614 F.3d at 640 (‘‘[S]uch a recent extensionof [§ 922(g)(1)’s] disqualification to non-violent felons (embezzlers and tax evaders,for example) is presumptively constitution-al, as Heller said in note 26.’’). But because‘‘Heller referred to felon disarmamentbans only as ‘presumptively lawful,’ ’’ werequire the government to ‘‘prov[e] ‘theconstitutionality of § 922(g)(1) TTT usingthe intermediate scrutiny framework.’ ’’Williams, 616 F.3d at 692.

To survive intermediate scrutiny atstep two, the government must show thatthe felon dispossession statute is substan-tially related to an important governmen-tal objective. Consistent with how we ap-ply intermediate scrutiny in the FirstAmendment context, the ‘‘fit’’ between thechallenged regulation and the assertedgovernmental objective need only ‘‘be rea-sonable, not perfect.’’ United States v.Marzzarella, 614 F.3d 85, 98 (3d Cir.2010); cf. FTC v. Trudeau, 662 F.3d 947,953 (7th Cir. 2011).10

The government has met its burden inthis case. First, Kanter concedes that thegovernment’s objective in passing§ 922(g)(1) was an important one. Thegovernment identifies its interest as pre-venting gun violence by keeping firearmsaway from persons, such as those convict-ed of serious crimes, who might be expect-ed to misuse them. This formulation of thegovernment’s interest is consistent withour precedent in this area. See Yancey, 621F.3d at 683 (‘‘Congress enacted the exclu-sions in § 922(g) to keep guns out of thehands of presumptively risky people.’’);

Williams, 616 F.3d at 693 (describing thegovernment’s objective as ‘‘keep[ing] fire-arms out of the hands of violent felons,who the government believes are oftenthose most likely to misuse firearms’’);Skoien, 614 F.3d at 642 (describing thegovernment’s interest as ‘‘preventingarmed mayhem’’). And we have previouslyheld that this interest is ‘‘without doubt animportant one.’’ Yancey, 621 F.3d at 684;see also Meza-Rodriguez, 798 F.3d at 673(‘‘[T]he government has a[ ] strong interestin preventing people who already have dis-respected the law (including TTT felonsTTT) from possessing guns.’’).

Second, the government has shown thatprohibiting even nonviolent felons likeKanter from possessing firearms is sub-stantially related to its interest in prevent-ing gun violence. Before turning to thegovernment’s statistical evidence establish-ing such a link, it is important to note thatwe do not write on a blank slate. In Yan-cey, we explained that ‘‘most felons arenonviolent, but someone with a felony con-viction on his record is more likely than anonfelon to engage in illegal and violentgun use.’’ 621 F.3d at 685. In fact, the D.C.Circuit has concluded that ‘‘nonviolent of-fenders not only have a higher recidivismrate than the general population, but cer-tain groups—such as property offenders—have an even higher recidivism rate thanviolent offenders, and a large percentageof the crimes nonviolent recidivists latercommit are violent.’’ Kaemmerling v. Lap-pin, 553 F.3d 669, 683 (D.C. Cir. 2008); seeEwing v. California, 538 U.S. 11, 26, 123

10. Our means-end review is arguably less rig-orous in this case because the weight of thehistorical evidence summarized above sug-gests that felon dispossession laws do notrestrict the ‘‘core right of armed defense,’’ butrather burden ‘‘activity lying closer to themargins of the right.’’ Ezell II, 846 F.3d at892. Indeed, we have said that ‘‘the state canprevail with less evidence when, as in Skoien,

guns are forbidden to a class of persons whopresent a higher than average risk of misus-ing a gun.’’ Moore, 702 F.3d at 940. We haveeven gone so far as to say that ‘‘empiricalevidence of a public safety concern can bedispensed with altogether when the ban islimited to obviously dangerous persons suchas felons and the mentally ill.’’ Id.


S.Ct. 1179, 155 L.Ed.2d 108 (2003) (citingP. Langan & D. Levin, U.S. Dep’t of Jus-tice, Bureau of Justice Statistics, SpecialReport: Recidivism of Prisoners Releasedin 1994, at 1 (June 2002)).

In addition to these judicial statements,the government points to several studiesthat have found a connection between non-violent offenders like Kanter and a risk offuture violent crime. For example, onestudy of 210,886 nonviolent offendersfound that about one in five were rearrest-ed for a violent crime within three years ofhis or her release. See U.S. Dep’t of Jus-tice, Bureau of Justice Statistics Profile ofNonviolent Offenders Exiting State Pris-ons 2, 4 (2004). A separate study foundthat 28.5 percent of nonviolent propertyoffenders—a category that includes fraudconvictions—were rearrested for a violentoffense within five years of their release.See Matthew R. Durose, et al., U.S. Dep’tof Justice, Bureau of Justice Statistics,Recidivism of Prisoner Released in 30States in 2005: Patterns from 2005 to 2010,at 9 (2014). Yet another study found that‘‘even handgun purchasers with only 1 pri-or misdemeanor conviction and no convic-tions for offenses involving firearms orviolence were nearly 5 times as likely asthose with no prior criminal history to becharged with new offenses involving fire-arms or violence.’’ Garen J. Wintemute, etal., Prior Misdemeanor Convictions as aRisk Factor for Later Violent and Fire-arm-Related Criminal Activity AmongAuthorized Purchasers of Handguns, 280J. Am. Med. Ass’n 2083, 2083 (1998) (em-phasis added).11

Kanter’s only response to the govern-ment’s statistical studies is that they arenot tailored enough to his ‘‘individual cir-cumstances.’’ Specifically, Kanter asks theCourt ‘‘to consider the fact that [he] is afirst-time, non-violent offender with no his-tory of violence, firearm misuses, or subse-quent convictions.’’ Kanter also points outthat he is ‘‘employed, married, and doesnot use illicit drugs, all of which corre-spond with lower rates of recidivism.’’ Inshort, Kanter argues that to meet its bur-den the government must show ‘‘a sub-stantial relationship between denying Mr.Kanter a firearm and furthering the gov-ernment’s objective of preventing firearmmisuse and armed violence.’’

Kanter is mistaken. In Skoien we heldthat ‘‘Congress is not limited to case-by-case exclusions of persons who have beenshown to be untrustworthy with weapons,nor need these limits be established byevidence presented in court. Heller did notsuggest that disqualifications would be ef-fective only if the statute’s benefits arefirst established by admissible evidence.’’614 F.3d at 641. Of course, not all nonviol-ent felons will later commit a violent crimewith a firearm. In that sense, the statute is‘‘somewhat over-inclusive.’’ United Statesv. Chapman, 666 F.3d 220, 231 (4th Cir.2012). However, that ‘‘does not undermine[the statute’s] constitutionality TTT becauseit merely suggests that the fit is not aperfect one; a reasonable fit is all that isrequired under intermediate scrutiny.’’ Id.;see also Marzzarella, 614 F.3d at 97–98(analogizing to intermediate scrutiny inFirst Amendment context).

11. Even the study that Kanter relies uponfound that approximately 40 percent of indi-viduals convicted of mail fraud had at leastone additional arrest afterward. David Weis-burd & Elin Waring, White-Collar Crime andCriminal Careers 12, 29 (2004). The samestudy found that 24.5 percent of all repeat

white-collar offenders had at least one violentarrest on their record. Id. at 45. In otherwords, ‘‘white-collar offenders often havemultiple contacts with the criminal justicesystem’’ and ‘‘are unlikely to evidence a highdegree of specialization.’’ Id. at 49.


Here, unlike the challengers in Binder-up, who were convicted of ‘‘non-serious’’state misdemeanors and served no prisontime, Kanter was convicted of a seriousfederal felony for conduct broadly under-stood to be criminal, and he did not face aminor sentence. 836 F.3d at 353 & n.6.Instead, Kanter is more akin to the chal-lenger in Hamilton, whose fraud and theftconvictions were ‘‘black-letter mala in sefelonies reflecting grave misjudgment andmaladjustment.’’ 848 F.3d at 627. Kanter’scrime—defrauding the federal governmentout of hundreds of thousands of dollars—‘‘reflect[s] significant disrespect for thelaw.’’ Id. at 627 n.14; see also Medina, 913F.3d at 160 (rejecting as-applied challengewhere plaintiff was convicted of ‘‘felonyfraud—a serious crime, malum in se, thatis punishable in every state’’). Thus, Kan-ter’s serious felony conviction preventshim from challenging the constitutionalityof § 922(g)(1) as applied to him.12

We are further assured in our decisionbecause the highly-individualized approachKanter proposes raises serious institution-al and administrative concerns. See Tor-res-Rosario, 658 F.3d at 113 (‘‘[S]uch anapproach, applied to countless variationsin individual circumstances, would obvi-ously present serious problems of adminis-tration, consistency and fair warning.’’);see also Medina, 913 F.3d at 159–60 (re-jecting argument that ‘‘non-dangerous fel-ons have a right to bear arms’’ because‘‘[u]sing an amorphous ‘dangerousness’standard to delineate the scope of the Sec-ond Amendment would require the gov-

ernment to make case-by-case predictivejudgments before barring the possessionof weapons’’). As mentioned above, Con-gress previously allowed the ATF to re-store a felon’s gun rights under § 925(c) ifthe agency determined that ‘‘the applicantwill not be likely to act in a manner dan-gerous to public safety and that the grant-ing of the relief would not be contrary tothe public interest.’’ 18 U.S.C. § 925(c).However, Congress abandoned that ap-proach after finding that the dangerous-ness inquiry was a ‘‘very difficult’’ andtime-intensive task, H.R. Rep. No. 102-618, at 14 (1992), and that ‘‘too many ofthese felons whose gun ownership rightswere restored went on to commit violentcrimes with firearms.’’ H.R. Rep. No. 104-183, at 15 (1995). Congress’s failed at-tempt to delegate this investigative task toa law enforcement agency ‘‘should have aprofound impact on our tailoring analysis.’’Binderup, 836 F.3d at 403 (Fuentes, J.,concurring in part, dissenting in part, anddissenting from the judgment).

