Domestic violence firearms ban upheld

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The ban on possession of firearms by persons convicted of misdemeanor domestic violence is constitutional.

In one of the first challenges to the validity of 18 U.S.C. 922(g)(9), since the U.S. Supreme Court’s landmark holding in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), U.S. District Judge Barbara B. Crabb held that Heller does not affect the validity of the prohibition.

Judge Crabb reasoned, “These persons have shown that it is they and not any outside intruders that pose the greater danger to their families.”

The defendant, Steven M. Skoien, had moved to dismiss the indictment against him on the ground that the statute violates the Second Amendment’s guarantee of the right to bear arms. On Aug. 27, Judge Crabb denied the motion to dismiss.

In Heller, the Supreme Court held that the Second Amendment’s right to bear arms protects an individual right to possess and carry weapons in case of confrontation.

However, the court made a point of saying that its opinion was not intended to suggest that all gun laws and firearms restrictions are unconstitutional.

The Supreme Court wrote, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill …”
Judge Crabb read this caveat to include the ban on possession by those convicted of domestic violence.

Crabb concluded, “the 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.”

Crabb declined to decide what level of scrutiny applies to Second Amendment challenges, finding that, even under the highest level, the statute passes muster.

Before concluding, Judge Crabb noted that the Seventh Circuit has upheld the statute against constitutional challenge (albeit before Heller) in Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), and that remains binding on district courts in the circuit.

Case analysis

Absent from the court’s discussion is any attempt to classify the prohibition on those convicted of misdemeanor domestic violence as “longstanding.”

The federal ban on felons and the mentally ill possessing firearms goes back to 1968. In addition, some state prohibitions on felons possessing firearms predate the federal law (Wisconsin’s dates to 1981).

In contrast, the Lautenberg Amendment, which created subsec. (g)(9) did not become law until 1996.

Arguably, this is not included in the Supreme Court’s reference to “longstanding prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms (emphasis added).”

The Supreme Court in Heller could easily have included in the list of bans its holding does not reach, “persons convicted of domestic violence.”

The omission from the list, and the fact that the law is not especially “longstanding,” make for a strong argument that the ban may be unconstitutional, and defense attorneys should continue to challenge indictments under this statute.