Lead Opinion
Rickey I. Kanter pleaded guilty to one count of mail fraud under
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."
Although the firearms prohibition generally applies for life, the statute includes a "safety valve" that permits individuals to apply to the Attorney General for restoration of their firearms rights. Logan v. United States,
Since 1992, however, "Congress has repeatedly barred the Attorney General from using appropriated funds 'to investigate or act upon [relief] applications,' " rendering the provision "inoperative." Logan,
*440In 1981, Wisconsin adopted its own felon dispossession law. See
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," manufactured therapeutic shoes and inserts for individuals with diabetes and severe foot disease. The company marketed the shoes and inserts to podiatrists, who in turn sold them to individual 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 noncompliant inserts.
On May 24, 2011, Kanter pleaded guilty to one count of mail fraud under
Kanter has since served his time and paid his criminal penalty, and he has not been charged with any additional criminal 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
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 protection, the application of the federal and Wisconsin felon dispossession laws to Kanter is substantially related to the government's important interest in preventing gun violence. The court reasoned that Congress and the Wisconsin legislature are entitled to categorically disqualify all felons-even nonviolent 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 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 *441failure to state a claim and a motion for judgment on the pleadings. Landmark Am. Ins. Co. v. Hilger ,
A. Legal Standard
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 defense of hearth and home."
However, the Court also made clear that "the right secured by the Second Amendment is not unlimited."
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 ,
However, "if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected[,] 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."
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 ,
However, courts of appeals are split as to whether as-applied 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 constitutional as applied to felons as a class, regardless of their individual circumstances or the nature of their offenses. See Stimmel v. Sessions ,
*443The 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-applied challenge because he had two prior convictions for "serious drug offenses."
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 ,
Neither we, nor the Fourth, Eighth, or D.C. Circuits, however, 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 ,
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 Circuit (eight out of fifteen judges) held that § 922(g)(1) was unconstitutional as applied to two individuals convicted of a misdemeanor for corrupting a minor and a misdemeanor for unlawfully carrying a handgun without a license, respectively. Binderup ,
Seven members of the Third Circuit reasoned that the historical justification for disarming felons was "tied to the concept of a virtuous citizenry," and that "persons who have committed serious crimes forfeit the right to possess firearms much the way they forfeit other civil liberties."
By contrast, the other five judges who upheld the as-applied 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 principle that the right to keep and bear arms does not extend to those likely to commit violent offenses."
The seven dissenting judges concluded that as-applied challenges to § 922(g)(1) are never permissible.
*445survives intermediate scrutiny because the government's studies established a link between past criminal conduct and the government's important interest in preventing future gun violence. See
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-abiding citizens.' " Meza-Rodriguez ,
Nor has the Seventh Circuit decided whether felons were historically outside the scope of the Second Amendment's protection. See Baer ,
To be sure, although we have not expressly decided this issue before, we have suggested that felons were not historically understood to have Second Amendment rights. For example, in Skoien , which involved *446domestic violence misdemeanants, we explained that some "categorical limits" on firearm possession were "part of the original meaning" of the Second Amendment.
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 Amendment. Indeed, several courts of appeals have concluded that nonviolent felons are outside the scope of the Second 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 purposes of the Second Amendment."
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 evidence is inconclusive at best." Skoien ,
Ultimately, we need not resolve this difficult issue regarding 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.
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 nonviolent felons like Kanter. See *448Skoien ,
To survive intermediate scrutiny at step two, the government must show that the felon dispossession statute is substantially 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 ,
The government has met its burden in this case. First, Kanter 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 ,
Second, the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence. Before turning to the government's statistical evidence establishing 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 record is more likely than a nonfelon to engage in illegal and violent gun use."
In addition to these judicial statements, the government points to several studies that have found a connection between 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 Matthew 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 Misdemeanor Convictions as a Risk Factor for Later Violent and Firearm-Related Criminal Activity Among Authorized Purchasers of Handguns , 280 J. Am. Med. Ass'n 2083, 2083 (1998) (emphasis added).
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 consider the fact that [he] is a first-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions." 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 relationship between denying Mr. Kanter a firearm and furthering 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 evidence." 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 ,
*450Here, unlike the challengers in Binderup , who were convicted 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 face a minor sentence.
We are further assured in our decision because the highly-individualized approach Kanter proposes raises serious institutional and administrative concerns. See Torres-Rosario ,
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 conducting a neutral, wide-ranging investigation." Bean ,
In sum, the government has established that the felon dispossession statutes are substantially related to the important governmental objective of keeping firearms away those convicted 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.
Accordingly, 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 ,
The Attorney General delegated its authority under § 925(c) to the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF").
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 ,
Both parties appealed to the Supreme Court, but the Supreme Court denied the petitions for writ of certiorari. See Sessions v. Binderup , --- U.S. ----,
But see Berron v. Ill. Concealed Carry Licensing Review Bd.,
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 ,
Although Everist was issued before the Heller decision, the Fifth Circuit already recognized an individual right to bear arms pre-Heller and reaffirmed the validity of the Everist decision after Heller . See Scroggins ,
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,
In fact, we usually defer the threshold historical scope inquiry and proceed directly to means-end scrutiny. See, e.g., Horsley v. Trame ,
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 ,
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 multiple contacts with the criminal justice system" and "are unlikely to evidence a high degree of specialization." Id. at 49.
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 disqualification of all felons, including those who are non-violent."
Dissenting Opinion
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.
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. ,
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 ,
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 ,
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 *453constraints). 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.
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."
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.
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 ,
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.
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 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 *455DOCUMENTARY 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 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 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 ,
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 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 ,
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."
*457Rep. 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.").
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 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")
*458But that particular threat dissipated when a person pledged his allegiance to the United States or to a particular state.
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.
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 lawmaker would have questioned the propriety of a proposal to disarm serious offenders."); Medina v. Whitaker ,
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 ,
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 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, 11 WM . & MARY L. REV. at 990; see also Troup v. Wood ,
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 ,
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.
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 *462the 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 felons because of their poor character, without regard to whether they are dangerous. See Medina ,
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 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 *463for 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 ,
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.
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 *464enacted 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 ,
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 ,
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 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 , *465"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,
That said, "the government does not get a free pass simply because Congress has established a 'categorical ban.' " United States v. Williams ,
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 448 n.10 (quoting Ezell II ,
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 *466that 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."
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.
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.
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 ,
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 *468be 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 ,
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 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)
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 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 *469with lower rates of recidivism." Maj. Op. at 449. 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 ,
Because 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
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.
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 ,
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,
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.
First, 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")).
It should go without saying that such race-based exclusions would be unconstitutional today.
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 ,
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. ,
The governments gesture towards Heller as support for a virtue exclusion, citing Heller 's assertion that the Second Amendment "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
See, 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");
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,
The majority suggests that who exercises the right changes what the core of the right is, see Maj. Op. at 448 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 ).
Section 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),
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 ,
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 450 (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.
This 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.
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.