Rickey I. Kanter v. William P. Barr

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1478
RICKEY I. KANTER,
Plaintiff-Appellant,
v.
WILLIAM P. BARR, Attorney General
of the United States, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 16-cv-1121 — William C. Griesbach, Chief Judge.
____________________
ARGUED SEPTEMBER 7, 2018 — DECIDED MARCH 15, 2019
____________________
Before FLAUM, RIPPLE, and BARRETT, Circuit Judges.
FLAUM, Circuit Judge. Rickey I. Kanter pleaded guilty to
one count of mail fraud under 18 U.S.C. § 1341. Due to his fel-
ony conviction, he is prohibited from possessing a firearm un-
der both federal and Wisconsin law. At issue in this case is
whether the felon dispossession statutes—18 U.S.C.
§ 922(g)(1) and Wis. Stat. § 941.29(1m)—violate the Second
Amendment as applied to Kanter. Even if Kanter could bring
2 No. 18-1478
an as-applied challenge, the government has met its burden
of establishing that the felon dispossession statutes are sub-
stantially related to an important government interest. We
therefore affirm the district court.
I. Background
A. Federal and Wisconsin Felon Dispossession Statutes
Section 922(g)(1) prohibits firearm possession by persons
convicted of “a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g)(1). State misdemean-
ors are included under the statute if they are punishable by
more than two years in prison. 1 Id. § 921(a)(20)(B). However,
the statute excludes anyone convicted of “any Federal or State
offenses pertaining to antitrust violations, unfair trade prac-
tices, restraints of trade, or other similar offenses relating to
the regulation of business practices.” Id. § 921(a)(20)(A).
Moreover, “[a]ny conviction which has been expunged, or set
aside or for which a person has been pardoned or has had civil
rights restored” is not a conviction for purposes of the statute.
Id. § 921(a)(20).
Although the firearms prohibition generally applies for
life, the statute includes a “safety valve” that permits individ-
uals to apply to the Attorney General for restoration of their
firearms rights. Logan v. United States, 552 U.S. 23, 28 n.1
1Accordingly, calling the statute a “felon” dispossession statute is
somewhat of a “misnomer.” Carly Lagrotteria, Note, Heller's Collateral
Damage: As-Applied Challenges to the Felon-in-Possession Prohibition, 86 Ford-
ham L. Rev. 1963, 1970 (2018).
No. 18-1478 3
(2007). Specifically, the Attorney General 2 may remove the
prohibition on a case-by-case basis if an applicant sufficiently
establishes “that the circumstances regarding the disability,
and the applicant’s record and reputation, are such that the
applicant will not be likely to act in a manner dangerous to
public safety and that the granting of the relief would not be
contrary to the public interest.” 18 U.S.C. § 925(c).
Since 1992, however, “Congress has repeatedly barred
the Attorney General from using appropriated funds ‘to in-
vestigate or act upon [relief] applications,’” rendering the pro-
vision “inoperative.” Logan, 552 U.S. at 28 n.1 (quoting United
States v. Bean, 537 U.S. 71, 74–75 (2002)). The Committee on
Appropriations eliminated funding because the restoration
procedure under § 925(c) was “a very difficult task” that re-
quired ATF officials to “spend many hours investigating a
particular applicant for relief.” H.R. Rep. No. 102-618, at 14
(1992). Even then, there was “no way to know with any cer-
tainty whether the applicant [was] still a danger to public
safety.” Id. Accordingly, ATF officials were effectively “re-
quired to guess whether a convicted felon … [could] be en-
trusted with a firearm.” Id. Moreover, they were “forced to
make these decisions knowing that a mistake could have dev-
astating consequences for innocent citizens.” Id. Ultimately,
the Committee determined that “the $3.75 million and the 40
man-years annually spent investigating and acting upon
these applications for relief would be better utilized by ATF
in fighting violent crime.” Id. The Committee addressed the
funding issue again in 1995, adding that “too many of these
2 The Attorney General delegated its authority under § 925(c) to the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). 28 C.F.R.
§ 0.130(a)(1).
4 No. 18-1478
felons whose gun ownership rights were restored went on to
commit violent crimes with firearms.” H.R. Rep. No. 104-183,
at 15 (1995).
In 1981, Wisconsin adopted its own felon dispossession
law. See Wis. Stat. § 941.29(1m). Section 941.29(1m) prohibits
an individual from possessing a firearm if he has “been con-
victed of a felony in” Wisconsin or “a crime elsewhere that
would be a felony” in Wisconsin. Id. § 941.29(1m)(a)–(b).
B. Factual Background
Kanter lives in Mequon, Wisconsin. He was previously the
owner, operator, and CEO of Rikco International, LLC. Rikco
International, which did business as “Dr. Comfort,” manufac-
tured therapeutic shoes and inserts for individuals with dia-
betes and severe foot disease. The company marketed the
shoes and inserts to podiatrists, who in turn sold them to in-
dividual consumers. Most of the shoes and inserts were billed
to, and paid for by, Medicare. Medicare only paid for inserts
that met certain thickness and hardness standards.
In April 2004, Kanter submitted his inserts to Medicare to
determine whether they met those requirements. Medicare
rejected Kanter’s inserts because they were too thin. Kanter
then submitted revised samples, which Medicare approved.
However, Kanter continued to sell the noncompliant inserts
while representing that they were Medicare-approved. All
told, Medicare paid Kanter’s company $375,000 for the non-
compliant inserts.
On May 24, 2011, Kanter pleaded guilty to one count of
mail fraud under 18 U.S.C. § 1341 based on a shipment of the
noncompliant inserts to a podiatrist in Florida. Section 1341
carries a maximum penalty of twenty years in prison and a
No. 18-1478 5
$250,000 fine. Kanter was sentenced to one year and one day
in prison and two years of supervised release. He was also
ordered to pay a criminal penalty of $50,000, and he reim-
bursed Medicare over $27 million in a related civil settlement.
Kanter has since served his time and paid his criminal pen-
alty, and he has not been charged with any additional crimi-
nal activity. However, because of his felony conviction, he is
permanently prohibited from owning a firearm under federal
and Wisconsin law.
C. Procedural Background
Kanter brought suit in the Eastern District of Wisconsin,
arguing that 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m)
are unconstitutional under the Second Amendment as ap-
plied to him. The United States moved to dismiss his claim
under Rule 12(b)(6), and Wisconsin moved for judgment on
the pleadings under Rule 12(c). In response, Kanter moved for
summary judgment, arguing that his status as a nonviolent
offender with no other criminal record meant that both stat-
utes were unconstitutional as applied to him.
The district court granted defendants’ motions and denied
Kanter’s motion. In so doing, the district court held that, even
assuming felons are entitled to Second Amendment protec-
tion, the application of the federal and Wisconsin felon dis-
possession laws to Kanter is substantially related to the gov-
ernment’s important interest in preventing gun violence. The
court reasoned that Congress and the Wisconsin legislature
are entitled to categorically disqualify all felons—even nonvi-
olent felons like Kanter—because both have found that such
individuals are more likely to abuse firearms. The court also
noted that this “bright line categorical approach … allows for
6 No. 18-1478
uniform application and ease of administration.” The district
court entered judgment on January 2, 2018, and this appeal
followed.
II. Discussion
We review de novo a district court’s ruling on a motion to
dismiss for failure to state a claim and a motion for judgment
on the pleadings. Landmark Am. Ins. Co. v. Hilger, 838 F.3d 821,
824 (7th Cir. 2016). In doing so, “we accept all well-pleaded
facts as true and draw reasonable 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 relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
A. Legal Standard 3
The Second Amendment states: “A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” U.S.
Const. amend. II. In District of Columbia v. Heller, the Supreme
Court identified the “core” of the Second Amendment as “the
right of law-abiding, responsible citizens to use arms in de-
fense of hearth and home.” 554 U.S. 570, 634–35. Accordingly,
the Court concluded that Washington D.C.’s ban on handgun
possession in the home violated the Second Amendment. Id.
at 635.
However, the Court also made clear that “the right se-
cured by the Second Amendment is not unlimited.” Id. at 626.
3 Because “the federal and state prohibitions are equivalent in effect”
as to Kanter, our Second Amendment analysis of the two statutes is the
same. Baer v. Lynch, 636 F. App’x 695, 698–99 (7th Cir. 2016).
No. 18-1478 7
Although the Court did not “undertake an exhaustive histor-
ical analysis ... of the full scope of the Second Amendment,” it
said that “nothing in [its] opinion should be taken to cast
doubt on longstanding prohibitions on the possession of fire-
arms by felons and the mentally ill.” Id. It described such pro-
hibitions as “presumptively lawful regulatory measures.” Id.
at 627 n.26. Two years later, in McDonald v. City of Chicago, the
Court “repeat[ed] [its] assurances” that felon dispossession
laws remain valid. 561 U.S. 742, 786 (2010) (plurality opinion).
After Heller, we developed a two-step test for Second
Amendment challenges. “The threshold question is whether
the regulated activity falls within the scope of the Second
Amendment.” Ezell v. City of Chicago, 846 F.3d 888, 892 (7th
Cir. 2017) (“Ezell II”). “This is a textual and historical inquiry;
if the government can establish that the challenged law regu-
lates activity falling outside the scope of the right as originally
understood, then ‘the regulated activity is categorically un-
protected, and the law is not subject to further Second
Amendment review.’” Id. (quoting Ezell v. City of Chicago, 651
F.3d 684, 703 (7th Cir. 2011) (“Ezell I”)).
However, “if the historical evidence is inconclusive or sug-
gests that the regulated activity is not categorically unpro-
tected[,] then there must be a second inquiry into the strength
of the government’s justification for restricting or regulating
the exercise of Second Amendment rights.” Id. (quoting Ezell
I, 651 F.3d at 703). At step two, we evaluate “the regulatory
means the government has chosen and the public-benefits
end it seeks to achieve.” Id. (quoting Ezell I, 651 F.3d at 703).
The rigor of the review is dependent on “how close the law
comes to the core of the Second Amendment right and the se-
verity of the law’s burden on the right.” Id. (quoting Ezell I,
8 No. 18-1478
651 F.3d at 703). “Severe burdens” on this core right “require
a very strong public-interest justification and a close means-
end fit; lesser burdens, and burdens on activity lying closer to
the margins of the right, are more easily justified.” Id. The
government has the burden “of justifying its law under a
heightened standard of scrutiny; rational-basis review does
not apply.” Id. We have consistently described step two as
“akin to intermediate scrutiny” and have required the gov-
ernment to show that the challenged statute is substantially
related to an important governmental objective. United States
v. Meza-Rodriguez, 798 F.3d 664, 672 (7th Cir. 2015) (citing
cases).
B. As-Applied Second Amendment Challenges
Relying on the “presumptively lawful” language in Heller
and McDonald, every federal court of appeals to address the
issue has held that § 922(g)(1) does not violate the Second
Amendment on its face. See, e.g., United States v. Davis, 406 F.
App’x 52, 53–54 (7th Cir. 2010); United States v. Bogle, 717 F.3d
281, 281–82 (2d Cir. 2013) (per curiam); United States v. Moore,
666 F.3d 313, 318–19 (4th Cir. 2012); United States v. Barton, 633
F.3d 168, 172 (3d Cir. 2011), overruled on other grounds by
Binderup v. Att’y Gen., 836 F.3d 336 (3d Cir. 2016) (en banc);
Schrader v. Holder, 704 F.3d 980, 989–91 (D.C. Cir. 2013), cert.
denied, 571 U.S. 989 (2013); United States v. 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 (2010); United
States v. Battle, 347 F. App’x 478, 480 (11th Cir. 2009) (per cu-
riam); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.
2009), cert. denied, 559 U.S. 970 (2010); United States v. Smith,
329 F. App’x 109, 110–11 (9th Cir. 2009); United States v. Ander-
son, 559 F.3d 348, 352 (5th Cir. 2009).
No. 18-1478 9
However, courts of appeals are split as to whether as-ap-
plied Second Amendment challenges to § 922(g)(1) are viable.
On the one hand, the Fifth, Sixth, Ninth, Tenth, and Eleventh
Circuits have suggested that § 922(g)(1) is always constitu-
tional as applied to felons as a class, regardless of their indi-
vidual circumstances or the nature of their offenses. See Stim-
mel v. Sessions, 879 F.3d 198, 210 (6th Cir. 2018) (“[W]e have
upheld § 922(g)(1), which disarms even non-violent felons.”