At bottom, the fact-specific inquiry Kan-ter asks this Court to undertake is ‘‘afunction best performed by the Executive,which, unlike courts, is institutionallyequipped for conducting a neutral, wide-ranging investigation.’’ Bean, 537 U.S. at77, 123 S.Ct. 584; see also Pontarelli v.U.S. Dep’t of the Treasury, 285 F.3d 216,231 (3d Cir. 2002) (‘‘Unlike ATF, courtspossess neither the re-sources to conductthe requisite investigations nor the exper-tise to predict accurately which felons may

12. We decline to revisit our comment inWilliams ‘‘that § 922(g)(1) may be subject toan overbreadth challenge at some point be-cause of its disqualification of all felons, in-cluding those who are non-violent.’’ 616 F.3dat 693. That statement was dictum, and weneed not determine whether § 922(g)(1) mayever be subject to an as-applied challenge toreach our decision in this case. There may bea case in the future that requires addressing

whether any individual may successfully bringan as-applied challenge to the statute, butKanter’s is not that case. See Broadrick v.Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908,37 L.Ed.2d 830 (1973) (‘‘[A] person to whoma statute may constitutionally be applied willnot be heard to challenge that statute on theground that it may conceivably be appliedunconstitutionally to others, in other situa-tions not before the Court.’’).


carry guns without threatening the public’ssafety.’’). Moreover, ‘‘[i]n the context offirearm regulation, the legislature is farbetter equipped than the judiciary to makesensitive public policy judgments (withinconstitutional limits) concerning the dan-gers in carrying firearms and the mannerto combat those risks.’’ Schrader, 704 F.3dat 990 (citation and internal quotationmarks omitted).

In sum, the government has establishedthat the felon dispossession statutes aresubstantially related to the important gov-ernmental objective of keeping firearmsaway those convicted of serious crimes.Because Kanter was convicted of a seriousfederal felony for conduct broadly under-stood to be criminal, his challenge to theconstitutionality of § 922(g)(1) is withoutmerit.

III. Conclusion

For the foregoing reasons, we AFFIRM

the judgment of the district court.

Barrett, Circuit Judge, dissenting.

History is consistent with commonsense: it demonstrates that legislatureshave the power to prohibit dangerous peo-ple from possessing guns. But that powerextends only to people who are dangerous.Founding-era legislatures did not strip fel-ons of the right to bear arms simply be-cause of their status as felons. Nor havethe parties introduced any evidence thatfounding-era legislatures imposed virtue-based restrictions on the right; such re-strictions applied to civic rights like votingand jury service, not to individual rightslike the right to possess a gun. In 1791—and for well more than a century after-

ward—legislatures disqualified categoriesof people from the right to bear arms onlywhen they judged that doing so was neces-sary to protect the public safety.

18 U.S.C. § 922(g)(1) and WisconsinStatute § 941.29(1m) would stand on solidfooting if their categorical bans were tai-lored to serve the governments’ undeni-ably compelling interest in protecting thepublic from gun violence. But their dispos-session of all felons—both violent and non-violent—is unconstitutional as applied toKanter, who was convicted of mail fraudfor falsely representing that his company’stherapeutic shoe inserts were Medicare-approved and billing Medicare accordingly.Neither Wisconsin nor the United Stateshas introduced data sufficient to show thatdisarming all nonviolent felons substantial-ly advances its interest in keeping thepublic safe. Nor have they otherwise dem-onstrated that Kanter himself shows a pro-clivity for violence. Absent evidence thathe either belongs to a dangerous categoryor bears individual markers of risk, perma-nently disqualifying Kanter from possess-ing a gun violates the Second Amend-ment.1

I.

At the outset, it is worth clarifying aconceptual point. There are competingways of approaching the constitutionalityof gun dispossession laws. Some maintainthat there are certain groups of people—for example, violent felons—who fall en-tirely outside the Second Amendment’sscope. See, e.g., Binderup v. Attorney Gen.U.S., 836 F.3d 336, 357 (3d Cir. 2016) (enbanc) (Hardiman, J., concurring in partand concurring in the judgments) (‘‘[T]he

1. Because the federal and state statutes oper-ate to the same effect as applied to Kanter,my analysis applies equally to both. For sim-plicity’s sake, I often refer only to the federalstatute. In addition, I sometimes refer to the

statutes as imposing a ‘‘felon ban’’ or ‘‘felondispossession’’ with the understanding that§ 922(g)(1) also encompasses state misde-meanors punishable by more than two yearsin prison. See 18 U.S.C. § 921(a)(20)(B).


Founders understood that not everyonepossessed Second Amendment rights.These appeals require us to decide whocount among ‘the people’ entitled to keepand bear arms.’’). Others maintain that allpeople have the right to keep and beararms but that history and tradition sup-port Congress’s power to strip certaingroups of that right. See Eugene Volokh,Implementing the Right to Keep and BearArms for Self-Defense: An AnalyticalFramework and a Research Agenda, 56UCLA L. REV. 1443, 1497–98 (2009) (de-scribing these competing views). These ap-proaches will typically yield the same re-sult; one uses history and tradition toidentify the scope of the right, and theother uses that same body of evidence toidentify the scope of the legislature’s pow-er to take it away.

In my view, the latter is the better wayto approach the problem. It is one thing tosay that certain weapons or activities falloutside the scope of the right. See Districtof Columbia v. Heller, 554 U.S. 570, 627,128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)(explaining that ‘‘the sorts of weapons pro-tected were those ‘in common use at thetime’ ’’ (citation omitted)); Ezell v. City ofChicago, 846 F.3d 888, 892 (7th Cir. 2017)(Ezell II) (‘‘[I]f TTT the challenged lawregulates activity falling outside the scopeof the right as originally understood, then‘the regulated activity is categorically un-protected, and the law is not subject tofurther Second Amendment review.’ ’’ (ci-tation omitted)); Ezell v. City of Chicago,651 F.3d 684, 702 (7th Cir. 2011) (Ezell I)(drawing an analogy between categories ofspeech, like obscenity, that fall outside theFirst Amendment and activities that falloutside the Second Amendment). It is an-other thing to say that certain people fall

outside the Amendment’s scope. Arms andactivities would always be in or out. But aperson could be in one day and out thenext: the moment he was convicted of aviolent crime or suffered the onset of men-tal illness, his rights would be stripped asa self-executing consequence of his newstatus. No state action would be required.

To be sure, under this theory such aperson could possess a gun as a matter oflegislative grace. But he would lack stand-ing to assert constitutional claims that oth-er citizens could assert. For example,imagine that a legislature disqualifiesthose convicted of crimes of domestic vio-lence from possessing a gun for a period often years following release from prison.See United States v. Skoien, 614 F.3d 638,642 (7th Cir. 2010) (en banc) (holding con-stitutional 18 U.S.C. § 922(g)(9), which for-bids those convicted of crimes of domesticviolence to possess a gun). After fifteenyears pass, a domestic violence misde-meanant challenges a handgun ban identi-cal to the one that the Court held unconsti-tutional in Heller. Despite the legislativejudgment that such a person could safelypossess a gun after ten years, a courtwould still have to determine whether theperson had standing to assert a SecondAmendment claim. If the justification forthe initial deprivation is that the personfalls outside the protection of the SecondAmendment, it doesn’t matter if the statu-tory disqualification expires. If domesticviolence misdemeanants are out, they’reout.2

That is an unusual way of thinking aboutrights. In other contexts that involve theloss of a right, the deprivation occurs be-cause of state action, and state action de-termines the scope of the loss (subject, ofcourse, to any applicable constitutional

2. Or at least that would be true absent theunlikely event that the Second Amendment, asoriginally understood, imposed a very specific

restriction on the length of time that such amisdemeanant was excluded from the right.


constraints). Felon voting rights are agood example: a state can disenfranchisefelons, but if it refrains from doing so,their voting rights remain constitutionallyprotected.3 So too with the right to keepand bear arms: a state can disarm certainpeople (for example, those convicted ofcrimes of domestic violence), but if it re-frains from doing so, their rights remainconstitutionally protected. In other words,a person convicted of a qualifying crimedoes not automatically lose his right tokeep and bear arms but instead becomeseligible to lose it.

In addition to being analytically awk-ward, the ‘‘scope of the right’’ approach isat odds with Heller itself. There, theCourt interpreted the word ‘‘people’’ asreferring to ‘‘all Americans.’’ 554 U.S. at580–81, 128 S.Ct. 2783; see also id. at580, 128 S.Ct. 2783 (asserting that ‘‘thepeople’’ ‘‘refers to a class of persons whoare part of a national community or whohave otherwise developed sufficient con-nection with this country to be consideredpart of that community’’ (citation omit-ted)). Neither felons nor the mentally illare categorically excluded from our na-tional community. That does not meanthat the government cannot prevent themfrom possessing guns. Instead, it meansthat the question is whether the govern-ment has the power to disable the exer-cise of a right that they otherwise pos-

sess, rather than whether they possessthe right at all.

Thus, I treat Kanter as falling withinthe scope of the Second Amendment andask whether Congress and Wisconsin cannonetheless prevent him from possessing agun.

II.

