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July 13, 2010

Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment

Regular readers and Second Amendment junkies may recall the Skoien case in which a Seventh Circuit panel suggested that the Second Amendment may not permit the federal categorical prohibition on the possession of guns by persons previously convicted of a domestic violence misdemeanor.  The full Seventh Circuit took the case up en banc, and today it reverses course via this opinion by Chief Judge Easterbrook.

Both Chief Judge Easterbrook's majority opinion and Judge Sykes' lengthy dissent have lots and lots of very interesting and important passages concerning the natures, scope and future of Second Amendment jurisprudence.  Also, both opinions include lots and lots of cites to leading post-Heller scholarship.  In short, this is a must-read and a case that is definitely worth continuing to watch not only if/when the defendant seeks SCOTUS cert review, but also to see if the usual gun right groups will express concerns with some of the pro-gun-restriction language that Chief Judge Easterbrook's opinion now makes the law of the Seventh Circuit. 

Indeed, given the on-going debate over the state and fate of Chicago's new gun regulations after McDonald, I think Skoien (the opinion, not the defendant) is now going to be Chicago Mayor Richard Daley's best friend.

A few related Second Amendment posts on Skoien and Chicago gun laws:

July 13, 2010 at 02:44 PM | Permalink


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Easterbrook must be one of those judicial activists that conservatives are always complaining about.

Oh wait, Easterbrook is an arch-conervative!

Oh wait, on this issue, it's the conservatives who are seeking judicial activism – they want judges to strike down laws they don't like.

Our politics is so stupid.

Posted by: dm | Jul 13, 2010 6:34:45 PM

dm --

Is that supposed to be an analysis of the competing arguments?

Posted by: Bill Otis | Jul 13, 2010 7:45:24 PM

I Was convicted of a domestic violence 11 years ago for grabbing my ex's arm and telling her to let me out of her vehicle. I regret that this ever took place and I learned a big life lesson but should I lose the right to bare arms for life because of this? I have held down the same job for 9 years now as well as graduated from college with a B.S degree in business management. I have done all that I possibly can to prove that I am a productive member of sociaty. About 2 years ago I applied to become a highway patrol officer and passed all of the tests for a academy appointment, including a lie detector test and a QAP which entails explaining your entire past to panel members. I have the ok from a law enforcement agency but I can go no further because of this ban that I had no clue about when I pled no contest to the crime 11 years ago. I have expunged my record per 1203.4, 12021.c, as well as petitioned the court for a Corum Nobis. When petitioning the court I had the backing of my ex whom I was with when I was charged with the DV as well my background officer, both support me getting my rights back. The petition was denied based on my rights should be restored to me via my expungement as well as state law, California bans people for 10 years for mistomeanor DV convictions. I have completely exhausted every avenue exept for a pardon and I am going to send out that paperwork shortly. So you can see how impossible it is to redeem oneself after such a minor offense. And just to clarify how easy it is to lose your rights forever all one has to do is throw a wad of paper at yor domestic partner or if you spank your child and the police are called out you are looking at a D V charge. If the readers of this think that I am blowing hot air then just research this subject a little further and you will see many cases of very minor offenses that has resulted in a lifetime ban of a fundemental right. I am not saying everyone deserves to have thier gun rights restored but there should be a program in place to determine if a person has demostrated that he/she deserves a second chance. And one last thing before I stop ranting, my home was broken into two times last year and I can't even get a sling shot to protect my wife and baby girl if someone happens to break in to our house when we are home. On top of that my wife can't get a gun because if she does I can be charged with a crime for being in the proximity of a firearm, isn't that infringing on my wife's rights as well? It is a very helpless feeling knowing that you and your family are at the mercy of criminals because of a mistake that I made over a decade ago.

Posted by: Chris | Jul 14, 2010 12:13:02 AM

I completely agree with you. And my neighbor has a very similar story.

He is an avid hunter. "I just want to go hunting again before I die," he tells me. Knowing that I'm a lawyer, he has asked me to help him get his right to own a gun back. Like you, his now-ex-wife supports his story and has signed an affidavit towards this end. He has no other criminal history.

In essence, this is what happened: 15 years ago his now-ex-wife came to his place of employment and began an argument. She attempted to swing/slap at him and he grabbed her wrists (and continued to hold them) until she calmed down. On-lookers called the police and when they arrived she had red marks on her wrists. He was convicted of DV due to the red marks and the story she told at the time. She now acknowledges that he was not engaging in DV.

I just wanted to let you and others know that there are many, many others out there like you. And the more we can get the story out about how easily one's Second Amendment rights can be taken away, the more support I think we'll find.

Posted by: anon | Jul 14, 2010 12:27:31 PM

Chris's comment highlights the fact that misdemeanor DV convictions come in numerous flavors, including the "very minor argument without any indication that either party is an abuser, but police feel compelled to charge one or both parties because of (reasonable and, in many ways, useful) pressure to enforce DV laws strictly and not 'look the other way.'" And, of course, the "defendant is probably totally innocent but the defense is going to be difficult to prove so he or she would rather plead to a misdemeanor with no time (which seems rather inconsequential at the time), rather than face a (possibly over-charged) felony conviction, not to mention paying the much-larger legal fees for a felony trial versus a misdemeanor plea -- fees which will not be refunded by the government even if he or she is acquitted."

I think it is constitutional to restrict gun rights for DV offenders, but only if there is some case-specific indication that shows a likelihood that the person is an actual threat. Given the broad DV laws, the arbitrary discretion of police and DAs in charging, the often inadequate (and, for the non-indigent, expensive) defense counsel, and the distorting effects of the Hobson's choice faced by an innocent person who has to choose between pleading to a walk-away misdemeanor and risking an erroneous felony conviction, I think it is overwhelmingly clear that a categorical ban for all DV misdemeanants fails to perform the necessary narrowing.

Posted by: anon | Jul 14, 2010 12:35:44 PM

I forgot to mention that my ex was a ex girlfriend whom I never cohabitated with and never had child with. I should not fall under the federal definition of DV but some how I did. In addition, when I pled no contest to this charge over 11 years ago I was never told that I would lose my firearms for life, I didn't find that out until I was deep into backgrounds with the highway patrol, I thought I was banned for 10 years but not life. It is very disapointing, I can't believe that a free country like ours could just strip away a right and throw away the key. Thanks for the support guys

Posted by: Chris | Jul 14, 2010 3:32:46 PM

i agree with a complete criminal crock!

"I completely agree with you. And my neighbor has a very similar story.

He is an avid hunter. "I just want to go hunting again before I die," he tells me."

Of course there is a solution. hit the local truck stop and buy any gun you want THEN go hunt. Just make sure the prey of the day is "POLITICIANS"

Posted by: rodsmith | Jul 14, 2010 4:40:39 PM

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