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March 20, 2019, 09:58 AM | #1 | |
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Judge Barrett's dissent in Kanter v. Barr
Her name may come up again when a vacancy arises on the Sup Ct. You may recall her senate confirmation hearing in which Sen. Feinstein took exception to the evidence of her roman catholicism in her writing.
Barret's analysis extends the logic of the an individual right in this context in a manner I don't recall getting much attention in the past. Quote:
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March 20, 2019, 01:05 PM | #2 |
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LOGIC!
Burn the witch! I know I have mentioned in conversations, but I don't recall if I've posted it here, that even in the days of the "wild west" people who were released from prison were allowed to go right out and buy a gun. The blanket prohibition on possession of firearms by ALL convicted felons is a recent innovation, and Judge Barrett is absolutely correct (IMHO) that it makes zero sense to prohibit non-violent people from being allowed to possess the means with which to defend themselves. The idea that kiting a check when barely out of teen-age should deprive a woman of potentially effective means of deterring rape for life is comical. (Just as one possible example.) |
March 20, 2019, 06:05 PM | #3 |
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Judge Barrett's dissent in Kanter v. Barr
Amy Coney Barrett is a smart lady, and I appreciate that kind of logic. Had the Kavanaugh nomination faltered (and it certainly could have), I expected her to be the stand-in nominee, simply because the Democrats would have been denied their current weapon of choice — to characterize any and all high-stakes political opponents as "sex offenders." (And please don’t infer that I’m a Republican or even a conservative, because I am not.)
In any event, that was a sound dissent, and it’s hard to argue with. Last edited by Brownstone322; March 20, 2019 at 09:29 PM. |
March 21, 2019, 12:56 PM | #4 |
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Thanks for posting this. I am concerned bout Judge Barrett as she has no record that I could find on the Second Amendment and this is a good start though I hope to see more such opinions of her's on Second Amendment Rights in the near future.
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March 30, 2019, 12:39 AM | #5 | |
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Quote:
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March 30, 2019, 12:15 PM | #6 | |
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Quote:
I believe that the restriction is warranted for some violent categories of crime, though there should be some mechanism for restoring those rights. Criminals who are released from prison are not certified to be "no longer dangerous to society". Isn't true now, wasn't true in the old days. You can't keep someone locked up beyond the expiration of their sentence. Parole boards can be manipulated by inmates seeking release, more so when prison overcrowding is an issue. Murderers, rapists, and robbers often re-offend. State laws prohibiting them from legally possessing arms will not prevent them from getting one, but offers a path to putting them back behind bars where they can't victimize the public. Short of giving everyone who commits those categories of violent offenses a life sentence (which the courts would undoubtedly strike down) this is the next best way to incapacitate them. |
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March 30, 2019, 03:29 PM | #7 |
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Well, considering that pretty much over-watering your yard is nowadays a felony, this sort of review was overdue.
Good on her.
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April 4, 2019, 03:21 AM | #8 | |
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Quote:
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April 4, 2019, 07:34 AM | #9 |
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I'll need to learn more about this judge. I like what I read in the OP.
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April 4, 2019, 11:12 AM | #10 |
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I am pleased to see the OP. After reading the case and dissent, it appears clear that the Seventh District followed the consistent direction of the majority of the District Courts findings on felony possession of firearms. Wisconsin has specific remedies for appeal through the AG. Those appeals are granted for non-violent felony possession and misdemeanor convictions. The reason Kanter lost was to my read anyway the fact that he is hardly non violent. He ripped off the taxpaying Americans some $25 Million Dollars and was subject to a 20 year sentence in prison. He is out now, has paid his fines and it was up to Wisconsin to decide to let him possess a gun. Wisconsin, along with a great many states, prefers to have a consistent rule with specific remedies. Kanter lost his simple appeal, Wisconsin and the Seventh District agreed that his appeal on behalf of all on the basis of Heller was not granted. After reading the dissent, I would suggest that Judge Barrett's reliance on Heller is not consistent with her colleagues. Her view that Medicare Fraud of $25 Million is not violent begs the case of what is. I for one support the Second Amendment and for thieves to pay the price for the rest of their lives. Not feeling that Judge Barrett is a good candidate to SCOTUS.
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April 4, 2019, 11:43 AM | #11 | |
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Yet, understanding the difference between violent offenses and non-violent ones isn't the interesting part of her dissent. Lots of caselaw can say that a felon of any type is disqualified for life, but she asks what the state's real interest in that is, and examines the claim that the current prohibition is a longstanding one. That's the kind of analysis that isn't unduly deferential and that you'll find in Duncan recently (in fact, the Court in Duncan addressed several of the elements of the decision in Kanter), and that allowed the Court in Heller to build a decision on its own analysis rather than from Miller. As is true on so many issues, the analysis is more interesting than the conclusion.
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April 4, 2019, 01:37 PM | #12 | ||
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April 4, 2019, 01:50 PM | #13 |
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Duncan v Becerra is not really on point. The 7th Circuit relied on Binderup, Ezell I and II, Skoien, McDonald, Williams, Yancey and McCane for point.