Heller did not ‘‘undertake an exhaustivehistorical analysis TTT of the full scope ofthe Second Amendment,’’ but it did offer alist of ‘‘presumptively lawful regulatorymeasures,’’ including ‘‘longstanding prohi-bitions on the possession of firearms byfelons and the mentally ill.’’ See Heller,554 U.S. at 626–27 & n.26, 128 S.Ct. 2783.Like the majority, I am ‘‘reluctant to placemore weight on these passing referencesthan the Court itself did.’’ See Maj. Op. at445 (quoting United States v. Meza-Rodri-guez, 798 F.3d 664, 669 (7th Cir. 2015)).The constitutionality of felon dispossessionwas not before the Court in Heller, andbecause it explicitly deferred analysis ofthis issue, the scope of its assertion isunclear. For example, does ‘‘presumptivelylawful’’ mean that such regulations arepresumed lawful unless a historical studyshows otherwise? Does it mean that as-applied challenges are available? Does theCourt’s reference to ‘‘felons’’ suggest thatthe legislature cannot disqualify misde-meanants from possessing guns? Does the

3. Felon disenfranchisement laws have a longhistory, and the Fourteenth Amendment’sprotection of the right to vote expressly ac-knowledges the authority of state legislaturesto enact such laws. U.S. CONST. amend. XIV,§ 2 (providing that a state’s representation inthe House will be reduced if the right to vote‘‘is denied TTT or in any way abridged, exceptfor participation in rebellion, or othercrime’’). The Second Amendment contains nosimilar acknowledgement. Legislative powerto strip the right from certain people orgroups was nonetheless a historically accept-ed feature of the pre-existing right that the

Second Amendment protects. See Heller, 554U.S. at 592, 128 S.Ct. 2783 (‘‘[T]he SecondAmendment TTT codified a pre-existingright.’’); id. at 595, 128 S.Ct. 2783 (‘‘Of coursethe right was not unlimited TTTT’’); Skoien,614 F.3d at 640 (‘‘That some categorical limitsare proper is part of the original meaning,leaving to the people’s elected representativesthe filling in of details.’’). Thus, such a regula-tion does not ‘‘infringe’’ the right to beararms because the right was always qualifiedby the government’s power to prevent thedangerous from exercising it.


word ‘‘longstanding’’ mean that prohibi-tions of recent vintage are suspect? As weobserved in Skoien, judicial opinions arenot statutes, and we don’t dissect themword-by-word as if they were. 614 F.3d at640. Thus, I agree with the majority thatHeller’s dictum does not settle the ques-tion before us.

It does, however, give us a place tostart. Heller’s reference endorses theproposition that the legislature can imposesome categorical bans on the possession offirearms. See id. (‘‘That some categoricallimits are proper is part of the originalmeaning.’’). Our task is to determinewhether all felons—violent and nonviolentalike—comprise one such category.

Wisconsin and the United States ad-vance three basic historical arguments insupport of this categorical exclusion. First,they say that there is some evidence sug-gesting that founding-era legislatures de-prived felons of the right. Second, theyargue that because the states put felons todeath at the time of the founding, no onewould have questioned their authority totake felons’ guns too. And third, they insistthat founding-era legislatures permittedonly virtuous citizens to have guns, andfelons are not virtuous citizens.

As I explain below, none of these ratio-nales supports the proposition that thelegislature can permanently deprive felonsof the right to possess arms simply be-cause of their status as felons. The histori-cal evidence does, however, support a dif-ferent proposition: that the legislature maydisarm those who have demonstrated aproclivity for violence or whose possessionof guns would otherwise threaten the pub-lic safety. This is a category simultaneous-ly broader and narrower than ‘‘felons’’—itincludes dangerous people who have notbeen convicted of felonies but not felonslacking indicia of dangerousness.

A.

The best historical support for a legisla-tive power to permanently dispossess allfelons would be founding-era laws explicit-ly imposing—or explicitly authorizing thelegislature to impose—such a ban. But atleast thus far, scholars have not been ableto identify any such laws. The only evi-dence coming remotely close lies in pro-posals made in the New Hampshire, Mas-sachusetts, and Pennsylvania ratifyingconventions. In recommending that protec-tion for the right to arms be added to theConstitution, each of these proposals in-cluded limiting language arguably tied tocriminality. See, e.g., Don B. Kates, Jr.,Handgun Prohibition and the OriginalMeaning of the Second Amendment, 82MICH. L. REV. 204, 222, 266 (1983); StevenP. Halbrook, The Right of the People orthe Power of the State: Bearing Arms, 26VAL. U. L. REV. 131, 147, 185 (1991); seealso C. Kevin Marshall, Why Can’t Mar-tha Stewart Have a Gun?, 32 HARV. J.L. &PUB. POL’Y 695, 712 (2009) (‘‘For relevantauthority before World War I for disablingfelons from keeping firearms, then, one isreduced to three proposals emerging fromthe ratification of the Constitution.’’).

A majority of the New Hampshire con-vention recommended that a bill of rightsinclude the following protection: ‘‘Congressshall never disarm any citizen, unless suchas are or have been in actual rebellion.’’See 1 JONATHAN ELLIOT, THE DEBATES IN THE

SEVERAL STATE CONVENTIONS ON THE ADOP-

TION OF THE FEDERAL CONSTITUTION 326 (2ded. 1891) (emphasis added). In the Massa-chusetts convention, Samuel Adams pro-posed to protect the right to arms with thefollowing language: ‘‘And that the saidConstitution be never construed to author-ize Congress to TTT prevent the people ofthe United States, who are peaceable citi-zens, from keeping their own arms.’’ See 2BERNARD SCHWARTZ, THE BILL OF RIGHTS: A


DOCUMENTARY HISTORY 675, 681 (1971) (em-phasis added). Finally, the influentialPennsylvania Minority suggested an addi-tion stating: ‘‘That the people have a rightto bear arms for the defense of themselvesand their own State or the United States,or for the purpose of killing game; and nolaw shall be passed for disarming the peo-ple or any of them unless for crimes com-mitted, or real danger of public injuryfrom individuals TTTT’’ 2 SCHWARTZ, supra,at 662, 665 (emphasis added). On the basisof these three proposals some concludethat ‘‘[a]ll the ratifying convention propos-als which most explicitly detailed the rec-ommended right-to-arms amendment ex-cluded criminals and the violent.’’ See, e.g.,Kates, 82 MICH. L. REV. at 266.

Several things bear emphasis here.First, none of the relevant limiting lan-guage made its way into the SecondAmendment. Second, only New Hamp-shire’s proposal—the least restrictive ofthe three—even carried a majority of itsconvention. See 2 SCHWARTZ, supra, at 628,675, 758. Third, proposals from otherstates that advocated a constitutional rightto arms did not contain similar language oflimitation or exclusion. See Kates, 82 MICH.

L. REV. at 222 (citing 1 ELLIOT, supra, at328, 335). And finally, similar limitations orexclusions do not appear in any of the fourparallel state constitutional provisions en-acted before ratification of the SecondAmendment. See Eugene Volokh, StateConstitutional Rights to Keep and BearArms, 11 TEX. REV. L. & POL. 191, 208(2006) (North Carolina, Pennsylvania, Ver-mont, Massachusetts). All that said, theseproposals may ‘‘indicate some common ifimprecise understanding at the Foundingregarding the boundaries of a right tokeep and bear arms.’’ Marshall, 32 HARV.

J.L. & PUB. POL’Y at 713. And at a mini-mum, the fact that they are routinely in-voked in support of blanket felon disarma-ment makes it necessary to consider them.

I’ll begin with the New Hampshire pro-posal, which did not embrace the disarma-ment of all felons, but rather of thosecitizens who ‘‘are or have been in actualrebellion.’’ 1 ELLIOT, supra, at 326 (empha-sis added). This limitation targeted a nar-row group because ‘‘rebellion’’ was a veryspecific crime. See Rebellion, 2 NEW UNI-

VERSAL ETYMOLOGICAL ENGLISH DICTIONARY

(4th ed. 1756) (explaining that the term is‘‘now used for a traiterous taking up arms,or a tumultuous opposing the authority ofthe king, etc. or supreme power in a na-tion’’). There are obvious reasons why thegovernment would take guns away fromthose bent on overthrowing it, and, as Idiscuss later, stripping rebels of their gunrights followed well-established practice inboth England and the colonies. Thus, whilethis proposal reflects support for disarm-ing rebels, it does not say anything aboutdisarming those who have committed othercrimes, much less nonviolent ones.

Samuel Adams’s proposed language tothe Massachusetts convention, whichwould have limited the right to ‘‘peaceablecitizens,’’ see 2 SCHWARTZ, supra, at 681,sweeps more broadly—but not so broadlythat it encompasses all criminals, or evenall felons. At the time, ‘‘peaceable’’ wasdefined as ‘‘[f]ree from war; free fromtumult’’; ‘‘[q]uiet; undisturbed’’; ‘‘[n]ot vio-lent; not bloody’’; ‘‘[n]ot quarrelsome; notturbulent.’’ 1 SAMUEL JOHNSON, A DICTIO-

NARY OF THE ENGLISH LANGUAGE (5th ed.1773). Those who ‘‘breach[ed] the peace’’caused ‘‘[a] violation of the public peace, asby a riot, affray, or any tumult which iscontrary to law, and destructive to thepublic tranquility.’’ See Breach, NOAH WEB-

STER, AN AMERICAN DICTIONARY OF THE EN-

GLISH LANGUAGE (1828); see also Atwater v.City of Lago Vista, 532 U.S. 318, 327 &n.2, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)(noting some ‘‘variations in the common-law usage of the term ‘breach of the


peace’ ’’ but assuming that the definition‘‘entail[ed] at least a threat of violence’’);id. (quoting MICHAEL DALTON, THE COUNTRY

JUSTICE 9 (1727) (‘‘The Breach of th[e]Peace seemeth to be any injurious Forceor Violence moved against the Person ofanother, his Goods, Lands, or other Pos-sessions, whether by threatening words, orby furious Gesture, or Force of the Body,or any other Force used in terrorem.’’));Pearce v. Atwood, 13 Mass. 324, 332 (1816)(‘‘Breaches of the peace comprise not onlycases of actual violence to the person ofanother, but any unlawful acts, tending toproduce an actual breach of the peace;whether the peace of the public, or anindividual, be in fact disturbed or not.’’).Not all crimes are violent; nor, for thatmatter, is every non-peaceable person acriminal. In short, the phrase ‘‘peaceablecitizens’’ was not a synonym for ‘‘non-fel-ons’’ or even ‘‘non-criminals.’’

