The categorical ban on gun possession by people with felony records is therefore “wildly overinclusive,” Barrett noted, quoting UCLA law professor Adam Winkler. “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,” she wrote.
The ban is also underinclusive, she added, since people may reasonably be deemed dangerous even when they have not been convicted of a felony—for example, when they commit certain violent misdemeanors (another disqualification under federal law).
Given the poor fit between the ban’s scope and its ostensible purpose, Barrett said, it is not “substantially related to an important government interest”—the test under the “intermediate scrutiny” that the majority said it was applying in this case. “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,” she wrote.
“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, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”