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August 28, 2008

Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim

A helpful reader sent me a copy of the latest lower court ruling that declares that the constitutional right recognized by the Supreme Court in Heller is categorically unavailable to another group of individuals.  The decision this time comes in US v. Skoien, No. 08-rc-19-bbw (W.D. Wis. Aug. 27, 2008) (available for download below).  Here are some key passages from the opinion:

Defendant Steven M. Skoien has moved to dismiss the indictment against him on the ground that 18 U.S.C. § 922(g)(9) violates the Second Amendment to the Constitution of the United States. Defendant is charged in a one-count indictment with possessing three firearms after having been convicted of a misdemeanor crime of violence, in violation of § 922(g)(9)....

Defendant argues [that] Heller requires courts to examine any prohibition on gun possession to determine whether it is precisely tailored to serve a compelling governmental interest....

Defendant may be correct about the standard to apply to any legislative effort to restrict firearms possession, but I need not take up the issue in this case. Even assuming that the highest standard applies, as defendant proposes, § 922(g)(9) passes muster. It is narrowly tailored: it applies only to persons who have been found guilty by a court of domestic violence. These persons have shown that it is they and not any outside intruders that pose the greater danger to their families.  The government has a compelling interest in protecting the families of such persons.  The fact that the firearm defendant was charged with possessing was a hunting rifle does not change this analysis.

As the government notes in its brief, the [Heller] Court’s statement about “longstanding prohibitions on arms possession by felons” is an explicit recognition of the fact that persons may forfeit their Second Amendment right to bear arms along with other rights when they commit serious crimes.  Congress has made the judgment that one of those “serious crimes” is domestic violence serious enough to result in a misdemeanor conviction.

Download skoien_motion_to_dismiss_opinion.pdf

Of course, I told my students in class just today that a legislature's (and a prosecutor's) choice to label a particular offense a misdemeanor generally means that the offense is not considered a "serious crime."  But apparently these labels are of no big concern when it comes to restricting the reach of the Second Amendment.  Indeed, I suppose if DC is still eager for broad gun control, even after Heller it can just make the judgment that anyone convicted of a traffic offense or any other public nuisance misdemeanor is a kind of serious criminal who should not have any rights to any kind of gun.

Some related post-Heller posts:

August 28, 2008 at 12:31 PM | Permalink


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If the well regulated militia of the free state of Wisconsin allows a misdeanor convict to serve in its ranks,then it stands to reason that his right to bear arms should not be infringed.
In the past the militia phrase was employed to deny the Second Amendment right. Now it should be turned around to enforce the right.

Posted by: mpb | Aug 29, 2008 8:30:50 AM

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