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.

Comments

[Aladdin's Carpet]

Is this a question? Obviously that seems to be what happened.

Also it does seem that the prosecution against Kanter seems wrong, like jail time? Seriously? For technical noncompliance where no one was hurt? Maybe I'm missing something?

[Aladdin's Carpet]

Ah I see, looking into it. He falsely claimed approval from Medicaid, which could have just been an oversight from an overzealous marketing person, but he also charged medicaid, which honestly imo should have just been dispensed with at the civil trial but jail time isn't completely out of the question there.

But yes the fact that his 2nd amendment rights were taken away here is ridiculous. Then again, he could just move to NJ. There his 2nd amendment rights would be on par with everyone else 🙂

[Dilan Esper]

I'm not a fan of depriving non-violent offenders of Second Amendment rights. It seems to me that some sort of determination of dangerousness should be the key inquiry.

But I will say that it's easier for me to get to this point by either a liberal "living Constitution" analysis or an analysis of militia service, two things that conservative gun rights supporters don't like. Under a historical approach, it seems to me that the stripping of felons' civil rights (including gun rights) has a very long, established historical pedigree, which Scalia adverted to in Heller. This is why then-Judge Barrett had to jump through so many hoops to get to her conclusion. Whereas I can just say that a non-violent offense generally doesn't make one unsuitable to serve in the militia or too dangerous to possess a firearm, and get there easily.

[Sebastian Cremmington]

RKBA has nothing to do with the 2A...but this is the correct decision based on Cruikshank/McDonald. So throw Heller in the trash but you still get a RKBA via incorporating Cruikshank.

[Dilan Esper]

That's fantasyland. The right to keep and bear arms that is actually established in the caselaw comes from Heller and the 2nd Amendment. Despite some dumb references to it in the Declaration of Independence and Douglas' opinion in Griswold, we don't do natural law here. (Nor should we- natural law lacks constraints.)

[Sebastian Cremmington]

Nope, Cruikshank clearly states what almost every American has known for 230 years—we have a RKBA. All that was necessary was incorporating Cruikshank in order to get a RKBA.

[Aladdin's Carpet]

Cruickshank offers some evidence, but using it as your authoritative source is admittedly a bit weird. Cruickshank was an attempt by the court to pretend the 14th amendment doesn't exist, so to "incorporate" it would undermine the ruling.

The actual case at hand is extremely messy with the primary conflict the result of a white militia and a combined black / republican state militia, with the white militia being instigators. Note the term MILITIA. You cannot get an individual right to keep and bear arms from the case, that you get from Heller and history. Thats fine, very few of these cases are credible today anyway.

The main takeaway from the case as far as I can tell that has any validity today is the notion that you cannot make it a crime to deprive someone else of their constitutional rights on an individual basis. On a federal level. Which seems settled.

[Sebastian Cremmington]

Scalia’s Heller majority is absurd...but Stevens’ dissent is equally absurd because Stevens isn’t a strict constructionist and yet his opinion is a perfect strict constructionist opinion. I actually think Stevens’ McDonald dissent is the best way to get to a RKBA but then the conservative justices would have had to support right to privacy case law. So liberal justices generally support expanding liberty via judicial activism but Democrats support gun control...while generally conservative justices are reticent to expand liberty through judicial activism but Republicans support gun rights. Bottom line: most Americans believed we had a RKBA prior to Heller and the Court would have made a mistake by not protecting the RKBA when most Americans believed it was a constitutional right.

[Brett Bellmore]

A perfect mockery of strict construction. I find myself, not for the first time, wondering what sort of weird process goes on in your head as you read these cases.

Stevens would have made it into 'an individual right' to be armed when and where the government wanted you to be armed. A right only to be armed in the context of military service.

[Sebastian Cremmington]

The 2A is a federalism provision...but Americans believed they had a RKBA prior to Heller. So that needed to be resolved.

[TwelveInchPianist]

"You cannot get an individual right to keep and bear arms from the case..."

Cruikshank doesn't say anything about a militia. It says that the right to bear arms for a lawful purpose is a right that exists and that the 2nd Amendment protects it from infringement by Congress.

[Stephen Lathrop]

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 . . . 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.

Isn't that the kind of thing Justice John Marshall ruled was beyond the courts' jurisdiction in McCulloch v Maryland? Here is Marshall:

But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

Seems like Barrett is inquiring into the very degree of necessity—of a law which she concedes is constitutionally legitimate—which Marshall explicitly disclaimed.

Handled the way Barrett is doing it, isn't the whole levels of scrutiny thing a rejection of judicial conservatism, even insofar as Marshall—not regarded historically as a proponent of judicial conservatism—saw it? Why isn't that point at least worth a mention in this discussion? Can we expect Blackman to take note of the contradiction of Marshall in his teaching materials?