(citing United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010),
cert. denied, 562 U.S. 895 (2010))); United States v. Scroggins, 599
F.3d 433, 451 (5th Cir. 2010), cert. denied, 562 U.S. 867 (2010)
(rejecting as-applied Second Amendment challenge and hold-
ing that felon dispossession laws are constitutional even if the
offense was nonviolent in nature); United States v. Rozier, 598
F.3d 768, 771 (11th Cir. 2010), cert. denied, 560 U.S. 958 (2010)
(concluding that “statutes disqualifying felons from pos-
sessing a firearm under any and all circumstances do not of-
fend the Second Amendment,” and holding that § 922(g)(1) is
“a constitutional avenue to restrict the Second Amendment
right of certain classes of people,” including convicted felons);
United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010),
cert. denied, 562 U.S. 921 (2010) (rejecting nonviolent felon’s as-
applied Second Amendment challenge to § 922(g)(1) because
“felons are categorically different from the individuals who
have a fundamental right to bear arms”); In re U.S., 578 F.3d
1195, 1200 (10th Cir. 2009) (“We have already rejected the no-
tion that Heller mandates an individualized inquiry concern-
ing felons pursuant to § 922(g)(1).” (citing McCane, 573 F.3d at
1047)).
The First Circuit has not foreclosed as-applied challenges,
but it has expressed some skepticism about them. In United
States v. Torres-Rosario, the court rejected the defendant’s as-
10 No. 18-1478
applied challenge because he had two prior convictions for
“serious drug offenses.” 658 F.3d 110, 113 (1st Cir. 2011), cert.
denied, 565 U.S. 1271 (2012). However, the court noted that the
Supreme Court “may be open to claims that some felonies do
not indicate potential violence and cannot be the basis for ap-
plying a categorical ban,” and “might even be open to highly
fact-specific objections.” Id. Yet the First Circuit cautioned that
“such an approach, applied to countless variations in individ-
ual circumstances, would obviously present serious problems
of administration, consistency and fair warning.” Id.
On the other hand, we, along with the Fourth, Eighth, and
D.C. Circuits, have left room for as-applied challenges to the
statute. See United States v. Williams, 616 F.3d 685, 693 (7th Cir.
2010), cert. denied, 563 U.S. 1092 (2010) (“[W]e recognize that
§ 922(g)(1) may be subject to an overbreadth challenge at
some point because of its disqualification of all felons, includ-
ing those who are non-violent.”); Medina v. Whitaker, 913 F.3d
152, 160 (D.C. Cir. 2019) (“We need not decide today if it is
ever possible for a convicted felon to show that he may still
count as a ‘law-abiding, responsible citizen’” entitled to Sec-
ond Amendment protections.); United States v. Woolsey, 759
F.3d 905, 909 (8th Cir. 2014) (“[T]he Eighth Circuit has left
open the possibility that a person could bring a successful as-
applied challenge to § 922(g)(1)” but rejected defendant’s as-
applied challenge because he had multiple violent felony con-
victions.); United States v. Pruess, 703 F.3d 242, 247 (4th Cir.
2012) (holding that § 922(g)(1) could constitutionally be ap-
plied to nonviolent felons, but acknowledging that “there in
theory might be an as-applied Second Amendment challenge
to [§] 922(g)(1) that could succeed” (citations and internal
quotation marks omitted)).
No. 18-1478 11
Neither we, nor the Fourth, Eighth, or D.C. Circuits, how-
ever, have ever actually upheld such a challenge in practice.
In fact, we have repeatedly rejected as-applied Second
Amendment challenges to § 922(g). See Baer v. Lynch, 636 F.
App’x 695, 698 (7th Cir. 2016) (holding that § 922(g)(1) could
constitutionally be applied to individual convicted of felony
robbery); United States v. Shields, 789 F.3d 733, 750–51 (7th Cir.
2015) (concluding that § 922(g)(1) was constitutional as ap-
plied to individual who had been convicted of three violent
felonies); Williams, 616 F.3d at 693–94 (holding that § 922(g)(1)
was constitutional as applied to individual convicted of fel-
ony robbery who “beat[] the victim so badly that the victim
required sixty-five stitches”); United States v. Skoien, 614 F.3d
638, 642, 644 (7th Cir. 2010) (en banc) (rejecting as-applied Sec-
ond Amendment challenge to § 922(g)(9) brought by domes-
tic violence misdemeanant because violence was “an element
of the offense” and data suggested high rates of recidivism).
Indeed, only one federal court of appeals has upheld an
as-applied Second Amendment challenge to § 922(g). In a
fractured en banc decision, a narrow majority of the Third Cir-
cuit (eight out of fifteen judges) held that § 922(g)(1) was un-
constitutional as applied to two individuals convicted of a
misdemeanor for corrupting a minor and a misdemeanor for
unlawfully carrying a handgun without a license, respec-
tively. Binderup, 836 F.3d at 340, 356. Because it is the only suc-
cessful as-applied Second Amendment challenge in a court of
appeals to date—and because Kanter relies heavily upon it—
it is worth examining the case at some length.
Seven members of the Third Circuit reasoned that the his-
torical justification for disarming felons was “tied to the con-
cept of a virtuous citizenry,” and that “persons who have
12 No. 18-1478
committed serious crimes forfeit the right to possess firearms
much the way they forfeit other civil liberties.” Id. at 348–49
(plurality opinion) (citations and internal quotation marks
omitted). Applying the civic virtue rationale, three of those
judges concluded that the challengers’ offenses “were not se-
rious enough to strip them of their Second Amendment
rights.” Id. at 351. They explained that, although the two of-
fenses were punishable by more than a year in prison, and
thus met the definition of a felony in § 922(g), the state legis-
latures had enacted them as misdemeanors, and “a state leg-
islature’s classification of an offense as a misdemeanor is a
powerful expression of its belief that the offense is not serious
enough to be disqualifying.” Id. Those judges also considered
that neither of the offenses at issue involved violence and that
each of the challengers received “a minor sentence,” and they
pointed to the lack of a “cross-jurisdictional consensus re-
garding the seriousness of the [c]hallengers’ crimes,” remark-
ing that in some states the challengers’ conduct was not even
illegal. Id. at 352. At step two, those three judges concluded
that § 922(g)(1) did not survive intermediate scrutiny because
the government relied on “off-point statistical studies” that
involved incarcerated felons, not misdemeanants who had
served no jail time. Id. at 354.
By contrast, the other five judges who upheld the as-ap-
plied challenge believed that the exclusion of felons from the
scope of the Second Amendment’s protections was not rooted
in notions of civic virtue, but rather “the time-honored prin-
ciple that the right to keep and bear arms does not extend to
those likely to commit violent offenses.” Id. at 367 (Hardiman,
J., concurring in part and concurring in the judgments). Ap-
plying dangerousness as the touchstone, those judges con-
cluded that persons like the challengers who were convicted
No. 18-1478 13
of nonviolent offenses fall within the scope of the Second
Amendment’s protection. Id. at 375–76. Moreover, those five
judges believed that § 922(g) was “categorically unconstitu-
tional” when applied to “non-dangerous persons convicted of
offenses unassociated with violence,” such that any subse-
quent means-end scrutiny or judicial interest balancing was
“inappropriate.” Id. at 358, 378.
The seven dissenting judges concluded that as-applied
challenges to § 922(g)(1) are never permissible. Id. at 401
(Fuentes, J., concurring in part, dissenting in part, and dis-
senting from the judgments). In doing so, they stressed that
the majority’s decision to uphold such a challenge was un-
precedented. See id. at 380–81 (“The plaintiffs ask us to do
something that no federal appellate court has done before.…
No federal appellate court has yet upheld a challenge, facial
or as-applied, to the felon-in-possession statute.”). They criti-
cized the majority’s approach because it “saddle[s] district
court judges with a seemingly unending obligation to review
as-applied challenges” and “fail[s] to provide us with any
workable standards that would make such a regime adminis-
tratively feasible or doctrinally coherent.” Id. at 380. Accord-
ing to the dissent, the challengers’ claim failed at step one be-
cause “Heller itself tells us that felons are disqualified from
exercising their Second Amendment rights,” and “there is no
principled basis … for distinguishing felons from misde-
meanants who commit crimes punishable by more than two
years in prison.” Id. at 388. In any event, the dissenting judges
concluded that § 922(g)(1) survives intermediate scrutiny be-
cause the government’s studies established a link between
past criminal conduct and the government’s important inter-
est in preventing future gun violence. See id. at 400–01. With
14 No. 18-1478
respect to plaintiffs’ contention that the studies were not tai-
lored to their specific characteristics, the dissenting judges ex-
plained that “[t]he question is not whether someone exactly
like the plaintiffs poses a threat to public safety,” but rather
“whether the fit between the challenged regulation and the
asserted objective [is] reasonable, not perfect.” Id. at 400 (al-
teration in original) (citation and internal quotation marks
omitted). 4
With this background in mind, we now apply our two-
step test to this case.
C. Step One: The Historical Evidence is Inconclusive as
to Whether Felons Were Categorically Excluded From
the Second Amendment’s Scope
The first question is whether nonviolent felons as a class
historically enjoyed Second Amendment rights. Heller did not
answer this question. True, “some of Heller’s language does
link Second Amendment rights with the notion[] of ‘law-abid-
ing citizens.’” Meza-Rodriguez, 798 F.3d at 669; see also Heller,
554 U.S. at 634–35 (observing that the “core” of the Second
Amendment right is “the right of law-abiding, responsible cit-
izens to use arms in defense of hearth and home” (emphasis
added)). The Heller Court also cautioned that nothing in its
decision “should be taken to cast doubt on longstanding pro-
hibitions on the possession of firearms by felons,” which it re-
ferred to as “presumptively lawful.” 554 U.S. at 626–27 & n.26.
Moreover, the Court mentioned that certain individuals may
4Both parties appealed to the Supreme Court, but the Supreme Court
denied the petitions for writ of certiorari. See Sessions v. Binderup, 137 S. Ct.
2323 (2017) (noting Justices Ginsburg and Sotomayor would grant the pe-
tition); Binderup v. Sessions, 137 S. Ct. 2323 (2017) (same).
No. 18-1478 15
be “disqualified from the exercise of Second Amendment
rights.” Id. at 635. However, the Court never actually ad-
dressed the historical pedigree of felon dispossession laws.
Accordingly, we have refused to read too much into the
Court’s “precautionary language.” Skoien, 614 F.3d at 640; see
also Meza-Rodriguez, 798 F.3d at 669 (“We are reluctant to place
more weight on these passing references than the Court itself
did.”). 5
Nor has the Seventh Circuit decided whether felons were
historically outside the scope of the Second Amendment’s
protection. See Baer, 636 F. App’x at 698. Although the litigants
in Williams raised that question, we declined to address it and
proceeded directly to the intermediate scrutiny analysis. 616
F.3d at 692. In so doing, we noted that “[t]he academic writing
on the subject of whether felons were excluded from firearm
possession at the time of the founding is ‘inconclusive at best,’
and we refrain[ed] … from making a determination based on
contradictory views.” Id. (quoting Skoien, 614 F.3d at 650
(Sykes, J., dissenting)).
To be sure, although we have not expressly decided this
issue before, we have suggested that felons were not histori-
cally understood to have Second Amendment rights. For ex-
ample, in Skoien, which involved domestic violence misde-
meanants, we explained that some “categorical limits” on fire-
arm possession were “part of the original meaning” of the
Second Amendment. 614 F.3d at 640. Similarly, in United
5 But see Berron v. Ill. Concealed Carry Licensing Review Bd., 825 F.3d 843,
847 (7th Cir. 2016) (“When holding in [Heller] that the Second Amendment
establishes personal rights, the Court observed that only law-abiding per-
sons enjoy these rights, even at home.”).
