It’s clear Senate Democrats have decided that hammering Supreme Court nominee Amy Coney Barrett on her stated disdain for the Affordable Care Act is a winning message. They did it all day Monday, mostly to success, and a lot of Tuesday. But Senator Dick Durbin was one of the first to introduce another equally important line of questioning Tuesday: why she thinks felons are entitled to own guns, despite state and federal law to the contrary, but not to vote.
Barrett wrote a stunning 38-page dissent to the 27-page majority opinion in the 2019 Kanter vs. Barr, in which a Wisconsin felon who’d served his time challenged laws prohibiting him from purchasing a gun. I’m not a lawyer, so I can’t vouch for the quality of her legal reasoning. Also, since I’m not a lawyer, I was slightly befuddled by her claim that the distinction was a matter of “individual rights,” which applied to gun ownership, versus “civic rights,” which include voting. It was clear to me her point was that gun rights are more fundamental than voting rights, but I didn’t know how she got there.
Luckily, smarter folks than I have teased it out. My colleague Elie Mystal went appropriately ballistic on Twitter, so I learned from him. Also helpful was this New Republic piece by Matt Ford. True to her self-identification as an “originalist,” hewing closely to what is essentially a subjective view of what the “founders” intended as they wrote the Constitution, Barrett saw a basis for distinguishing between felons who committed violent crimes, and those, like Rickey Kanter, whose crime, multimillion-dollar mail fraud, was nonviolent.
Barrett found “[no] evidence that founding-era legislatures imposed virtue-based restrictions on the right [to own a gun],” she wrote. “Such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.” She went on: “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.”
You have to be a “virtuous citizen” to vote, but not to own a gun?
Thankfully, two Reagan-appointed judges disagreed, though they didn’t delve into colonial history. (You can read both the ruling and dissent here.)
Barrett didn’t cop to that in her reply to Durbin. “Did you not distinguish the Second Amendment right from the right to vote, calling one an individual right under the Constitution and the other a civic right?” he asked, and she replied, “That’s consistent with the language in the historical context. Everyone was treating voting as one of the civic rights.” She did not share her peculiar moralistic take on the latter.
Then Senator Amy Klobuchar followed up. Barrett obfuscated and a frustrated Klobuchar asked, “But how would you define ‘virtuous’?” The nominee answered: “The virtuous citizenry idea is a historical and jurisprudential one. It certainly doesn’t mean that I think that anyone gets a measure of virtue, or whether they’re good or not and whether they’re allowed to vote.” She still refused to define “virtue.” I’ve never formally seen the concept of “virtuous citizenry” used as a reason to restrict voting rights—of course, most of the founders thought only white men of property should be able to vote, so maybe that’s what she means. I hope others keep pushing this issue. Meanwhile, Barrett refused to say whether she thought voter intimidation is illegal (it is).
Barrett’s answers Tuesday offer us a window onto how she would approach the issue of voting rights, when it (inevitably) comes before her if she gets confirmed. Obviously, that’s one of the many things Republicans like about her, since restricting voting rights is one of their core projects (as I write, we’ve learned about mysterious voter-registration system outages in Virginia, Louisiana, and Florida). But it might matter to voters. I applaud the attention the Democrats are paying to the ACA, but Durbin and Klobuchar’s questioning laid bare another set of reasons for Democrats to grill Barrett vigorously—and not treat her confirmation as a done deal.