In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-1478

RICKEY I. KANTER,

Plaintiff-Appellant,

v.

WILLIAM P. BARR, Attorney General 

of the United States, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 16-cv-1121 — William C. Griesbach, Chief Judge.

____________________

ARGUED SEPTEMBER 7, 2018 — DECIDED MARCH 15, 2019

____________________

Before FLAUM, RIPPLE, and BARRETT, Circuit Judges.

FLAUM, Circuit Judge. Rickey I. Kanter pleaded guilty to 

one count of mail fraud under 18 U.S.C. § 1341. Due to his felony conviction, he is prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case is 

whether the felon dispossession statutes—18 U.S.C. 

§ 922(g)(1) and Wis. Stat. § 941.29(1m)—violate the Second 

Amendment as applied to Kanter. Even if Kanter could bring 
2 No. 18-1478

an as-applied challenge, the government has met its burden 

of establishing that the felon dispossession statutes are substantially related to an important government interest. We

therefore affirm the district court.

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.” 18 U.S.C. § 922(g)(1). State misdemeanors are included under the statute if they are punishable by 

more than two years in prison.1 Id. § 921(a)(20)(B). However, 

the statute excludes anyone convicted of “any Federal or State 

offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to 

the regulation of business practices.” Id. § 921(a)(20)(A). 

Moreover, “[a]ny conviction which has been expunged, or set 

aside or for which a person has been pardoned or has had civil 

rights restored” is not a conviction for purposes of the statute. 

Id. § 921(a)(20). 

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, 552 U.S. 23, 28 n.1 

 1 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, 86 Fordham L. Rev. 1963, 1970 (2018).
No. 18-1478 3

(2007). Specifically, the Attorney General2 may remove the 

prohibition on a case-by-case basis if an applicant sufficiently 

establishes “that the circumstances regarding the disability, 

and the applicant’s record and reputation, are such that the 

applicant will not be likely to act in a manner dangerous to 

public safety and that the granting of the relief would not be 

contrary to the public interest.” 18 U.S.C. § 925(c). 

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, 552 U.S. at 28 n.1 (quoting United 

States v. Bean, 537 U.S. 71, 74–75 (2002)). The Committee on 

Appropriations eliminated funding because the restoration 

procedure under § 925(c) was “a very difficult task” that required ATF officials to “spend many hours investigating a 

particular applicant for relief.” H.R. Rep. No. 102-618, at 14 

(1992). Even then, there was “no way to know with any certainty whether the applicant [was] still a danger to public 

safety.” Id. Accordingly, ATF officials were effectively “required to guess whether a convicted felon ... [could] be entrusted with a firearm.” Id. Moreover, they were “forced to 

make these decisions knowing that a mistake could have devastating consequences for innocent citizens.” Id. Ultimately, 

the Committee determined that “the $3.75 million and the 40 

man-years annually spent investigating and acting upon 

these applications for relief would be better utilized by ATF 

in fighting violent crime.” Id. The Committee addressed the 

funding issue again in 1995, adding that “too many of these 

 2 The Attorney General delegated its authority under § 925(c) to the 

Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). 28 C.F.R. 

§ 0.130(a)(1).
4 No. 18-1478

felons whose gun ownership rights were restored went on to 

commit violent crimes with firearms.” H.R. Rep. No. 104-183,

at 15 (1995). 

In 1981, Wisconsin adopted its own felon dispossession 

law. See Wis. Stat. § 941.29(1m). Section 941.29(1m) prohibits 

an individual from possessing a firearm if he has “been convicted of a felony in” Wisconsin or “a crime elsewhere that 

would be a felony” in Wisconsin. Id. § 941.29(1m)(a)–(b).

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 18 U.S.C. § 1341 based on a shipment of the 

noncompliant inserts to a podiatrist in Florida. Section 1341 

carries a maximum penalty of twenty years in prison and a 
No. 18-1478 5

$250,000 fine. Kanter was sentenced to one year and one day 

in prison and two years of supervised release. He was also 

ordered to pay a criminal penalty of $50,000, and he reimbursed Medicare over $27 million in a related civil settlement.

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 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m) 

are unconstitutional under the Second Amendment as applied to him. The United States moved to dismiss his claim 

under Rule 12(b)(6), and Wisconsin moved for judgment on 

the pleadings under Rule 12(c). In response, Kanter moved for 

summary judgment, arguing that his status as a nonviolent 

offender with no other criminal record meant that both statutes were unconstitutional as applied to him. 

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 
6 No. 18-1478

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 failure to state a claim and a motion for judgment 

on the pleadings. Landmark Am. Ins. Co. v. Hilger, 838 F.3d 821, 

824 (7th Cir. 2016). In doing so, “we accept all well-pleaded 

facts as true and draw reasonable inferences in the plaintiffs’ 

favor.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 

2016). To avoid dismissal, “the complaint must ‘state a claim 

to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 570 (2007)).

A. Legal Standard3

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.” 554 U.S. 570, 634–35. Accordingly, 

the Court concluded that Washington D.C.’s ban on handgun

possession in the home violated the Second Amendment. Id.

at 635.

However, the Court also made clear that “the right secured by the Second Amendment is not unlimited.” Id. at 626.

 3 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, 636 F. App’x 695, 698–99 (7th Cir. 2016).
No. 18-1478 7

Although the Court did not “undertake an exhaustive historical analysis ... of the full scope of the Second Amendment,” it 

said that “nothing in [its] opinion should be taken to cast 

doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. It described such prohibitions as “presumptively lawful regulatory measures.” Id.

at 627 n.26. Two years later, in McDonald v. City of Chicago, the 

Court “repeat[ed] [its] assurances” that felon dispossession 

laws remain valid. 561 U.S. 742, 786 (2010) (plurality opinion).

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, 846 F.3d 888, 892 (7th 

Cir. 2017) (“Ezell II”). “This is a textual and historical inquiry; 

if the government can establish that the challenged law regulates activity falling outside the scope of the right as originally 

understood, then ‘the regulated activity is categorically unprotected, and the law is not subject to further Second 

Amendment review.’” Id. (quoting Ezell v. City of Chicago, 651 

F.3d 684, 703 (7th Cir. 2011) (“Ezell I”)). 

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.” Id. (quoting Ezell 

I, 651 F.3d at 703). At step two, we evaluate “the regulatory 

means the government has chosen and the public-benefits 

end it seeks to achieve.” Id. (quoting Ezell I, 651 F.3d at 703).

The rigor of the review is dependent on “how close the law 

comes to the core of the Second Amendment right and the severity of the law’s burden on the right.” Id. (quoting Ezell I, 
8 No. 18-1478

651 F.3d at 703). “Severe burdens” on this core right “require 

a very strong public-interest justification and a close meansend fit; lesser burdens, and burdens on activity lying closer to 

the margins of the right, are more easily justified.” Id. The 

government has the burden “of justifying its law under a 

heightened standard of scrutiny; rational-basis review does 

not apply.” Id. We have consistently described step two as 

“akin to intermediate scrutiny” and have required the government to show that the challenged statute is substantially 

related to an important governmental objective. United States

v. Meza-Rodriguez, 798 F.3d 664, 672 (7th Cir. 2015) (citing 

cases).

