A22 N THE NEW YORK TIMES NATIONALTUESDAY, DECEMBER 1, 2020
lent crimes from owning guns.
“Lisa Folajtar asks us to treat
her as an equal member of soci-
ety,” he wrote. “Though her
tax-fraud conviction affects some
of her privileges, it does not
change her right to keep and
bear arms.”
Judge Bibas wrote that his
analysis had drawn heavily from
a dissent last year in a similar
case concerning a man convicted
of mail fraud.
That dissent was written by
Justice Barrett when she was a
judge on the federal appeals
court in Chicago. The law forbid-
ding people with felony convic-
tions from owning guns, she
wrote, should not apply when the
crimes in question were nonvio-
lent.
“History does not support the
proposition that felons lose their
Second Amendment rights solely
because of their status as felons,”
she wrote. “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.”
Voting and jury service are
different, she wrote, because
those are “rights that depend on
civic virtue.”
The Supreme Court has not
issued a major Second Amend-
ment decision since a pair of
rulings, in 2008 and 2010, estab-
lished an individual right for
law-abiding citizens to keep guns
in their homes for self-defense.
Beyond that, the justices have
said almost nothing about theWASHINGTON — Justice
Amy Coney Barrett is just start-
ing to make her mark at the
Supreme Court.
On Wednesday, her vote
flipped the court’s
approach to restric-
tions on attendance at
religious services dur-
ing the coronavirus
pandemic. While Jus-
tice Ruth Bader Gins-
burg was alive, the court had
allowed such limits, in California
and Nevada, by 5 to 4 votes.
After Justice Barrett succeeded
her, she joined the court’s four
most conservative justices to
strike down restrictions in New
York.
Those same four justices are
now on high alert for a promising
case in which to expand Second
Amendment rights, having writ-
ten repeatedly and emphatically
about the court’s failure to take
gun rights seriously. Justice
Barrett seems poised to supply
the fifth vote they need.
A Second Amendment case
decided last week by the federal
appeals court in Philadelphia is a
promising candidate for Supreme
Court review, not least because it
presents an issue on which Jus-
tice Barrett has already taken a
stand.
It concerns Lisa M. Folajtar,
who would like to buy a gun. But
she is a felon, having pleaded
guilty to tax evasion, which
means under federal law she
may not possess firearms.
She sued, arguing that the law
violated her Second Amendment
rights. A divided three-judge
panel of appeals court rejected
her challenge, saying that com-
mitting a serious crime has con-
sequences. It can lead to losing
the right to vote, to serve on a
jury — or to have a gun.
The ruling adopted the position
of the Trump Justice Depart-
ment. “The right to keep and
bear arms is analogous to other
civic rights that have historically
been subject to forfeiture by
individuals convicted of crimes,
including the right to vote, the
right to serve on a jury and the
right to hold public office,” law-
yers for Attorney General
William P. Barr told the appeals
court.
In dissent, Judge Stephanos
Bibas, a former law professor
appointed to the court by Presi-
dent Trump (and the author of a
scathing decision on Friday
rejecting the president’s chal-
lenge to the election results in
Pennsylvania), wrote that the
framers of the Constitution would
not have allowed lawmakers to
bar felons convicted of nonvio-
scope of the right, and lower
courts have sustained many
kinds of gun control laws.
Before Justice Barrett’s arriv-
al, the court’s four most conser-
vative justices had repeatedly
written that the court should
return to the subject of the Sec-
ond Amendment
In 2017, for instance, Justice
Clarence Thomas, joined by
Justice Neil M. Gorsuch, wrotethat they had detected “a dis-
tressing trend: the treatment of
the Second Amendment as a
disfavored right.”
“For those of us who work in
marbled halls, guarded con-
stantly by a vigilant and dedi-
cated police force, the guaran-
tees of the Second Amendment
might seem antiquated and
superfluous,” Justice Thomas
wrote. “But the framers made a
clear choice: They reserved to all
Americans the right to bear arms
for self-defense.”
In June, however, the court
turned down some 10 appeals in
Second Amendment cases. Since
it takes only four votes to grant
review, there is good reason to
think that the court’s conserva-tive wing was unsure it could
secure Chief Justice John G.
Roberts Jr.’s vote.
Justice Barrett’s arrival
changes the calculus. Should Ms.
Folajtar appeal to the Supreme
Court, it is a good bet that Justice
Barrett will find her arguments
persuasive.
Still, the 2008 decision, District
of Columbia v. Heller, would
seem to create a hurdle for Ms.
Folajtar. The majority opinion,
written by Justice Antonin
Scalia, included an important
limiting passage, the price of
Justice Anthony M. Kennedy’s
crucial fifth vote.