That leaves the strongest support for ablanket felon exclusion: the PennsylvaniaMinority’s suggested guarantee of theright to arms ‘‘unless for crimes commit-ted, or real danger of public injury fromindividuals.’’ 2 SCHWARTZ, supra, at 665.This proposal can be read in two ways.The first, which would support a broadexclusion, is to interpret it as capturingtwo groups: (1) those who have committedany crime—felony or misdemeanor, violentor nonviolent—and (2) those who have notcommitted a crime but nonetheless pose adanger to public safety. The second, whichwould support a more targeted exclusion,is to interpret it as capturing one group:those who pose a danger to public safety,whether or not they have committed acrime. On this reading, the catchall phraselimiting the rights of individuals who posea ‘‘real danger of public injury’’ would be

an effort to capture non-criminals whosepossession of guns would pose the samekind of danger as possession by those whohave committed crimes. And unless thefounding generation understood allcrimes—even nonviolent misdemeanors—to be markers for that risk, the relevant‘‘crimes committed’’ would be the subset ofcrimes suggesting a proclivity for violence.(As far as I can find, no one even todayreads this provision to support the disar-mament of literally all criminals, even non-violent misdemeanants.) If ‘‘crimes com-mitted’’ refers only to a subset of crimes,that subset must be defined; using ‘‘realdanger of public injury’’ to draw the line isboth internally coherent and consistentwith founding-era practice.

Whatever else may be said about theparticulars of each of these three propos-als, they are most helpful taken togetheras evidence of the scope of founding-eraunderstandings regarding categorical ex-clusions from the enjoyment of the right tokeep and bear arms. The concern commonto all three is not about felons in particularor even criminals in general; it is aboutthreatened violence and the risk of publicinjury. See Binderup, 836 F.3d at 368(Hardiman, J., concurring in part and con-curring in the judgments). This is thesame concern that animated English andearly American restrictions on arms pos-session.

In England, officers of the Crown hadthe power to disarm anyone they judged tobe ‘‘dangerous to the Peace of the King-dom.’’ Militia Act of 1662, 13 & 14 Car. 2,c. 3, § 13 (1662). Relatedly, English com-mon law ‘‘punish[ed] people who [went]armed to terrify the King’s subjects’’ withimprisonment and forfeiture of their ‘‘arm-our.’’4 Sir John Knight’s Case, 87 Eng.

4. This common-law offense was adapted fromthe 1328 Statute of Northampton, which de-creed that a person may not ‘‘go nor ride

armed by night nor by day in fairs, markets,TTT nor in no part elsewhere, upon pain toforfeit their armour to the King, and their


Rep. 75, 76 (K.B. 1686). And—perhaps un-surprisingly because they were presump-tively thought to pose a similar threat orterror—Parliament also disarmed Catho-lics. See JOYCE LEE MALCOLM, TO KEEP AND

BEAR ARMS 18–19, 122 (1994) (explainingthat Protestants feared revolt, massacre,and counter-revolution from Catholics); seealso ADAM WINKLER, GUNFIGHT 115 (2011)(explaining that Parliament disarmedCatholics because the Protestant majorityfound them ‘‘untrustworthy’’); Marshall, 32HARV. J.L. & PUB. POL’Y at 723 (‘‘In short,the stated principle supporting the disabili-ty was cause to fear that a person, al-though technically an English subject, wasbecause of his beliefs effectively a residentenemy alien liable to violence against theking.’’).5

Similar laws and restrictions appearedin the American colonies, adapted to thefears and threats of that time and place.See ALEXANDER DECONDE, GUN VIOLENCE IN

AMERICA 22 (2001) (‘‘Although the colonialdemand for such discriminatory controlssprang from circumstances different fromthose in England, as in applying themagainst Indians and blacks, colonists usual-ly followed home-country practices of ex-cluding other distrusted people from own-ership.’’). In some places, Catholics were

still disarmed, but ‘‘on the basis of alle-giance, not on the basis of faith.’’ See Rob-ert H. Churchill, Gun Regulation, the Po-lice Power, and the Right to Keep Arms inEarly America: The Legal Context of theSecond Amendment, 25 LAW & HIST. REV.

139, 157 (2007) (citing Virginia’s 1756 ‘‘dis-armament of all those refusing the test ofallegiance’’)6; see also DECONDE, supra, at22–23 (associating Catholics with the ‘‘dis-trusted inhabitants’’ from whom the colo-nies seized guns ‘‘with the intent of pre-venting social upheavals’’ and ‘‘rebellion’’).Those ‘‘willing to swear undivided alle-giance to the sovereign’’ were permitted tokeep their arms. See Churchill, 25 LAW &HIST. REV. at 157. After all, confiscation ofguns from those who refused to swear anoath of allegiance was meant to ‘‘deal withthe potential threat coming from armedcitizens who remained loyal to’’ anothersovereign. See Saul Cornell & Nathan De-Dino, A Well Regulated Right: The EarlyAmerican Origins of Gun Control, 73FORDHAM L. REV. 487, 506 (2004); see alsoNRA v. Bureau of Alcohol, Tobacco, Fire-arms, and Explosives, 700 F.3d 185, 200(5th Cir. 2012) (‘‘American legislators haddetermined that permitting [those who re-fused to swear an oath of allegiance] tokeep and bear arms posed a potential dan-

bodies to prison at the King’s pleasure.’’ Stat-ute of Northampton, 2 Edw. 3, c. 3 (1328). Bythe middle of the seventeenth century, thestatute was ‘‘almost gone in desuetudinem,’’because the law recognized ‘‘a general conni-vance to gentlemen to ride armed for theirsecurity.’’ Rex v. Knight, 90 Eng. Rep. 330,330 (K.B. 1686). But it was still enforcedagainst those who violated the terms of thestatute ‘‘malo animo,’’ id.—that is, those whocarried arms with intent ‘‘to terrorize theirneighbors,’’ see JOYCE LEE MALCOLM, TO KEEP AND

BEAR ARMS at 104 (1994).

5. To be sure, the American experience doesnot map on exactly to the English one. Forone thing, the right protected by the SecondAmendment was decidedly broader than the

one protected in the English Bill of Rights.See MALCOLM, supra, at 162. Still, the Ameri-can version was derived from its English pre-decessor, see id. at 150, 164, which makesEnglish practice instructive. That is especiallytrue when the patterns from English practicerepeat themselves in American law.

6. First, the allegiance required was to theCrown, and later, it was to the sovereign andindependent states. See id. at 159 & n.49(quoting 4 JOURNALS OF THE CONTINENTAL CON-

GRESS, 1774–1789, at 201–05 (1906) (callingfor the disarmament of those ‘‘who are notori-ously disaffected to the cause of America, orwho have not associated, and shall refuse toassociate, to defend, by arms, these UnitedColonies’’)).


ger.’’). But that particular threat dissipat-ed when a person pledged his allegiance tothe United States or to a particular state.

Slaves and Native Americans, on theother hand, were thought to pose moreimmediate threats to public safety and sta-bility and were disarmed as a matter ofcourse. See MALCOLM, supra, at 140–41;WINKLER, supra, at 115–16 (noting ‘‘forc-ible disarmament’’ out of ‘‘fear that thesegroups would use guns to revolt’’ or other-wise threaten the ‘‘public safety’’); DE-

CONDE, supra, at 21–22 (noting ‘‘anxietythat slaves would rebel’’). And this practiceof keeping guns out of the hands of ‘‘dis-trusted’’ groups continued after the Revo-lution. For example, many states even con-stitutionalized the disarmament of slavesand Native Americans. See Volokh, 11 TEX.

REV. L. & POL. at 208–09.7

In sum, founding-era legislatures cate-gorically disarmed groups whom theyjudged to be a threat to the public safety.But neither the convention proposals norhistorical practice supports a legislativepower to categorically disarm felons be-cause of their status as felons.

B.

A common response to the dearth offelon-disarmament laws in the eighteenthand nineteenth centuries is to say thatsuch laws would have been unnecessarygiven the severity with which felons werepunished. Because felons were routinelyexecuted or stripped of all rights, the argu-ment goes, explicit provisions deprivingthem of firearms would have been redun-dant. See, e.g., Brief of Defendant-AppelleeBrad D. Schimel at 9 (‘‘[I]n eighteenth-century America, felonies were punishableby death, so no early American lawmaker

would have questioned the propriety of aproposal to disarm serious offenders.’’);Medina v. Whitaker, 913 F.3d 152, 158(D.C. Cir. 2019) (‘‘[I]t is difficult to con-clude that the public, in 1791, would haveunderstood someone facing death and es-tate forfeiture to be within the scope ofthose entitled to possess arms.’’). Onescholar puts it this way:

The constitutionality of [bans on felonpossession] cannot seriously be ques-tioned TTT [because f]elons simply didnot fall within the benefits of the com-mon law right to possess arms. That lawpunished felons with automatic forfei-ture of all goods, usually accompaniedby death. We may presume that personsconfined in gaols awaiting trial on crimi-nal charges were also debarred from thepossession of arms.

Kates, 82 MICH. L. REV. at 266. On thisview, the criminal law provides a historicaljustification for felon disarmament even iflaws regulating gun safety do not.

The premise of this argument—that thestates permanently extinguished the rightsof felons, either by death or operation oflaw, in the eighteenth and nineteenth cen-turies—is shaky. While it accurately de-scribes the punishment of felons at En-glish common law, the American picture isfar more complex. It is true that at com-mon law, the ‘‘idea of felony’’ was inter-twined with the punishments of death andcivil death. 4 WILLIAM BLACKSTONE, COMMEN-

TARIES ON THE LAWS OF ENGLAND 98 (1769)(‘‘The idea of felony is indeed so generallyconnected with that of capital punishment,that we find it hard to separate themTTTT’’); Avery v. Everett, 110 N.Y. 317, 18N.E. 148, 150 (1888) (‘‘By the ancient com-mon law TTT [t]here were three principleincidents consequent upon an attainder for

7. It should go without saying that such race-based exclusions would be unconstitutional

today.


treason or felony, forfeiture, corruption ofblood, and an extinction of civil rights,more or less complete, which was denom-inated civil death.’’). Civil death was a statein which a person ‘‘though living, was con-sidered dead’’—a status ‘‘very similar tonatural death in that all civil rights wereextinguished.’’ See Harry David Saunders,Note, Civil Death—A New Look at anAncient Doctrine, 11 WM. & MARY L. REV.

