The Volokh Conspiracy

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President Trump Pardons, Rickey Kanter. Last Year, Judge Barrett Found That Kanter Did Not Lose His Second Amendment Rights.

A connection between ACB's dissent and Trump's pardon?


Today President Trump issued another batch of pardons. One of them caught my eye:

Rickey Kanter  President Trump granted a full pardon to Rickey Kanter. Mr. Kanter was the owner and CEO of Dr. Comfort, a company which manufactures special shoes and inserts for diabetics. Although there was no evidence that Dr. Comfort's customers were ever harmed by the company's shoe inserts, the company and Mr. Kanter settled claims in civil court regarding shoe inserts that were technically non-compliant with Medicare regulations.  It was only after this point when the Federal Government filed a criminal action against Mr. Kanter. Mr. Kanter pled guilty to one count of mail fraud and completed his sentence of one year and one day in 2012. Since his period of incarceration, Mr. Kanter has been a model member of his community.

In 2019, the Seventh Circuit decided Rickey Kanter v. Barr. That case should be familiar to readers of this blog. Kanter had challenged the constitutionality of the felon dispossession statute. He argued that his conviction for mail fraud should not deprive him of the right to keep and bear arms. A divided panel ruled against him. Judge Barrett, in dissent, wrote a tour de force originalist analysis of the Second Amendment. It is truly an excellent opinion. Randy and I are including the opinion in the next edition of our casebook.

Here is an excerpt from her opinion:

18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments' undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and non-violent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company's therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment

At this point, however, neither Wisconsin nor the United States has presented any evidence that Kanter would be dangerous if armed. Instead, as the majority notes, "Kanter is a first-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions," and he is "employed, married, and does not use illicit drugs, all of which correspond

During the confirmation hearing, several senators asked Judge Barrett about Kanter. They tried to pin Barrett on giving gun rights to dangerous felons. None of those attacks stuck, because Kanter committed a non-violent, white collar offense. Barrett also took some flak for distinguishing the natural right to bear arms and the political right to vote. There is a long history of disenfranchising felons with respect to the latter, but not the former.

Now, is there a connection between Barrett's opinion and Trump's pardon? I have no clue. But the pardon statement for Kanter was missing something: almost every other pardon statement indicated who supported the pardon. For example:

  • President Trump granted a full pardon to James Kassouf. This pardon is supported by former Florida Attorney General Pam Bondi, Representative David Joyce, Representative Darrell Issa, Pastor Darrell Scott, and many friends in Northeast Ohio.
  • President Trump granted a full pardon to Christopher Wade. Wade's pardon is supported by Isaac Perlmutter, Mark Templeton, and numerous current and former law-enforcement officials.
  • President Trump granted John Tate and Jesse Benton full pardons.  This action is supported by Senator Rand Paul and Lee Goodman, former Chairman of the Federal Election Commission

But Kanter's pardon did not indicate who supported it. Only three other pardon statements did not indicate support. And all of them were obvious political allies: Roger Stone, Paul Manafort, and Margaret Hunter (Rep. Duncan Hunter's wife).

In any event, Kanter has now been pardoned. I think he should soon have his right to bear arms restored.