En banc court considers DV misdemeanor violence gun ban

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In a rare en banc hearing, the Seventh Circuit considered the constitutionality of 18 U.S.C. 922(g)(9), which makes it a federal crime to possess a firearm after having been convicted of a misdemeanor crime of domestic violence.

A three-judge panel, in an opinion by Judge Diane S. Sykes, vacated a conviction under the statute in November, concluding that the government failed to establish a reasonable fit between reducing domestic gun violence and total disarmament of misdemeanants.

The oral arguments on May 20 suggested that the ultimate holding may affect prosecutions under subsecs. (g)(8) and (g)(1) as well – the prohibitions on possession of firearms by those under a restraining order and felons, respectively.

Much of the discussion centered on language in District of Columbia v. Heller, 128 S.Ct. 2783, 2816-17 (2008), that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."

Michael W. Lieberman, arguing for the defendant, Steven M. Skoien, argued the language is inapplicable to the case, because, unlike the prohibition on felons in possession, subsec. (g)(9) is not "longstanding," but is of recent origin.

Lieberman also argued that subsec. (g)(8) is distinguishable, and could qualify as a narrowly tailored law, because it applies only to individuals who have recently been found to be dangerous. The ban on misdemeanants, in contrast, operates as a lifetime ban.

But Judge Richard Posner found this admission "extremely damaging" to Lieberman's argument. Posner noted that subsec. (g)(8) requires only a "finding," while subsec. (g)(9) requires a conviction.

"Someone convicted of domestic violence is not merely a credible threat," Posner noted. "That person has already compromised the physical safety of someone."

Both Posner and Judge Ann Claire Williams raised the relationship of the misdemeanor DV ban to the felon in possession statute.

Williams suggested that the domestic violence provision was more narrowly tailored than the felon in possession statute, because the latter applies to non-violent white collar crimes.

Posner questioned whether there could be a rational basis for barring non-violent felony tax evaders from possessing a firearm, but not misdemeanants convicted of domestic violence.

Timothy O'Shea, representing the government, attempted to avoid the question of whether the statute is narrowly tailored to the government interest, by contending that the conduct is outside the scope of the Second Amendment altogether.

"Committing a crime of violence in this context forfeits Second Amendment rights," O'Shea argued. "The court need not engage in any tailoring analysis."

O'Shea noted that, when the Constitution was being debated, the Antifederalists proposed a provision which would have protected the right to bear arms, while explicitly permitting dispossession of those convicted of crimes of violence.

Judge Sykes noted, however, that the qualifier did not find its way into the Second Amendment. O'Shea suggested that the debates nevertheless shed light on the founders' view of the right.

Another issue raised was the appropriate level of deference to be given to Congress, if the court does analyze whether the statute is narrowly tailored.

Judge Posner observed that, because the statute was passed before Heller was decided, at a time when Congress believed there was no individual right to bear arms, it engaged in no balancing of interests between the right to bear arms and the government's interest. "It didn't engage in any balancing, because it didn't know anything was in the other pan."

But O'Shea contended the analysis is the same, regardless of when the statute was enacted. "The court should uphold the statute as constitutional in light of Heller's discussion of the historical bases for dispossessing violent individuals, the record showing that, empirically, domestic violence is indeed a problem with great recidivism, and that removing guns from the house reduces the risk of violence."

David Ziemer can be reached at [email protected].