16 No. 18-1478
States v. Yancey, we opined that “most scholars of the Second
Amendment agree that the right to bear arms was tied to the
concept of a virtuous citizenry and that, accordingly, the gov-
ernment could disarm ‘unvirtuous citizens,’” including fel-
ons. 621 F.3d 681, 684–85 (7th Cir. 2010) (per curiam) (quoting
Vongxay, 594 F.3d at 1118). 6
If, as we suggested in Yancey and as most scholars have
concluded, the founders conceived of the right to bear arms
as belonging only to virtuous citizens, even nonviolent felons
like Kanter would fall outside the scope of the Second
6 Indeed, numerous legal historians have endorsed this view. See, e.g.,
Saul Cornell, “Don't Know Much About History” The Current Crisis in Second
Amendment Scholarship, 29 N. Ky. L. Rev. 657, 679 (2002) (“Perhaps the
most accurate way to describe the dominant understanding of the right to
bear arms in the Founding era is as a civic right [that] … was limited to
those members of the polity who were deemed capable of exercising it in
a virtuous manner.”); Robert Dowlut, The Right to Arms: Does the Constitu-
tion or the Predilection of Judges Reign?, 36 Okla. L. Rev. 65, 96 (1983) (“Co-
lonial and English societies of the eighteenth century … excluded … felons
[from possessing firearms].”); Don B. Kates, Jr., Handgun Prohibition and
the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 266
(1983) (“Felons simply did not fall within the benefits of the common law
right to possess arms.”); Glenn Harlan Reynolds, A Critical Guide to the
Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (“One implication of
this emphasis on the virtuous citizen is that the right to arms does not
preclude laws disarming the unvirtuous (i.e. criminals) ….” (citation omit-
ted)). Moreover, according to Thomas M. Cooley’s 1868 Treatise on Con-
stitutional Limitations, which the Heller court described as a “massively
popular” treatise written by “[t]he most famous” late-nineteenth-century
legal scholar, 554 U.S. at 616, certain classes of people were “almost uni-
versally excluded” from exercising certain civic rights, including “the id-
iot, the lunatic, and the felon, on obvious grounds.” Thomas M. Cooley, A
Treatise on the Constitutional Limitations Which Rest Upon the Legislative
Power of the States of the American Union 29 (1st ed. 1868).
No. 18-1478 17
Amendment. Indeed, several courts of appeals have con-
cluded that nonviolent felons are outside the scope of the Sec-
ond Amendment. For example, in Hamilton v. Pallozzi, the
Fourth Circuit rejected a nonviolent felon’s as-applied Second
Amendment challenge to a state felon dispossession statute,
holding that “conviction of a felony necessarily removes one
from the class of ‘law-abiding, responsible citizens’ for pur-
poses of the Second Amendment.” 848 F.3d 614, 626 (4th Cir.
2017). Explaining that the defendant could not rebut the pre-
sumption that he fell outside the category of “‘law-abiding,
responsible citizens,’” the court focused on his felony convic-
tion for fraud and theft crimes: “Theft, fraud, and forgery are
not merely errors in filling out a form or some regulatory mis-
demeanor offense; these are significant offenses reflecting dis-
respect for the law.” Id. at 627 (quoting Heller, 554 U.S. at 635);
see also Medina, 913 F.3d at 160 (“Whether a certain crime re-
moves one from the category of ‘law-abiding and responsi-
ble,’ in some cases, may be a close question,” such as “a mis-
demeanor arising from a fistfight …. Those who commit felo-
nies however, cannot profit from our recognition of such bor-
derline cases.”); United States v. Hughley, 691 F. App’x 278, 279
(8th Cir. 2017) (per curiam) (“Restricting gun possession by
felons—even nonviolent ones—differs meaningfully from re-
stricting citizens who have not been convicted of serious of-
fenses from having guns in their home for self-defense.”);
Vongxay, 594 F.3d at 1115–16 (“declin[ing] to make a distinc-
tion between violent and non-violent felons” because “felons
are categorically different from the individuals who have a
fundamental right to bear arms”); Rozier, 598 F.3d at 771 & n.5
(stating that a nonviolent felon’s “Second Amendment right
to bear arms is not weighed in the same manner as that of a
law-abiding citizen” and analogizing felon-dispossession
18 No. 18-1478
statutes to felon disenfranchisement laws); United States v.
Everist, 368 F.3d 517, 519 (5th Cir. 2004) (“Irrespective of
whether his offense was violent in nature, a felon has shown
manifest disregard for the rights of others. He may not justly
complain of the limitation on his liberty when his possession
of firearms would otherwise threaten the security of his fel-
low citizens.”). 7
On the other hand, as Judge Sykes observed in her dissent
in Skoien, there is scholarly “disagree[ment] about the extent
to which felons … were considered excluded from the right to
bear arms during the founding era,” and “[t]he historical evi-
dence is inconclusive at best.” Skoien, 614 F.3d at 650 (Sykes,
J., dissenting) (emphasis omitted). 8 If the founders were really
7 Although Everist was issued before the Heller decision, the Fifth Cir-
cuit already recognized an individual right to bear arms pre-Heller and
reaffirmed the validity of the Everist decision after Heller. See Scroggins, 599
F.3d at 451.
8 For support for Judge Sykes’s observation regarding the conflicting
scholarship on the historical conception of the Second Amendment, see,
e.g., Carlton F.W. Larson, Four Exceptions in Search of A Theory: District of
Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374 (2009)
(“[S]o far as I can determine, no colonial or state law in eighteenth-century
America formally restricted the ability of felons to own firearms.”); C.
Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. &
Pub. Pol’y 695, 698 (2009) (“[A]ctual ‘longstanding’ precedent in America
and pre-Founding England suggests that a firearms disability can be con-
sistent with the Second Amendment to the extent that … its basis credibly
indicates a present danger that one will misuse arms against others and
the disability redresses that danger.”); Adam Winkler, Heller’s Catch-22,
56 UCLA L. Rev. 1551, 1563 (2009) (“The Founding generation had no
laws … denying the right to people convicted of crimes.”).
No. 18-1478 19
just concerned about dangerousness, not a lack of virtue, non-
violent felons like Kanter arguably fall within the scope of the
Second Amendment’s protections.
Ultimately, we need not resolve this difficult issue regard-
ing the historical scope of the Second Amendment to dispose
of this case. Instead, we proceed to the means-end scrutiny of
the government’s objectives. 9
D. Step Two: The Felon Dispossession Statutes Survive
Intermediate Scrutiny
Categorical prohibitions on the possession of firearms by
felons are “presumptively lawful,” even in disqualifying non-
violent felons like Kanter. See Skoien, 614 F.3d at 640 (“[S]uch
a recent extension of [§ 922(g)(1)’s] disqualification to non-vi-
olent felons (embezzlers and tax evaders, for example) is pre-
sumptively constitutional, as Heller said in note 26.”). But be-
cause “Heller referred to felon disarmament bans only as ‘pre-
sumptively lawful,’” we require the government to “prov[e]
9 In fact, we usually defer the threshold historical scope inquiry and
proceed directly to means-end scrutiny. See, e.g., Horsley v. Trame, 808 F.3d
1126, 1131 (7th Cir. 2015) (declining to decide whether eighteen- to twenty-
year-olds are within the scope of the Second Amendment); Yancey, 621
F.3d at 684–85. One notable exception to our generally restrained ap-
proach in this area is United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.
2015). There, the majority held that undocumented immigrants were his-
torically within the scope of the Second Amendment but ultimately con-
cluded that the statute at issue nevertheless survived intermediate scru-
tiny. Id. at 669–73. The concurrence advocated for a “prudential approach”
since we did not need to decide the threshold question to resolve the case,
and proposed “reserv[ing] resolution of this challenging constitutional
question for a case that compels addressing it.” Id. at 673–74 (Flaum, J.,
concurring in the judgment). We think that prudential approach is appro-
priate here.
20 No. 18-1478
“the constitutionality of § 922(g)(1) … using the intermediate
scrutiny framework.” Williams, 616 F.3d at 692.
To survive intermediate scrutiny at step two, the govern-
ment must show that the felon dispossession statute is sub-
stantially related to an important governmental objective.
Consistent with how we apply intermediate scrutiny in the
First Amendment context, the “fit” between the challenged
regulation and the asserted governmental objective need only
“be reasonable, 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 in this case. First, Kan-
ter concedes that the government’s objective in passing
§ 922(g)(1) was an important one. The government identifies
its interest as preventing gun violence by keeping firearms
away from persons, such as those convicted of serious crimes,
who might be expected to misuse them. This formulation of
the government’s interest is consistent with our precedent in
this area. See Yancey, 621 F.3d at 683 (“Congress enacted the
exclusions in § 922(g) to keep guns out of the hands of pre-
10 Our means-end review is arguably less rigorous in this case because
the weight of the historical evidence summarized above suggests that
felon dispossession laws do not restrict the “core right of armed defense,”
but rather burden “activity lying closer to the margins of the right.” Ezell
II, 846 F.3d at 892. Indeed, we have said that “the state can prevail with
less evidence when, as in Skoien, guns are forbidden to a class of persons
who present a higher than average risk of misusing a gun.” Moore, 702
F.3d at 940. We have even gone so far as to say that “empirical evidence of
a public safety concern can be dispensed with altogether when the ban is
limited to obviously dangerous persons such as felons and the mentally
ill.” Id.
No. 18-1478 21
sumptively risky people.”); Williams, 616 F.3d at 693 (describ-
ing the government’s objective as “keep[ing] firearms out of
the hands of violent felons, who the government believes are
often those most likely to misuse firearms”); Skoien, 614 F.3d
at 642 (describing the government’s interest as “preventing
armed mayhem”). And we have previously held that this in-
terest is “without doubt an important one.” Yancey, 621 F.3d
at 684; see also Meza-Rodriguez, 798 F.3d at 673 (“[T]he govern-
ment has a[] strong interest in preventing people who already
have disrespected the law (including … felons …) from pos-
sessing guns.”).
Second, the government has shown that prohibiting even
nonviolent felons like Kanter from possessing firearms is sub-
stantially related to its interest in preventing gun violence. Be-
fore turning to the government’s statistical evidence estab-
lishing such a link, it is important to note that we do not write
on a blank slate. In Yancey, we explained that “most felons are
nonviolent, but someone with a felony conviction on his rec-
ord is more likely than a nonfelon to engage in illegal and vi-
olent gun use.” 621 F.3d at 685. In fact, the D.C. Circuit has
concluded that “nonviolent offenders not only have a higher
recidivism rate than the general population, but certain
groups—such as property offenders—have an even higher re-
cidivism rate than violent offenders, and a large percentage of
the crimes nonviolent recidivists later commit are violent.”
Kaemmerling v. Lappin, 553 F.3d 669, 683 (D.C. Cir. 2008); see
Ewing v. California, 538 U.S. 11, 26 (2003) (citing P. Langan &
D. Levin, U.S. Dep’t of Justice, Bureau of Justice Statistics, Spe-
cial Report: Recidivism of Prisoners Released in 1994, at 1 (June
2002)).
22 No. 18-1478
In addition to these judicial statements, the government
points to several studies that have found a connection be-
tween nonviolent offenders like Kanter and a risk of future
violent crime. For example, one study of 210,886 nonviolent
offenders found that about one in five were rearrested for a
violent crime within three years of his or her release. See U.S.
Dep’t of Justice, Bureau of Justice Statistics Profile of Nonviolent
Offenders Exiting State Prisons 2, 4 (2004). A separate study
found that 28.5 percent of nonviolent property offenders—a
category that includes fraud convictions—were rearrested for
a violent offense within five years of their release. See Mat-
thew R. Durose, et al., U.S. Dep’t of Justice, Bureau of Justice
Statistics, Recidivism of Prisoner Released in 30 States in 2005:
Patterns from 2005 to 2010, at 9 (2014). Yet another study found
that “even handgun purchasers with only 1 prior misdemeanor
conviction and no convictions for offenses involving firearms
or violence were nearly 5 times as likely as those with no prior
criminal history to be charged with new offenses involving
firearms or violence.” Garen J. Wintemute, et al., Prior Misde-
meanor Convictions as a Risk Factor for Later Violent and Firearm-
Related Criminal Activity Among Authorized Purchasers of Hand-
guns, 280 J. Am. Med. Ass’n 2083, 2083 (1998) (emphasis
added). 11
11 Even the study that Kanter relies upon found that approximately 40
percent of individuals convicted of mail fraud had at least one additional
arrest afterward. David Weisburd & Elin Waring, White-Collar Crime and
Criminal Careers 12, 29 (2004). The same study found that 24.5 percent of
all repeat white-collar offenders had at least one violent arrest on their
record. Id. at 45. In other words, “white-collar offenders often have multi-
ple contacts with the criminal justice system” and “are unlikely to evi-
dence a high degree of specialization.” Id. at 49.
No. 18-1478 23
Kanter’s only response to the government’s statistical
studies is that they are not tailored enough to his “individual
circumstances.” Specifically, Kanter asks the Court “to con-
sider the fact that [he] is a first-time, non-violent offender with
no history of violence, firearm misuses, or subsequent convic-
tions.” Kanter also points out that he is “employed, married,
and does not use illicit drugs, all of which correspond with
lower rates of recidivism.” In short, Kanter argues that to
meet its burden the government must show “a substantial re-
lationship between denying Mr. Kanter a firearm and further-
ing the government’s objective of preventing firearm misuse
and armed violence.”