Judge Barrett's dissent is an example of her advocation of New Law. Her position is not supported by most of the circuit courts, as is clearly shown in the decision. Her call to allow States to apply blanket non violent felon and non violent misdemeanor firearm possession is not supported well. She seeking New Law. The circuit and the courts are clearly in favor of allowing a narrow appeal based on the individual's merit. Stealing $25M from taxpayers, even though he is paying it back does not make him a good poster boy for allowing legal felon possession of firearms. I think there are lots of circumstances where this could be OK, but not for this guy. |
April 4, 2019, 02:31 PM | #14 | |||
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What about a financial crime gives the state any legitimate interest in depriving him of the right to possess arms? Is he a violent person? How and whether a state that would prohibit exercise of a right needs to justify that prohibition is a worthy inquiry. Quote:
The appeal to which you refer is an application to be exempted from a law that otherwise applies to all felons. It looks to be something like a clemency application, an application in which an exec keeps the ordinary operation of law from applying to the applying individual. That Kanter exhausted that remedy and was denied even without any history of violence illustrates the problem Barrett describes, an application of a prohibition without any evidence of a danger that would make the prohibition related to a legitimate state interest. That other circuit courts disagree with her reasoning and the reasoning in Duncan is part of the point. A framework that gives undue deference to an over-reaching state act isn't one that will be more likely to strike poorly conceived state restrictions, like ten round magazine limits. Quote:
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April 4, 2019, 03:59 PM | #15 | ||
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A number of years ago, there was a not-unattractive young woman who worked as a teller in the local branch of my bank. Then one day she was gone. She was arrested, tried, and convicted on embezzling money from the bank. She hadn't been there for more than maybe six months and, as a teller, she couldn't have skimmed for than a few dollars a day. I doubt the total amount she stole amounted to more than $50,000. But ... it was a felony. She is now a convicted felon, so she can never own a firearm. She can never "possess" a firearm. She can never touch a firearm, or even a cartridge for a firearm. Am I made ANY safer from violent crime, from "gun" crime, because a young woman who skimmed from her teller's drawer is permanently prohibited from possessing firearms? Other than the dollar amount, there's no fundamental difference between my bank teller and Kanter. His crime was completely non-violent. I would like to know the basis for your statement "that he is hardly non violent." Such a statement suggests that the facts of the case rather clearly show that he IS violent, and I'm just not seeing anything to suggest that. |
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April 4, 2019, 04:20 PM | #16 |
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Duncan v Becerra is out of the Ninth Circuit where the issue was about selective hardware prohibitions. The majority held that existing law was unconstitutional.
Kanter V Barr is out the Seventh Circuit where the majority upheld the precedent regarding felon possession of firearms. The issues of law are not the same. The content we are discussion is in dissent. The dissenting judge was not in majority. Her cited precedents are not supportive and her comments are really about deciding new law for Wisconsin and the Circuit. The Law does not really work that way. Judge Barrett's jurisprudence is not consistent with precedence. She is arguing for new law. If you review Binderup, Ezell I and II, Skoien, Meza-Rodriguez with McDonald, Williams, Yancey, McCane & Heller, as is well addressed in the majority, you will see that her Brethren are not following her wild geese. Kanter's pleading convinced Barrett of his merit. Kanter did not convince the Seventh to overturn more than 200 years of precedent and 500 years of common law. This is not a great case for appeal. If Kanter was a minor felon without the $25M drama and attitude, he might have done better. I am sure that someone will find a good case of non-violent felon or one year misdemeanor to present the rights of felons to own guns. I think felons rights are not a subject that will advance Second Amendment support in our nation. |
April 4, 2019, 04:52 PM | #17 | |
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April 4, 2019, 05:44 PM | #18 | ||
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Felons were not subject to a lifelong prohibition on possession of firearms until the Gun Control Act of 1968. How does that translate into more than 200 years of judicial precedent? And you repeated the $25 million figure, but the court document still says $375,000. How do you explain that rather significant discrepancy? Quote:
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April 4, 2019, 08:07 PM | #19 |
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AQ,
The $25M is part of the restitution by Kanter, according to the ruling. To mount your steed, mount the link to the case: [URL="https://law.justia.com/cases/federal/appellate-courts/ca7/18-1478/18-1478-2019-03-15.html"] As to your point about restitution to felons of their rights before they committed their crimes, that is not a winning strategy for this case. I think the cost of the felony is the loss of the right according to the state you live in. In Wisconsin, a felon can petition the court and Attorney General for restitution of their rights. Kanter did this and lost, but gained a champion in Justice Barrett. The 200+ years in my answer are taken from the dissent by Justice Barrett. The dates and chronology are from her dissent. Not sure if you have spent the time to read the actual documents and cases cited. You will find that helpful in understanding this issue. I support our RTBA. I support compliance with all state and federal laws. I support God's forgiveness of felons and miscreants. |
April 5, 2019, 07:55 AM | #20 | ||||||
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AB, if you don't mind a bit of clean up on this:
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The majority reasoned that the courts can't get into the business of individualized determinations of dangerousness - that would be difficult - and noted that in a minority of cases non-violent offenders go on to commit a violent crime. Does that give the state a legitimate interest in prohibiting every last one of them from possessing arms? The majority thought so, but Barrett's dissent gave greater scrutiny to the prohibition because of its impact on the core of the right, and distinguished case law on which the majority relied. The majority in Kanter at p. 23 writes Quote:
Note the Duncan Court's assessment of the utility of intermediate scrutiny at p.36. That different laws were challenged in Duncan and Kanter is true, but not pertinent to the similarities in rationale in scrutinizing a state restriction on the right described in the 2d Am. The purpose in bringing up Barrett's dissent in Kanter is to illustrate a willing ness to unpack the underlying issues and apply some substantial scrutiny in 2d Am. cases.
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April 5, 2019, 10:52 AM | #21 |
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Zukiphile: Well said.
AB: I should have caught the AQ error, my apologies. Judge Barrett's willingness to unpack underlying issues and apply substantial scrutiny in 2d Am. cases is laudable. Now we can only hope that there will be a substantial case before SCOTUS that sustain Duncan. |
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