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November 18, 2009

Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession

Last year, as noted in this post, a federal district court rejected in US v. Skoien, a defendant's effort to use Heller to have dismissed his federal indictment on possessing three firearms after having been convicted of a misdemeanor crime of violence under § 922(g)(9).  Today, in this important new opinion, a unanimous panel of the Seventh Circuit has said not so fast.  Here is the start and end of the panel's effort: 

A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  The district court denied the motion.  Skoien pleaded guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. H e now reiterates his Second Amendment challenge to § 922(g)(9)....

Accordingly, we cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important objective of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic-violence misdemeanants.  In fairness, because Heller did not establish a standard of review, the government did not know what its burden would be.  Like the district court, it proceeded on the assumption that the highest standard of scrutiny applied and then relied almost entirely on conclusory reasoning by analogy from Heller’s reference to the “presumptive” constitutionality of felon-dispossession laws.  That was a mistake, for the reasons we have explained.  In any event, our discussion here of the appropriate standard of review should provide guidance for the proceedings on remand.

Before closing, we offer a few additional observations to help those proceedings along. Intermediate scrutiny tolerates laws that are somewhat overinclusive.  See, e.g., Fox, 492 U.S. at 480; Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 327-28 (4th Cir. 1996) (recognizing that intermediate scrutiny in the commercial-speech context allows some latitude between the regulation and the governmental objective). How much is too much is hard to say; it depends on the scope and reach of the law and how much room it leaves for the exercise of the right.  See Fox, 492 U.S. at 481 (noting “the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires”).  We note that § 922(g)(9) is overinclusive on several fronts: The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense.  On the other hand, the statutory definition of “misdemeanor crime of domestic violence” limits the applicability of § 922(g)(9)’s firearms disability to those who actually used or attempted to use physical force or threatened the use of a deadly weapon in a domestic disturbance.  See 18 U.S.C. § 921(a)(33)(A)(ii). The statute thus targets a specific class of violent offender; only those who have already used or attempted to use force or have threatened the use of a deadly weapon against a domestic victim are banned from possessing firearms.

To summarize, we conclude that intermediate scrutiny applies to Skoien’s Second Amendment challenge to this § 922(g)(9) prosecution.  The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest — § 922(g)(9)’s total disarmament of domestic-violence misdemeanants.  Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion.  If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.

November 18, 2009 at 12:54 PM | Permalink


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The statute limits the "firearms disability to those who actually used or attempted to use physical force...," thereby "target[ing] a specific class of violent offender."

All the more reason why the Supreme Court, in Johnson (No. 08-6925), should interpret "physical force" as requiring more than an unwanted or rude touch. Although that case involves the ACCA, briefing extensively discussed this statute too.

Posted by: DEJ | Nov 18, 2009 2:09:00 PM

I would love to see the government provide an answer along the lines that the life saved by disarming a wife beater may well be his own.

most domestic violence cases arise out of a combination of alcohol and stupidty and these judges question whethere there is a conection betwen domestic violence and gun violence? alcohol, stupidity, and guns is a deadly combination.

Posted by: virginia | Nov 18, 2009 4:25:55 PM

This case also has potential implications for the felon-in-possession law, given the Seventh Circuit's holding that all gun laws must be independently justified notwithstanding the Heller Court's dicta. I actually think the domestic violence misdemeanant ban, which is limited to persons with a proven record of violence, is considerably more defensible under intermediate scrutiny than a blanket ban on possession by felons.

Posted by: desuetude | Nov 18, 2009 5:30:10 PM

Ginny --

Once again I find myself in agreement with you. If this keeps up, I'll be compelled to invite you to join the Neanderthal Club.

Posted by: Bill Otis | Nov 18, 2009 6:38:45 PM

Don't worry Bill, I'm sure that I will say plenty of stuff that you disagree with in the future. For one thing, I actually think that Heller was wrongly decided. Of course, I'd never say that in my home town since I have a strong desire to not get shot :)

Posted by: virginia | Nov 19, 2009 4:15:28 PM

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