Kanter is mistaken. In Skoien we held that “Congress is not
limited to case-by-case exclusions of persons who have been
shown to be untrustworthy with weapons, nor need these
limits be established by evidence presented in court. Heller
did not suggest that disqualifications would be effective only
if the statute’s benefits are first established by admissible evi-
dence.” 614 F.3d at 641. Of course, not all nonviolent felons
will later commit a violent crime with a firearm. In that sense,
the statute is “somewhat over-inclusive.” United States v.
Chapman, 666 F.3d 220, 231 (4th Cir. 2012). However, that
“does not undermine [the statute’s] constitutionality … be-
cause it merely suggests that the fit is not a perfect one; a rea-
sonable fit is all that is required under intermediate scrutiny.”
Id.; see also Marzzarella, 614 F.3d at 97–98 (analogizing to inter-
mediate scrutiny in First Amendment context).
Here, unlike the challengers in Binderup, who were con-
victed of “non-serious” state misdemeanors and served no
prison time, Kanter was convicted of a serious federal felony
for conduct broadly understood to be criminal, and he did not
24 No. 18-1478
face a minor sentence. 836 F.3d at 353 & n.6. Instead, Kanter is
more akin to the challenger in Hamilton, whose fraud and
theft convictions were “black-letter mala in se felonies reflect-
ing grave misjudgment and maladjustment.” 848 F.3d at 627.
Kanter’s crime—defrauding the federal government out of
hundreds of thousands of dollars—“reflect[s] significant dis-
respect for the law.” Id. at 627 n.14; see also Medina, 913 F.3d at
160 (rejecting as-applied challenge where plaintiff was con-
victed of “felony fraud—a serious crime, malum in se, that is
punishable in every state”). Thus, Kanter’s serious felony con-
viction prevents him from challenging the constitutionality of
§ 922(g)(1) as applied to him. 12
We are further assured in our decision because the highly-
individualized approach Kanter proposes raises serious insti-
tutional and administrative concerns. See Torres-Rosario, 658
F.3d at 113 (“[S]uch an approach, applied to countless varia-
tions in individual circumstances, would obviously present
serious problems of administration, consistency and fair
warning.”); see also Medina, 913 F.3d at 159–60 (rejecting argu-
ment that “non-dangerous felons have a right to bear arms”
12 We decline to revisit our comment in Williams “that § 922(g)(1) may
be subject to an overbreadth challenge at some point because of its dis-
qualification of all felons, including those who are non-violent.” 616 F.3d
at 693. That statement was dictum, and we need not determine whether
§ 922(g)(1) may ever be subject to an as-applied challenge to reach our de-
cision in this case. There may be a case in the future that requires address-
ing whether any individual may successfully bring an as-applied chal-
lenge to the statute, but Kanter’s is not that case. See Broadrick v. Oklahoma,
413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitution-
ally be applied will not be heard to challenge that statute on the ground
that it may conceivably be applied unconstitutionally to others, in other
situations not before the Court.”).
No. 18-1478 25
because “[u]sing an amorphous ‘dangerousness’ standard to
delineate the scope of the Second Amendment would require
the government to make case-by-case predictive judgments
before barring the possession of weapons”). As mentioned
above, Congress previously allowed the ATF to restore a
felon’s gun rights under § 925(c) if the agency determined that
“the applicant will not be likely to act in a manner dangerous
to public safety and that the granting of the relief would not
be contrary to the public interest.” 18 U.S.C. § 925(c). How-
ever, Congress abandoned that approach after finding that
the dangerousness inquiry was a “very difficult” and time-in-
tensive task, H.R. Rep. No. 102-618, at 14 (1992), and that “too
many of these felons whose gun ownership rights were re-
stored went on to commit violent crimes with firearms.” H.R.
Rep. No. 104-183, at 15 (1995). Congress’s failed attempt to
delegate this investigative task to a law enforcement agency
“should have a profound impact on our tailoring analysis.”
Binderup, 836 F.3d at 403 (Fuentes, J., concurring in part, dis-
senting in part, and dissenting from the judgment).
At bottom, the fact-specific inquiry Kanter asks this Court
to undertake is “a function best performed by the Executive,
which, unlike courts, is institutionally equipped for conduct-
ing a neutral, wide-ranging investigation.” Bean, 537 U.S. at
77; see also Pontarelli v. U.S. Dep’t of the Treasury, 285 F.3d 216,
231 (3d Cir. 2002) (“Unlike ATF, courts possess neither the re-
sources to conduct the requisite investigations nor the exper-
tise to predict accurately which felons may carry guns with-
out threatening the public’s safety.”). Moreover, “[i]n the con-
text of firearm regulation, the legislature is far better
equipped than the judiciary to make sensitive public policy
judgments (within constitutional limits) concerning the dan-
gers in carrying firearms and the manner to combat those
26 No. 18-1478
risks.” Schrader, 704 F.3d at 990 (citation and internal quota-
tion marks omitted).
In sum, the government has established that the felon dis-
possession statutes are substantially related to the important
governmental objective of keeping firearms away those con-
victed of serious crimes. Because Kanter was convicted of a
serious federal felony for conduct broadly understood to be
criminal, his challenge to the constitutionality of § 922(g)(1) is
without merit.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
No. 18-1478 27
BARRETT, Circuit Judge, dissenting. History is consistent
with common sense: it demonstrates that legislatures have the
power to prohibit dangerous people from possessing guns.
But that power extends only to people who are dangerous.
Founding-era legislatures did not strip felons of the right to
bear arms simply because of their status as felons. Nor have
the parties introduced any evidence that founding-era
legislatures imposed virtue-based restrictions on the right;
such restrictions applied to civic rights like voting and jury
service, not to individual rights like the right to possess a gun.
In 1791—and for well more than a century afterward—
legislatures disqualified categories of people from the right to
bear arms only when they judged that doing so was necessary
to protect the public safety.
18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m)
would stand on solid footing if their categorical bans were
tailored to serve the governments’ undeniably compelling
interest in protecting the public from gun violence. But their
dispossession of all felons—both violent and nonviolent—is
unconstitutional as applied to Kanter, who was convicted of
mail fraud for falsely representing that his company’s
therapeutic shoe inserts were Medicare-approved and billing
Medicare accordingly. Neither Wisconsin nor the United
States has introduced data sufficient to show that disarming
all nonviolent felons substantially advances its interest in
keeping the public safe. Nor have they otherwise
demonstrated that Kanter himself shows a proclivity for
violence. Absent evidence that he either belongs to a
dangerous category or bears individual markers of risk,
28 No. 18-1478
permanently disqualifying Kanter from possessing a gun
violates the Second Amendment. 1
I.
At the outset, it is worth clarifying a conceptual point.
There are competing ways of approaching the
constitutionality of gun dispossession laws. Some maintain
that there are certain groups of people—for example, violent
felons—who fall entirely outside the Second Amendment’s
scope. See, e.g., Binderup v. Attorney Gen. U.S., 836 F.3d 336, 357
(3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and
concurring in the judgments) (“[T]he Founders understood
that not everyone possessed Second Amendment rights.
These appeals require us to decide who count among ‘the
people’ entitled to keep and bear arms.”). Others maintain
that all people have the right to keep and bear arms but that
history and tradition support Congress’s power to strip
certain groups of that right. See Eugene Volokh, Implementing
the Right to Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1497–
98 (2009) (describing these competing views). These
approaches will typically yield the same result; one uses
history and tradition to identify the scope of the right, and the
other uses that same body of evidence to identify the scope of
the legislature’s power to take it away.
1Because the federal and state statutes operate to the same effect as
applied to Kanter, my analysis applies equally to both. For simplicity’s
sake, I often refer only to the federal statute. In addition, I sometimes refer
to the statutes as imposing a “felon ban” or “felon dispossession” with the
understanding that § 922(g)(1) also encompasses state misdemeanors
punishable by more than two years in prison. See 18 U.S.C. § 921(a)(20)(B).
No. 18-1478 29
In my view, the latter is the better way to approach the
problem. It is one thing to say that certain weapons or
activities fall outside the scope of the right. See District of
Columbia v. Heller, 554 U.S. 570, 627 (2008) (explaining that
“the sorts of weapons protected were those ‘in common use
at the time’” (citation omitted)); Ezell v. City of Chicago, 846
F.3d 888, 892 (7th Cir. 2017) (Ezell II) (“[I]f … the challenged
law regulates activity falling outside the scope of the right as
originally understood, then ‘the regulated activity is
categorically unprotected, and the law is not subject to further
Second Amendment review.’” (citation omitted)); Ezell v. City
of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (Ezell I) (drawing
an analogy between categories of speech, like obscenity, that
fall outside the First Amendment and activities that fall
outside the Second Amendment). It is another thing to say
that certain people fall outside the Amendment’s scope. Arms
and activities would always be in or out. But a person could
be in one day and out the next: the moment he was convicted
of a violent crime or suffered the onset of mental illness, his
rights would be stripped as a self-executing consequence of
his new status. No state action would be required.
To be sure, under this theory such a person could possess
a gun as a matter of legislative grace. But he would lack
standing to assert constitutional claims that other citizens
could assert. For example, imagine that a legislature
disqualifies those convicted of crimes of domestic violence
from possessing a gun for a period of ten years following
release from prison. See United States v. Skoien, 614 F.3d 638,
642 (7th Cir. 2010) (en banc) (holding constitutional 18 U.S.C.
§ 922(g)(9), which forbids those convicted of crimes of
domestic violence to possess a gun). After fifteen years pass,
a domestic violence misdemeanant challenges a handgun ban
30 No. 18-1478
identical to the one that the Court held unconstitutional in
Heller. Despite the legislative judgment that such a person
could safely possess a gun after ten years, a court would still
have to determine whether the person had standing to assert
a Second Amendment claim. If the justification for the initial
deprivation is that the person falls outside the protection of
the Second Amendment, it doesn’t matter if the statutory
disqualification expires. If domestic violence misdemeanants
are out, they’re out. 2
That is an unusual way of thinking about rights. In other
contexts that involve the loss of a right, the deprivation occurs
because of state action, and state action determines the scope
of the loss (subject, of course, to any applicable constitutional
constraints). Felon voting rights are a good example: a state
can disenfranchise felons, but if it refrains from doing so, their
voting rights remain constitutionally protected. 3 So too with
2 Or at least that would be true absent the unlikely event that the
Second Amendment, as originally understood, imposed a very specific
restriction on the length of time that such a misdemeanant was excluded
from the right.
3 Felon disenfranchisement laws have a long history, and the
Fourteenth Amendment’s protection of the right to vote expressly
acknowledges the authority of state legislatures to enact such laws. U.S.
CONST. amend. XIV, § 2 (providing that a state’s representation in the
House will be reduced if the right to vote “is denied … or in any way
abridged, except for participation in rebellion, or other crime”). The
Second Amendment contains no similar acknowledgement. Legislative
power to strip the right from certain people or groups was nonetheless a
historically accepted feature of the pre-existing right that the Second
Amendment protects. See Heller, 554 U.S. at 592 (“[T]he Second
Amendment … codified a pre-existing right.”); id. at 595 (“Of course the
right was not unlimited ….”); Skoien, 614 F.3d at 640 (“That some
categorical limits are proper is part of the original meaning, leaving to the
No. 18-1478 31
the right to keep and bear arms: a state can disarm certain
people (for example, those convicted of crimes of domestic
violence), but if it refrains from doing so, their rights remain
constitutionally protected. In other words, a person convicted
of a qualifying crime does not automatically lose his right to
keep and bear arms but instead becomes eligible to lose it.
In addition to being analytically awkward, the “scope of
the right” approach is at odds with Heller itself. There, the
Court interpreted the word “people” as referring to “all
Americans.” 554 U.S. at 580–81; see also id. at 580 (asserting
that “the people” “refers to a class of persons who are part of
a national community or who have otherwise developed
sufficient connection with this country to be considered part
of that community” (citation omitted)). Neither felons nor the
mentally ill are categorically excluded from our national
community. That does not mean that the government cannot
prevent them from possessing guns. Instead, it means that the
question is whether the government has the power to disable
the exercise of a right that they otherwise possess, rather than
whether they possess the right at all.
Thus, I treat Kanter as falling within the scope of the
Second Amendment and ask whether Congress and
Wisconsin can nonetheless prevent him from possessing a
gun.
people’s elected representatives the filling in of details.”). Thus, such a
regulation does not “infringe” the right to bear arms because the right was
always qualified by the government’s power to prevent the dangerous
from exercising it.
32 No. 18-1478
II.