988, 988–89 (1970). As originally conceived,civil death signified ‘‘a transitional statusin the period between a capital sentenceand its execution.’’ Gabriel J. Chin, TheNew Civil Death: Rethinking Punishmentin the Era of Mass Incarceration, 160 U.PA. L. REV. 1789, 1797 (2012). It ‘‘wasintended to merely settle the estate of anexecuted or banished felon.’’ Saunders, 11WM. & MARY L. REV. at 990.

During the period leading up to thefounding, the connection between feloniesand capital punishment started to fray.Once a short, specified list of offenses,felonies in England grew to ‘‘no less thanan hundred and sixty,’’ which is likely whatforced Blackstone to define them in termsof their most common characteristic: capi-tal punishment. See 4 BLACKSTONE, supra,at 18, 97–98. But as the number of desig-nated felonies continued to grow, so didthe variations on punishment, especially inthe American colonies. Throughout theseventeenth and eighteenth centuries, cap-ital punishment in the colonies was used‘‘sparingly,’’ and property crimes includingvariations on theft, burglary, and robbery‘‘were, on the whole, not capital.’’ LAW-

RENCE M. FRIEDMAN, CRIME AND PUNISHMENT

IN AMERICAN HISTORY 42 (1993). By the timethe Constitution was ratified, James Wil-son observed that while the term ‘‘felony’’was once ‘‘very strongly connected withcapital punishment,’’ that was no longertrue. JOHN D. BESSLER, CRUEL & UNUSUAL

52–53 (2012) (quoting 2 THE WORKS OF

JAMES WILSON 348 (James DeWitt Andrews

ed., 1896)); see also 6 NATHAN DANE, DIGEST

OF AMERICAN LAW 715 (1823) (‘‘[W]e havemany felonies, not one punished with for-feiture of estate, and but a very few withdeath.’’). Of course, many crimes remainedeligible for the death penalty, and the ex-tent to which that was true varied by state.Death, however, no longer inevitably fol-lowed a felony conviction.

Because it was no longer defined withreference to a list of specific crimes oreven a specific punishment, the definitionof ‘‘felony’’ was difficult to pin down at thetime of the founding. See Will Tress, Unin-tended Collateral Consequences: DefiningFelony in the Early American Republic,57 CLEV. ST. L. REV. 461, 465 (2009) (em-phasizing the ‘‘ambiguity in the meaning offelony’’ at the founding). According toJames Madison, ‘‘felony’’ was ‘‘a term ofloose signification even in the common lawof England,’’ but more so in the Stateswhere ‘‘[t]he meaning of the term TTT

[was] not precisely the same in any two ofthe States; and varie[d] in each with everyrevision of its criminal laws.’’ THE FEDERAL-

IST NO. 42, at 228 (J. R. Pole ed., 2005); seealso DANE, supra, at 715 (‘‘[T]he wordfelony, in the process of many centuries,has derived so many meanings from somany parts of the common law, and somany statutes in England, and has got tobe used in such a vast number of differentsenses, that it is now impossible to knowprecisely in what sense we are to under-stand this word.’’).

The shift in punishment for felonies ne-cessitated a shift in the meaning of civildeath, which had been previously connect-ed to a capital sentence. And so civil deathcame to be understood ‘‘as an incident oflife conviction.’’ See Saunders, 11 WM. &MARY L. REV. at 990; see also Troup v.Wood, 4 Johns. Ch. 228, 248 (N.Y. Ch.1820) (a person convicted of felony andsentenced to imprisonment in the state


prison for life is ‘‘civiliter mortuus’’). Butapplying the ancient concept of civil deathin this context proved difficult. Because‘‘[i]mprisonment for life was a punishmentunknown to the common law,’’ courtsquickly realized that common-law civildeath did not automatically apply. SeePlatner v. Sherwood, 6 Johns. Ch. 118, 122(N.Y. Ch. 1822) (¶ 2 argument of Butlerand Henry, counsel for the plaintiff); id. at128 (Opinion of the Chancellor). Thus,courts soon decided that civil death appliedonly when statutes explicitly attached it tolife sentences, and statutes did not univer-sally do so. Id. at 129 (holding that aperson convicted of a felony and sentencedto life imprisonment was not ‘‘deemed andtaken to be civilly dead, to all intents andpurposes in the law’’ until an act of thelegislature made it so)8; see also Frazer v.Fulcher, 17 Ohio 260, 262 (1848) (‘‘But it issaid that, by the rules of the common law,there is such a thing as a civil death aswell as a natural death. We know that inEngland there are cases in which a man,although in full life, is said to be civillydead, but I have not learned, until thiscase was brought before us, that there was

but one kind of death known to our laws.’’);Cannon v. Windsor, 1 Houst. 143, 144, 6Del. 143 (1855) (‘‘But here there is no suchgeneral forfeiture of property, or the rightto maintain an action, on a conviction fortreason or felony, and the maxim or princi-ple of civilter mortuus cannot thereforeapply in this State, even when he is aparty plaintiff.’’); Chin, 160 U. PA. L. REV.

at 1796 (‘‘In England, civil death was acommon law punishment, but in the UnitedStates, it existed only if authorized bystatute. It was far from universalTTTT’’).And even when it applied to life sentences,the doctrine of civil death had to be atleast partially reconceived because it hadbegun as a time-limited doctrine justifiedby the anticipation of natural death—itwas ‘‘not a condition applicable potentiallyfor decades.’’ See Chin, 160 U. PA. L. REV.

at 1797. As courts hammered out the in-congruities between civil death and contin-ued life over the next century, they settleduncomfortably on an American version ofcivil death that required explicit statutoryauthorization and deprived a felon ofmany, but not all, rights.9 See, e.g., Avery,

8. The same court had two years earlier sug-gested that where a statute changed punish-ment from death to a life sentence, the statutemay be read as an affirmance of the commonlaw punishment of civil death. See Platner, 6Johns. Ch. at 127–28 (citing Troup, 4 Johns.Ch. 228). But in Platner, the court explicitlyrejected its earlier assumption and replaced itwith a well-reasoned, widely-adopted, and en-during view that civil death existed only ifauthorized by statute. Id. at 128 (‘‘The samepoint arose, incidentally, in respect to thissame conviction, in the case of Troup v. Wood,and I was there induced to think, upon theauthority of Lord Coke, that every person at-tainted of felony was accounted, in law, civili-ter mortuus. It was not a necessary or verymaterial point in that case, and I did notpursue the subject to the extent I should havedone, if it had been then, as it is now, thedirect and material point in issue. I have,likewise, since, had the benefit of a full andable discussion, and of a diligent and accurate

research, particularly on the part of the plain-tiff, respecting this very unusual question oflaw.’’ (citation omitted)).

9. Courts were consistent and explicit aboutthe difficulty of trying to apply the doctrine ofcivil death outside the context of the deathpenalty. See, e.g., Shapiro v. Equitable LifeAssur. Soc. of U.S., 182 Misc. 678, 45N.Y.S.2d 717 (N.Y. Sup. Ct. 1943) (‘‘Palpableanomaly inevitably results from attempting toattribute civil death, not only to persons aboutto be executed, but, also, to persons who mayremain physically alive for many years andalso may be paroled of pardoned.’’); Byers v.Sun Sav. Bank, 41 Okla. 728, 139 P. 948, 949(1914) (‘‘[Civil death] had its origin in the fogsand fictions of feudal jurisprudence anddoubtlessly has been brought forward intomodern statutes without fully realizing eitherthe effect of its literal significance or theextent of its infringement upon the spirit ofour system of government. At any rate, the


18 N.E. at 154–55 (suggesting that a lifeconvict maintained a right to defend anaction brought against him and certainproperty rights, including the ability totransfer property by will or deed).

Of particular relevance to Kanter’s case,courts also struggled to determine how—ifat all—the old concept of civil death ap-plied to felons serving sentences for a termof years. Cases decided in the early nine-teenth century, like Troup v. Wood andPlatner v. Sherwood, associated the loss ofrights under a theory of civil death onlywith capital and life sentences. Later casesbuilding on that reasoning held that therights of felons serving less than life weremerely suspended during the term of thesentence. See, e.g., In re Estate of Nerac,35 Cal. 392, 396 (1868) (‘‘If the convict besentenced for life, he becomes civilitermortuus, or dead in lawTTTT If, however,he be sentenced for a term less than life,his civil rights are only suspended duringthe term.’’); Ruffin v. Commonwealth, 62Va. 790, 796 (1871) (explaining that a con-vict is ‘‘civiliter mortuus,’’ but only ‘‘[f]orthe time being, during his term of servicein the penitentiary’’); Bowles v. Haber-mann, 95 N.Y. 246, 247 (1884) (applying astatute, which provided that ‘‘a sentence ofimprisonment in a State prison for anyterm less than for life TTT suspends, dur-ing the term of the sentence, all the civilrights TTT of, or held by, the person sen-tenced.’’).

The upshot of this history for presentpurposes is that the consequences of afelony conviction were not as categorically

severe as the governments suggest. Capi-tal punishment was less pervasive than onemight think. Outside the capital context,civil death applied exclusively to life sen-tences and only if authorized by statute—and even then, it was more modest thanthe ancient version because the convictretained some rights. Felons serving aterm of years did not suffer civil death;their rights were suspended but not de-stroyed. In sum, a felony conviction andthe loss of all rights did not necessarily gohand-in-hand.

