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Criminal Appellate & Post-Conviction Services

Does the Second Amendment Guarantee Domestic Abusers the Right to Own Firearms? (Updated)

The United States Court of Appeals for the Seventh Circuit in Chicago has overturned the conviction of a Wisconsin man barred from owning firearms because of his criminal record, ruling the lifetime prohibition may violate Americans' Second Amendment rights and calling into question the future of a 13-year old gun control law. United States v Skoien, — F3d —, 2009 WL 3837316 (7th Cir Nov 18, 2009).

Steven Skoien, was previously convicted of misdemeanor domestic battery. A year later, a Winchester 12-gauge hunting shotgun was discovered in a truck parked outside his home, along with evidence (including an orange hunting jacket, a deer carcass, and a state-issued tag for a deer kill) that he had used it earlier in the day. He was charged with illegal possession of a firearm.

Mr. 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). After losing the motion in the District Court, Mr. Skoien took a conditional plea preserving his second amendment challenge. United States v Skoien, No 08-cr-12-bbc, 2008 WL 4682598 (WD Wis Aug 27, 2008). In a 3-0 decision on Wednesday, the Seventh Circuit Court of Appeals ordered a trial judge to take a second look at the evidence that a 1996 federal law prohibiting anyone convicted of a "misdemeanor crime of domestic violence" is constitutional in light of a U.S. Supreme Court ruling last year that emphasized "the individual right to possess and carry weapons."

The opinion was authored by Judge Diane Sykes, a George W. Bush appointee, and joined by Judges William Bauer, a Ford appointee, and John Tinder, a George W. Bush appointee. The opinion used the intermediate scrutiny standard and placed the burden of proof on the Government. It is important to note that Mr. Skoien’s case clearly involved possession of the weapon for hunting purposes. There is dicta in the opinion which suggests that strict scrutiny might apply if he was possessing the weapon for self-defense purposes. After noting that intermediate scrutiny applies because self-defense was implicated, the Court wrote: “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.”

Part of the problem with the appeal was the poor quality of the representation provided by the Government. As the Seventh Circuit noted:

"The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke 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 rational-basis 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."

United States v Skoien, --- F3d ----, 2009 WL 3837316, at *1 (7th Cir Nov 18, 2009). A
CBS News analysis of the ruling, suggests that the Seventh Circuit’s analysis may be pushing the limits of the Heller ruling. A recent article in the Harvard Journal of Law and Public Policy (summarized here) argues that former offenders do have a Second Amendment Right to own firearms. Later this year, the United States Supreme Court will decide whether the Second Amendment applies to the States in another case coming from Chicago. McDonald v Chicago, Supreme Court No. 08-1521.

Part of the problem with these laws comes from the fact that restoring firearm rights to former offenders is politically unpopular. The 1968 Gun Control Act prohibits convicted felons and certain other persons from possessing or receiving firearms (18 USC §§ 922(g) and 922(n)). But they may petition BATF for relief from these disabilities. BATF may grant the relief if it determines that (1) the applicant is not likely to endanger public safety and (2) granting relief would not be contrary to the public interest. Anyone whose application is denied may seek judicial review in federal court (18 USC § 925(c)).

The problem has been that since 1992, Congress has defunded all investigative ability of the Bureau of Alcohol Firearm and Tobacco to investigate these waiver requests. In
United States v Bean, 537 US 71; 123 S Ct 584 (2002), the United States Supreme Court upheld this scheme. The Seventh Circuit’s opinion seems to suggest that any ban on firearm ownership has to be somewhat individualized. A restoration of the procedure originally attached would obviate the constitutional problem found the Seventh Circuit. A restoration of funding would cure this problem.

As it stands, the only mechanisms for restoration of firearm rights is either to have their civil rights restored by the convicting jurisdiction. For purposes of the Gun Control Act, a person is not considered convicted if he or she (1) has been pardoned, (2) had his or her civil rights restored or set aside, or (3) had his or her conviction expunged or set aside, unless the pardon, restoration, or expungement expressly bars shipping, transporting, possessing, or receiving firearms (18 USC § 921(a)(20) and (a)(33)).