Heller did not “undertake an exhaustive historical
analysis … of the full scope of the Second Amendment,” but
it did offer a list of “presumptively lawful regulatory
measures,” including “longstanding prohibitions on the
possession of firearms by felons and the mentally ill.” See
Heller, 554 U.S. at 626–27 & n.26. Like the majority, I am
“reluctant to place more weight on these passing references
than the Court itself did.” See Maj. Op. at 15 (quoting United
States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2015)). The
constitutionality of felon dispossession was not before the
Court in Heller, and because it explicitly deferred analysis of
this issue, the scope of its assertion is unclear. For example,
does “presumptively lawful” mean that such regulations are
presumed lawful unless a historical study shows otherwise?
Does it mean that as-applied challenges are available? Does
the Court’s reference to “felons” suggest that the legislature
cannot disqualify misdemeanants from possessing guns?
Does the word “longstanding” mean that prohibitions of
recent vintage are suspect? As we observed in Skoien, judicial
opinions are not statutes, and we don’t dissect them word-by-
word as if they were. 614 F.3d at 640. Thus, I agree with the
majority that Heller’s dictum does not settle the question
before us.
It does, however, give us a place to start. Heller’s reference
endorses the proposition that the legislature can impose some
categorical bans on the possession of firearms. See id. (“That
some categorical limits are proper is part of the original
meaning.”). Our task is to determine whether all felons—
violent and nonviolent alike—comprise one such category.
No. 18-1478 33
Wisconsin and the United States advance three basic
historical arguments in support of this categorical exclusion.
First, they say that there is some evidence suggesting that
founding-era legislatures deprived felons of the right. Second,
they argue that because the states put felons to death at the
time of the founding, no one would have questioned their
authority to take felons’ guns too. And third, they insist that
founding-era legislatures permitted only virtuous citizens to
have guns, and felons are not virtuous citizens.
As I explain below, none of these rationales supports the
proposition that the legislature can permanently deprive
felons of the right to possess arms simply because of their
status as felons. The historical evidence does, however,
support a different proposition: that the legislature may
disarm those who have demonstrated a proclivity for violence
or whose possession of guns would otherwise threaten the
public safety. This is a category simultaneously broader and
narrower than “felons”—it includes dangerous people who
have not been convicted of felonies but not felons lacking
indicia of dangerousness.
A.
The best historical support for a legislative power to
permanently dispossess all felons would be founding-era
laws explicitly imposing—or explicitly authorizing the
legislature to impose—such a ban. But at least thus far,
scholars have not been able to identify any such laws. The
only evidence coming remotely close lies in proposals made
in the New Hampshire, Massachusetts, and Pennsylvania
ratifying conventions. In recommending that protection for
the right to arms be added to the Constitution, each of these
proposals included limiting language arguably tied to
34 No. 18-1478
criminality. See, e.g., Don B. Kates, Jr., Handgun Prohibition and
the Original Meaning of the Second Amendment, 82 MICH. L. REV.
204, 222, 266 (1983); Steven P. Halbrook, The Right of the People
or the Power of the State: Bearing Arms, 26 VAL. U. L. REV. 131,
147, 185 (1991); see also C. Kevin Marshall, Why Can’t Martha
Stewart Have a Gun?, 32 HARV. J.L. & PUB. POL’Y 695, 712 (2009)
(“For relevant authority before World War I for disabling
felons from keeping firearms, then, one is reduced to three
proposals emerging from the ratification of the
Constitution.”).
A majority of the New Hampshire convention
recommended that a bill of rights include the following
protection: “Congress shall never disarm any citizen, unless
such as are or have been in actual rebellion.” See 1 JONATHAN
ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON
THE ADOPTION OF THE FEDERAL CONSTITUTION 326 (2d ed. 1891)
(emphasis added). In the Massachusetts convention, Samuel
Adams proposed to protect the right to arms with the
following language: “And that the said Constitution be never
construed to authorize Congress to … prevent the people of
the United States, who are peaceable citizens, from keeping their
own arms.” See 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A
DOCUMENTARY HISTORY 675, 681 (1971) (emphasis added).
Finally, the influential Pennsylvania Minority suggested an
addition stating: “That the people have a right to bear arms
for the defense of themselves and their own State or the
United States, or for the purpose of killing game; and no law
shall be passed for disarming the people or any of them unless
for crimes committed, or real danger of public injury from
individuals ….” 2 SCHWARTZ, supra, at 662, 665 (emphasis
added). On the basis of these three proposals some conclude
that “[a]ll the ratifying convention proposals which most
No. 18-1478 35
explicitly detailed the recommended right-to-arms
amendment excluded 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 language made its way into the Second
Amendment. Second, only New Hampshire’s proposal—the
least restrictive of the three—even carried a majority of its
convention. See 2 SCHWARTZ, supra, at 628, 675, 758. Third,
proposals from other states that advocated a constitutional
right to arms did not contain similar language of limitation or
exclusion. See Kates, 82 MICH. L. REV. at 222 (citing 1 ELLIOT,
supra, at 328, 335). And finally, similar limitations or
exclusions do not appear in any of the four parallel state
constitutional provisions enacted before ratification of the
Second Amendment. See Eugene Volokh, State Constitutional
Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 191, 208
(2006) (North Carolina, Pennsylvania, Vermont,
Massachusetts). All that said, these proposals may “indicate
some common if imprecise understanding at the Founding
regarding the boundaries of a right to keep and bear arms.”
Marshall, 32 HARV. J.L. & PUB. POL’Y at 713. And at a
minimum, the fact that they are routinely invoked in support
of blanket felon disarmament makes it necessary to consider
them.
I’ll begin with the New Hampshire proposal, which did
not embrace the disarmament of all felons, but rather of those
citizens who “are or have been in actual rebellion.” 1 ELLIOT,
supra, at 326 (emphasis added). This limitation targeted a
narrow group because “rebellion” was a very specific crime.
See Rebellion, 2 NEW UNIVERSAL ETYMOLOGICAL ENGLISH
DICTIONARY (4th ed. 1756) (explaining that the term is “now
36 No. 18-1478
used for a traiterous taking up arms, or a tumultuous
opposing the authority of the king, etc. or supreme power in
a nation”). 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. Thus, while this proposal reflects support for
disarming rebels, it does not say anything about disarming
those who have committed other crimes, much less
nonviolent ones.
Samuel Adams’s proposed language to the Massachusetts
convention, which would have limited the right to “peaceable
citizens,” see 2 SCHWARTZ, supra, at 681, sweeps more
broadly—but not so broadly that it encompasses all criminals,
or even all felons. At the time, “peaceable” was defined as
“[f]ree from war; free from tumult”; “[q]uiet; undisturbed”;
“[n]ot violent; not bloody”; “[n]ot quarrelsome; not
turbulent.” 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (5th ed. 1773). Those who “breach[ed] the peace”
caused “[a] violation of the public peace, as by a riot, affray,
or any tumult which is contrary to law, and destructive to the
public tranquility.” See Breach, NOAH WEBSTER, AN AMERICAN
DICTIONARY OF THE ENGLISH LANGUAGE (1828); see also Atwater
v. City of Lago Vista, 532 U.S. 318, 327 & n.2 (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 Force or Violence moved against the
Person of another, his Goods, Lands, or other Possessions,
whether by threatening words, or by furious Gesture, or Force
of the Body, or any other Force used in terrorem.”)); Pearce v.
No. 18-1478 37
Atwood, 13 Mass. 324, 332 (1816) (“Breaches of the peace
comprise not only cases of actual violence to the person of
another, but any unlawful acts, tending to produce an actual
breach of the peace; whether the peace of the public, or an
individual, be in fact disturbed or not.”). Not all crimes are
violent; nor, for that matter, is every non-peaceable person a
criminal. In short, the phrase “peaceable citizens” was not a
synonym for “non-felons” or even “non-criminals.”
That leaves the strongest support for a blanket felon
exclusion: the Pennsylvania Minority’s suggested guarantee
of the right to arms “unless for crimes committed, or real
danger of public injury from individuals.” 2 SCHWARTZ, supra,
at 665. This proposal can be read in two ways. The first, which
would support a broad exclusion, is to interpret it as
capturing two groups: (1) those who have committed any
crime—felony or misdemeanor, violent or nonviolent—and
(2) those who have not committed a crime but nonetheless
pose a danger to public safety. The second, which would
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 a crime. On this
reading, the catchall phrase limiting the rights of individuals
who pose a “real danger of public injury” would be an effort
to capture non-criminals whose possession of guns would
pose the same kind of danger as possession by those who have
committed crimes. And unless the founding generation
understood all crimes—even nonviolent misdemeanors—to
be markers for that risk, the relevant “crimes committed”
would be the subset of crimes suggesting a proclivity for
violence. (As far as I can find, no one even today reads this
provision to support the disarmament of literally all
criminals, even nonviolent misdemeanants.) If “crimes
38 No. 18-1478
committed” refers only to a subset of crimes, that subset must
be defined; using “real danger of public injury” to draw the
line is both internally coherent and consistent with founding-
era practice.
Whatever else may be said about the particulars of each of
these three proposals, they are most helpful taken together as
evidence of the scope of founding-era understandings
regarding categorical exclusions from the enjoyment of the
right to keep and bear arms. The concern common to all three
is not about felons in particular or even criminals in general;
it is about threatened violence and the risk of public injury.
See Binderup, 836 F.3d at 368 (Hardiman, J., concurring in part
and concurring in the judgments). This is the same concern
that animated English and early American restrictions on
arms possession.
In England, officers of the Crown had the power to disarm
anyone they judged to be “dangerous to the Peace of the
Kingdom.” Militia Act of 1662, 13 & 14 Car. 2, c. 3, § 13 (1662).
Relatedly, English common law “punish[ed] people who
[went] armed to terrify the King’s subjects” with
imprisonment and forfeiture of their “armour.” 4 Sir John
4 This common-law offense was adapted from the 1328 Statute of
Northampton, which decreed that a person may not “go nor ride armed
by night nor by day in fairs, markets, … nor in no part elsewhere, upon
pain to forfeit their armour to the King, and their bodies to prison at the
King’s pleasure.” Statute of Northampton, 2 Edw. Ch. 3, c. 3 (1328). By the
middle of the seventeenth century, the statute was “almost gone in
desuetudinem,” because the law recognized “a general connivance to
gentlemen to ride armed for their security.” Rex v. Knight, 90 Eng. Rep.
330, 330 (K.B. 1686). But it was still enforced against those who violated
the terms of the statute “malo animo,” id.—that is, those who carried arms
No. 18-1478 39
Knight’s Case, 87 Eng. Rep. 75, 76 (K.B. 1686). And—perhaps
unsurprisingly because they were presumptively thought to
pose a similar threat or terror—Parliament also disarmed
Catholics. See JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS
18–19, 122 (1994) (explaining that Protestants feared revolt,
massacre, and counter-revolution from Catholics); see also
ADAM WINKLER, GUNFIGHT 115 (2011) (explaining that
Parliament disarmed Catholics because the Protestant
majority found them “untrustworthy”); Marshall, 32 HARV.
J.L. & PUB. POL’Y at 723 (“In short, the stated principle
supporting the disability was cause to fear that a person,
although technically an English subject, was because of his
beliefs effectively a resident enemy alien liable to violence
against the king.”). 5
Similar laws and restrictions appeared in the American
colonies, adapted to the fears and threats of that time and
place. See ALEXANDER DECONDE, GUN VIOLENCE IN AMERICA
22 (2001) (“Although the colonial demand for such
discriminatory controls sprang from circumstances different
from those in England, as in applying them against Indians
and blacks, colonists usually followed home-country
practices of excluding other distrusted people from
with intent “to terrorize their neighbors,” see JOYCE LEE MALCOLM, TO
KEEP AND BEAR ARMS at 104 (1994).
5 To be sure, the American experience does not map on exactly to the
English one. For one thing, the right protected by the Second Amendment
was decidedly broader than the one protected in the English Bill of Rights.
See MALCOLM, supra, at 162. Still, the American version was derived from
its English predecessor, see id. at 150, 164, which makes English practice
instructive. That is especially true when the patterns from English practice
repeat themselves in American law.
40 No. 18-1478
ownership.”). In some places, Catholics were still disarmed,
but “on the basis of allegiance, not on the basis of faith.” See
Robert H. Churchill, Gun Regulation, the Police Power, and the
Right to Keep Arms in Early America: The Legal Context of the
Second Amendment, 25 LAW & HIST. REV. 139, 157 (2007) (citing
Virginia’s 1756 “disarmament of all those refusing the test of
allegiance”) 6; see also DECONDE, supra, at 22–23 (associating
Catholics with the “distrusted inhabitants” from whom the
colonies seized guns “with the intent of preventing social
upheavals” and “rebellion”). Those “willing to swear
undivided allegiance to the sovereign” were permitted to
keep their arms. See Churchill, 25 LAW & HIST. REV. at 157.