Because they did not go hand-in-hand,the argument that the severity of punish-ment at the founding implicitly sanctionsthe blanket stripping of rights from allfelons, including those serving a term ofyears, is misguided. Those who ratified theSecond Amendment would not have as-sumed that a free man, previously convict-ed, lived in a society without any rightsand without the protection of law. This isnot to say that felons could not lose rightsunder another theory. Indeed, state legis-latures did explicitly exclude felons fromthe enjoyment of particular rights. See in-fra Section II.C. But history confirms thatthe basis for the permanent and pervasiveloss of all rights cannot be tied generallyto one’s status as a convicted felon or tothe uniform severity of punishment thatbefell the class.

Even if it could be, though, one mightreasonably ask: ‘‘So what?’’ We wouldn’tdraw this inference from the severity offounding-era punishment in other con-texts—for example, we wouldn’t say that

full significance of such statutes have neverbeen enforced by our courts for the principalreason that they are out of harmony with thespirit of our fundamental laws and with otherprovisions of statutes.’’); Avery, 18 N.E. at 155(‘‘Any one who takes the pains to explore theancient and in many respects obsolete learn-ing connected with the doctrine of civil deathin consequence of crime, will find that he has

to grope his way along paths marked by un-certain, flickering, and sometimes misleadinglights; and he cannot feel sure that at somepoint in his course he has not missed the trueroad.’’). But here, defining the precise impactof ‘‘civil death’’ on a felon sentenced to life isnot as important as underscoring that theimpact was no longer complete destruction ofrights and death to the law.


the state can deprive felons of the right tofree speech because felons lost that rightvia execution at the time of the founding.The obvious point that the dead enjoy norights does not tell us what the founding-era generation would have understoodabout the rights of felons who lived, dis-charged their sentences, and returned tosociety.

C.

While scholars have not identifiedeighteenth or nineteenth century lawsdepriving felons of the right to beararms, history does show that felons couldbe disqualified from exercising certainrights—like the rights to vote and serveon juries—because these rights belongedonly to virtuous citizens. See THOMAS M.COOLEY, A TREATISE ON THE CONSTITUTIONAL

LIMITATIONS 29 (1st ed. 1868) (explainingthat certain classes of people were ‘‘al-most universally excluded’’ from thefranchise for ‘‘want of capacity or ofmoral fitness’’); Saul Cornell, ‘‘Don’tKnow Much About History’’ The CurrentCrisis in Second Amendment Scholar-ship, 29 N. KY. L. REV. 657, 679 (2002)(identifying the ‘‘right to sit on juries’’ as‘‘limited to those members of the politywho were deemed capable of exercisingit in a virtuous manner’’). Some maintainthat the right to bear arms is similarlylimited by a virtue requirement. See, e.g.,Don. B. Kates Jr., The Second Amend-ment: A Dialogue, 49 LAW & CONTEMP.

PROBS., Winter 1986, at 143, 146 (‘‘[T]heright to arms does not preclude laws di-sarming the unvirtuous citizens (i.e.,criminals) or those who, like children orthe mentally unbalanced, are deemed in-capable of virtue.’’). On this view, thelegislature can disarm felons because oftheir poor character, without regard towhether they are dangerous. See Medi-na, 913 F.3d at 159 (endorsing the viewthat the Second Amendment excludes not

only the dangerous, but also the ‘‘unvir-tuous’’) The majority is sympathetic tothis view. See Maj. Op. at 446.

The problem with this argument is thatvirtue exclusions are associated with civicrights—individual rights that ‘‘require[ ]citizens to act in a collective manner fordistinctly public purposes.’’ See Saul Cor-nell, A New Paradigm for the SecondAmendment, 22 LAW & HIST. REV. 161, 165(2004). For example, the right to vote isheld by individuals, but they do not exer-cise it solely for their own sake; rather,they cast votes as part of the collectiveenterprise of self-governance. Similarly, in-dividuals do not serve on juries for theirown sake, but as part of the collectiveenterprise of administering justice. Somescholars have characterized the right tokeep and bear arms as a civic right, be-cause it was ‘‘one exercised by citizens, notindividuals TTT, who act together in a col-lective manner, for a distinctly public pur-pose: participation in a well regulated mili-tia.’’ See Cornell & DeDino, 73 FORDHAM L.REV. at 491 (‘‘[T]he text [of the SecondAmendment] fits a civic rights model bet-ter than either the individual or collectiverights paradigms.’’). Saul Cornell explains:

Perhaps the most accurate way to de-scribe the dominant understanding ofthe right to bear arms in the Foundingera is as a civic right. Such a right wasnot something that all persons couldclaim, but was limited to those membersof the polity who were deemed capableof exercising it in a virtuous manner.Freedom of religion, freedom of thepress, trial by jury were genuinelyrights belonging to individuals and weretreated differently than were civic rightssuch as militia service, or the right to siton juries.

Cornell, 29 N. KY. L. REV. at 679 (footnotesomitted). And as a right that was exercised


for the benefit of the community (like vot-ing and jury service), rather than for thebenefit of the individual (like free speechor free exercise), it belonged only to virtu-ous citizens.

Heller, however, expressly rejects theargument that the Second Amendmentprotects a purely civic right. Moore v. Ma-digan, 702 F.3d 933, 935 (7th Cir. 2012). Itsquarely holds that ‘‘the Second Amend-ment confer[s] an individual right to keepand bear arms,’’ Heller, 554 U.S. at 595,128 S.Ct. 2783 (emphasis added), and itemphasizes that the Second Amendment isrooted in the individual’s right to defendhimself—not in his right to serve in awell-regulated militia, id. at 582–86, 128S.Ct. 2783. The ‘‘civic rights’’ approachruns headlong into both propositions. SeeBinderup, 836 F.3d at 371 (Hardiman, J.,concurring in part and concurring in thejudgments) (‘‘[T]his virtuous-citizens-onlyconception of the right to keep and beararms is closely associated with pre-Hellerinterpretations of the Second Amendmentby proponents of the ‘sophisticated collec-tive rights model’ who rejected the viewthat the Amendment confers an individualright and instead characterized the rightas a ‘civic rightTTTT’ ’’ (citation omitted)).The parties have introduced no evidencethat virtue exclusions ever applied to indi-

vidual, as opposed to civic, rights.10 And ifvirtue exclusions don’t apply to individualrights, they don’t apply to the SecondAmendment.

It bears emphasis that virtue exclu-sions from the exercise of civic rightswere explicit. If the right to bear armswas similarly subject to a virtue exclu-sion, we would expect to see provisionsexpressly depriving felons of that righttoo—but we don’t. By 1820, ten states’constitutions included provisions exclud-ing or authorizing the exclusion of thosewho ‘‘had committed crimes, particularlyfelonies or so-called infamous crimes’’from the franchise. See ALEXANDER KEYS-

SAR, THE RIGHT TO VOTE 62–63 & tbl. A.7(Kentucky, Vermont, Ohio, Louisiana,Indiana, Mississippi, Connecticut, Illinois,Alabama, Missouri). By 1857, twenty-fourstate constitutions included such provi-sions. Id. The same crimes often ‘‘made aperson ineligible to serve as a witness ina legal proceeding,’’ id. at 62, and toserve on a jury.11

State constitutions protecting the rightto bear arms do not follow a similar pat-tern. Between 1790 and 1820, nine statesenacted their own right-to-arms provisionsin their constitutions. See Volokh, 11 TEX.

REV. L. & POL. at 208–09 (four more had

10. The governments gesture towards Heller assupport for a virtue exclusion, citing Heller’sassertion that the Second Amendment ‘‘surelyelevates above all other interests the right oflaw-abiding, responsible citizens to use armsin defense of hearth and home.’’ 554 U.S. at635, 128 S.Ct. 2783. That statement impliesthat the legislature might have the power tomore heavily regulate those who are not law-abiding or responsible. But it does not pur-port to analyze the scope of that power, nordoes it endorse the very specific concept of avirtue exclusion.

11. See, e.g., Act of Feb. 28, 1803, ch. 92, § 1,in ACTS AND LAWS OF THE COMMONWEALTH OF

MASSACHUSETTS 173 (Wright & Potter 1898)(jurors must be ‘‘of good Moral Character’’

and qualified to vote; ‘‘and if any person,whose name shall be put into either [jury]Box, shall be convicted of any Scandalouscrime, or be guilty of any gross immorality,his name shall be withdrawn from the [jury]Box, by Selectmen of his town’’); Act of Feb.2, 1811, ch. 158, § 2, in 4 LAWS OF THE STATE OF

DELAWARE, at 445, 449 (Bradford & Porter1816) (grand jurors must be ‘‘sober, substan-tial and judicious freeholders, lawful men, offair characters’’); id. § 7 (petit jurors must be‘‘sober, discreet and judicious freeholders,TTT

lawful men of fair characters’’); Act of Dec.17, 1796, § 52, in ACTS FOR THE COMMONWEALTH

OF KENTUCKY 134 (Stewart 1796) (jurors must‘‘be of good demeanor’’).


enacted such provisions prior to 1790).None of those provisions made an excep-tion for criminals. Id. And notably, sevenof those nine states explicitly excluded orauthorized the exclusion of certain crimi-nals from the right to vote. Compare id.(identifying Kentucky, Ohio, Indiana, Mis-sissippi, Connecticut, Alabama, and Mis-souri as seven of the nine states withright-to-arms provisions in their constitu-tions by 1820), with KEYSSAR, supra, at tbl.A.7 (the same seven state constitutionsspecifically excluded certain criminals fromthe right to vote). The same pattern heldtrue in 1857. Compare Volokh, 11 TEX. REV.

