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Amy Coney Barrett
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Looking at previous Amy Coney Barrett cases involving abortion, gun rights

Judge Amy Coney Barrett during Senate confirmation hearings. (Getty Images)

Like many Supreme Court nominees, Amy Coney Barrett is not in the habit of giving answers on current issues, which tends to cause people to take a look at how she ruled on past cases. Former Washington state Attorney General Rob McKenna joined Seattle’s Morning News to discuss what we can glean from them.

One of the cases that keeps coming up is Kanter v. Barr, a case about the right of a felon to have gun rights restored, and in which Barrett was dissenting. Kanter had been selling therapeutic shoe inserts that were not approved and getting Medicare reimbursement for them.

“Clearly a menace to society,” McKenna joked.

“So Kanter had his gun ownership taken away from him after he was convicted of a non-violent felony for mail fraud. And he argued that being convicted of a non-violent felony shouldn’t automatically disqualify someone from owning a gun. It was a three judge panel — as usual in the court of appeals — two judges agreed with the Trump administration’s arguments that this guy could not own a gun under federal or Wisconsin law because of his criminal conviction,” he said.

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“Judge Barrett wrote a 37 page dissent laying out the history of gun rules for convicted criminals over the last couple of centuries and wrote that while there’s definitely a strong interest in protecting the public from gun violence, the government failed to show, as she put it, by either logic or data that disarming Kanter substantially advances that interest. In other words, she said the second amendment is not a second class right. When she referred to treating the second amendment as a second class right, she was quoting from a 2010 opinion by Justice Samuel Alito that had extended gun rights.”

Many have also been trying to figure out just how pro-life she is. Have there been abortion cases before her in lower courts?

“Well, there are two times since she’s been a court of appeals judge that she has joined dissenting opinions asking for decisions by her colleagues that had blocked laws enacted by abortion opponents to be thrown out and reheard by the full appeals court. So what we’re talking about here is a panel of judges blocking a law that would make it harder for a minor to have an abortion without her parents being notified,” he said.

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“So pro-life legislators passed this law, making it harder for a minor to have an abortion without the parents being notified. The three judge panel blocks it. Judge Barrett votes to have the case reheard by the full court, so she wasn’t on that panel. She was part of a larger group of judges in the circuit, and that suggests that she was sympathetic to the Indiana law in that case.”

There’s at least one other case related to abortion, involving the concept of remains and specific circumstances for a ban.

“She also was one of four judges who one of the full court to weigh in on another Indiana law in 2018 requiring that funerals beheld for fetal remains after an abortion or miscarriage, and also would have banned abortions because of the sex, race or developmental disability of a fetus,” he said.

“A three judge panel blocked all those requirements. Judge Barrett comes in with other judges and says no. Let’s rehear that decision en banc, meaning with all seven judges. That case actually went up to the U.S. Supreme Court. They reinstated the fetal remains law. They did not reinstate the ban on abortions for race, sex and developmental disabilities,” he said.

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