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, 406 F. 

App’x 52, 53–54 (7th Cir. 2010); United States v. Bogle, 717 F.3d 

281, 281–82 (2d Cir. 2013) (per curiam); United States v. Moore, 

666 F.3d 313, 318–19 (4th Cir. 2012); United States v. Barton, 633 

F.3d 168, 172 (3d Cir. 2011), overruled on other grounds by 

Binderup v. Att’y Gen., 836 F.3d 336 (3d Cir. 2016) (en banc); 

Schrader v. Holder, 704 F.3d 980, 989–91 (D.C. Cir. 2013), cert. 

denied, 571 U.S. 989 (2013); United States v. Joos, 638 F.3d 581, 

586 (8th Cir. 2011); United States v. Khami, 362 F. App’x 501, 

508 (6th Cir. 2010), cert. denied, 560 U.S. 934 (2010); United 

States v. Battle, 347 F. App’x 478, 480 (11th Cir. 2009) (per curiam); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 

2009), cert. denied, 559 U.S. 970 (2010); United States v. Smith, 

329 F. App’x 109, 110–11 (9th Cir. 2009); United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009).
No. 18-1478 9

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, 879 F.3d 198, 210 (6th Cir. 2018) (“[W]e have 

upheld § 922(g)(1), which disarms even non-violent felons.”

(citing United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010), 

cert. denied, 562 U.S. 895 (2010))); United States v. Scroggins, 599 

F.3d 433, 451 (5th Cir. 2010), cert. denied, 562 U.S. 867 (2010)

(rejecting as-applied Second Amendment challenge and holding that felon dispossession laws are constitutional even if the 

offense was nonviolent in nature); United States v. Rozier, 598 

F.3d 768, 771 (11th Cir. 2010), cert. denied, 560 U.S. 958 (2010)

(concluding that “statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend the Second Amendment,” and holding that § 922(g)(1) is 

“a constitutional avenue to restrict the Second Amendment 

right of certain classes of people,” including convicted felons); 

United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010), 

cert. denied, 562 U.S. 921 (2010) (rejecting nonviolent felon’s asapplied Second Amendment challenge to § 922(g)(1) because 

“felons are categorically different from the individuals who 

have a fundamental right to bear arms”); In re U.S., 578 F.3d 

1195, 1200 (10th Cir. 2009) (“We have already rejected the notion that Heller mandates an individualized inquiry concerning felons pursuant to § 922(g)(1).” (citing McCane, 573 F.3d at 

1047)).

The 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-
10 No. 18-1478

applied challenge because he had two prior convictions for 

“serious drug offenses.” 658 F.3d 110, 113 (1st Cir. 2011), cert. 

denied, 565 U.S. 1271 (2012). However, the court noted that the 

Supreme Court “may be open to claims that some felonies do 

not indicate potential violence and cannot be the basis for applying a categorical ban,” and “might even be open to highly 

fact-specific objections.” Id. Yet the First Circuit cautioned that 

“such an approach, applied to countless variations in individual circumstances, would obviously present serious problems 

of administration, consistency and fair warning.” Id.

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, 616 F.3d 685, 693 (7th Cir. 

2010), cert. denied, 563 U.S. 1092 (2010) (“[W]e recognize 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.”); Medina v. Whitaker, 913 F.3d 

152, 160 (D.C. Cir. 2019) (“We need not decide today if it is 

ever possible for a convicted felon to show that he may still 

count as a ‘law-abiding, responsible citizen’” entitled to Second Amendment protections.); United States v. Woolsey, 759 

F.3d 905, 909 (8th Cir. 2014) (“[T]he Eighth Circuit has left 

open the possibility that a person could bring a successful asapplied challenge to § 922(g)(1)” but rejected defendant’s asapplied challenge because he had multiple violent felony convictions.); United States v. Pruess, 703 F.3d 242, 247 (4th Cir. 

2012) (holding that § 922(g)(1) could constitutionally be applied to nonviolent felons, but acknowledging that “there in 

theory might be an as-applied Second Amendment challenge 

to [§] 922(g)(1) that could succeed” (citations and internal 

quotation marks omitted)).
No. 18-1478 11

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, 636 F. 

App’x 695, 698 (7th Cir. 2016) (holding that § 922(g)(1) could 

constitutionally be applied to individual convicted of felony 

robbery); United States v. Shields, 789 F.3d 733, 750–51 (7th Cir. 

2015) (concluding that § 922(g)(1) was constitutional as applied to individual who had been convicted of three violent 

felonies); Williams, 616 F.3d at 693–94 (holding that § 922(g)(1) 

was constitutional as applied to individual convicted of felony robbery who “beat[] the victim so badly that the victim 

required sixty-five stitches”); United States v. Skoien, 614 F.3d 

638, 642, 644 (7th Cir. 2010) (en banc) (rejecting as-applied Second Amendment challenge to § 922(g)(9) brought by domestic violence misdemeanant because violence was “an element 

of the offense” and data suggested high rates of recidivism).

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, 836 F.3d at 340, 356. Because it is the only successful as-applied Second Amendment challenge in a court of 

appeals to date—and because Kanter relies heavily upon it—

it is worth examining the case at some length. 

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 
12 No. 18-1478

committed serious crimes forfeit the right to possess firearms 

much the way they forfeit other civil liberties.” Id. at 348–49 

(plurality opinion) (citations and internal quotation marks 

omitted). Applying the civic virtue rationale, three of those 

judges concluded that the challengers’ offenses “were not serious enough to strip them of their Second Amendment 

rights.” Id. at 351. They explained that, although the two offenses were punishable by more than a year in prison, and 

thus met the definition of a felony in § 922(g), the state legislatures had enacted them as misdemeanors, and “a state legislature’s classification of an offense as a misdemeanor is a 

powerful expression of its belief that the offense is not serious 

enough to be disqualifying.” Id. Those judges also considered 

that neither of the offenses at issue involved violence and that 

each of the challengers received “a minor sentence,” and they 

pointed to the lack of a “cross-jurisdictional consensus regarding the seriousness of the [c]hallengers’ crimes,” remarking that in some states the challengers’ conduct was not even 

illegal. Id. at 352. At step two, those three judges concluded 

that § 922(g)(1) did not survive intermediate scrutiny because 

the government relied on “off-point statistical studies” that 

involved incarcerated felons, not misdemeanants who had 

served no jail time. Id. at 354.

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.” Id. at 367 (Hardiman, 

J., concurring in part and concurring in the judgments). Applying dangerousness as the touchstone, those judges concluded that persons like the challengers who were convicted 
No. 18-1478 13

of nonviolent offenses fall within the scope of the Second 

Amendment’s protection. Id. at 375–76. Moreover, those five 

judges believed that § 922(g) was “categorically unconstitutional” when applied to “non-dangerous persons convicted of 

offenses unassociated with violence,” such that any subsequent means-end scrutiny or judicial interest balancing was 

“inappropriate.” Id. at 358, 378. 

