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Lautenberg Amendment upheld

The federal ban on possession of firearms by those convicted of misdemeanor crimes of domestic violence is constitutional.

The Seventh Circuit on July 13 issued an en banc opinion affirming the conviction of Steven Skoien for violating 18 U.S.C. 922(g)(9).

When the case was heard by a three-judge panel last year, the court unanimously reversed. But after en banc review, only Judge Diane S. Sykes dissented.

Skoien has two convictions for misdemeanor domestic violence in Wisconsin state courts. While on probation for the second offense, he was charged with possessing a shotgun in violation of the federal statute.

He moved to dismiss the charge, arguing it violated the Second Amendment, but U.S. District Judge Barbara B. Crabb denied the motion. Skoien then pleaded guilty, reserving the constitutional argument.

The Seventh Circuit initially reversed, and remanded the case to the district court to give the government the opportunity to establish that compelling interests outweighed Skoien’s right to bear arms.

But after rehearing the case en banc, the court affirmed, in an opinion by Judge Frank H. Easterbrook.

The court centered on a passage in District of Columbia v. Heller, 128 S.Ct. 2783, 2816-17 (2008), stating, “nothing in our opinion should be taken to cast doubt on 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.”

Skoien argued that he is not a felon, and that sec. 922(g)(9) is not “longstanding” — it was enacted in 1996.

But the court read the passage as meaning only that statutory prohibitions on the possession of weapons by some persons are proper, and that the legislative role did not end when the Bill of Rights was enacted in 1791.

The court analogized the Second Amendment to the First Amendment right to free speech, noting that categorical limits on speech such as obscenity and defamation are permissible, and the categories of prohibited speech are not limited to those recognized in 1791.

The court concluded that three justifications support the statute’s constitutionality: domestic abusers often commit acts that would be charged as felonies if the victim were a stranger, but that are charged as misdemeanors because the victim is a relative; firearms are deadly in domestic strife; and persons convicted of domestic violence are likely to offend again.

The court cited numerous studies purporting to prove that, either because of forgiveness or fear on the victims’ part, felonious conduct against family members frequently results in only misdemeanor convictions.

The court also cited studies showing that domestic assaults with firearms are more likely to end in death than those involving knives or no weapon at all.

Finally, it cited other studies showing that recidivism is high for domestic violence offenses.

However, the court left open the possibility of as-applied challenges to the constitutionality of the statute by other defendants: “Whether a misdemeanant who has been law abiding for an extended period must be allowed to carry guns again … is a question not presented today. There will be time enough to consider that subject when it arises.”

Judge Sykes dissented, castigating the majority for “resolv[ing] this case on a record of its own creation,” rather than remanding to the district court and requiring the government “to make its own case.”

Sykes wrote, “The government normally has the burden of justifying the application of laws that criminalize the exercise of enumerated constitutional rights. We should follow that norm, not pay lip service to it. I would remand for the government to make its own case for imprisoning Steven Skoien for exercising his Second Amendment rights.”

Sykes also criticized the majority’s analogy to the First Amendment: “it is one thing to say that certain narrowly limited categories of speech have long been understood to fall outside the boundaries of the free-speech right and are thus unprotected by the First Amendment. It is quite another to say that a certain category of persons has long been understood to fall outside the boundaries of the Second Amendment and thus may be excluded from ever exercising the right (emphasis in original).”

David Ziemer can be reached at david.ziemer@wislawjournal.com.

4 comments

  1. I Was convicted of a domestic violence 11 years ago for grabbing my ex’s arm and telling her to let me out of her vehicle. I regret that this ever took place and I learned a big life lesson but should I lose the right to bare arms for life because of this? I have held down the same job for 9 years now as well as graduating from college with a B.S degree in business management. I have done all that I possibly can to prove that I am a productive member of sociaty. About 2 years ago I applied to become a highway patrol officer and passed all of the tests for a academy appointment, including a lie detector and a QAP which entails explaining your entire past to panel members. I have the ok from a law enforcement agency but I can go no further because of this ban that I had no clue about when I pled no contest to the crime 11 years ago. I have expunged my record per 1203.4, 12021.c, as well as petitioned the court for a Corum Nobis. When petitioning the court I had the backing of my ex whom I was with when I was charged with the DV as well my background officer, both support me getting my rights back. The petition was denied based on my rights should be restored to me via my expungement as well as state law, California bans people for 10 years for mistomeanor DV convictions. I have completely exhausted every avenue exept for a pardon and I am going to send out that paperwork shortly. So you can see how impossible it is to redeem oneself after such a minor offense. And just to clarify how easy it is to lose your rights forever all one has to do is throw a wad of paper at yor domestic partner or if you spank your child and the police are called out you are looking at a D V charge. If the readers of this think that I am blowing hot air then just research this subject a little further and you will see many cases of very minor offenses that has resulted in a lifetime ban of a fundemental right. I am not saying everyone deserves to have thier gun rights restored but there should be a program in place to determine if a person has demostrated that he/she deserves a second chance. And one last thing before I stop ranting, my home was broken into two times last year and I can’t even get a sling shot to protect my wife and baby girl if someone happens to break in to our house when we are home. It is a very helpless feeling knowing that you and your family are at the mercy of criminals.

  2. AmeriKa isnolongerFREE

    OH, WAIT >>> But Domestic abusers never use, Knives, Baseball bats, golf clubs,throwing stars or run down their ex’es with cars….Domestic abuses solely use guns…..YEAH, RIGHT !!!! The courts are now so littered with Obama’s liberal socialist’s soon we won’t have any rights at all. God help the USA…he is now the only one that can save it, since the people are too chicken to rise up & start over again.

  3. US v Me, Federal court judge Willial shubb stated in so many words, state agent judges use male gender profiling per protection order and no showing of harm is required, in the state of cal,

    PS good luck on your request for a pardon, I too will file

  4. Berry B Kennedy, Jr

    I have been advised by letter dated on September 25, 20012 by the NICS that an entry on my FBI record for a 1975 case against me in Milwaukee County, Wisconsin, involving Criminal Damage to Property and Disorderly Conduct has potential prohibitive criteria under the Lautenberg Amendment – 18 U.S.C. 922(g), and that I am now being banned from owning any firearms for the rest of my life. I was never charged with Domestic Violence ever.

    I live in Green Bay, Wisconsin and have been issued a Concealed Carry Permit from the state of Utah and a Concealed Carry Permit from the state of Wisconsin. I have a pardon which restores my civil rights from the state of South Carolina which I received on April 04, 2001 for previous felony convictions on record in that state.

    I have been in no trouble with the law since the 1975 problems I had in Milwaukee County, Wisconsin. I am a white male born September 04, 1945.

    Whom may I contact to get help and advice with this matter? Am I in trouble?

    Any advice would be helpful.

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