That excerpt from Barrett portends notably activist jurisprudence, showing willingness to attack even landmark precedents. As it happens, I disagree with Barrett. I think all felons, whether convicted of violence or not, are more likely than law-abiding people to resort to violence. Of course others may disagree. I prefer such disagreements to be sorted out by accountable political processes, which leave such questions open to be revisited, if later experience counsels otherwise. That seems wiser than Barrett's method—to empower unaccountable judges to write their preferences into the Constitution more indelibly.

A decision against me by the former process is easy to accept. The later process leads me to question the legitimacy of the courts, as I think Marshall meant to suggest.

[Aladdin's Carpet]

??? I am generally confused as to what you are saying.

Marshall was disclaiming the courts ability to determine if the law is valid based on necessity of the law alone. Note the "But where the law is not prohibited."

However, necessity is an integral part of the strict scrutiny / intermediate scrutiny analysis, and this is used where constitutional rights are implicated. Marshall was specifically talking about where constitutional rights aren't prohibited.

There is zero contradiction with Marshall here, and even if their was, Marshall was writing this well before the 14th amendment that allowed incorporation in the first place.

"Handled the way Barrett is doing it, isn’t the whole levels of scrutiny thing a rejection of judicial conservatism, even insofar as Marshall—not regarded historically as a proponent of judicial conservatism—saw it? Why isn’t that point at least worth a mention in this discussion? "

Because in this context what you are saying is nonsense. There are legitimate criticisms of how scrutiny works, but that does not mean all as applied challenges are invalid. That does not mean the court does not look into how the law affects this particular case. It does not mean the courts cannot examine the necessity of a law to apply, IF CONSTITUONAL RIGHTS ARE IMPLICATED, for a given situation.

In fact, it is facial challenges that are a new development. Not as applied. Your logic would suggest that as applied challenges cannot exist because courts cannot examine the necessity as to a particular circumstance. Which is nonsense.

" I think all felons, whether convicted of violence or not, are more likely than law-abiding people to resort to violence. "

It does not matter what you think. Constitutional rights do not go away just because you or even a majority "thinks" something. Do you have evidence that mail fraud is correlated with violent crime?

[Stephen Lathrop]

Aladdin's Carpet: However, necessity is an integral part of the strict scrutiny / intermediate scrutiny analysis, and this is used where constitutional rights are implicated. Marshall was specifically talking about where constitutional rights aren’t prohibited.

Your first sentence quoted above points toward a summary of what I think is wrong with the levels-of-scrutiny analysis. By logical extension, it leads straight to judicial supremacy, precisely because it makes necessity an integral part of the analysis. And of course no such analysis was in use in 1819. I doubt anything like that had even been mentioned, except by Marshall in his emphatic rejection of the notion of doing it, which I also quoted.

If you continue to suppose, "Marshall was disclaiming the courts ability to determine if the law is valid based on necessity of the law alone," I suggest you go back and reread McCulloch v Maryland's very extensive discussion of the Necessary and Proper Clause. I read that discussion as Marshall's analysis about the necessity of means, not the necessity of ends. "Necessity of the law," as you put it, would be a topic focused on the ends sought, not on means of procuring them which might be required to give effect to the law.

Barrett's analysis is not at all about the ends sought, the legitimacy of which she explicitly conceded. It is entirely about the degree of necessity of the means—meaning that Barrett is operating in Marshall's wheelhouse, and doing so in a way Marshall rejected.

I think your second sentence quoted above is mistaken by implication. This is a case where Barrett acknowledged that the law was legitimate, including with regard to a power to suspend the right to bear arms. Marshall was talking about who gets to decide the degree of necessity for doing that, whether the legislature or the courts.

Perhaps you are taking a 2A absolutist position, but neither Marshall nor Barrett seems to be thinking in exactly those terms. I do get that Barrett invokes levels of scrutiny, which, as I noted, came after Marshall. I am asking whether there should not be some review to see if the whole levels-of-scrutiny thing can be squared with Marshall, or alternatively should get an acknowledgement that it overturns Marshall on the question of who gets to decide degree of necessity regarding means.

I question whether you can logically give the courts unfettered jurisdiction over degrees of necessity among the means enabled by all laws involving rights. The only way to do that seems to be to write Marshall out of the picture altogether.

So permit me to ask. Do you favor writing Marshall out of the picture altogether, to support instead a newer method invoked by the term, "Degrees of Scrutiny"—and applying that method to the means, deciding those questions in the courts as Barrett insisted? Or instead, do you favor deciding them by the legislatures, as Marshall insisted?

[Stephen Lathrop]

Damn. Italics error. Reposting with corrected type.