The seven dissenting judges concluded that as-applied 

challenges to § 922(g)(1) are never permissible. Id. at 401

(Fuentes, J., concurring in part, dissenting in part, and dissenting from the judgments). In doing so, they stressed that 

the majority’s decision to uphold such a challenge was unprecedented. See id. at 380–81 (“The plaintiffs ask us to do 

something that no federal appellate court has done before.... 

No federal appellate court has yet upheld a challenge, facial 

or as-applied, to the felon-in-possession statute.”). They criticized the majority’s approach because it “saddle[s] district 

court judges with a seemingly unending obligation to review 

as-applied challenges” and “fail[s] to provide us with any 

workable standards that would make such a regime administratively feasible or doctrinally coherent.” Id. at 380. According to the dissent, the challengers’ claim failed at step one because “Heller itself tells us that felons are disqualified from 

exercising their Second Amendment rights,” and “there is no 

principled basis ... for distinguishing felons from misdemeanants who commit crimes punishable by more than two 

years in prison.” Id. at 388. In any event, the dissenting judges 

concluded that § 922(g)(1) survives 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 id. at 400–01. With 
14 No. 18-1478

respect to plaintiffs’ contention that the studies were not tailored to their specific characteristics, the dissenting judges explained that “[t]he question is not whether someone exactly 

like the plaintiffs poses a threat to public safety,” but rather 

“whether the fit between the challenged regulation and the 

asserted objective [is] reasonable, not perfect.” Id. at 400 (alteration in original) (citation and internal quotation marks 

omitted).4

With this background in mind, we now apply our twostep 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, 798 F.3d at 669; see also Heller, 

554 U.S. at 634–35 (observing that the “core” of the Second 

Amendment right is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” (emphasis 

added)). The Heller Court also cautioned that nothing in its 

decision “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” which it referred to as “presumptively lawful.” 554 U.S. at 626–27 & n.26. 

Moreover, the Court mentioned that certain individuals may 

 4 Both parties appealed to the Supreme Court, but the Supreme Court 

denied the petitions for writ of certiorari. See Sessions v. Binderup, 137 S. Ct. 

2323 (2017) (noting Justices Ginsburg and Sotomayor would grant the petition); Binderup v. Sessions, 137 S. Ct. 2323 (2017) (same). 
No. 18-1478 15

be “disqualified from the exercise of Second Amendment 

rights.” Id. at 635. However, the Court never actually addressed the historical pedigree of felon dispossession laws. 

Accordingly, we have refused to read too much into the 

Court’s “precautionary language.” Skoien, 614 F.3d at 640; see 

also Meza-Rodriguez, 798 F.3d at 669 (“We are reluctant to place 

more weight on these passing references than the Court itself 

did.”).5

Nor has the Seventh Circuit decided whether felons were 

historically outside the scope of the Second Amendment’s 

protection. See Baer, 636 F. App’x at 698. Although the litigants 

in Williams raised that question, we declined to address it and 

proceeded directly to the intermediate scrutiny analysis. 616 

F.3d at 692. In so doing, we noted that “[t]he academic writing 

on the subject of whether felons were excluded from firearm 

possession at the time of the founding is ‘inconclusive at best,’ 

and we refrain[ed] ... from making a determination based on 

contradictory views.” Id. (quoting Skoien, 614 F.3d at 650 

(Sykes, J., dissenting)). 

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 domestic violence misdemeanants, we explained that some “categorical limits” on firearm possession were “part of the original meaning” of the 

Second Amendment. 614 F.3d at 640. Similarly, in United 

 5 But see Berron v. Ill. Concealed Carry Licensing Review Bd., 825 F.3d 843, 

847 (7th Cir. 2016) (“When holding in [Heller] that the Second Amendment 

establishes personal rights, the Court observed that only law-abiding persons enjoy these rights, even at home.”). 
16 No. 18-1478

States v. Yancey, we opined that “most scholars of the Second 

Amendment agree that the right to bear arms was tied to the 

concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens,’” including felons. 621 F.3d 681, 684–85 (7th Cir. 2010) (per curiam) (quoting 

Vongxay, 594 F.3d at 1118).6

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 

 6 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, 29 N. Ky. L. Rev. 657, 679 (2002) (“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 [that] ... was limited to 

those members of the polity who were deemed capable of exercising it in 

a virtuous manner.”); Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 Okla. L. Rev. 65, 96 (1983) (“Colonial and English societies of the eighteenth century ... excluded ... felons 

[from possessing firearms].”); Don B. Kates, Jr., Handgun Prohibition and 

the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 266 

(1983) (“Felons simply did not fall within the benefits of the common law 

right to possess arms.”); Glenn Harlan Reynolds, A Critical Guide to the 

Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (“One implication of 

this emphasis on the virtuous citizen is that the right to arms does not 

preclude laws disarming the unvirtuous (i.e. criminals) ....” (citation omitted)). Moreover, according to Thomas M. Cooley’s 1868 Treatise on Constitutional Limitations, which the Heller court described as a “massively 

popular” treatise written by “[t]he most famous” late-nineteenth-century 

legal scholar, 554 U.S. at 616, certain classes of people were “almost universally excluded” from exercising certain civic rights, including “the idiot, the lunatic, and the felon, on obvious grounds.” Thomas M. Cooley, A 

Treatise on the Constitutional Limitations Which Rest Upon the Legislative 

Power of the States of the American Union 29 (1st ed. 1868). 
No. 18-1478 17

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.” 848 F.3d 614, 626 (4th Cir.

2017). Explaining that the defendant could not rebut the presumption that he fell outside the category of “‘law-abiding, 

responsible citizens,’” the court focused on his felony conviction for fraud and theft crimes: “Theft, fraud, and forgery are 

not merely errors in filling out a form or some regulatory misdemeanor offense; these are significant offenses reflecting disrespect for the law.” Id. at 627 (quoting Heller, 554 U.S. at 635);

see also Medina, 913 F.3d at 160 (“Whether a certain crime removes one from the category of ‘law-abiding and responsible,’ in some cases, may be a close question,” such as “a misdemeanor arising from a fistfight .... Those who commit felonies however, cannot profit from our recognition of such borderline cases.”); United States v. Hughley, 691 F. App’x 278, 279 

(8th Cir. 2017) (per curiam) (“Restricting gun possession by 

felons—even nonviolent ones—differs meaningfully from restricting citizens who have not been convicted of serious offenses from having guns in their home for self-defense.”); 

Vongxay, 594 F.3d at 1115–16 (“declin[ing] to make a distinction between violent and non-violent felons” because “felons 

are categorically different from the individuals who have a 

fundamental right to bear arms”); Rozier, 598 F.3d at 771 & n.5 

(stating that a nonviolent felon’s “Second Amendment right 

to bear arms is not weighed in the same manner as that of a 

law-abiding citizen” and analogizing felon-dispossession 
18 No. 18-1478

statutes to felon disenfranchisement laws); United States v. 

Everist, 368 F.3d 517, 519 (5th Cir. 2004) (“Irrespective of 

whether his offense was violent in nature, a felon has shown 

manifest disregard for the rights of others. He may not justly 

complain of the limitation on his liberty when his possession 

of firearms would otherwise threaten the security of his fellow citizens.”).7

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, 614 F.3d at 650 (Sykes, 

J., dissenting) (emphasis omitted).8 If the founders were really 

 7 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, 599 

F.3d at 451.