“Nothing in our opinion,” Jus-
tice Scalia wrote, “should be
taken to cast doubt on longstand-
ing prohibitions on the pos-
session of firearms by felons.”
Last year, the court agreed to
hear a challenge to a New York
City gun-control ordinance. But it
ended up dismissing the case in
April, after the city repealed the
ordinance.
Dissenting from that ruling,
Justice Samuel A. Alito Jr. noted
that the Heller decision “recog-
nized that history supported the
constitutionality of some laws
limiting the right to possess a
firearm,” including ones “pro-
hibiting possession by felons and
other dangerous individuals.”
That last phrase, which did not
appear in the earlier decision,
may be significant. In shifting
the focus to dangerousness, it
seemed to open the door to the
position taken by Justice Barrett.Barrett’s Vote Could Tilt Court on Gun Rights
ADAM
LIPTAK
SIDEBARJustice Amy Coney Barrett has said laws forbidding guns should not apply to nonviolent felons.OLIVER CONTRERAS FOR THE NEW YORK TIMESJustices have chafed
at the failure to protect
the 2nd Amendment.
On Monday, the Supreme
Court heard arguments on a
question that goes to the heart of
American democracy: Must the
government count everyone
living in the country, citizens or
not, in the census totals that the
House of Representatives uses to
reallocate its 435 seats among
the states?
For more than two centuries,
the answer has been “yes.” Both
Article 1 of the Constitution and
the 14th Amendment require that
House seats be allotted accord-
ing to “the whole number” of
persons in each state. That
phrase has long been read to
include all the nation’s residents,
whether American citizens,
foreigners admitted here on
visas or immigrants with no
documents at all. But President
Trump signaled in a memoran-
dum this summer that he intends
to exclude unauthorized immi-
grants from the 2020 census
totals that he hopes to send to
the House next year for use in
reapportionment.
Federal courts have ruled in
three separate lawsuits that Mr.
Trump lacks that authority, say-
ing in one case that the question
was not even close. But the Su-
preme Court will have the final
say. Here’s a rundown of some of
the basics behind the issue:
What’s at stake in the case?
First and foremost, the allocation
of political power. No precise
count of unauthorized immi-
grants exists. Mr. Trump has
ordered the Census Bureau to
come up with an estimate, but
many experts put the number at
about 11 million.
Many are concentrated in
states with large immigrant
populations, such as New York
and Texas, and in states like
California and Florida where
undocumented immigrants also
are in demand for farm work.
Some of those states and a few
others could lose House seats if
unauthorized immigrants were
excluded from census totals.
Conversely, some states with
few unauthorized immigrants
could pick up those seats. Ala-
bama, for example, appears set
to lose one of its seven House
seats in the next reappor-
tionment; the state is arguing in
a separate lawsuit that undocu-
mented immigrants are illegally
depriving its citizens of fair
representation. Many experts
feel that restricting the count to
citizens would tend to benefit
states that are rural and Republi-
can at the expense of ones that
are urban and Democratic. But
the Republican Party’s gains
probably would be small, most
say, given that big Republican
states like Texas would be
among those that could be af-
fected by the change.What are the legal arguments for
and against excluding unauthor-
ized immigrants from reappor-
tionment totals?
The Justice Department argues
that federal law gives the presi-
dent discretion to make policy
judgments about whom the cen-
sus counts. That discretion in-
cludes setting the definition of an
“inhabitant” or “usual resident”
of the United States, two terms
that have historically been used
to describe people who qualify to
be counted in a census.
The president’s lawyers say
federal law gives “virtually un-
fettered discretion” to the Com-
merce Department — the federal
agency that oversees the Census
Bureau — to decide what data is
used in counting individual resi-
dents of states.
Opponents of the president’s
plan say 230 years of history are
on their side. Noncitizens have
been counted in every census —
and used in every reappor-
tionment of the House — since
the very first census was con-
ducted in 1790. In the nation’s
early history, a substantial share
of the population had migrated
from other countries, and for
many decades thereafter, some
states actively recruited foreign-
ers to provide labor and boost
political representation. The
framers of the Constitution
elected to exclude some people
from being counted — “Indians
not taxed” and, most notoriously
the decision to count someone
who was enslaved as three-fifthsof a person — but left noncitizens
intact. The drafters of the 14th
Amendment debated whether to
count all immigrants for appor-
tionment purposes, and elected
in the end to do so.
The opponents also say that
the Constitution explicitly re-
quires that the decennial census
be used for reapportionment, and
that Mr. Trump has no authority
to deduct unauthorized immi-
grants from that census before
sending population totals to the
House.How have federal courts ruled on
the issue so far?
Three courts — in New York,
Maryland and California — have
ruled against the White House on
varying grounds and in some
cases barred the Commerce
Department from sending a
count of unauthorized immi-
grants to the White House. The
California court ruled that ex-
cluding noncitizens violated both
federal law and the Constitution.