Aladdin’s Carpet: However, necessity is an integral part of the strict scrutiny / intermediate scrutiny analysis, and this is used where constitutional rights are implicated. Marshall was specifically talking about where constitutional rights aren’t prohibited.

Your first sentence quoted above points toward a summary of what I think is wrong with the levels-of-scrutiny analysis. By logical extension, it leads straight to judicial supremacy, precisely because it makes necessity an integral part of the analysis. And of course no such analysis was in use in 1819. I doubt anything like that had even been mentioned, except by Marshall in his emphatic rejection of the notion of doing it, which I also quoted.

If you continue to suppose, “Marshall was disclaiming the courts ability to determine if the law is valid based on necessity of the law alone,” I suggest you go back and reread McCulloch v Maryland’s very extensive discussion of the Necessary and Proper Clause. I read that discussion as Marshall’s analysis about the necessity of means, not the necessity of ends. “Necessity of the law,” as you put it, would be a topic focused on the ends sought, not on means of procuring them which might be required to give effect to the law.

Barrett’s analysis is not at all about the ends sought, the legitimacy of which she explicitly conceded. It is entirely about the degree of necessity of the means—meaning that Barrett is operating in Marshall’s wheelhouse, and doing so in a way Marshall rejected.

I think your second sentence quoted above is mistaken by implication. This is a case where Barrett acknowledged that the law was legitimate, including with regard to a power to suspend the right to bear arms. Marshall was talking about who gets to decide the degree of necessity for doing that, whether the legislature or the courts.

Perhaps you are taking a 2A absolutist position, but neither Marshall nor Barrett seems to be thinking in exactly those terms. I do get that Barrett invokes levels of scrutiny, which, as I noted, came after Marshall. I am asking whether there should not be some review to see if the whole levels-of-scrutiny thing can be squared with Marshall, or alternatively should get an acknowledgement that it overturns Marshall on the question of who gets to decide degree of necessity regarding means.

I question whether you can logically give the courts unfettered jurisdiction over degrees of necessity among the means enabled by all laws involving rights. The only way to do that seems to be to write Marshall out of the picture altogether.

So permit me to ask. Do you favor writing Marshall out of the picture altogether, to support instead a newer method invoked by the term, “Degrees of Scrutiny”—and applying that method to the means, deciding those questions in the courts, as Barrett insisted? Or instead, do you favor deciding them by the legislatures, as Marshall insisted?

[Aladdin's Carpet]

Again, I dont think you understand what Marshall was actually saying.

McCulloch v Maryland didn't implicated constitutional rights. The necessary and proper clause is irrelevant here. IT IS A STATE LAW. Even if the law isn't necessary or proper, the state would have the right to pass it as restrictions on what congress can pass is irrelevant here.

"So permit me to ask. Do you favor writing Marshall out of the picture altogether, to support instead a newer method invoked by the term, “Degrees of Scrutiny”—and applying that method to the means, deciding those questions in the courts, as Barrett insisted?"

Huh? As Barrett insisted? Degrees of scrutiny has been a fundamental principle of constitutional law for 100 years. In fact, the fundamental principle. Maybe you think it is wrong. Fine. But then let's leave Barrett out of this, like Barrett going against Marshall, really?

And again, we aren't talking about necessity as in the necessary ans proper clause. That is irrelevant here. Its a state law. We are talking about the constitutional implementations of this case as to a specific moment.

Barrett said the law is generally valid. That does not mean it is valid for this case. It is an as applied challenge. Not only were as applied challenges around back then, THEY WERE THE ONLY CHALLENGE BACK THEN!

For example, I pass a law saying you cannot distribute flyers at an airport. Someone brings a long an as applied challenge to religious materials. The court is perfectly allowed to say, hey, this law is necessary and generally valid, but not for this specific case! That is what an as applied challenge is! If someone tried to distribute pornographic material, well thats still illegal!

"I question whether you can logically give the courts unfettered jurisdiction over degrees of necessity among the means enabled by all laws involving rights. The only way to do that seems to be to write Marshall out of the picture altogether."

Marshall invented judicial review. He is the one that gave the courts such jurisdiction! Now such jurisdiction is anti-Marshall?

I'm not a 2nd amendment absolutist. But your conflating two arguments. If your complaining about degrees of scrutinyvas an original matter, fine, but your attacking its use in this case when it is used in literally every single case.

All Barrett said was the law is generally necessary but in this instance, invalid. That is a perfectly fine thing to say and is consistant with general practice. The quote you supplied didn't even really invoke scrutiny here. It involved the notion that you can invalidate a necessary law for a specific instance where rhe law is unconstitutional. Which would have been seen in the 1800s as the only thing courts could do.