8 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, 60 Hastings L.J. 1371, 1374 (2009) 

(“[S]o far as I can determine, no colonial or state law in eighteenth-century 

America formally restricted the ability of felons to own firearms.”); C. 

Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & 

Pub. Pol’y 695, 698 (2009) (“[A]ctual ‘longstanding’ precedent in America 

and pre-Founding England suggests that a firearms disability can be consistent with the Second Amendment to the extent that ... its basis credibly 

indicates a present danger that one will misuse arms against others and 

the disability redresses that danger.”); Adam Winkler, Heller’s Catch-22, 

56 UCLA L. Rev. 1551, 1563 (2009) (“The Founding generation had no 

laws ... denying the right to people convicted of crimes.”).
No. 18-1478 19

just concerned about dangerousness, not a lack of virtue, nonviolent felons like Kanter arguably fall within the scope of the 

Second Amendment’s protections.

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.9

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 Skoien, 614 F.3d at 640 (“[S]uch 

a recent extension of [§ 922(g)(1)’s] disqualification to non-violent felons (embezzlers and tax evaders, for example) is presumptively constitutional, as Heller said in note 26.”). But because “Heller referred to felon disarmament bans only as ‘presumptively lawful,’” we require the government to “prov[e] 

 

9 In fact, we usually defer the threshold historical scope inquiry and 

proceed directly to means-end scrutiny. See, e.g., Horsley v. Trame, 808 F.3d 

1126, 1131 (7th Cir. 2015) (declining to decide whether eighteen- to twentyyear-olds are within the scope of the Second Amendment); Yancey, 621 

F.3d at 684–85. One notable exception to our generally restrained approach in this area is United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 

2015). There, the majority held that undocumented immigrants were historically within the scope of the Second Amendment but ultimately concluded that the statute at issue nevertheless survived intermediate scrutiny. Id. at 669–73. The concurrence advocated for a “prudential approach” 

since we did not need to decide the threshold question to resolve the case, 

and proposed “reserv[ing] resolution of this challenging constitutional 

question for a case that compels addressing it.” Id. at 673–74 (Flaum, J., 

concurring in the judgment). We think that prudential approach is appropriate here.
20 No. 18-1478

“the constitutionality of § 922(g)(1) ... using the intermediate 

scrutiny framework.” Williams, 616 F.3d at 692.

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, 614 

F.3d 85, 98 (3d Cir. 2010); cf. FTC v. Trudeau, 662 F.3d 947, 953 

(7th Cir. 2011).10

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, 621 F.3d at 683 (“Congress enacted the 

exclusions in § 922(g) to keep guns out of the hands of pre-

 10 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, 846 F.3d at 892. Indeed, we have said that “the state can prevail with 

less evidence when, as in Skoien, guns are forbidden to a class of persons 

who present a higher than average risk of misusing a gun.” Moore, 702 

F.3d at 940. We have even gone so far as to say that “empirical evidence of 

a public safety concern can be dispensed with altogether when the ban is 

limited to obviously dangerous persons such as felons and the mentally 

ill.” Id.
No. 18-1478 21

sumptively risky people.”); Williams, 616 F.3d at 693 (describing the government’s objective as “keep[ing] firearms out of 

the hands of violent felons, who the government believes are 

often those most likely to misuse firearms”); Skoien, 614 F.3d 

at 642 (describing the government’s interest as “preventing 

armed mayhem”). And we have previously held that this interest is “without doubt an important one.” Yancey, 621 F.3d 

at 684; see also Meza-Rodriguez, 798 F.3d at 673 (“[T]he government has a[] strong interest in preventing people who already 

have disrespected the law (including ... felons ...) from possessing guns.”).

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.” 621 F.3d at 685. In fact, the D.C. Circuit has 

concluded that “nonviolent offenders not only have a higher 

recidivism rate than the general population, but certain 

groups—such as property offenders—have an even higher recidivism rate than violent offenders, and a large percentage of 

the crimes nonviolent recidivists later commit are violent.” 

Kaemmerling v. Lappin, 553 F.3d 669, 683 (D.C. Cir. 2008); see 

Ewing v. California, 538 U.S. 11, 26 (2003) (citing P. Langan & 

D. Levin, U.S. Dep’t of Justice, Bureau of Justice Statistics, Special Report: Recidivism of Prisoners Released in 1994, at 1 (June 

2002)). 
22 No. 18-1478

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 FirearmRelated Criminal Activity Among Authorized Purchasers of Handguns, 280 J. Am. Med. Ass’n 2083, 2083 (1998) (emphasis 

added).11

 11 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.
No. 18-1478 23

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, 666 F.3d 220, 231 (4th Cir. 2012). However, that 

“does not undermine [the statute’s] constitutionality ... because it merely suggests that the fit is not a perfect one; a reasonable fit is all that is required under intermediate scrutiny.” 

Id.; see also Marzzarella, 614 F.3d at 97–98 (analogizing to intermediate scrutiny in First Amendment context).

Here, 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 
24 No. 18-1478

face a minor sentence. 836 F.3d at 353 & n.6. Instead, Kanter is 

more akin to the challenger in Hamilton, whose fraud and 

theft convictions were “black-letter mala in se felonies reflecting grave misjudgment and maladjustment.” 848 F.3d at 627. 

Kanter’s crime—defrauding the federal government out of 

hundreds of thousands of dollars—“reflect[s] significant disrespect for the law.” Id. at 627 n.14; see also Medina, 913 F.3d at 

160 (rejecting as-applied challenge where plaintiff was convicted of “felony fraud—a serious crime, malum in se, that is 

punishable in every state”). Thus, Kanter’s serious felony conviction prevents him from challenging the constitutionality of 

§ 922(g)(1) as applied to him.12

We are further assured in our decision because the highlyindividualized approach Kanter proposes raises serious institutional and administrative concerns. See Torres-Rosario, 658 

F.3d at 113 (“[S]uch an approach, applied to countless variations in individual circumstances, would obviously present 

serious problems of administration, consistency and fair 

warning.”); see also Medina, 913 F.3d at 159–60 (rejecting argument that “non-dangerous felons have a right to bear arms” 

 

12 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.” 616 F.3d 

at 693. That statement was dictum, and we need not determine whether 

§ 922(g)(1) may ever be subject to an as-applied challenge to reach our decision in this case. There may be a case in the future that requires addressing whether any individual may successfully bring an as-applied challenge to the statute, but Kanter’s is not that case. See Broadrick v. Oklahoma, 

413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground 

that it may conceivably be applied unconstitutionally to others, in other 

situations not before the Court.”). 
No. 18-1478 25

because “[u]sing an amorphous ‘dangerousness’ standard to 

delineate the scope of the Second Amendment would require 

the government to make case-by-case predictive judgments 

before barring the possession of weapons”). As mentioned 

above, Congress previously allowed the ATF to restore a 

felon’s gun rights under § 925(c) if the agency determined that 

“the applicant will not be likely to act in a manner dangerous 

to public safety and that the granting of the relief would not 

be contrary to the public interest.” 18 U.S.C. § 925(c). However, Congress abandoned that approach after finding that 

the dangerousness inquiry was a “very difficult” and time-intensive task, H.R. Rep. No. 102-618, at 14 (1992), and that “too 

many of these felons whose gun ownership rights were restored went on to commit violent crimes with firearms.” H.R. 