L. & POL. at 209–10, with KEYSSAR, supra,at tbl. A.7. There is no basis, then, forassuming that a virtue requirement on theright to vote applies equally to the right tokeep and bear arms. See Binderup, 836F.3d at 372 (Hardiman, J., concurring inpart and concurring in the judgments)(‘‘We have found no historical evidence onthe public meaning of the right to keepand bear arms indicating that ‘virtuous-ness’ was a limitation on one’s qualificationfor the right—contemporary insistence tothe contrary falls somewhere betweenguesswork and ipse dixit.’’).12

In sum, the available evidence suggeststhat the right to arms differs from rightsthat depend on civic virtue for enjoyment.The Second Amendment confers an indi-vidual right, intimately connected with thenatural right of self-defense, and not limit-ed to civic participation (i.e., militia ser-vice). By the very terms of the civic-rightsargument, then, the right to arms wouldhave been ‘‘treated differently’’ than rightslike the right to vote or to sit on juries. SeeCornell, 29 N. KY. L. REV. at 679 (‘‘[R]ights

belonging to individuals TTT were treateddifferently than were civic rights such asmilitia service, or the right to sit on ju-ries.’’). And that difference is borne out byhistorical treatment: we see no explicitcriminal, or even more general virtue-based, exclusions from the right to beararms like we do in other contexts. Thus,although the right protected by the SecondAmendment is not unlimited, see Heller,554 U.S. at 595, 128 S.Ct. 2783, its limitsare not defined by a general felon ban tiedto a lack of virtue or good character.

III.

The history canvassed in Part II yieldstwo conclusions that are important forpresent purposes. History does not sup-port the proposition that felons lose theirSecond Amendment rights solely becauseof their status as felons. But it does sup-port the proposition that the state can takethe right to bear arms away from a catego-ry of people that it deems dangerous. Ourprecedent is consistent with this principle:we have held that ‘‘Congress is not limitedto case-by-case exclusions of persons whohave been shown to be untrustworthy withweapons, nor need these limits be estab-lished by evidence presented in court.’’Skoien, 614 F.3d at 641. Instead, the legis-lature can make that judgment on a class-wide basis. See id. at 640 (‘‘That somecategorical limits are proper is part of theoriginal meaning, leaving to the people’selected representatives the filling in of de-tails.’’). And it may do so based on present-day judgments about categories of peoplewhose possession of guns would endangerthe public safety; as we said in Skoien,

12. The fact that the first general prohibitionon felon gun possession was not enacted until1961 further undercuts the argument that ei-ther history or tradition supports a virtue-based restriction on the right. See An Act toStrengthen the Federal Firearms Act, Pub. L.

No. 87-342, 75 Stat. 757 (1961) (amendingthe Federal Firearms Act by ‘‘deleting thewords ‘crime of violence’ TTT and inserting inlieu thereof the words ‘crime publishable byimprisonment for a term exceeding oneyear’ ’’).


‘‘exclusions need not mirror limits thatwere on the books in 1791.’’ Id. at 641.Such restrictions are ‘‘lineal descendants’’of historical laws banning dangerous peo-ple from possessing guns. See Transcriptof Oral Argument at 77, Heller, 554 U.S.570 (No. 07290) (Chief Justice Roberts:‘‘[W]e are talking about lineal descendantsof the arms but presumably there are lin-eal descendants of the restrictions aswell.’’).

That said, ‘‘the government does not geta free pass simply because Congress hasestablished a ‘categorical ban.’ ’’ UnitedStates v. Williams, 616 F.3d 685, 692 (7thCir. 2010). The government could quicklyswallow the right if it had broad power todesignate any group as dangerous andthereby disqualify its members from hav-ing a gun. See Skoien, 614 F.3d at 641(‘‘We do not mean that a categorical limiton the possession of firearms can be justi-fied under the rational-basis test, whichdeems a law valid if any justification for itmay be imagined.’’). The legislature mustbe able to justify its designation, and therigor with which we review this justifica-tion ‘‘depends on ‘how close the law comesto the core of the Second Amendmentright and the severity of the law’s burdenon the right.’ ’’ Ezell II, 846 F.3d at 892(citation omitted). ‘‘Severe burdens on thecore right of armed defense require a verystrong public-interest justification and aclose means-ends fitTTTT’’ Id.

The majority contends that the means-end review should be ‘‘arguably less rigor-ous in this case because TTT felon dispos-

session laws do not restrict the ‘core rightof armed defense,’ but rather burden ‘ac-tivity lying closer to the margins of theright.’ ’’ Maj. Op. at 448 n.10 (quoting EzellII, 846 F.3d at 892). I disagree. First, felondispossession statutes target the wholeright, including its core: they restrict evenmere possession of a firearm in the homefor the purpose of self-defense. Cf. Heller,554 U.S. at 630–35, 128 S.Ct. 2783 (findingunconstitutional a law that made it impos-sible for citizens to use firearms for ‘‘thecore lawful purpose of self-defense’’); id. at628, 128 S.Ct. 2783 (‘‘[T]he inherent rightof self-defense has been central to theSecond Amendment right.’’).13 And second,the burden is severe: it is a permanentdisqualification from the exercise of a fun-damental right. See Maj. Op. at 439–40; seealso United States v. McCane, 573 F.3d1037, 1048–49 (10th Cir. 2009) (Tymkovich,J., concurring) (‘‘[T]he broad scope of§ 922(g)(1)—which permanently disquali-fies all felons from possessing firearms—would conflict with the ‘core’ self-defenseright embodied in the Second Amend-ment.’’). Thus, ‘‘a very strong public-inter-est justification and a close means-ends fit’’is required before Kanter may be constitu-tionally subject to the United States andWisconsin dispossession statutes. Ezell II,846 F.3d at 892.

There is no question that the interestidentified by the governments and sup-ported by history—keeping guns out of thehands of those who are likely to misusethem—is very strong. And we have held

13. The majority suggests that who exercisesthe right changes what the core of the right is,see Maj. Op. at 448 n.10, but that is circular.Heller distinguishes the two inquiries: First, itheld that the District of Columbia’s ban onhandgun possession violated the SecondAmendment (the what). 554 U.S. at 635, 128S.Ct. 2783. Then, it indicated the need toconsider whether Heller could be disqualified

from exercising that right (the who). Id. (‘‘As-suming that Heller is not disqualified fromthe exercise of Second Amendment rights, theDistrict must permit him to register his hand-gun and must issue him a license to carry it inthe home.’’). Heller’s qualification or lackthereof did not change the content of the rightitself; it affected whether the legislature couldtake it away. The same is true of Kanter here.


that several of the other categorical banswithin § 922(g) demonstrate the necessaryfit between this public-safety end and thegovernment’s chosen means. In Skoien, weupheld § 922(g)(9), which prohibits thoseconvicted of domestic violence misdemean-ors from possessing firearms, because ‘‘noone doubts that the goal of § 922(g)(9),preventing armed mayhem, is an impor-tant governmental objective’’ and ‘‘[b]othlogic and data establish a substantial rela-tion between § 922(g)(9) and this objec-tive.’’ 614 F.3d at 642; see also id. at 644(‘‘[N]o matter how you slice these num-bers, people convicted of domestic violenceremain dangerous to their spouses andpartners.’’). In United States v. Yancey, wesustained § 922(g)(3), which prohibits anyperson ‘‘who is an unlawful user of oraddicted to any controlled substance’’ frompossessing a gun, because ‘‘studies amplydemonstrate the connection betweenchronic drug abuse and violent crime, andilluminate the nexus between Congress’sattempt to keep firearms away from habit-ual drug abusers and its goal of reducingviolent crime.’’ 621 F.3d 681, 686 (7th Cir.2010). And in United States v. Meza-Rod-riguez, we rejected a challenge to§ 922(g)(5), which prohibits aliens unlaw-fully present in the United States from

possessing firearms, reasoning that keep-ing guns out of the hands of ‘‘persons whoare difficult to track and who have aninterest in eluding law enforcement’’serves the public-safety objectives of§ 922(g). 798 F.3d 664, 673 (7th Cir. 2015).

In contrast to these narrowly definedcategorical bans, § 922(g)(1), which appliesto all felons, is ‘‘wildly overinclusive.’’Adam Winkler, Scrutinizing the SecondAmendment, 105 MICH. L. REV. 683, 721(2007). Its application is not limited tothose who have committed violent crimeslike murder, assault, and rape.14 It alsoencompasses those who have committedany nonviolent felony or qualifying state-law misdemeanor—and that is an immenseand diverse category. It includes every-thing from Kanter’s offense, mail fraud, toselling pigs without a license in Massachu-setts, redeeming large quantities of out-of-state bottle deposits in Michigan, andcountless other state and federal offenses.See Mass. Gen. Laws ch. 129, §§ 39, 43;Mich. Comp. Laws § 445.574a(1)(a), (2)(d);see also, e.g., 21 U.S.C. § 676 (violating theFederal Meat Inspection Act in certainways); 18 U.S.C. § 1621 (committing per-jury); Mass. Gen. Laws ch. 266, § 30A(shoplifting goods valued at $100).15 These

14. Section 922(g)(1)’s predecessor, the Feder-al Firearms Act of 1938, did not permanentlyban all felons from possessing firearms, butrather those convicted of ‘‘crime[s] of vio-lence,’’ defined then as ‘‘murder, manslaugh-ter, rape, mayhem, kidnapping, burglary,housebreaking,’’ and certain forms of aggra-vated assault. See Marshall, 32 HARV. J.L. &PUB. POL’Y at 698–99 (citing Federal FirearmsAct, ch. 850, § 1(6), 52 Stat. 1250, 1250(1938)). Even today, many scholars cited assupporting a general felon ban actually seemto assume or advocate something much closerto a violent-felon ban. See, e.g., Don B. Kates& Clayton E. Cramer, Second AmendmentLimitations and Criminological Consider-ations, 60 HASTINGS L. J. 1339, 1362–63 (2009)(‘‘At early common law, the term ‘felony’ ap-plied only to a few very serious, very danger-

ous offenses such as murder, rape, arson, androbberyTTTT Insofar as federal or state stat-utes would seek to bar arms possession by[felons who ‘pos[e] no physical danger to oth-ers’], those laws would seem to be invalid ontheir face.’’); Stephen P. Halbrook, What theFramers Intended: A Linguistic Analysis of theRight to ‘‘Bear Arms’’, 49 LAW & CONTEMP.

PROBS., Winter 1986, at 151, 161 (‘‘[V]iolentcriminals, children, and those of unsoundmind may be deprived of firearmsTTTT’’ (em-phasis added)).

