mercifully. and it has remained ever since then at nine justices. joe biden himself, as a u.s. senator, as a member of this body, in a proceeding of this committee in 1980 three gave arousing speech that i recommend to all talking about the very thing, knowledge and the constitution does not require it, but a respect for the separation of powers really ought to lead to a sticking to the number nine. don't pack the court. in recent days i've seen some in the media, some of this body try to redefine what it means to pack the court. some suggest that it takes various forms, it can be confirming people all at once, some suggest it is doing what the trump administration and the republican senate have been doing for three and a half years, which is filling vacancies as they have arisen and doing so with textual list,

,riginalist -- textualist originalist judges. this is not for packing. say thebin: let me just affordable care act is part of this. to makea group i want you aware of. this is the williams family. they have four sons, mac, joey, tommy, and mikey. , 27, diagnosed with type one diabetes leaves 13. the other three boys of cystic fibrosis. away after passed

this picture was taken. this was the last photo ever taken of their full family. here is what they wrote. people with cystic fibrosis access daily medication, to high-quality specialist care. that means people with pre-existing conditions like cystic fibrosis cannot be discriminated against. -- aca's protections include insist on a ban on annual and lifetime caps. they need adequate, affordable health care to live longer, healthier lives. on the republican side, there's obvious controversy as to whether we are right or wrong.

you can imagine. the list goes on. thank you. curious what it comes down to pure and you have been unequivocal of being critical of decisions. and we naturally draw the conclusion that there will be a third strike when it comes to texas and california. you said it will not affect pre-existing conditions. if the petitioners have their way, there will not be an affordable care act to protect pre-existing conditions on the severability question. give us an insight how you can be so unequivocal in opposing but haveity decisions

an open mind when it comes to the future of the affordable care act? judge barrett: sure. thank you for that question senator durbin -- question, senator durbin. wrote as a law professor of those decisions, i did critique the statutory interpretation of the majority opinion and as i mentioned before my description was consistent with the way that chief justice roberts described the statutory question. i think your concern is because i critiqued the statutory reasoning that i am hostile to the aca and because i am hostile to the aca that i would decide the case of particular way, and i assure you i am not. i am not hostile to the aca. i am not hostile to any statute that you have. i have commented, we

can talk about the distinctions between academic riding and judicial decision-making, -- writing and judicial decision-making, this is an entirely different legal question of severability i would reach a particular result that just assume i am hostile and that's not the case. i apply the law, i follow the law, you make the policy. sen. durbin: let's talk about this for a moment. bear with me. have you seen the george floyd video. -- video? judge barrett: i have. sen. durbin: what impact did it have on you? senator, as you might imagine, given that i have two black children, that was very, very personal for my family. jesse was with the boys on a camping trip in south dakota and

i was there and my seven-year-old daughter vivian, who was adopted from haiti -- it was very difficult for her. we wept together in my room and it was also difficult for my daughter julia who is 10. i had to try to explain some of this to them. my children to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence and for vivian, to understand this could be her brother or the son she might have one day, that kind of brutality has been an ongoing conversation. it's a difficult one for us like it is for americans all over the country. sen. durbin: and so, i would like to ask, as an originalist who has a passion for history -- i can't imagine you can separate the 2 --to reflect on the history of this country.

where are we today on the issue with race? some argue it's fine. you don't even have to teach children about the history of slavery or discrimination. others say there's implicit bias in so many aspects of american life that we have to be very candid. others go further and say, no, it's systemic racism built into america and we have to be much more when tate in our dressing be much more pointed in our addressing it. have you feel? ange barrett: i think it's entirely uncontroversial an obvious statement that racism persists in our country. as to putting my finger on the nature of the problem, whether, as you say, it's just outright or systemic racism or how to tackle the issue of making it better, those things, you know,

our policy questions. they are hotly-contested policy questions that have been in the news and discussed all summer. while i did share my personal experience, i'm very happy to discuss the reaction my family had to the george floyd video, given the broader statement, broader diagnoses about the problem of racism is beyond what i am capable of doing as a judge. sen. durbin: i would doubt that. i don't believe you can be as massionate about originalis and the history behind language we have had for decades, if not centuries, without having some thought about where we stand today that i am not going to press you on that -- but i'm not going to press you on that. take you to a case i have read and reread, canada

