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 firstname.lastname@example.org.