After all, confiscation of guns from those who refused to
swear an oath of allegiance was meant to “deal with the
potential threat coming from armed citizens who remained
loyal to” another sovereign. See Saul Cornell & Nathan
DeDino, A Well Regulated Right: The Early American Origins of
Gun Control, 73 FORDHAM L. REV. 487, 506 (2004); see also NRA
v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d
185, 200 (5th Cir. 2012) (“American legislators had
determined that permitting [those who refused to swear an
oath of allegiance] to keep and bear arms posed a potential
danger.”). But that particular threat dissipated when a person
pledged his allegiance to the United States or to a particular
state.
6First, the allegiance required was to the Crown, and later, it was to
the sovereign and independent states. See id. at 159 & n.49 (quoting 4
JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 201–05 (1906)
(calling for the disarmament of those “who are notoriously disaffected to
the cause of America, or who have not associated, and shall refuse to
associate, to defend, by arms, these United Colonies”)).
No. 18-1478 41
Slaves and Native Americans, on the other hand, were
thought to pose more immediate threats to public safety and
stability and were disarmed as a matter of course. See
MALCOLM, supra, at 140–41; WINKLER, supra, at 115–16 (noting
“forcible disarmament” out of “fear that these groups would
use guns to revolt” or otherwise threaten the “public safety”);
DECONDE, supra, at 21–22 (noting “anxiety that slaves would
rebel”). And this practice of keeping guns out of the hands of
“distrusted” groups continued after the Revolution. For
example, many states even constitutionalized the
disarmament of slaves and Native Americans. See Volokh, 11
TEX. REV. L. & POL. at 208–09. 7
In sum, founding-era legislatures categorically disarmed
groups whom they judged to be a threat to the public safety.
But neither the convention proposals nor historical practice
supports a legislative power to categorically disarm felons
because of their status as felons.
B.
A common response to the dearth of felon-disarmament
laws in the eighteenth and nineteenth centuries is to say that
such laws would have been unnecessary given the severity
with which felons were punished. Because felons were
routinely executed or stripped of all rights, the argument
goes, explicit provisions depriving them of firearms would
have been redundant. See, e.g., Brief of Defendant-Appellee
Brad D. Schimel at 9 (“[I]n eighteenth-century America,
felonies were punishable by death, so no early American
7 It should go without saying that such race-based exclusions would
be unconstitutional today.
42 No. 18-1478
lawmaker would have questioned the propriety of a proposal
to disarm serious offenders.”); Medina v. Whitaker, 913 F.3d
152, 158 (D.C. Cir. 2019) (“[I]t is difficult to conclude that the
public, in 1791, would have understood someone facing death
and estate forfeiture to be within the scope of those entitled to
possess arms.”). One scholar puts it this way:
The constitutionality of [bans on felon
possession] cannot seriously be questioned …
[because f]elons simply did not fall within the
benefits of the common law right to possess
arms. That law punished felons with automatic
forfeiture of all goods, usually accompanied by
death. We may presume that persons confined
in gaols awaiting trial on criminal charges were
also debarred from the possession of arms.
Kates, 82 MICH. L. REV. at 266. On this view, the criminal law
provides a historical justification for felon disarmament even
if laws regulating gun safety do not.
The premise of this argument—that the states
permanently extinguished the rights of felons, either by death
or operation of law, in the eighteenth and nineteenth
centuries—is shaky. While it accurately describes the
punishment of felons at English common law, the American
picture is far more complex. It is true that at common law, the
“idea of felony” was intertwined with the punishments of
death and civil death. 4 WILLIAM BLACKSTONE, COMMENTARIES
ON THE LAWS OF ENGLAND 98 (1769) (“The idea of felony is
indeed so generally connected with that of capital
punishment, that we find it hard to separate them ….”); Avery
v. Everett, 18 N.E. 148, 150 (N.Y. 1888) (“By the ancient
common law … [t]here were three principle incidents
No. 18-1478 43
consequent upon an attainder for treason or felony, forfeiture,
corruption of blood, and an extinction of civil rights, more or
less complete, which was denominated civil death.”). Civil
death was a state in which a person “though living, was
considered dead”—a status “very similar to natural death in
that all civil rights were extinguished.” See Harry David
Saunders, Note, Civil Death—A New Look at an Ancient
Doctrine, 11 WM. & MARY L. REV. 988, 988–89 (1970). As
originally conceived, civil death signified “a transitional
status in the period between a capital sentence and its
execution.” Gabriel J. Chin, The New Civil Death: Rethinking
Punishment in the Era of Mass Incarceration, 160 U. PA. L. REV.
1789, 1797 (2012). It “was intended to merely settle the estate
of an executed or banished felon.” Saunders, 11 WM. & MARY
L. REV. at 990.
During the period leading up to the founding, the
connection between felonies and capital punishment started
to fray. Once a short, specified list of offenses, felonies in
England grew to “no less than an hundred and sixty,” which
is likely what forced Blackstone to define them in terms of
their most common characteristic: capital punishment. See 4
BLACKSTONE, supra, at 18, 97–98. But as the number of
designated felonies continued to grow, so did the variations
on punishment, especially in the American colonies.
Throughout the seventeenth and eighteenth centuries, capital
punishment in the colonies was used “sparingly,” and
property crimes including variations on theft, burglary, and
robbery “were, on the whole, not capital.” LAWRENCE M.
FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 42
(1993). By the time the Constitution was ratified, James
Wilson observed that while the term “felony” was once “very
strongly connected with capital punishment,” that was no
44 No. 18-1478
longer true. 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 have many felonies, not one
punished with forfeiture of estate, and but a very few with
death.”). Of course, many crimes remained eligible for the
death penalty, and the extent to which that was true varied by
state. Death, however, no longer inevitably followed a felony
conviction.
Because it was no longer defined with reference to a list of
specific crimes or even a specific punishment, the definition
of “felony” was difficult to pin down at the time of the
founding. See Will Tress, Unintended Collateral Consequences:
Defining Felony in the Early American Republic, 57 CLEV. ST. L.
REV. 461, 465 (2009) (emphasizing the “ambiguity in the
meaning of felony” at the founding). According to James
Madison, “felony” was “a term of loose signification even in
the common law of England,” but more so in the States where
“[t]he meaning of the term … [was] not precisely the same in
any two of the States; and varie[d] in each with every revision
of its criminal laws.” THE FEDERALIST NO. 42, at 228 (J. R. Pole
ed., 2005); see also DANE, supra, at 715 (“[T]he word felony, in
the process of many centuries, has derived so many meanings
from so many parts of the common law, and so many statutes
in England, and has got to be used in such a vast number of
different senses, that it is now impossible to know precisely
in what sense we are to understand this word.”).
The shift in punishment for felonies necessitated a shift in
the meaning of civil death, which had been previously
connected to a capital sentence. And so civil death came to be
understood “as an incident of life conviction.” See Saunders,
No. 18-1478 45
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 and
sentenced to imprisonment in the state prison for life is
“civiliter mortuus”). But applying the ancient concept of civil
death in this context proved difficult. Because
“[i]mprisonment for life was a punishment unknown to the
common law,” courts quickly realized that common-law civil
death did not automatically apply. See Platner v. Sherwood, 6
Johns. Ch. 118, 122 (N.Y. Ch. 1822) (¶ 2 argument of Butler
and Henry, counsel for the plaintiff); id. at 128 (Opinion of the
Chancellor). Thus, courts soon decided that civil death
applied only when statutes explicitly attached it to life
sentences, and statutes did not universally do so. Id. at 129
(holding that a person convicted of a felony and sentenced to
life imprisonment was not “deemed and taken to be civilly
dead, to all intents and purposes in the law” until an act of the
legislature made it so) 8; see also Frazer v. Fulcher, 17 Ohio 260,
8 The same court had two years earlier suggested that where a statute
changed punishment from death to a life sentence, the statute may be read
as an affirmance of the common law punishment of civil death. See Platner,
6 Johns. Ch. at 127–28 (citing Troup, 4 Johns. Ch. 228)). But in Platner, the
court explicitly rejected its earlier assumption and replaced it with a well-
reasoned, widely-adopted, and enduring view that civil death existed
only if authorized by statute. Id. at 128 (“The same point arose,
incidentally, in respect to this same conviction, in the case of Troup v.
Wood, and I was there induced to think, upon the authority of Lord Coke,
that every person attainted of felony was accounted, in law, civiliter
mortuus. It was not a necessary or very material point in that case, and I
did not pursue the subject to the extent I should have done, if it had been
then, as it is now, the direct and material point in issue. I have, likewise,
since, had the benefit of a full and able discussion, and of a diligent and
accurate research, particularly on the part of the plaintiff, respecting this
very unusual question of law.” (citation omitted)).
46 No. 18-1478
262 (1848) (“But it is said that, by the rules of the common law,
there is such a thing as a civil death as well as a natural death.
We know that in England there are cases in which a man,
although in full life, is said to be civilly dead, but I have not
learned, until this case was brought before us, that there was
but one kind of death known to our laws.”); Cannon v.
Windsor, 1 Houst. 143, 144 (Del. 1855) (“But here there is no
such general forfeiture of property, or the right to maintain an
action, on a conviction for treason or felony, and the maxim
or principle of civilter mortuus cannot therefore apply in this
State, even when he is a party plaintiff.”); Chin, 160 U. PA. L.
REV. at 1796 (“In England, civil death was a common law
punishment, but in the United States, it existed only if
authorized by statute. It was far from universal….”). And
even when it applied to life sentences, the doctrine of civil
death had to be at least partially reconceived because it had
begun as a time-limited doctrine justified by the anticipation
of natural death—it was “not a condition applicable
potentially for decades.” See Chin, 160 U. PA. L. REV. at 1797.
As courts hammered out the incongruities between civil
death and continued life over the next century, they settled
uncomfortably on an American version of civil death that
required explicit statutory authorization and deprived a felon
of many, but not all, rights. 9 See, e.g., Avery, 18 N.E. at 154–55
9 Courts were consistent and explicit about the difficulty of trying to
apply the doctrine of civil death outside the context of the death penalty.
See, e.g., Shapiro v. Equitable Life Assur. Soc. of U.S., 45 N.Y.S.2d 717 (N.Y.
Sup. Ct. 1943) (“Palpable anomaly inevitably results from attempting to
attribute civil death, not only to persons about to be executed, but, also, to
persons who may remain physically alive for many years and also may be
paroled of pardoned.”); Byers v. Sun Sav. Bank, 139 P. 948, 949 (Okla. 1914)
(“[Civil death] had its origin in the fogs and fictions of feudal
No. 18-1478 47
(suggesting that a life convict maintained a right to defend an
action brought against him and certain property rights,
including the ability to transfer property by will or deed).
Of particular relevance to Kanter’s case, courts also
struggled to determine how—if at all—the old concept of civil
death applied to felons serving sentences for a term of years.
Cases decided in the early nineteenth century, like Troup v.
Wood and Platner v. Sherwood, associated the loss of rights
under a theory of civil death only with capital and life
sentences. Later cases building on that reasoning held that the
rights of felons serving less than life were merely suspended
during the term of the sentence. See, e.g., In re Estate of Nerac,
35 Cal. 392, 396 (1868) (“If the convict be sentenced for life, he
becomes civiliter mortuus, or dead in law …. If, however, he be
sentenced for a term less than life, his civil rights are only
suspended during the term.”); Ruffin v. Commonwealth, 62 Va.
790, 796 (1871) (explaining that a convict is “civiliter mortuus,”
but only “[f]or the time being, during his term of service in
jurisprudence and doubtlessly has been brought forward into modern
statutes without fully realizing either the effect of its literal significance or
the extent of its infringement upon the spirit of our system of government.
At any rate, the full significance of such statutes have never been enforced
by our courts for the principal reason that they are out of harmony with
the spirit of our fundamental laws and with other provisions of statutes.”);
Avery, 18 N.E. at 155 (“Any one who takes the pains to explore the ancient
and in many respects obsolete learning connected with the doctrine of civil
death in consequence of crime, will find that he has to grope his way along
paths marked by uncertain, flickering, and sometimes misleading lights;
and he cannot feel sure that at some point in his course he has not missed
the true road.”). But here, defining the precise impact of “civil death” on
a felon sentenced to life is not as important as underscoring that the impact
was no longer complete destruction of rights and death to the law.
48 No. 18-1478
the penitentiary”); Bowles v. Habermann, 95 N.Y. 246, 247
(1884) (applying a statute, which provided that “a sentence of
imprisonment in a State prison for any term less than for
life … suspends, during the term of the sentence, all the civil
rights … of, or held by, the person sentenced.”).