versus bar. this is a case where you had your day in court. you wrote the sole dissent. pages wasge case, 37 your dissent. there is the way i understand the case. . cantor fromed ricky wisconsin invented pads to be put in issue to be sold to particularly older americans under medicare to relieve foot pain. and he designed them and submitted them to medicare and did not get the approval he was looking for, but instead sold them and represented to many customers they had been approved by had been approved by medicare. charged with fraud. this was not a matter of a casual misapplication of the law. when it was all said and done,

ricky cantor ended up spending a year and a day in federal prison paying somewhere near $300,000 in penalties and fines and $27 million in a civil settlement on this issue. a casualnot wrongdoing. this man was a swindler and was taking the federal government for a ride and misleading senior this product and paid a heavy price for it. then he decided having left prison that it was fundamentally unfair the law says if you have been convicted of a felony you cannot own a firearm. i don't know what his appetite is when it comes to firearms, whether it's a revolver or an ak-47 with a banana clip. but he went to court and said this is unfair. it was just mail fraud and you are taking away my second amendment rights.

two out of three of your ricky,ues said sorry, you have forfeited your right to own a firearm because of your conviction of a felony. approach. different the opposite approach and went deep into history, i think the 1662 to citation was figure out what was going on here and whether or not he had to have committed a violent felony to have forfeited his right to own a firearm. have i stated the facts close to what you are number? judge barrett: i don't remember the amount of the loss, some of the details, but yes ricky cantor was convicted of selling fraudulent shoe inserts and it was a felony. 27 million dollars settlement along the way. when the decision was handed down, justice scalia expressly said i am not taking away the authority of government to

impose limitations based on felonies, not violent felonies, felonies and mental illness. he said as much in the decision and yet, this man who was your inspiration, who you have told us all, you decided he was wrong and it had to be a violent felony. can you explain why? can. barrett: i we've talked about precedent and in my court, the seventh circuit, there's a phrase that that does not control, as my colleague has said a number of times, statutes should not be read as if they were. heller was not about the scope of the right, its application to felons or those who are mentally ill, etc., so that package did not fully dive down into it. what i did was apply heller's scalia'sgy, justice

opinion and justice stevens dissent and used an originalist methodology to answer that question and i concluded based on that history one could not pick the right way simply because there was a felon. i did not rule out the possibility the government might be able to make that showing about ricky cantor but we ought to be careful about saying that because someone is a felon they lose any of their individual rights. sen. dubin: i want to get to that point but i want to stick with this for just a moment more. i'm honored to represent the city of chicago in the state of illinois. it's a great city but it has great problems and one of them is gun violence. on average we know, 100 americans are killed by gunfire, 40,000 per year. in the city of chicago, more than 3200 people have been shot just this year. according to the gun trace

report in 2017, the majority of illegally used or possessed firearms recovered in chicago were traced back to states with less regulation over firearms, such as indiana or mississippi. found indianat alone was the source of 21% of all of chicago's crime guns. we know how it works, where you live, you know how it works, there's a traffic between northern chicago and indiana, gun shows are held in gary, indiana and other places and when they are selling these without ground checks, these gang bangers and thugs fill up the trunks of their cars with firearms and had into the city of chicago and kill everyone from infants to older people. it is a horrific situation. law enforcement is fighting it, trying to get indiana to do background checks with limited success and we are trying to

apply the standards you disqualify yourself buying a firearm to felonies and mental illness and you want to take away part of that protection with your decision in this case. felonies andate confine it to violent felonies, you are opening up more opportunities for people to buy firearms, are you not? judge barrett: you referred to gang members and thugs buying guns in indiana and taking them across the border, and certainly , if they had felony convictions for doing the kinds of things members of gangs and thugs do, nothing in cantor says the government can't deprive them of firearms. they simply had to make the showing of dangerousness before they did so and nothing in the opinion opines that all on the legality of background checks and gun licensing.