Rep. No. 104-183, at 15 (1995). Congress’s failed attempt to 

delegate this investigative task to a law enforcement agency 

“should have a profound impact on our tailoring analysis.” 

Binderup, 836 F.3d at 403 (Fuentes, J., concurring in part, dissenting in part, and dissenting from the judgment). 

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, 537 U.S. at 

77; see also Pontarelli v. U.S. Dep’t of the Treasury, 285 F.3d 216, 

231 (3d Cir. 2002) (“Unlike ATF, courts possess neither the resources to conduct the requisite investigations nor the expertise to predict accurately which felons may carry guns without threatening the public’s safety.”). Moreover, “[i]n the context of firearm regulation, the legislature is far better 

equipped than the judiciary to make sensitive public policy 

judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those 
26 No. 18-1478

risks.” Schrader, 704 F.3d at 990 (citation and internal quotation marks omitted). 

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.
No. 18-1478 27

BARRETT, Circuit Judge, dissenting. 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. 

18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) 

would stand on solid footing if their categorical bans were

tailored to serve the governments’ undeniably compelling

interest in protecting the public from gun violence. But their 

dispossession of all felons—both violent and nonviolent—is 

unconstitutional as applied to Kanter, who was convicted of 

mail fraud for falsely representing that his company’s 

therapeutic shoe inserts were Medicare-approved and billing 

Medicare accordingly. Neither Wisconsin nor the United 

States has introduced data sufficient to show that disarming

all nonviolent felons substantially advances its interest in 

keeping the public safe. Nor have they otherwise 

demonstrated that Kanter himself shows a proclivity for 

violence. Absent evidence that he either belongs to a 

dangerous category or bears individual markers of risk, 
28 No. 18-1478

permanently disqualifying Kanter from possessing a gun 

violates the Second Amendment.1

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., 836 F.3d 336, 357 

(3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and 

concurring in the judgments) (“[T]he Founders understood 

that not everyone possessed Second Amendment rights. 

These appeals require us to decide who count among ‘the 

people’ entitled to keep and bear arms.”). Others maintain 

that all people have the right to keep and bear arms but that 

history and tradition support Congress’s power to strip 

certain groups of that right. See Eugene Volokh, Implementing 

the Right to Keep and Bear Arms for Self-Defense: An Analytical 

Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1497–

98 (2009) (describing these competing views). These 

approaches will typically yield the same result; one uses 

history and tradition to identify the scope of the right, and the 

other uses that same body of evidence to identify the scope of 

the legislature’s power to take it away.

 

1 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 18 U.S.C. § 921(a)(20)(B).
No. 18-1478 29

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, 554 U.S. 570, 627 (2008) (explaining that 

“the sorts of weapons protected were those ‘in common use 

at the time’” (citation omitted)); Ezell v. City of Chicago, 846 

F.3d 888, 892 (7th Cir. 2017) (Ezell II) (“[I]f ... the challenged 

law regulates activity falling outside the scope of the right as 

originally understood, then ‘the regulated activity is 

categorically unprotected, and the law is not subject to further 

Second Amendment review.’” (citation omitted)); Ezell v. City 

of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (Ezell I) (drawing 

an analogy between categories of speech, like obscenity, that 

fall outside the First Amendment and activities that fall 

outside the Second Amendment). It is another thing to say 

that certain people fall outside the Amendment’s scope. Arms 

and activities would always be in or out. But a person could 

be in one day and out the next: the moment he was convicted 

of a violent crime or suffered the onset of mental illness, his 

rights would be stripped as a self-executing consequence of 

his new status. No state action would be required.

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, 614 F.3d 638, 

642 (7th Cir. 2010) (en banc) (holding constitutional 18 U.S.C. 

§ 922(g)(9), which forbids those convicted of crimes of 

domestic violence to possess a gun). After fifteen years pass, 

a domestic violence misdemeanant challenges a handgun ban 
30 No. 18-1478

identical to the one that the Court held unconstitutional in 

Heller. Despite the legislative judgment that such a person 

could safely possess a gun after ten years, a court would still 

have to determine whether the person had standing to assert 

a Second Amendment claim. If the justification for the initial 

deprivation is that the person falls outside the protection of 

the Second Amendment, it doesn’t matter if the statutory 

disqualification expires. If domestic violence misdemeanants 

are out, they’re out.2

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 

constraints). 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.3 So too with 

 

2 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. 

3 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, 554 U.S. at 592 (“[T]he Second 

Amendment ... codified a pre-existing right.”); id. at 595 (“Of course the 

right was not unlimited ....”); Skoien, 614 F.3d at 640 (“That some 

categorical limits are proper is part of the original meaning, leaving to the 
No. 18-1478 31

the right to keep and bear arms: a state can disarm certain 

people (for example, those convicted of crimes of domestic 

violence), but if it refrains from doing so, their rights remain 

constitutionally protected. In other words, a person convicted 

of a qualifying crime does not automatically lose his right to 

keep and bear arms but instead becomes eligible to lose it. 

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.” 554 U.S. at 580–81; see also id. at 580 (asserting 

that “the people” “refers to a class of persons who are part of 

a national community or who have otherwise developed 

sufficient connection with this country to be considered part 

of that community” (citation omitted)). Neither felons nor the 

mentally ill are categorically excluded from our national 

community. That does not mean that the government cannot 

prevent them from possessing guns. Instead, it means that the 

question is whether the government has the power to disable 

the exercise of a right that they otherwise possess, rather than 

whether they possess the right at all. 

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.

 

people’s elected representatives the filling in of details.”). Thus, such a 

regulation does not “infringe” the right to bear arms because the right was 

always qualified by the government’s power to prevent the dangerous 

from exercising it.
32 No. 18-1478

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, 554 U.S. at 626–27 & n.26. Like the majority, I am 

“reluctant to place more weight on these passing references 

than the Court itself did.” See Maj. Op. at 15 (quoting United 

States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2015)). The 

constitutionality of felon dispossession was not before the 

Court in Heller, and because it explicitly deferred analysis of 

this issue, the scope of its assertion is unclear. For example, 

does “presumptively lawful” mean that such regulations are 

presumed lawful unless a historical study shows otherwise? 

Does it mean that as-applied challenges are available? Does 

the Court’s reference to “felons” suggest that the legislature 

cannot disqualify misdemeanants from possessing guns? 

Does the word “longstanding” mean that prohibitions of 

recent vintage are suspect? As we observed in Skoien, judicial 

opinions are not statutes, and we don’t dissect them word-byword as if they were. 614 F.3d at 640. Thus, I agree with the 

majority that Heller’s dictum does not settle the question 

before us.