The upshot of this history for present purposes is that the
consequences of a felony conviction were not as categorically
severe as the governments suggest. Capital punishment was
less pervasive than one might think. Outside the capital
context, civil death applied exclusively to life sentences and
only if authorized by statute—and even then, it was more
modest than the ancient version because the convict retained
some rights. Felons serving a term of years did not suffer civil
death; their rights were suspended but not destroyed. In sum,
a felony conviction and the loss of all rights did not
necessarily go hand-in-hand.
Because they did not go hand-in-hand, the argument that
the severity of punishment at the founding implicitly
sanctions the blanket stripping of rights from all felons,
including those serving a term of years, is misguided. Those
who ratified the Second Amendment would not have
assumed that a free man, previously convicted, lived in a
society without any rights and without the protection of law.
This is not to say that felons could not lose rights under
another theory. Indeed, state legislatures did explicitly
exclude felons from the enjoyment of particular rights. See
infra Section II.C. But history confirms that the basis for the
permanent and pervasive loss of all rights cannot be tied
generally to one’s status as a convicted felon or to the uniform
severity of punishment that befell the class.
No. 18-1478 49
Even if it could be, though, one might reasonably ask: “So
what?” We wouldn’t draw this inference from the severity of
founding-era punishment in other contexts—for example, we
wouldn’t say that the state can deprive felons of the right to
free speech because felons lost that right via execution at the
time of the founding. The obvious point that the dead enjoy
no rights does not tell us what the founding-era generation
would have understood about the rights of felons who lived,
discharged their sentences, and returned to society.
C.
While scholars have not identified eighteenth or
nineteenth century laws depriving felons of the right to bear
arms, history does show that felons could be disqualified
from exercising certain rights—like the rights to vote and
serve on juries—because these rights belonged only to
virtuous citizens. See THOMAS M. COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS 29 (1st ed. 1868) (explaining
that certain classes of people were “almost universally
excluded” from the franchise for “want of capacity or of moral
fitness”); Saul Cornell, “Don’t Know Much About History” The
Current Crisis in Second Amendment Scholarship, 29 N. KY. L.
REV. 657, 679 (2002) (identifying the “right to sit on juries” as
“limited to those members of the polity who were deemed
capable of exercising it in a virtuous manner”). Some
maintain that the right to bear arms is similarly limited by a
virtue requirement. See, e.g., Don. B. Kates Jr., The Second
Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS., Winter
1986, at 143, 146 (“[T]he right to arms does not preclude laws
disarming the unvirtuous citizens (i.e., criminals) or those
who, like children or the mentally unbalanced, are deemed
incapable of virtue.”). On this view, the legislature can disarm
50 No. 18-1478
felons because of their poor character, without regard to
whether they are dangerous. See Medina, 913 F.3d at 159
(endorsing the view that the Second Amendment excludes
not only the dangerous, but also the “unvirtuous”) The
majority is sympathetic to this view. See Maj. Op. at 16.
The problem with this argument is that virtue exclusions
are associated with civic rights—individual rights that
“require[] citizens to act in a collective manner for distinctly
public purposes.” See Saul Cornell, A New Paradigm for the
Second Amendment, 22 LAW & HIST. REV. 161, 165 (2004). For
example, the right to vote is held by individuals, but they do
not exercise it solely for their own sake; rather, they cast votes
as part of the collective enterprise of self-governance.
Similarly, individuals do not serve on juries for their own
sake, but as part of the collective enterprise of administering
justice. Some scholars have characterized the right to keep
and bear arms as a civic right, because it was “one exercised
by citizens, not individuals …, who act together in a collective
manner, for a distinctly public purpose: participation in a well
regulated militia.” See Cornell & DeDino, 73 FORDHAM L. REV.
at 491 (“[T]he text [of the Second Amendment] fits a civic
rights model better than either the individual or collective
rights paradigms.”). Saul Cornell explains:
Perhaps the most accurate way to describe the
dominant understanding of the right to bear
arms in the Founding era is as a civic right. Such
a right was not something that all persons could
claim, but was limited to those members of the
polity who were deemed capable of exercising
it in a virtuous manner. Freedom of religion,
freedom of the press, trial by jury were
No. 18-1478 51
genuinely rights belonging to individuals and
were treated differently than were civic rights
such as militia service, or the right to sit on
juries.
Cornell, 29 N. KY. L. REV. at 679 (footnotes omitted). And as a
right that was exercised for the benefit of the community (like
voting and jury service), rather than for the benefit of the
individual (like free speech or free exercise), it belonged only
to virtuous citizens.
Heller, however, expressly rejects the argument that the
Second Amendment protects a purely civic right. Moore v.
Madigan, 702 F.3d 933, 935 (7th Cir. 2012). It squarely holds
that “the Second Amendment confer[s] an individual right to
keep and bear arms,” Heller, 554 U.S. at 595 (emphasis added),
and it emphasizes that the Second Amendment is rooted in
the individual’s right to defend himself—not in his right to
serve in a well-regulated militia, id. at 582–86. The “civic
rights” approach runs headlong into both propositions. See
Binderup, 836 F.3d at 371 (Hardiman, J., concurring in part and
concurring in the judgments) (“[T]his virtuous-citizens-only
conception of the right to keep and bear arms is closely
associated with pre-Heller interpretations of the Second
Amendment by proponents of the ‘sophisticated collective
rights model’ who rejected the view that the Amendment
confers an individual right and instead characterized the right
as a ‘civic right ….’” (citation omitted)). The parties have
introduced no evidence that virtue exclusions ever applied to
individual, as opposed to civic, rights. 10 And if virtue
10 The governments gesture towards Heller as support for a virtue
exclusion, citing Heller’s assertion that the Second Amendment “surely
52 No. 18-1478
exclusions don’t apply to individual rights, they don’t apply
to the Second Amendment.
It bears emphasis that virtue exclusions from the exercise
of civic rights were explicit. If the right to bear arms was
similarly subject to a virtue exclusion, we would expect to see
provisions expressly depriving felons of that right too—but
we don’t. By 1820, ten states’ constitutions included
provisions excluding or authorizing the exclusion of those
who “had committed crimes, particularly felonies or so-called
infamous crimes” from the franchise. See ALEXANDER
KEYSSAR, THE RIGHT TO VOTE 62–63 & tbl. A.7 (Kentucky,
Vermont, Ohio, Louisiana, Indiana, Mississippi, Connecticut,
Illinois, Alabama, Missouri). By 1857, twenty-four state
constitutions included such provisions. Id. The same crimes
often “made a person ineligible to serve as a witness in a legal
proceeding,” id. at 62, and to serve on a jury. 11
elevates above all other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” 554 U.S. at 635. That
statement implies that the legislature might have the power to more
heavily regulate those who are not law-abiding or responsible. But it does
not purport to analyze the scope of that power, nor does it endorse the
very specific concept of a virtue exclusion.
11See, 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 Scandalous crime, 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 & Porter 1816) (grand jurors must be “sober, substantial and
judicious freeholders, lawful men, of fair characters”); id. § 7 (petit jurors
must be “sober, discreet and judicious freeholders,… lawful men of fair
No. 18-1478 53
State constitutions protecting the right to bear arms do not
follow a similar pattern. Between 1790 and 1820, nine states
enacted their own right-to-arms provisions in their
constitutions. See Volokh, 11 TEX. REV. L. & POL. at 208–09
(four more had enacted such provisions prior to 1790). None
of those provisions made an exception for criminals. Id. And
notably, seven of those nine states explicitly excluded or
authorized the exclusion of certain criminals from the right to
vote. Compare id. (identifying Kentucky, Ohio, Indiana,
Mississippi, Connecticut, Alabama, and Missouri as seven of
the nine states with right-to-arms provisions in their
constitutions by 1820), with KEYSSAR, supra, at tbl. A.7 (the
same seven state constitutions specifically excluded certain
criminals from the right to vote). The same pattern held true
in 1857. Compare Volokh, 11 TEX. REV. L. & POL. at 209–10, with
KEYSSAR, supra, at tbl. A.7. There is no basis, then, for
assuming that a virtue requirement on the right to vote
applies equally to the right to keep and bear arms. See
Binderup, 836 F.3d at 372 (Hardiman, J., concurring in part and
concurring in the judgments) (“We have found no historical
evidence on the public meaning of the right to keep and bear
arms indicating that ‘virtuousness’ was a limitation on one’s
qualification for the right—contemporary insistence to the
contrary falls somewhere between guesswork and ipse
dixit.”). 12
characters”); Act of Dec. 17, 1796, § 52, in ACTS FOR THE COMMONWEALTH
OF KENTUCKY 134 (Stewart 1796) (jurors must “be of good demeanor”).
12 The fact that the first general prohibition on felon gun possession
was not enacted until 1961 further undercuts the argument that either
history or tradition supports a virtue-based restriction on the right. See An
Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757
54 No. 18-1478
In sum, the available evidence suggests that the right to
arms differs from rights that depend on civic virtue for
enjoyment. The Second Amendment confers an individual
right, intimately connected with the natural right of self-
defense, and not limited to civic participation (i.e., militia
service). By the very terms of the civic-rights argument, then,
the right to arms would have been “treated differently” than
rights like the right to vote or to sit on juries. See Cornell, 29
N. KY. L. REV. at 679 (“[R]ights belonging to individuals …
were treated differently than were civic rights such as militia
service, or the right to sit on juries.”). And that difference is
borne out by historical treatment: we see no explicit criminal,
or even more general virtue-based, exclusions from the right
to bear arms like we do in other contexts. Thus, although the
right protected by the Second Amendment is not unlimited,
see Heller, 554 U.S. at 595, its limits are not defined by a general
felon ban tied to a lack of virtue or good character.
III.
The history canvassed in Part II yields two conclusions
that are important for present purposes. History does not
support the proposition that felons lose their Second
Amendment rights solely because of their status as felons. But
it does support the proposition that the state can take the right
to bear arms away from a category of people that it deems
dangerous. Our precedent is consistent with this principle: we
have held that “Congress is not limited to case-by-case
exclusions of persons who have been shown to be
(1961) (amending the Federal Firearms Act by “deleting the words ‘crime
of violence’ … and inserting in lieu thereof the words ‘crime publishable
by imprisonment for a term exceeding one year’”).
No. 18-1478 55
untrustworthy with weapons, nor need these limits be
established by evidence presented in court.” Skoien, 614 F.3d
at 641. Instead, the legislature can make that judgment on a
class-wide basis. See id. at 640 (“That some categorical limits
are proper is part of the original meaning, leaving to the
people’s elected representatives the filling in of details.”).
And it may do so based on present-day judgments about
categories of people whose possession of guns would
endanger the public safety; as we said in Skoien, “exclusions
need not mirror limits that were on the books in 1791.” Id. at
641. Such restrictions are “lineal descendants” of historical
laws banning dangerous people from possessing guns. See
Transcript of Oral Argument at 77, Heller, 554 U.S. 570 (No.
07–290) (Chief Justice Roberts: “[W]e are talking about lineal
descendants of the arms but presumably there are lineal
descendants of the restrictions as well.”).
That said, “the government does not get a free pass simply
because Congress has established a ‘categorical ban.’” United
States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010). The
government could quickly swallow the right if it had broad
power to designate any group as dangerous and thereby
disqualify its members from having a gun. See Skoien, 614 F.3d
at 641 (“We do not mean that a categorical limit on the
possession of firearms can be justified under the rational-basis
test, which deems a law valid if any justification for it may be
imagined.”). The legislature must be able to justify its
designation, and the rigor with which we review this
justification “depends on ‘how close the law comes to the core
of the Second Amendment right and the severity of the law’s
burden on the right.’” Ezell II, 846 F.3d at 892 (citation
omitted). “Severe burdens on the core right of armed defense
56 No. 18-1478
require a very strong public-interest justification and a close
means-ends fit ….” Id.
The majority contends that the means-end review should
be “arguably less rigorous in this case because … felon
dispossession laws do not restrict the ‘core right of armed
defense,’ but rather burden ‘activity lying closer to the
margins of the right.’” Maj. Op. at 20 n.10 (quoting Ezell II, 846
F.3d at 892). I disagree. First, felon dispossession statutes
target the whole right, including its core: they restrict even
mere possession of a firearm in the home for the purpose of
self-defense. Cf. Heller, 554 U.S. at 630–35 (finding
unconstitutional a law that made it impossible for citizens to
use firearms for “the core lawful purpose of self-defense”); id.
at 628 (“[T]he inherent right of self-defense has been central
to the Second Amendment right.”). 13 And second, the burden
is severe: it is a permanent disqualification from the exercise of
a fundamental right. See Maj. Op. at 2–4; see also United States
v. McCane, 573 F.3d 1037, 1048–49 (10th Cir. 2009)
(Tymkovich, J., concurring) (“[T]he broad scope of
§ 922(g)(1)—which permanently disqualifies all felons from
possessing firearms—would conflict with the ‘core’ self-
13 The majority suggests that who exercises the right changes what the
core of the right is, see Maj. Op. at 20 n.10, but that is circular. Heller
distinguishes the two inquiries: First, it held that the District of Columbia’s
ban on handgun possession violated the Second Amendment (the what).