those are separate issues. sen. dubin: that the majority zeros in and says with the majority has said is impractical and we are going to go case-by-case and decide what kind of felonies or what kind of person, then they go on to produce evidence -- you know it well because you wrote the dissent, where the likelihood of committing a violent felony after being convicted of a felony is pretty dramatic. they are saying don't force us to make it case-by-case. we want to make it by category. it's the only practical way to deal with the thousands if not millions of people buying firearms. you are aware of the fact that even those who are not violent felons, only felons like ricky cantor have a propensity to commit violent felonies in the future, are you not? judge barrett: there was no evidence of that in the case. thecareer criminal act at federal statute has to make judgments categorically all the time about what would count as

crimes of violence, so i don't think that is beyond the can to identify which felonies are violent and which felonies are not. sen. dubin: i went to address that issue. let's go to page 21 of the opinion of what the majority of the court said. yancey,ons, they quoted most felons are nonviolent. but someone with a conviction is more likely that a non-felon to engage in violent gun use. 210,000 886 nonviolent offenders found one out of five were rearrested for a violent crime within three years. so, the evidence is there for the court to consider and you ignored it. judge barrett: senator, i did not ignore it. the evidence in the studies were unclear. as i'm sittingr here the details of all the statistics, but i did consider

it and recall saying something in the opinion about the reliability of those studies because they did not say whether someone had been convicted of a nonviolent crime but had later been convicted of a violent crime. ofonies cover a broad range things, including selling pigs without a license, redeeming to many bottle caps in michigan -- so felonies cover a broad swath of conduct, not all of which seems indicative of whether someone is likely to abuse a firearm. go. dubin: i'm not going to so far back in history but i am going to take you back in history for a moment and note when the second amendment was written and you did the analysis of it, we were talking about the likelihood a person could purchase a muzzle loading musket. we are now talking about military style weapons.

maybe an originalist pins all of their thinking to that musket, but i've got to bring it to the 21st century and the 21st century has people being killed on the streets of chicago because of the proliferation of deadly firearms. but let me bring it closer to home and tie up the george floyd question with where i'm headed. there's a question as to whether the commission of a felony disqualifies you from voting in america and history on that is pretty clear. americanicle the journal of sociology found, many voting fans were cast -- bands were cast in the late 1860's and 1870's when implementation of the 15th amendment and the ascent of voting rights to african americans were ardently contested. it still goes on today with voter suppression, but in the lack covida and the conviction was

used to disqualify african-americans from voting in the south and many other places. the sentencing project today has found more than 6 million americans cannot 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 in your dissent, you say disqualifying a person from of a felony is ok, but when it comes to the possession of firearms, we are talking about the individual right of a second amendment. we are talking about voting as a civic writer community right, i don't get it. you are saying 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? judge barrett: what i said was that the constitution contemplates states have the freedom to deprive felons of

their rights to vote if expressed in the constitutional test. but i express no view on whether that was a good idea on whether states should do that and i did not explore that opinion because it was irrelevant to it what limits if any there might be on a state's ability to curtail felon voting rights. sen. dubin: did you not distinguish this second amendment right from the right to vote calling one an individual right under the constitution and the other a civic right? judge barrett: that is consistent with the language and historical context and it was part of the dispute in heller of whether the second amendment was an individual right or a civil one possessed collectively for the sake of the common good and everyone was treating voting is one of the civic rights. sen. dubin: i will tell you that the conclusion of this is hard to swallow. the notion mr. cantor, after all he did should not be even slow down if he is on his way to buy a firearm, it's just a felony.

it's not a violent felony. then to turn around and say when it comes to taking away a person's right to vote, that's the civic duty, something we can count. that 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? judge barrett: the supreme court has said voting is a fundamental right and i fear you may be's taking my statement out of context. what i said was distinguishing the course case law, comparing it to felons second rights, i

asked pressed no view about what the constitutional limits of what that might be or whether the law should change and obviously that is a contested issue in some states considering it right now and i have no view on that and it was not the subject of cantor. sen. dubin: it was not the subject of the case, that's for sure, but in your writing, you raise this, discussing the right to vote in a felony conviction. i'm afraid it is inescapable. you've got to be prepared to answer this kind of question. imagine that she's saying this. said thee: you have meaning of law does not change with time and you have said that is very important. can you unpack why that so important that it is not the same? judge barrett: i