Durbin presses Barrett on rights of felons to own guns and to vote

During the second day of confirmation hearings for Supreme Court nominee Amy Coney Barrett, Sen. Dick Durbin questions her about the rights of felons to own firearms and to vote.

Video Transcript

SEN. DICK DURBIN: But let me bring it closer to home and tie up the George Floyd question with where I'm headed. There's also a question as to whether the commission of a felony disqualifies you from voting in America. And the history on that is pretty clear. In an article, the "American Journal of Sociology" found that many felony voting bans were passed in the late 1860s and 1870s when implementation of the 15th Amendment and its extension of voting rights to African-Americans were ardently contested.

It still goes on today with voter suppression, but we know that in reconstruction, in the Jim Crow era, in black coded era, that was used. A felony conviction was used to disqualify African-Americans from voting in the South and in many other places. The Sentencing Project today has found that more than six million Americans can't vote because of a felony conviction and one out of every 13 Black Americans have lost their voting rights.

The reason I raise that is that in your dissent, you said disqualifying a person from voting because of a simple-- because of a felony is OK, but when it comes to the possession of firearms, wait a minute. We're talking about the individual right of a Second Amendment. What we're talking about in voting is a civic right, a community right-- however you defined it.

I don't get it. So you're saying that a felony should not disqualify Ricky from buying an AK-47, but using a felony conviction in someone's past to deny them the right to vote is all right?

AMY CONEY BARRETT: Senator, what I said was that the Constitution contemplates that states have the freedom to deprive felons of the right to vote. It's expressed in the constitutional text. But I expressed no view on whether that was a good idea, whether states should do that, and I didn't explore in that opinion because it was completely irrelevant to it what limits, if any, there might be on a state's ability to curtail felon voting rights.

SEN. DICK DURBIN: Did you not distinguish the Second Amendment right from the right to vote, calling one an individual right under the Constitution and the other a civic right?

AMY CONEY BARRETT: That's consistent with the language and the historical context, the way the briefs described it, and it was part of the dispute in Heller of whether the Second Amendment was an individual right or a civic one that was possessed collectively for the sake of the common good. And everybody was treating voting as one of the civic rights.

SEN. DICK DURBIN: Well, I will just tell you that the conclusion of this is hard to swallow. The notion that Mr. Kanter, after all that he did, should not be even slowed down when he's on his way to buy a firearm. My goodness, it's just a felony. It's not a violent felony that he committed. And then to turn around on the other hand and say, well, but when it comes to taking away a person's right to vote, that's a civic duty. It's something that we could countenance.

That is-- really goes back to the original George Floyd question. That was thinking in the 19th century that resulted in voter suppression and taking away the right to vote from millions of African-Americans across this country. And it still continues to this day. I just don't see it. I think the right to vote should be given at least as much respect as any Second Amendment right. Do you?

AMY CONEY BARRETT: Senator, the Supreme Court has repeatedly said that voting is a fundamental right, and I fear that you might be taking my statement in Kanter out of context. What I said in that opinion was distinguishing between-- it was a descriptive statement of the state of the court's case law comparing it to felon-- stripping felons of Second Amendment rights. I expressed no view about whether-- what the constitutional limits of that might be or whether the law should change with respect to felon voting rights, and obviously that's a contested issue in some states that are considering it right now. And I have no view on that, and it wasn't the subject of Kanter.

SEN. DICK DURBIN: It may not have been. It wasn't the subject of the case, that's for sure. But in your writings, you raised this. It was part of your dissent discussing the right to vote and a felony conviction eliminating it. I'm afraid it's inescapable. You've got to be prepared to answer this kind of question. I read it and thought I can't imagine that she's saying this, but I'm afraid I was left with a suggestion you might.