In New York, a panel of three
judges, two appointed by Presi-
dent George W. Bush and one by
President Barack Obama, said
unanimously that “the merits of
the parties’ dispute are not par-
ticularly close or complicated.”
The panel said federal law re-
quires the government to
produce a single set of popula-
tion figures for reapportionment,
making Mr. Trump’s plan for a
separate estimate of unauthor-
ized immigrants moot. The
judges also said that “so long as
they reside in the United States,
illegal aliens qualify as ‘persons’
in a ‘state’ as Congress used
those words.”
Because of that, the judges
said, there was no need to takeup the question of whether the
president’s plan also violated the
Constitution.Is it even possible to count the
number of unauthorized immi-
grants in the country?
It would be extremely hard, if
only because many of them are
trying their best to avoid being
seen for fear of deportation. The
Trump administration had or-
dered the Census Bureau to add
a citizenship question to the 2020
census in an attempt to come up
with a tally, but the Supreme
Court ruled in 2019 that the Com-
merce Department had failed to
offer a plausible explanation of
why the question was needed.
On the president’s order, a
Census Bureau task force is
working to provide a count any-
way, mostly by sifting through
federal and state records that
show conclusively who is a citi-
zen — and by implication, who is
not. A handful of records, such as
compilations of people marked
for deportation, do identify peo-
ple who are in the county ille-
gally, but those tallies are a small
fraction of the entire population
of unauthorized immigrants.
It appears unlikely that the
bureau will produce an estimate
of unauthorized immigrants by
the Dec. 31 statutory deadline for
sending population totals to the
White House. Indeed, Census
Bureau officials told the Com-
merce Department last month
that the 2020 census itself could
not be completed until after Mr.
Trump leaves office on Jan. 20.
The bureau’s experts neverthe-
less are racing to complete a
count of unauthorized immi-
grants for delivery to Mr. Trump
in early or mid-January.Case to Drop Noncitizens
In Census Goes to Heart
Of American Democracy
By MICHAEL WINESPresident Trump signaled this summer that he intends to ex-
clude unauthorized immigrants from the 2020 census totals.DARIO LOPEZ-MILLS/ASSOCIATED PRESSWASHINGTON — A skeptical
Supreme Court on Monday re-
acted with frustration and some
confusion to President Trump’s
plan to exclude unauthorized im-
migrants from the calculations
used to allocate seats in the
House.
While there was some discus-
sion about whether the plan was
lawful, the more immediate ques-
tions for the justices were where
the administration stood in its ef-
forts to identify and count the un-
authorized immigrants and what
role the court should play if sub-
stantial numbers were not identi-
fied.
Removing undocumented im-
migrants from the census would
most likely have the effect of shift-
ing congressional seats and fed-
eral money to states that are older,
whiter and typically more Repub-
lican.
But if the Census Bureau cannot
provide Mr. Trump with specific
information about a large enough
number of unauthorized immi-
grants in the coming weeks, he
will not be able to exclude enough
of them from the reapportionment
to change the way House seats are
allocated. That would leave the
justices without a concrete dis-
pute to decide.
“The situation is fairly fluid,”
Jeffrey B. Wall, the acting United
States solicitor general, told the
justices, conceding that the Cen-
sus Bureau may not be able to
supply Mr. Trump with much data
on unauthorized immigrants.
“There is a real prospect that the
numbers will not affect the appor-
tionment,” he said.
Justice Samuel A. Alito Jr. said
that put the court in an odd posi-
tion.
“I find the posture of this case
quite frustrating,” he said. “It
could be that this is much ado
about very little.”
The Commerce Department is
required to supply census infor-
mation to the president by the end
of the year, but it may not be able
to meet that deadline. Mr. Wall in-
dicated that the Census Bureau
had good data on the tens of thou-
sands of people held by Immigra-
tion and Customs Enforcement,
but the number is almost certainly
too small to change apportion-
ment.
He was less certain that the bu-
reau could match records con-
cerning people subject to orders of
removal, young immigrants
known as Dreamers or other cate-
gories of unauthorized immi-
grants.
If there is data to allow Mr.
Trump to exclude enough immi-
grants to change the allocation of
House seats, the case would be-
come quite important.
Indeed, if the court rules for the
administration on the core ques-
tion in the case, it would upend a
longtime consensus that the gov-
ernment must count all residents
of the United States, whatever
their immigration status, with the
potential to shift political power
and federal money from Demo-
cratic states to Republican ones.
But there was only limited dis-
cussion of that question on Mon-
day, though several justices, in-
cluding some conservatives, ex-
pressed skepticism about the ad-
ministration’s arguments.
