Court: Criminal Record May Not Prevent Gun Ownership
In this case, a misdemeanor should not prohibit gun ownership.
November 19, 2009 2:07 PM
by Declan McCullagh
A federal appeals court has overturned the conviction of a Wisconsin man barred from owning firearms because of his criminal record, ruling the lifetime prohibition may violate Americans' Second Amendment rights and calling into question the future of a 13-year old gun control law.
In a 3-0 decision on Wednesday, the Seventh Circuit Court of Appeals ordered a trial judge to take a second look at the evidence that a 1996 federal law prohibiting anyone convicted of a "misdemeanor crime of domestic violence" is constitutional in light of a U.S. Supreme Court ruling last year that emphasized "the individual right to possess and carry weapons."
This case involves a man named Steven Skoien, who previously had been convicted of misdemeanor domestic battery. A year later, a Winchester 12-gauge hunting shotgun was discovered in a truck parked outside his home, along with evidence (including an orange hunting jacket, a deer carcass, and a state-issued tag for a deer kill) that he had used it earlier in the day. He was charged with illegal possession of a firearm.
This is a notable -- even remarkable -- appellate opinion for a few reasons. First, it shows that U.S. Justice Department has become a bit lazy in prosecuting gun cases: the court noted that "the government has made little effort to discharge its burden of demonstrating" the constitutionality of the law, and "relied almost entirely on conclusory reasoning by analogy."
Second, and more importantly, this is one of the first appeals court cases to take an in-depth look at the impact of the Supreme Court's ruling last year in D.C. v. Heller on existing federal firearms laws. It's true that Justice Antonin Scalia's majority opinion said: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill..."
But misdemeanors are different from felonies, which the Seventh Circuit noted: "We therefore assume that Skoien's Second Amendment rights are intact notwithstanding his misdemeanor domestic-violence conviction." The judges said that the ownership ban is life-long and sweeping, providing no way for a now-peaceable citizen to seek an exception: "The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest -- Section 922(g)(9)'s total disarmament of domestic-violence misdemeanants." (What they didn't point out, but could have, is that a law enacted in 1996 is not exactly "longstanding.")
The Seventh Circuit opinion, which now has shifted the burden of proof to the Justice Department through an "intermediate scrutiny" standard, was written by Diane Sykes, a George W. Bush appointee, and joined by William Bauer, a Ford appointee, and John Tinder, a George W. Bush appointee.
Continued:
http://www.cbsnews.com/blogs/2009/11/19/taking_liberties/ent...