15. It’s worth noting that, in addition to theeclectic and wide-ranging offenses already in-cluded in this category, there are very fewlimits on the ability of Congress and statelegislatures to expand the number of qualify-ing nonviolent offenses. Cf. United States v.


crimes, like many others captured by§ 922(g), ‘‘rais[e] no particular suspicionthat the convict is a threat to public safe-ty.’’ Winkler, 105 MICH. L. REV. at 721. Putmore colorfully, ‘‘It is hard to imagine howbanning Martha Stewart or Enron’s An-drew Fastow from possessing a gun fur-thers public safety.’’ Id.

We have addressed the constitutionalityof § 922(g)(1) before. In United States v.Williams, a defendant with a prior rob-bery conviction challenged the statute asapplied to him. 616 F.3d at 691. We heldthat the provision is constitutional as ap-plied to violent felons, including the defen-dant in that case. 616 F.3d at 694 (‘‘Be-cause Williams was convicted of a violentfelony, his claim that § 922(g)(1) unconsti-tutionally infringes on his right to possessa firearm is without merit.’’). But our deci-sion came with an important qualification:we expressly noted that ‘‘§ 922(g)(1) maybe subject to an overbreadth challenge atsome point because of its disqualification ofall felons, including those who are non-violent.’’ Id. at 693. We asserted that‘‘[e]ven if the government may face a diffi-cult burden of proving § 922(g)(1)’s ‘strongshowing’ in future cases, it certainly satis-fies its burden in this case, where [thedefendant] challenges § 922(g)(1) as it wasapplied to him.’’ Id. As a violent felon, thedefendant in Williams was in no positionto challenge § 922(g)(1) on the ground thatits application to nonviolent felons is un-constitutional. See Skoien, 614 F.3d at 645(‘‘A person to whom a statute properly

applies can’t obtain relief based on argu-ments that a differently situated personmight present.’’). As a nonviolent felon,however, Kanter is in a position to makethat argument.

The first step in analyzing Kanter’s as-applied challenge is to consider whetherbanning all nonviolent felons is substantial-ly related to the governments’ interest inpreventing future gun violence. SeeWilliams, 616 F.3d at 692–93. Williamsheld that because the characteristic com-mon to all violent felons is a demonstratedpropensity for violence, the ban on pos-sessing firearms is constitutional as ap-plied to all members of that class. Id. at693–94. In contrast, and to state the obvi-ous, the characteristic common to all non-violent felons is that their criminal conductwas nonviolent.16 Thus, the reasoning thatsupports the categorical disarmament ofviolent felons—that past violence is pre-dictive of future violence—simply does notapply.

The governments argue, though, thatbeing convicted of a nonviolent crime isalso predictive of future violence. They tryto support that position with statisticsshowing that nonviolent felons are likely tocommit violent crimes in the future. Thesestatistics are entirely unhelpful, however,because they lump all nonviolent felonstogether—and while some nonviolent fel-ons may be likely to misuse firearms, thecharacteristics that make them risky can-

Phillips, 827 F.3d 1171, 1176 n.5 (9th Cir.2016) (‘‘Can Congress or the States definepetty larceny as a felony? Of course. Can aconviction for stealing a lollipop then serve asa basis under § 922(g)(1) to a ban a personfor the rest of his life from ever possessing afirearm, consistent with the Second Amend-ment?’’).

16. The majority suggests that nonviolent felo-nies are united by another characteristic rele-

vant to the constitutionality of disarmament:that the commission of ‘‘mala in se feloniesreflect[s] grave misjudgment and maladjust-ment.’’ Maj. Op. at 450 (citation omitted). Butthat is just another way of saying that non-violent felons have demonstrated a lack ofvirtue. Absent evidence that this lack of virtueis tied to a propensity for risky behavior thatthreatens public safety, it does not justifystripping them of their Second Amendmentrights.


not be generalized to the whole class. Forexample, the characteristics of an individu-al convicted of a drug-related offense tellus little if anything about the tendency ofan individual convicted of perjury—or, forthat matter, mail fraud—to commit gunviolence. The sheer diversity of crimes en-compassed by these statutes makes it vir-tually impossible for the governments toshow that banning all nonviolent felonsfrom possessing guns is closely tailored tothe goal of protecting the public safety.Thus, we must decide whether the statutesare unconstitutional as applied to Kanterin particular. See Williams, 616 F.3d at692–93.

If Kanter’s conviction—mail fraud—issubstantially related to violent behavior,the governments can disarm him withoutregard to any personal circumstances orcharacteristics suggesting that he poses alow risk to public safety. But their case fortying mail fraud to a risk of future violencerests on a single study related to mail-fraud recidivism. See DAVID WEISBURD ET

AL., WHITE-COLLAR CRIME AND CRIMINAL CA-

REERS (2004). This study suggests that al-most 40% of individuals convicted of mailfraud were later rearrested. Id. at 29. Itdoes not say, however, whether those ar-rests were for violent or nonviolent of-fenses. Nor does it say what percentage ofthose individuals were convicted. A differ-ent portion of the same study suggeststhat 25% of all white-collar repeat offend-ers (on the numbers provided, I’ll assumethat means roughly 10% of those with amail-fraud conviction, though we have beengiven no way to know)17 have an arrest for

a violent crime. Id at 45. But it does notspecify whether the violent arrest preced-ed or post-dated the white-collar arrests,and the numbers drop dramatically forthose with only two total offenses, id.,suggesting that a pattern of criminality,rather than a particular mail-fraud arrest,might be an indication of future danger-ousness, see id. at 46 (‘‘[T]hose with fewerarrests seldom had violent crimes in theircriminal histories.’’). This study falls wellshort of establishing the ‘‘close means-endsfit’’ required before the governments maytotally and permanently strip offenderslike Kanter of the ability to exercise afundamental right.18

This does not mean that Wisconsin andthe United States cannot disarm Kanter.Even though the mail-fraud conviction,standing alone, is not enough, they mightstill be able to show that Kanter’s historyor characteristics make him likely to mis-use firearms. And if banning Kanter, inparticular, from possessing a gun is sub-stantially related to the governments’ goalof ‘‘preventing armed mayhem,’’ then thestatutes could be constitutionally appliedto him. Skoien, 614 F.3d at 642.

At this point, however, neither Wiscon-sin nor the United States has presentedany evidence that Kanter would be dan-gerous if armed. Instead, as the majoritynotes, ‘‘Kanter is a first-time, non-violentoffender with no history of violence, fire-arm misuses, or subsequent convictions,’’and he is ‘‘employed, married, and doesnot use illicit drugs, all of which corre-

17. This assumes that the rate of violent arrestfor mail fraudsters who reoffend tracks that ofall white-collar criminals who reoffend. Thegovernments’ study doesn’t speak to this ques-tion, underscoring the inability of the dataprovided to support the governments’ argu-ments.

18. My analysis is limited to the total bans thatCongress and the Wisconsin legislature enact-ed. It might be that this study or other evi-dence would support other, more limited in-trusions on Kanter’s Second Amendmentright. But the constitutionality of a more lim-ited measure (for example, a temporary banor one that limits the places in which Kantercan have a gun) is not presented by this case.

469WILLIAMS v. NORFOLK SOUTHERN CORP.Cite as 919 F.3d 469 (7th Cir. 2019)

spond with lower rates of recidivism.’’ Maj.Op. at 449. Absent evidence that Kanterwould pose a risk to the public safety if hepossessed a gun, the governments cannotpermanently deprive him of his right tokeep and bear arms.

* * *

If the Second Amendment were subjectto a virtue limitation, there would be noneed for the government to produce—orfor the court to assess—evidence that non-violent felons have a propensity for dan-gerous behavior. But Heller forecloses the‘‘civic right’’ argument on which a virtuelimitation depends. And while both Wis-consin and the United States have an un-questionably strong interest in protectingthe public from gun violence, they havefailed to show, by either logic or data, cf.Skoien, 614 F.3d at 642, that disarmingKanter substantially advances that inter-est. On this record, holding that the ban isconstitutional as applied to Kanter doesnot ‘‘put[ ] the government through itspaces,’’ see Williams, 616 F.3d at 692, butinstead treats the Second Amendment as a‘‘second-class right, subject to an entirelydifferent body of rules than the other Billof Rights guarantees,’’ McDonald v. Cityof Chicago, 561 U.S. 742, 780, 130 S.Ct.3020, 177 L.Ed.2d 894 (2010) (pluralityopinion). I therefore dissent.

,

Ja’Lin WILLIAMS, Plaintiff-Appellant,

v.

NORFOLK SOUTHERN CORPORA-TION and Norfolk Southern RailwayCompany, Defendants-Appellees.

No. 18-2517

United States Court of Appeals,Seventh Circuit.

Argued February 8, 2019

Decided March 19, 2019

Background: Pedestrian brought actionagainst railroad company to recover forpersonal injuries he sustained when he wasstruck by train while running across rail-road tracks. The United States DistrictCourt for the Northern District of Indiana,No. 2:15-CV-00283, John E. Martin, Unit-ed States Magistrate Judge, 322 F.Supp.3d896, entered summary judgment in compa-ny’s favor, and pedestrian appealed.

Holdings: The Court of Appeals, Barrett,Circuit Judge, held that:

(1) testimony of pedestrian and his friendsthat they did not see or hear any warn-ings of approaching train did not pre-clude summary judgment, and

(2) pedestrian was more than 50 percentat fault for injuries he sustained.

Affirmed.

1. Federal Civil Procedure O2515Testimony of individuals fleeing police

that they did not see warning light andsounds indicating that train was approach-ing did not create genuine issue of materi-al fact precluding summary judgment inaction brought by one of those individualsto recover for injuries he sustained whenhe was struck by train, where video ofincident plainly showed that train’s hornand bells were sounding and that its lightswere on, that, before reaching train, indi-

kanter v. barr 437 · 10/2/2020 · governmental objective of reducing gun violence, and thus did...

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