The Seventh Circuit on Feb. 22 took the rare step of granting a petition for an en banc hearing.
This summer, the entire court will consider the constitutionality of 18 U.S.C. 922(g)(9), which makes it a crime for a misdemeanant convicted of a domestic violence charge to possess a firearm.
In U.S. v. Skoien, 587 F.3d 803 (7th Cir.2009), a unanimous three-judge panel reversed the conviction of a Wisconsin man under the statute.
Adopting and applying intermediate scrutiny, Judge Diane S. Sykes wrote that the government failed to meet its burden of showing a reasonable fit between its interest in reducing domestic gun violence and total disarmament of domestic-violence misdemeanants.
The court found that it was insufficient for the government to rely solely on a statement by the U.S. Supreme Court in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment does not invalidate “longstanding” prohibitions on felons and the mentally ill possessing firearms.
In its request for en banc review, the government contended that, under Heller, federal prohibitions on firearms are “presumptively lawful.” It also noted that the circuit courts are in conflict, because the Eleventh Circuit held the statute constitutional in U.S. v. White, No. 08-16010 (11th Cir., Jan. 11, 2010).
In an added twist, the day after the Seventh Circuit granted the en banc petition, the Fourth Circuit weighed in on the issue, adopting the reasoning in Skoien to also reverse a conviction under the statute. (U.S. v. Chester, No. 09-4084 (4th Cir., Feb. 23, 2010).)
Michael W. Lieberman, who represents the defendant, Steven Skoien, opposed en banc review, arguing, “the government’s petition for rehearing en banc is nothing more than an attempt to reargue the same points already considered and rejected by the Court. Because rehearing en banc is not a vehicle for a losing litigant to complain about the result, the Court should deny the government’s petition.”
In his response to the government’s petition, Lieberman criticized the “presumptively lawful” standard proposed by the government as one that would render any federal gun statute unreviewable. He also noted that, unlike prohibitions on firearm possession by felons, the statute in this case was enacted in 1996, and thus, is not “longstanding,” as the term is used in Heller.
Skoien’s brief is due March 26; the government’s brief is due April 26; and Skoien’s reply brief is due May 10. The en banc oral argument will be scheduled after submission of the briefs.