It has been a while since I have blogged on this topic, so I thought it would be a good time to update ATK'ers on a recent case from the 7th Circuit. The case, U.S. v. Skoien, received very little press, but was important because it used Heller to overturn a fairly big federal gun law.
Mr. Skoien was arrested for violating 18 U.S.C. § 922(g)(9), which prohibits people convicted of misdemeanor domestic violence from possessing a firearm. He had been convicted of misdemeanor domestic battery a year prior to the police finding a shotgun in his truck that he had used to kill a deer during hunting season. He argued that 18 U.S.C. § 922(g)(9) violated his second amendment right to have a gun for self-defense. In his argument, he crought up Heller. He moved to dismiss the indictment in the US District Court and this was denied. The Court of Appeals vacated the denial and sent the case back to District Court.
Here is the text of the case. Basically, it said that Heller upholds a right to own firearms for self-defense and that the government failed to show that the law was reasonable under an intermediate standard of scrutiny:
The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke D.C. v. Heller’s language about certain “presumptively lawful” gun regulations — notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.
Later in the decision:
As such, the government’s application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated. Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. No one questions the importance of the government’s interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)’s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough. Accordingly, we vacate Skoien’s conviction and remand to the district court for further proceedings consistent with this opinion.
I should note that this case is from last fall. Since then, it has been decided that it will be heard en banc, or by the entire court, instead of just a three judge panel. If I had to guess, I would say that the entire court will follow what the panel said. In addition, the fourth circuit has decided a similar case on the same grounds,
U.S. v. Chester (4th Cir. Feb. 23, 2010).
I believe both these cases to be sound law and a natural extension of the
Heller decision. Let me say that I have no sympathy for people that engage in domestic violence. I think they should be punished appropriately and am not suggesting that society give them a 'pass'. I don't believe 18 U.S.C. § 922(g)(9) is a fair law and is very similar to zero tolerence laws. First of all, it is a lifetime ban. If you are convicted of misdemeanor domestic violence (under this law) you are forbidden from ever possessing a firearm for any reason. It doesn't matter how much time has elapsed or what you have done to turn your life around. You are out of luck. While it is clear that the state has an interest in protecting citizens from violence, the government was unable to show that people convicted of domestic violence were automatically going to kill someone at some point in the future.
I believe that a better approach to this is to treat it on a case by case basis. Not all cases of domestic violence are the same and they shouldn't be treated the same. The Court should have the discretion to ban certain people from having firearms if they can show some kind of risk to society based on things like past behavior, threats, and the like. I also don't think this should be a lifetime ban. An individual should be able to petition the court to lift the ban if they can show they are no longer a danger to other people.
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