Excerpts from Judge Easterbrook’s opinion yesterday (June 6):
Kanter was convicted of mail fraud, 18 U.S.C. §1341, for bilking the Medicare program. He was sentenced to 366 days in prison. After release he contended that §922(g)(1) is invalid, as applied to him, because fraud is not a violent crime, and his conviction therefore does not portend misuse of fire‐ arms. We rejected that contention—not just because it ap‐ pears to be inconsistent with the Supreme Court’s state‐ ments but also because fraud is a thought‐out crime that demonstrates disdain for the rights of others and disrespect for the law. Whatever may be true of spontaneous or victimless crimes, a person convicted of fraud is not the sort of law‐abiding, responsible citizen to whom Heller referred. […]
§922(g)(1) deals with felonies, and someone who wants us to carve out particular felonies (or felons) from a category that the Supreme Court has said is presumptively valid must supply an adequate basis for that distinction. Hatfield, who has not tried to show that it is possible to say whether he, and others 6 No. 18‐2385 like him, are to a constitutionally dispositive degree less dangerous than other felons, must accept that the Supreme Court’s norm applies to him. He is not entitled to possess firearms.
Three points seem worth noting:
First, the opinion, written by Judge Frank Easterbrook, draws a distinction between “thought‐out” non-violent felonies and “spontaneous or victimless” non-violent felonies. How many non-violent federal felonies actually fall into the second category? Easterbrook is slicing this onion very finely.
Second, Easterbrook says that lawyers for the defendant, who wanted his Second Amendment rights restored, submitted a “data-free” brief regarding “future dangerousness” of this category of non-violent felons. It’s possible that, at least before the same 7th Circuit panel, a different non-violent felon with a different conviction–and better data to buttress his arguments–might get a different result.
Third, the opinion rests heavily on District of Columbia v. Heller’s “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” If that language had not been in Heller, would this case have turned out differently?