554 U.S. at 635. Then, it indicated the need to consider whether Heller
could be disqualified from exercising that right (the who). Id. (“Assuming
that Heller is not disqualified from the exercise of Second Amendment
rights, the District must permit him to register his handgun and must issue
him a license to carry it in the home.”). Heller’s qualification or lack
thereof did not change the content of the right itself; it affected whether
the legislature could take it away. The same is true of Kanter here.
No. 18-1478 57
defense right embodied in the Second Amendment.”). Thus,
“a very strong public-interest justification and a close means-
ends fit” is required before Kanter may be constitutionally
subject to the United States and Wisconsin dispossession
statutes. Ezell II, 846 F.3d at 892.
There is no question that the interest identified by the
governments and supported by history—keeping guns out of
the hands of those who are likely to misuse them—is very
strong. And we have held that several of the other categorical
bans within § 922(g) demonstrate the necessary fit between
this public-safety end and the government’s chosen means. In
Skoien, we upheld § 922(g)(9), which prohibits those convicted
of domestic violence misdemeanors from possessing
firearms, because “no one doubts that the goal of § 922(g)(9),
preventing armed mayhem, is an important governmental
objective” and “[b]oth logic and data establish a substantial
relation between § 922(g)(9) and this objective.” 614 F.3d at
642; see also id. at 644 (“[N]o matter how you slice these
numbers, people convicted of domestic violence remain
dangerous to their spouses and partners.”). In United States v.
Yancey, we sustained § 922(g)(3), which prohibits any person
“who is an unlawful user of or addicted to any controlled
substance” from possessing a gun, because “studies amply
demonstrate the connection between chronic drug abuse and
violent crime, and illuminate the nexus between Congress’s
attempt to keep firearms away from habitual drug abusers
and its goal of reducing violent crime.” 621 F.3d 681, 686 (7th
Cir. 2010). And in United States v. Meza-Rodriguez, we rejected
a challenge to § 922(g)(5), which prohibits aliens unlawfully
present in the United States from possessing firearms,
reasoning that keeping guns out of the hands of “persons who
are difficult to track and who have an interest in eluding law
58 No. 18-1478
enforcement” serves the public-safety objectives of § 922(g).
798 F.3d 664, 673 (7th Cir. 2015).
In contrast to these narrowly defined categorical bans,
§ 922(g)(1), which applies to all felons, is “wildly
overinclusive.” Adam Winkler, Scrutinizing the Second
Amendment, 105 MICH. L. REV. 683, 721 (2007). Its application
is not limited to those who have committed violent crimes like
murder, assault, and rape. 14 It also encompasses those who
have committed any nonviolent felony or qualifying state-law
misdemeanor—and that is an immense and diverse category.
It includes everything from Kanter’s offense, mail fraud, to
selling pigs without a license in Massachusetts, redeeming
large quantities of out-of-state bottle deposits in Michigan,
and countless other state and federal offenses. See Mass. Gen.
14Section 922(g)(1)’s predecessor, the Federal Firearms Act of 1938,
did not permanently ban all felons from possessing firearms, but rather
those convicted of “crime[s] of violence,” defined then as “murder,
manslaughter, rape, mayhem, kidnapping, burglary, housebreaking,” and
certain forms of aggravated assault. See Marshall, 32 HARV. J.L. & PUB.
POL’Y at 698–99 (citing Federal Firearms Act, ch. 850, § 1(6), 52 Stat. 1250,
1250 (1938)). Even today, many scholars cited as supporting a general
felon ban actually seem to assume or advocate something much closer to
a violent-felon ban. See, e.g., Don B. Kates & Clayton E. Cramer, Second
Amendment Limitations and Criminological Considerations, 60 HASTINGS L. J.
1339, 1362–63 (2009) (“At early common law, the term ‘felony’ applied
only to a few very serious, very dangerous offenses such as murder, rape,
arson, and robbery.… Insofar as federal or state statutes would seek to bar
arms possession by [felons who ‘pos[e] no physical danger to others’],
those laws would seem to be invalid on their face.”); Stephen P. Halbrook,
What the Framers Intended: A Linguistic Analysis of the Right to “Bear Arms”,
49 LAW & CONTEMP. PROBS., Winter 1986, at 151, 161 (“[V]iolent criminals,
children, and those of unsound mind may be deprived of firearms .…”
(emphasis added)).
No. 18-1478 59
Laws ch. 129, §§ 39, 43; Mich. Comp. Laws § 445.574a(1)(a),
(2)(d); see also, e.g., 21 U.S.C. § 676 (violating the Federal Meat
Inspection Act in certain ways); 18 U.S.C. § 1621 (committing
perjury); Mass. Gen. Laws ch. 266, § 30A (shoplifting goods
valued at $100). 15 These crimes, like many others captured by
§ 922(g), “rais[e] no particular suspicion that the convict is a
threat to public safety.” Winkler, 105 MICH. L. REV. at 721. Put
more colorfully, “It is hard to imagine how banning Martha
Stewart or Enron’s Andrew Fastow from possessing a gun
furthers public safety.” Id.
We have addressed the constitutionality of § 922(g)(1)
before. In United States v. Williams, a defendant with a prior
robbery conviction challenged the statute as applied to him.
616 F.3d at 691. We held that the provision is constitutional as
applied to violent felons, including the defendant in that case.
616 F.3d at 694 (“Because Williams was convicted of a violent
felony, his claim that § 922(g)(1) unconstitutionally infringes
on his right to possess a firearm is without merit.”). But our
decision came with an important qualification: we expressly
noted that Ҥ 922(g)(1) may be subject to an overbreadth
challenge at some point because of its disqualification of all
felons, including those who are non-violent.” Id. at 693. We
asserted that “[e]ven if the government may face a difficult
15 It’s worth noting that, in addition to the eclectic and wide-ranging
offenses already included in this category, there are very few limits on the
ability of Congress and state legislatures to expand the number of
qualifying nonviolent offenses. Cf. United States v. Phillips, 827 F.3d 1171,
1176 n.5 (9th Cir. 2016) (“Can Congress or the States define petty larceny
as a felony? Of course. Can a conviction for stealing a lollipop then serve
as a basis under § 922(g)(1) to a ban a person for the rest of his life from
ever possessing a firearm, consistent with the Second Amendment?”).
60 No. 18-1478
burden of proving § 922(g)(1)’s ‘strong showing’ in future
cases, it certainly satisfies its burden in this case, where [the
defendant] challenges § 922(g)(1) as it was applied to him.”
Id. As a violent felon, the defendant in Williams was in no
position to challenge § 922(g)(1) on the ground that its
application to nonviolent felons is unconstitutional. See
Skoien, 614 F.3d at 645 (“A person to whom a statute properly
applies can’t obtain relief based on arguments that a
differently situated person might present.”). As a nonviolent
felon, however, Kanter is in a position to make that argument.
The first step in analyzing Kanter’s as-applied challenge is
to consider whether banning all nonviolent felons is
substantially related to the governments’ interest in
preventing future gun violence. See Williams, 616 F.3d at 692–
93. Williams held that because the characteristic common to all
violent felons is a demonstrated propensity for violence, the
ban on possessing firearms is constitutional as applied to all
members of that class. Id. at 693–94. In contrast, and to state
the obvious, the characteristic common to all nonviolent
felons is that their criminal conduct was nonviolent. 16 Thus,
the reasoning that supports the categorical disarmament of
16 The majority suggests that nonviolent felonies are united by
another characteristic relevant to the constitutionality of disarmament:
that the commission of “mala in se felonies reflect[s] grave misjudgment
and maladjustment.” Maj. Op. at 24 (citation omitted). But that is just
another way of saying that nonviolent felons have demonstrated a lack of
virtue. Absent evidence that this lack of virtue is tied to a propensity for
risky behavior that threatens public safety, it does not justify stripping
them of their Second Amendment rights.
No. 18-1478 61
violent felons—that past violence is predictive of future
violence—simply does not apply.
The governments argue, though, that being convicted of a
nonviolent crime is also predictive of future violence. They try
to support that position with statistics showing that
nonviolent felons are likely to commit violent crimes in the
future. These statistics are entirely unhelpful, however,
because they lump all nonviolent felons together—and while
some nonviolent felons may be likely to misuse firearms, the
characteristics that make them risky cannot be generalized to
the whole class. For example, the characteristics of an
individual convicted of a drug-related offense tell us little if
anything about the tendency of an individual convicted of
perjury—or, for that matter, mail fraud—to commit gun
violence. The sheer diversity of crimes encompassed by these
statutes makes it virtually impossible for the governments to
show that banning all nonviolent felons from possessing guns
is closely tailored to the goal of protecting the public safety.
Thus, we must decide whether the statutes are
unconstitutional as applied to Kanter in particular. See
Williams, 616 F.3d at 692–93.
If Kanter’s conviction—mail fraud—is substantially
related to violent behavior, the governments can disarm him
without regard to any personal circumstances or
characteristics suggesting that he poses a low risk to public
safety. But their case for tying mail fraud to a risk of future
violence rests on a single study related to mail-fraud
recidivism. See DAVID WEISBURD ET AL., WHITE-COLLAR CRIME
AND CRIMINAL CAREERS (2004). This study suggests that
almost 40% of individuals convicted of mail fraud were later
rearrested. Id. at 29. It does not say, however, whether those
62 No. 18-1478
arrests were for violent or nonviolent offenses. Nor does it say
what percentage of those individuals were convicted. A
different portion of the same study suggests that 25% of all
white-collar repeat offenders (on the numbers provided, I’ll
assume that means roughly 10% of those with a mail-fraud
conviction, though we have been given no way to know) 17
have an arrest for a violent crime. Id at 45. But it does not
specify whether the violent arrest preceded or post-dated the
white-collar arrests, and the numbers drop dramatically for
those 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 dangerousness, see id.
at 46 (“[T]hose with fewer arrests seldom had violent crimes
in their criminal histories.”). This study falls well short of
establishing the “close means-ends fit” required before the
governments may totally and permanently strip offenders
like Kanter of the ability to exercise a fundamental right. 18
This does not mean that Wisconsin and the United States
cannot disarm Kanter. Even though the mail-fraud
conviction, standing alone, is not enough, they might still be
able to show that Kanter’s history or characteristics make him
17This assumes that the rate of violent arrest for mail fraudsters who
reoffend tracks that of all white-collar criminals who reoffend. The
governments’ study doesn’t speak to this question, underscoring the
inability of the data provided to support the governments’ arguments.
18
My analysis is limited to the total bans that Congress and the
Wisconsin legislature enacted. It might be that this study or other evidence
would support other, more limited intrusions on Kanter’s Second
Amendment right. But the constitutionality of a more limited measure (for
example, a temporary ban or one that limits the places in which Kanter
can have a gun) is not presented by this case.
No. 18-1478 63
likely to misuse firearms. And if banning Kanter, in
particular, from possessing a gun is substantially related to
the governments’ goal of “preventing armed mayhem,” then
the statutes could be constitutionally applied to him. Skoien,
614 F.3d at 642.
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 with lower rates of recidivism.” Maj. Op.
at 23. Absent evidence that Kanter would pose a risk to the
public safety if he possessed a gun, the governments cannot
permanently deprive him of his right to keep and bear arms.
***
If the Second Amendment were subject to a virtue
limitation, there would be no need for the government to
produce—or for the court to assess—evidence that nonviolent
felons have a propensity for dangerous behavior. But Heller
forecloses the “civic right” argument on which a virtue
limitation depends. And while both Wisconsin and the United
States have an unquestionably strong interest in protecting
the public from gun violence, they have failed to show, by
either logic or data, cf. Skoien, 614 F.3d at 642, that disarming
Kanter substantially advances that interest. On this record,
holding that the ban is constitutional as applied to Kanter
does not “put[] the government through its paces,” see
Williams, 616 F.3d at 692, but instead treats the Second
Amendment as a “second-class right, subject to an entirely
different body of rules than the other Bill of Rights
64 No. 18-1478
guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780
(2010) (plurality opinion). I therefore dissent.