“A lot of the historical evidence
and longstanding practice really
cuts against your position,” Jus-
tice Amy Coney Barrett told Mr.
Wall.
He responded that the novelty
of Mr. Trump’s approach did not
make it unlawful. “I’ll certainly
grant,” Mr. Wall said, “that no
president has made this judgment
before.”
Most of the argument focused
on the practical complications in
the case.
Mr. Wall said the process was
cumbersome and difficult. “We’re
literally trying to individually
identify people who are present in
the United States in violation of
federal law,” he said.
Mr. Wall suggested that the
plaintiffs could file a new lawsuit
after Mr. Trump submits a state-
ment to Congress setting out the
number of representatives to
which each state is entitled if
House seats shift because of the
exclusion of unauthorized immi-
grants.
Chief Justice John G. Roberts
Jr. was skeptical. “Isn’t that going
to be like having to unscramble
the eggs?” he asked.
Other justices wondered
whether the court should simply
defer a decision in the current
case, which it had put on an excep-
tionally fast track, until more in-
formation becomes available in
the coming weeks.
The Constitution requires con-
gressional districts to be appor-
tioned “counting the whole num-
ber of persons in each state,” us-
ing information from the census.
In July, Mr. Trump issued a memo-
randum taking a new approach.“For the purpose of the reappor-
tionment of representatives fol-
lowing the 2020 census,” the
memo said, “it is the policy of the
United States to exclude from the
apportionment base aliens who
are not in a lawful immigration
status.”
“Current estimates suggest
that one state is home to more
than 2.2 million illegal aliens, con-
stituting more than 6 percent of
the state’s entire population,” the
memo said, apparently referring
to California. “Including these ille-
gal aliens in the population of the
state for the purpose of apportion-
ment could result in the allocation
of two or three more congres-
sional seats than would otherwise
be allocated.”
In the memo, Mr. Trump or-
dered Wilbur Ross, the secretary
of commerce, to provide him with
two sets of numbers, one includ-
ing unauthorized immigrants and
the other not. But it became un-
clear how Mr. Ross would derive
the second set of numbers after
the Supreme Court last year re-
jected his efforts to add a question
on citizenship to the census.
The case before the court,
Trump v. New York, No. 20-366,
was brought by two sets of plain-
tiffs, one a group of state and local
governments and the United
States Conference of Mayors, and
the second a coalition of advocacy
groups and other nongovern-
mental organizations.
A three-judge panel of the Fed-
eral District Court in Manhattan
ruled that the new policy violated
federal law. Two other courts have
issued similar rulings, while one
said the dispute was not ripe for
consideration.
In an unsigned opinion in the
case from Manhattan, the panel
said the question before it was
“not particularly close or compli-
cated.”
“The secretary is required to re-
port a single set of figures to the
president — namely, ‘the tabula-
tion of total population by states’
under the ‘decennial census’ —
and the president is then required
to use those same figures to deter-
mine apportionment using the
method of equal proportions,” the
panel wrote, quoting the relevant
statutes.
Chief Justice Roberts ques-
tioned the first part of the analy-
sis. “It seems to me that you’reasking really for a gag order on
the secretary of commerce con-
cerning his communications to
the president,” he told Barbara D.
Underwood, New York’s solicitor
general.
Ms. Underwood said the secre-
tary was free to provide informa-
tion about unauthorized immi-
grants in other ways. “It might be
usable for many other things,” she
said, “but not as part of the appor-
tionment.”
Mr. Wall told the justices that it
was lawful to exclude unauthor-
ized immigrants. “It’s the sover-
eign’s prerogative to define the po-
litical community,” he said.
Ms. Underwood responded that
the administration was asking the
court to endorse a stunning depar-
ture from the nation’s traditions.
“The Constitution and laws pro-
vide that House seats should be al-
located on the basis of total popu-
lation,” she said. “The framers
wanted a system that could not
easily be manipulated. So they de-
cided to count just the persons liv-
ing in each state. The policy here
would for the first time in this na-
tion’s history reject that choice.”
Dale Ho, a lawyer with the
American Civil Liberties Union,
said Mr. Trump’s authority was
limited.
“While the president may have
some discretion in borderline
cases,” Mr. Ho said, “he does not
have authority to erase millions of
state residents from the appor-
tionment based solely on unlawful
immigration status.”
The argument was conducted
by telephone, with the justices
asking questions one at a time, in
order of seniority, subject to strict
time limits enforced by the chief
justice. At one point, Justice Alito
seemed to chafe at that restric-
tion, launching into a six-part
question after the chief justice had
indicated that his time was up.
He managed to ask three of his
six questions before Chief Justice
Roberts cut him off.Justices Look at Plan
By Trump to Redistrict
Based on Culled Tally
By ADAM LIPTAKFrustration and
confusion on the
court about its role.
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