[Stephen Lathrop]

It does not matter what you think. Constitutional rights do not go away just because you or even a majority “thinks” something. Do you have evidence that mail fraud is correlated with violent crime?

Aladdin's Carpet, my point—stated explicitly before you ignored it—was not that my own preference should govern, but instead that it matters deeply where all public preferences are effectuated by government, whether in court or in a legislature. In the former instance, which you seem to be advocating, we can expect government by judicial supremacy. I disagree with you, and reject that.

[TwelveInchPianist]

If Trump really wanted to troll, he could pardon Hillary Clinton.

[Sarcastr0]

Yeah, this is bandied about on some of the dumber parts of the right.
Except to anyone dealing in reality, it's clear she's not in any real legal jeopardy, and can refuse without any cost.

[Brett Bellmore]

I agree. She SHOULD be in jeopardy, but our legal system is corrupt enough that she isn't.

Trump could have changed that, ran on changing it. Then chickened out.

[TwelveInchPianist]

She'd probably be stupid to. It would make a future prosecution, however unlikely, much more defensible.

[Dilan Esper]

Nobody smart would or should refuse a federal pardon.

[Zarniwoop]

Even if she’d done something nefarious before the 2016 election, there’s a 5yr Statute of Limitations for most Federal Crimes. If the Trump administration couldn’t find something even remotely plausible, what are the odds the Biden DOJ will?

As for crimes that don’t have a Federal SOL ... Comet Pizza *still* doesn’t have a basement.

Nah, I’d put good money on her refusing a pardon in the unlikely event Trump tried to offer her one.

[Doug Huffman]

Note also the BATF recent reversal on pistol-braces. The first losses for e-POTUS and his vice.

[Brett Bellmore]

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

Having been pardoned, is any further action, particularly of a remotely discretionary nature, even necessary?

[Rev. Arthur L. Kirkland]

"President Trump Pardons, Rickey Kanter."

Let's hope Santa brings an editor.

[Sidney r finkel]

While logic may dictate that allowing non-violent felons to possess guns, the gun nuts like Justice Barrett prove that the idea that conservatives don't legislate from the bench is totally disproven.

The Constitution is silent on this issue, of course, so a conservative position would be to defer to the legislatures on this issue. But so-called conservatives are just so quick to abandon their conservative principles when that would go against their political positions.

[Brett Bellmore]

The 2nd amendment constitutes the Constitution not being silent. The 14th amendment contemplates loss of voting rights, but no other rights.

I would say, though, that the real problem is felony inflation.

[Dilan Esper]

That's BS Brett, because historically, felons lost all sorts of civil rights, and nobody thinks the 14th Amendment was intended to reverse the longstanding legal rule on that as to everything but voting.

E.g., felons were always prohibited in many places from jury service. Nobody thinks the 14th Amendment rendered that unconstitutional. It simply confirmed one disability because it was relevant to the voting rights issue discussed therein.

[Brett Bellmore]

Sydney said the Constitution was silent on this issue, I merely pointed out this wasn't quite true.

But, yes, there IS a history of this. Which is why I stated that the real problem was felony inflation.

Originally, felonies were crimes you could be executed for. Any other punishment was lesser.

[Dilan Esper]

It's worse than that. There's a long history of stripping felons of gun rights and other civil rights. Scalia's discussion of this in Heller did not come out of nowhere, and there's a reason law abiding citizens were chosen as the plaintiffs in the trailblazing cases.

So you have a silent text AND pretty clear history. For a principled "originalist", that should end the case. Of course, since originalism is not actually a real constraint on judging, it doesn't. As I said above, a liberal can reach the result they want pretty easily.

[Brett Bellmore]

"There’s a long history of stripping felons of gun rights and other civil rights."

There's a long history of segregated drinking fountains, too.

I'd like to know a couple of things about this "long history".

1) When did this tradition start?
2) Was it predated incorporation of the 2nd amendment, was it based on differences between state RKBA amendments and the federal one?

As I've said, the major problem here is felony inflation. We're talking about what sorts of punishments are allowable for a class of crimes at one time defined as the worst sorts of crimes, for which you might be executed, or spend your life in prison.

So many relatively minor offenses have been redefined as "felonies" that it's dubious that precedents dating from when all felonies were serious crimes should be respected anymore.

[Flight-ER-Doc]

I find the term 'full pardon' interesting - is this a term of art? Is there some sort of lesser pardon that the President can issue?

[Orbital Mechanic]

Yes.

A full pardon gives the convicted person back the status they had prior to conviction. Most pardons are this kind.

The other kinds of pardons are conditional pardons.

[QuantumBoxCat]

"There are obvious reasons why the government would take guns away from those bent on overthrowing it, and, as I discuss later, stripping rebels of their gun rights followed well-established practice in both England and the colonies" (p. 455).