Another Case for Taking the Second Amendment Seriously

Over a decade ago, Rickey Kanter’s company, Dr. Comfort, shipped diabetic shoe inserts to a podiatrist in Florida. Dr. Comfort sold the inserts as being Medicare‐​approved, but they were not. Because of these events, Kanter, to this day, cannot legally own a gun.


U.S. and Wisconsin law prohibit anyone convicted of a crime “punishable by imprisonment for a term exceeding one year” from possessing any firearm or ammunition. In 2011, Kanter pled guilty to a single count of mail fraud for Dr. Comfort’s 2006 delivery of non‐​compliant shoe inserts to a podiatrist. Kanter has no other criminal convictions, is not under indictment, or a fugitive from justice, or an unlawful user of any controlled substance. He has not been judged mentally defective, been dishonorably discharged from the armed forces, renounced his citizenship, or been the subject of a restraining order relating to an intimate partner. In fact, Kanter has no history of any violent behavior at all.


So he brought suit in federal court, arguing that the categorical prohibition of firearms possession by felons was unconstitutional as applied to him: a non‐​violent, one‐​time offender. The district court sided with the government, which argued that a permanent revocation of Second Amendment rights for all felonies—no matter how serious or remote in time—passes constitutional muster. The court paid lip service to Kanter’s Second Amendment rights, finding that the commission of any felony shows that he “clearly disrespected important laws in the past,” which justifies completely stripping him of his rights. Kanter appealed to the U.S. Court of Appeals for the Seventh Circuit.


Because fundamental rights cannot be so summarily disregarded, Cato filed a brief as amicus curiae supporting Kanter. The scope of what is considered a felony has changed dramatically in recent decades, with more and more minor offenses carrying criminal penalties. This poses a serious concern where the government does not distinguish terrorism and armed robbery from falsification of fishing records or Martha Stewart’s infamous white lies in stripping a person of fundamental rights.


The district court was motivated by efficiency of administration—that simply treating all felons the same makes it easier for the government—and by a broad conception of legislative power to “establish certain ‘categorical disqualifications’” to the rights of the people. We disagree. Where any constitutional rights are at stake, courts must engage in meaningful review—especially of individualized challenges to such broad and overreaching laws. If the government wants to strip an individual of his rights, it must demonstrate, with actual evidence, that the deprivation survives an exacting level of scrutiny.


Falsely advertising a shoe insert may not be admirable conduct, but arguing that doing so means that a person should not be able to defend himself with a gun seems like shooting from the hip.