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. 
No. 18-1478 33

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 
34 No. 18-1478

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

DOCUMENTARY 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 
No. 18-1478 35

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 
36 No. 18-1478

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, 532 U.S. 318, 327 & n.2 (2001) (noting some 

“variations in the common-law usage of the term ‘breach of 

the peace’” but assuming that the definition “entail[ed] at 

least a threat of violence”); id. (quoting MICHAEL DALTON, THE 

COUNTRY JUSTICE 9 (1727) (“The Breach of th[e] Peace seemeth 

to be any injurious Force or Violence moved against the 

Person of another, his Goods, Lands, or other Possessions, 

whether by threatening words, or by furious Gesture, or Force 

of the Body, or any other Force used in terrorem.”)); Pearce v. 
No. 18-1478 37

Atwood, 13 Mass. 324, 332 (1816) (“Breaches of the peace 

comprise not only cases of actual violence to the person of 

another, but any unlawful acts, tending to produce an actual 

breach of the peace; whether the peace of the public, or an 

individual, be in fact disturbed or not.”). Not all crimes are 

violent; nor, for that matter, is every non-peaceable person a 

criminal. In short, the phrase “peaceable citizens” was not a 

synonym for “non-felons” or even “non-criminals.” 

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 
38 No. 18-1478

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 foundingera 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, 836 F.3d at 368 (Hardiman, J., concurring in part 

and concurring in the judgments). This is the same concern 

that animated English and early American restrictions on 

arms possession.

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.”4 Sir John 

 

4 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, 2 Edw. 3, c. 3 (1328). By the 

middle of the seventeenth century, the statute was “almost gone in 

desuetudinem,” because the law recognized “a general connivance to 

gentlemen to ride armed for their security.” Rex v. Knight, 90 Eng. Rep. 

330, 330 (K.B. 1686). But it was still enforced against those who violated 

the terms of the statute “malo animo,” id.—that is, those who carried arms 
No. 18-1478 39

Knight’s Case, 87 Eng. Rep. 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.”).5

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 

 

with intent “to terrorize their neighbors,” see JOYCE LEE MALCOLM, TO 

KEEP AND BEAR ARMS at 104 (1994).

5 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.
40 No. 18-1478

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”)6; see also DECONDE, supra, at 22–23 (associating 

Catholics with the “distrusted inhabitants” from whom the 

colonies seized guns “with the intent of preventing social 

upheavals” and “rebellion”). Those “willing to swear 

undivided allegiance to the sovereign” were permitted to 

keep their arms. See Churchill, 25 LAW & HIST. REV. at 157. 

After all, confiscation of guns from those who refused to 

swear an oath of allegiance was meant to “deal with the 

potential threat coming from armed citizens who remained 

loyal to” another sovereign. See Saul Cornell & Nathan 

DeDino, A Well Regulated Right: The Early American Origins of 

Gun Control, 73 FORDHAM L. REV. 487, 506 (2004); see also NRA 

v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 

185, 200 (5th Cir. 2012) (“American legislators had 

determined that permitting [those who refused to swear an 

oath of allegiance] to keep and bear arms posed a potential 

danger.”). But that particular threat dissipated when a person 

pledged his allegiance to the United States or to a particular 

state.

 

6 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”)).
No. 18-1478 41

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 208–09.7

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 

 

7 It should go without saying that such race-based exclusions would 

be unconstitutional today.
42 No. 18-1478

lawmaker would have questioned the propriety of a proposal 

to disarm serious offenders.”); Medina v. Whitaker, 913 F.3d 

152, 158 (D.C. Cir. 2019) (“[I]t is difficult to conclude that the 

public, in 1791, would have understood someone facing death 

and estate forfeiture to be within the scope of those entitled to 

possess arms.”). One scholar puts it this way: 

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, 18 N.E. 148, 150 (N.Y. 1888) (“By the ancient 

common law ... [t]here were three principle incidents 
No. 18-1478 43

consequent upon an attainder for treason or felony, forfeiture, 

corruption of blood, and an extinction of civil rights, more or 

less complete, which was denominated civil death.”). Civil 

death was a state in which a person “though living, was 

considered dead”—a status “very similar to natural death in 

that all civil rights were extinguished.” See Harry David 

Saunders, Note, Civil Death—A New Look at an Ancient 

Doctrine, 11 WM. & MARY L. REV. 988, 988–89 (1970). As 

originally conceived, civil death signified “a transitional 

status in the period between a capital sentence and its 

execution.” Gabriel J. Chin, The New Civil Death: Rethinking 

Punishment in the Era of Mass Incarceration, 160 U. PA. L. REV. 

1789, 1797 (2012). It “was intended to merely settle the estate 

of an executed or banished felon.” Saunders, 11 WM. & MARY 

L. REV. at 990. 

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 
44 No. 18-1478

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, 
No. 18-1478 45

11 WM. & MARY L. REV. at 990; see also Troup v. Wood, 4 Johns. 

Ch. 228, 248 (N.Y. Ch. 1820) (a person convicted of felony and 

sentenced to imprisonment in the state prison for life is 

“civiliter mortuus”). But applying the ancient concept of civil 

death in this context proved difficult. Because 

“[i]mprisonment for life was a punishment unknown to the 

common law,” courts quickly realized that common-law civil 

death did not automatically apply. See Platner v. Sherwood, 6 

Johns. Ch. 118, 122 (N.Y. Ch. 1822) (¶ 2 argument of Butler 

and Henry, counsel for the plaintiff); id. at 128 (Opinion of the 

Chancellor). Thus, courts soon decided that civil death 

applied only when statutes explicitly attached it to life 

sentences, and statutes did not universally do so. Id. at 129 

(holding that a person convicted of a felony and sentenced to 

life imprisonment was not “deemed and taken to be civilly 

dead, to all intents and purposes in the law” until an act of the 

legislature made it so)8; see also Frazer v. Fulcher, 17 Ohio 260, 

 

8 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, 

6 Johns. Ch. at 127–28 (citing Troup, 4 Johns. Ch. 228)). But in Platner, the 

court explicitly rejected its earlier assumption and replaced it with a wellreasoned, widely-adopted, and enduring view that civil death existed 

only if authorized by statute. Id. at 128 (“The same point arose, 

incidentally, in respect to this same conviction, in the case of Troup v. 

Wood, and I was there induced to think, upon the authority of Lord Coke, 

that every person attainted of felony was accounted, in law, civiliter 

mortuus. It was not a necessary or very material point in that case, and I 

did not pursue the subject to the extent I should have done, if it had been 

then, as it is now, the direct and material point in issue. I have, likewise, 

since, had the benefit of a full and able discussion, and of a diligent and 

accurate research, particularly on the part of the plaintiff, respecting this 

very unusual question of law.” (citation omitted)).
46 No. 18-1478

262 (1848) (“But it is said that, by the rules of the common law, 

there is such a thing as a civil death as well as a natural death. 

We know that in England there are cases in which a man, 

although in full life, is said to be civilly dead, but I have not 

learned, until this case was brought before us, that there was 

but one kind of death known to our laws.”); Cannon v. 

Windsor, 1 Houst. 143, 144 (Del. 1855) (“But here there is no 

such general forfeiture of property, or the right to maintain an 

action, on a conviction for treason or felony, and the maxim 

or principle of civilter mortuus cannot therefore apply in this 

State, even when he is a party plaintiff.”); Chin, 160 U. PA. L.

