April 8, 2009
Interesting report on a Heller argument in the Seventh Circuit
I received today via e-mail this interesting report from a helpful federal public defender:
Some time ago, I advised you of a decision in the Western District of Wisconsin on my motion to dismiss in a 922(g)(9) case based on Heller. The case was United States v. Steven Skoien [and the SL&P blog coverage can be accessed here].
I just wanted to let you know that we had oral argument on the case in the 7th Circuit this Monday and, although it is clearly an uphill climb, the court seemed more receptive to the claim than I expected them to be. Judge Sykes, in particular, seemed very troubled by the fact that 922(g)(9) provides a lifetime ban that, in effect, treats misdemeanants worse than felons, because misdemeanants can not petition to have their rights restored. The panel seemed to be struggling with what standard of scrutiny to apply. As you know, if you are interested, you can listen to the argument on the court's website [via this link].
Some related Second Amendment posts:
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
April 8, 2009 at 09:29 PM | Permalink
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Isn't the felon petition route pretty much moot at his point due to being unfunded? IIRC the Supremes held that even if the President or (Treasury?) secretary wanted to process the applications themselves they couldn't because all of their official duties related time is already bought and directed elsewhere.
Despite the fact I am greatly trouble by this restriction I don't see this particular argument as a winner.
Posted by: Soronel Haetir | Apr 8, 2009 11:56:00 PM
I'm not sure, but I think they're talking about what Wisconsin law allows.
Posted by: Jay | Apr 9, 2009 3:07:25 AM
Sounds like this argument hits the most egregious problems with the law: application to misdemeanants (via a broad categorical definition that indubitably sweeps in any number of unnecessary defendants, many of whom indubitably had no idea of this possible consequence when they waived defenses and pled to a no-time misdemeanor), and the lack of any time limit or meaningful way to get out from under this law for the rest of your life.
I'm all for keeping dangerous weapons out of the hands of abusers, but this law sweeps too broadly. I would really like to know in what percentage of 922(g)(9) cases there is any evidence that the defendant has engaged in abusive behavior in, say, the last 5 years---as opposed to the percentage of cases where the feds have it in for the guy (or girl) for some other, entirely unrelated reason, catch him with a gun, then run his record and realize (O frabjous day! Callooh! Callay!) that he is a 922(g)(9) felon based on an otherwise long-forgotten conviction and that they therefore don't need to build a case against him for doing something actually, currently dangerous.
Posted by: Observer | Apr 9, 2009 11:24:39 AM
Just an average working guy reading the gun news.
What galls me are these idiotic public defenders and lawyers for these so-called gun causes. What kind of fool wants to make national news representing some slug you'd like to deck for general principles?
Maybe one day one of these cloistered and coddled einsteins will dig out someone with some 20/30 yr old conviction telling of tale of being railroaded, and has been an upstanding, happily married man ever since. Preferably a war hero and deacon of his church. Then he could be the new poster child for the movement to get rid of 922(g).
Seems simple enough. FOIA for permit or purchase denials, contact the person, and get an interview of his history. The denial itself gives standing. Fish for the right guy, and overturn the law.
That is if lawyers want to do something other than lose case after case.
Posted by: Mike | May 14, 2009 12:30:15 PM