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En banc court considers DV misdemeanor violence gun ban

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


  1. If a felon may properly be disbarred his rights under color of law then we all can be legally disarmed by merely sufficiently lowering the bar of felony as has been done in cases of alleged domestic violence and to stressed veterans.

  2. Without a “conviction”,no ones 2A rights should be suspended. Domestic violence is a problem. But it is also abused by both men and women in a nasty divorce. Before any ones rights are deprived, a full investigation should be conducted.

  3. Am I alone in thinking that a misdemeanor conviction does not qualify one as a felon?
    It seems that Heller should override18 U.S.C. 922(g)(9), and such a conviction should not permanently strip one of an enumerated constitutional right.
    Though “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,” the wording of the amendment indicates that this Antifederalist view was rejected in favor of “shall not be infringed.”

  4. The sad truth is that orders of protection, ex-parte orders of protection, or restraining orders are civil in nature and may be decided on a preponderance of the evidence. It is the sad truth in America that your rights may be taken away because of an allegation of wrongdoing.

  5. I am so tired of this whole issue. Even in my line of work I am affected by events that occurred over 20 years ago. If I had know then the impact on my life those incidents could present I would have picked a different way (legally) to handle it. But since those laws were not in affect how could I? Because of a dv conviction over twenty years ago I can’t even wear protective armor ie bullet proof vest. As a paramedic that works in a 911 service I find that rather disturbing not to mention the fact that my family is concerned that I can’t even protect myself when the opportunity is available. I could go on for hours about this and all points are sound and reasonable. Growing up in a local community where rowdiness was part of the accepted behavior made it hard to fully develop into a truly acceptable member of a regular society. I made the necessary changes and have never repeated those behaviors however several years later some laws were changed that affected me for the rest of my life. I was never afforded the full benefit of being able to weigh all the consequences therefore I was not given my full right to fully defend myself. I can’ t help the fact that I feel as if I’ve been stabbed in the back and my assaulter was not man enough to even face me first.

  6. More specifically to this article on what study does O’Shea base the last statement in the last paragraph of this article and what were the numbers? I have serious reservations about that. Just based on my experience of paramedic work over the last 16 years I noticed that in most dv’s guns are not the culprit but more realistically it’s alcohol and physical force. Most domestic violence cases are usually control issue related and shooting someone does not afford control in the way that most spousal abusers wish. A person with homicidal tendencies is altogether in a different realm, as with those that are “crimes of passion”. Of course I’m not a legal professional I’m just someone who’s been on both sides of this so what do I know?

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