REV. at 1796 (“In England, civil death was a common law 

punishment, but in the United States, it existed only if 

authorized by statute. It was far from universal....”). And 

even when it applied to life sentences, the doctrine of civil 

death had to be at least partially reconceived because it had 

begun as a time-limited doctrine justified by the anticipation 

of natural death—it was “not a condition applicable 

potentially for decades.” See Chin, 160 U. PA. L. REV. at 1797. 

As courts hammered out the incongruities between civil 

death and continued life over the next century, they settled 

uncomfortably on an American version of civil death that 

required explicit statutory authorization and deprived a felon 

of many, but not all, rights.9 See, e.g., Avery, 18 N.E. at 154–55 

 

9 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., 45 N.Y.S.2d 717 (N.Y. 

Sup. Ct. 1943) (“Palpable anomaly inevitably results from attempting to 

attribute civil death, not only to persons about to be executed, but, also, to 

persons who may remain physically alive for many years and also may be 

paroled of pardoned.”); Byers v. Sun Sav. Bank, 139 P. 948, 949 (Okla. 1914) 

(“[Civil death] had its origin in the fogs and fictions of feudal 
No. 18-1478 47

(suggesting that a life convict maintained a right to defend an 

action brought against him and certain property rights,

including the ability to transfer property by will or deed).

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, 

35 Cal. 392, 396 (1868) (“If the convict be sentenced for life, he 

becomes civiliter mortuus, or dead in law .... If, however, he be 

sentenced for a term less than life, his civil rights are only 

suspended during the term.”); Ruffin v. Commonwealth, 62 Va. 

790, 796 (1871) (explaining that a convict is “civiliter mortuus,” 

but only “[f]or the time being, during his term of service in 

 

jurisprudence and doubtlessly has been brought forward into modern 

statutes without fully realizing either the effect of its literal significance or 

the extent of its infringement upon the spirit of our system of government. 

At any rate, the full significance of such statutes have never been enforced 

by our courts for the principal reason that they are out of harmony with 

the spirit of our fundamental laws and with other provisions of statutes.”); 

Avery, 18 N.E. at 155 (“Any one who takes the pains to explore the ancient 

and in many respects obsolete learning connected with the doctrine of civil 

death in consequence of crime, will find that he has to grope his way along 

paths marked by uncertain, flickering, and sometimes misleading lights; 

and he cannot feel sure that at some point in his course he has not missed 

the true road.”). But here, defining the precise impact of “civil death” on 

a felon sentenced to life is not as important as underscoring that the impact 

was no longer complete destruction of rights and death to the law. 
48 No. 18-1478

the penitentiary”); Bowles v. Habermann, 95 N.Y. 246, 247 

(1884) (applying a statute, which provided that “a sentence of 

imprisonment in a State prison for any term less than for 

life ... suspends, during the term of the sentence, all the civil 

rights ... of, or held by, the person sentenced.”). 

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.
No. 18-1478 49

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 the 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 
50 No. 18-1478

felons because of their poor character, without regard to 

whether they are dangerous. See Medina, 913 F.3d at 159 

(endorsing the view that the Second Amendment excludes 

not only the dangerous, but also the “unvirtuous”) The 

majority is sympathetic to this view. See Maj. Op. at 16.

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 
No. 18-1478 51

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 for 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, 702 F.3d 933, 935 (7th Cir. 2012). It squarely holds 

that “the Second Amendment confer[s] an individual right to 

keep and bear arms,” Heller, 554 U.S. at 595 (emphasis added), 

and it emphasizes that the Second Amendment is rooted in

the individual’s right to defend himself—not in his right to 

serve in a well-regulated militia, id. at 582–86. The “civic 

rights” approach runs headlong into both propositions. See

Binderup, 836 F.3d at 371 (Hardiman, J., concurring in part and 

concurring in the judgments) (“[T]his virtuous-citizens-only 

conception of the right to keep and bear arms is closely 

associated with pre-Heller interpretations of the Second 

Amendment by proponents of the ‘sophisticated collective 

rights model’ who rejected the view that the Amendment 

confers an individual right and instead characterized the right 

as a ‘civic right ....’” (citation omitted)). The parties have 

introduced no evidence that virtue exclusions ever applied to 

individual, as opposed to civic, rights.10 And if virtue 

 

10 The governments gesture towards Heller as support for a virtue 

exclusion, citing Heller’s assertion that the Second Amendment “surely 
52 No. 18-1478

exclusions don’t apply to individual rights, they don’t apply 

to the Second Amendment. 

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. Id. The same crimes 

often “made a person ineligible to serve as a witness in a legal 

proceeding,” id. at 62, and to serve on a jury.11

 

elevates above all other interests the right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.” 554 U.S. at 635. That 

statement implies that the legislature might have the power to more 

heavily regulate those who are not law-abiding or responsible. But it does 

not purport to analyze the scope of that power, nor does it endorse the 

very specific concept of a virtue exclusion. 

11 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”); id. § 7 (petit jurors 

must be “sober, discreet and judicious freeholders,... lawful men of fair 
No. 18-1478 53

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 enacted 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, 836 F.3d at 372 (Hardiman, J., concurring in part and 

concurring in the judgments) (“We have found no historical 

evidence on the public meaning of the right to keep and bear 

arms indicating that ‘virtuousness’ was a limitation on one’s 

qualification for the right—contemporary insistence to the 

contrary falls somewhere between guesswork and ipse 

dixit.”).12

 

characters”); Act of Dec. 17, 1796, § 52, in ACTS FOR THE COMMONWEALTH 

OF KENTUCKY 134 (Stewart 1796) (jurors must “be of good demeanor”).

12 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, 75 Stat. 757 
54 No. 18-1478

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 selfdefense, 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, 554 U.S. at 595, its limits are not defined by a general 

felon ban tied to a lack of virtue or good character.

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 

 

(1961) (amending the Federal Firearms Act by “deleting the words ‘crime 

of violence’ ... and inserting in lieu thereof the words ‘crime publishable 

by imprisonment for a term exceeding one year’”).
No. 18-1478 55

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, “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, 554 U.S. 570 (No. 

07–290) (Chief Justice Roberts: “[W]e are talking about lineal 

descendants of the arms but presumably there are lineal 

descendants of the restrictions as well.”).

That said, “the government does not get a free pass simply 

because Congress has established a ‘categorical ban.’” United 

States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010). The 

government could quickly swallow the right if it had broad

power to designate any group as dangerous and thereby

disqualify its members from having a gun. See Skoien, 614 F.3d 

at 641 (“We do not mean that a categorical limit on the 

possession of firearms can be justified under the rational-basis 

test, which deems a law valid if any justification for it may be 

imagined.”). The legislature must be able to justify its 

designation, and the rigor with which we review this 

justification “depends on ‘how close the law comes to the core 

of the Second Amendment right and the severity of the law’s 

burden on the right.’” Ezell II, 846 F.3d at 892 (citation 

omitted). “Severe burdens on the core right of armed defense 
56 No. 18-1478

require a very strong public-interest justification and a close 

means-ends fit ....” Id.

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 20 n.10 (quoting Ezell II, 846 

F.3d at 892). I disagree. First, felon dispossession statutes 

target the whole right, including its core: they restrict even 

mere possession of a firearm in the home for the purpose of 

self-defense. Cf. Heller, 554 U.S. at 630–35 (finding 

unconstitutional a law that made it impossible for citizens to 

use firearms for “the core lawful purpose of self-defense”); id.

at 628 (“[T]he inherent right of self-defense has been central 

to the Second Amendment right.”).13 And second, the burden 

is severe: it is a permanent disqualification from the exercise of 

a fundamental right. See Maj. Op. at 2–4; see also United States 

v. McCane, 573 F.3d 1037, 1048–49 (10th Cir. 2009)

(Tymkovich, J., concurring) (“[T]he broad scope of 

§ 922(g)(1)—which permanently disqualifies all felons from 

possessing firearms—would conflict with the ‘core’ self-

 

13 The majority suggests that who exercises the right changes what the 

core of the right is, see Maj. Op. at 20 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). 

554 U.S. at 635. Then, it indicated the need to consider whether Heller 

could be disqualified from exercising that right (the who). Id. (“Assuming 

that Heller is not disqualified from the exercise of Second Amendment 

rights, the District must permit him to register his handgun and must issue 

him a license to carry it in the home.”). Heller’s qualification or lack 

thereof did not change the content of the right itself; it affected whether 

the legislature could take it away. The same is true of Kanter here.
No. 18-1478 57

defense right embodied in the Second Amendment.”). Thus, 

“a very strong public-interest justification and a close meansends fit” is required before Kanter may be constitutionally 

subject to the United States and Wisconsin dispossession 

statutes. Ezell II, 846 F.3d at 892.

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 that 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.” 621 F.3d 681, 686 (7th

Cir. 2010). And in United States v. Meza-Rodriguez, we rejected 

a challenge to § 922(g)(5), which prohibits aliens unlawfully 

present in the United States from possessing firearms, 

reasoning that keeping guns out of the hands of “persons who 

are difficult to track and who have an interest in eluding law 
58 No. 18-1478

enforcement” serves the public-safety objectives of § 922(g).

798 F.3d 664, 673 (7th Cir. 2015).

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.14 It also encompasses those who 

have committed any nonviolent felony or qualifying state-law 

misdemeanor—and that is an immense and diverse category. 

It includes everything from Kanter’s offense, mail fraud, to 

selling pigs without a license in Massachusetts, redeeming 

large quantities of out-of-state bottle deposits in Michigan, 

and countless other state and federal offenses. See Mass. Gen. 

 

14 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), 52 Stat. 1250, 

1250 (1938)). Even today, many scholars cited as supporting a general

felon ban actually seem to assume or advocate something much closer to 

a violent-felon ban. See, e.g., Don B. Kates & Clayton E. Cramer, Second 

Amendment Limitations and Criminological Considerations, 60 HASTINGS L. J.

1339, 1362–63 (2009) (“At early common law, the term ‘felony’ applied 

only to a few very serious, very dangerous offenses such as murder, rape, 

arson, and robbery.... Insofar as federal or state statutes would seek to bar 

arms possession by [felons who ‘pos[e] no physical danger to others’],

those laws would seem to be invalid on their face.”); Stephen P. Halbrook, 

What the Framers Intended: A Linguistic Analysis of the Right to “Bear Arms”, 

49 LAW & CONTEMP. PROBS., Winter 1986, at 151, 161 (“[V]iolent criminals, 

children, and those of unsound mind may be deprived of firearms ....” 

(emphasis added)). 
No. 18-1478 59

Laws ch. 129, §§ 39, 43; Mich. Comp. Laws § 445.574a(1)(a), 

(2)(d); see also, e.g., 21 U.S.C. § 676 (violating the Federal Meat 

Inspection Act in certain ways); 18 U.S.C. § 1621 (committing 

perjury); Mass. Gen. Laws ch. 266, § 30A (shoplifting goods

valued at $100).15 These crimes, like many others captured by 

§ 922(g), “rais[e] no particular suspicion that the convict is a 

threat to public safety.” Winkler, 105 MICH. L. REV. at 721. Put 

more colorfully, “It is hard to imagine how banning Martha 

Stewart or Enron’s Andrew Fastow from possessing a gun 

furthers public safety.” Id.

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.

616 F.3d at 691. We held that the provision is constitutional as 

applied to violent felons, including the defendant in that case. 

616 F.3d at 694 (“Because Williams was convicted of a violent 

felony, his claim that § 922(g)(1) unconstitutionally infringes 

on his right to possess a firearm is without merit.”). But our 

decision came with an important qualification: we expressly 

noted 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.” Id. at 693. We 

asserted that “[e]ven if the government may face a difficult 

 

15 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, 827 F.3d 1171,

1176 n.5 (9th Cir. 2016) (“Can Congress or the States define petty larceny 

as a felony? Of course. Can a conviction for stealing a lollipop then serve 

as a basis under § 922(g)(1) to a ban a person for the rest of his life from 

ever possessing a firearm, consistent with the Second Amendment?”).
60 No. 18-1478

burden of proving § 922(g)(1)’s ‘strong showing’ in future 

cases, it certainly satisfies its burden in this case, where [the 

defendant] challenges § 922(g)(1) as it was applied to him.” 

Id. As a violent felon, the defendant in Williams was in no 

position to challenge § 922(g)(1) on the ground that its 

application to nonviolent felons is unconstitutional. See 

Skoien, 614 F.3d at 645 (“A person to whom a statute properly 

applies can’t obtain relief based on arguments that a 

differently situated person might present.”). As a nonviolent 

felon, however, Kanter is in a position to make that argument.

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, 616 F.3d at 692–

93. Williams held that because the characteristic common to all 

violent felons is a demonstrated propensity for violence, the 

ban on possessing firearms is constitutional as applied to all 

members of that class. Id. at 693–94. In contrast, and to state 

the obvious, the characteristic common to all nonviolent 

felons is that their criminal conduct was nonviolent.16 Thus,

the reasoning that supports the categorical disarmament of

 

16 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 24 (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.
No. 18-1478 61

violent felons—that past violence is predictive of future 

violence—simply does not apply.

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 be 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, 616 F.3d at 692–93. 

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 
62 No. 18-1478

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)17

have an arrest for a violent crime. Id at 45. But it does not 

specify whether the violent arrest preceded or post-dated the 

white-collar arrests, and the numbers drop dramatically for 

those with only two total offenses, id., suggesting that a 

pattern of criminality, rather than a particular mail-fraud 

arrest, might be an indication of future dangerousness, see id.

at 46 (“[T]hose with fewer arrests seldom had violent crimes 

in their criminal histories.”). This study falls well short of 

establishing the “close means-ends fit” required before the 

governments may totally and permanently strip offenders 

like Kanter of the ability to exercise a fundamental right.18

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 

 

17 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.

18 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. 
No. 18-1478 63

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 with lower rates of recidivism.” Maj. Op. 

at 23. 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, 616 F.3d at 692, but instead treats the Second 

Amendment as a “second-class right, subject to an entirely 

different body of rules than the other Bill of Rights 
64 No. 18-1478

guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780 

(2010) (plurality opinion). I therefore dissent.