Posted on 11/19/2009 4:02:38 AM PST by marktwain
The Seventh Circuit last week vacated a man’s conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence.
However, the court did not strike the statute down as unconstitutional, but remanded the case to the district court to give the government the opportunity to “establish a reasonable fit” between the “statute’s means and its end.”
Addressing the record made before the district court, Judge Diane S. Sykes wrote for the court, “The government … has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that sec. 922(g)(9) therefore passes constitutional muster. That’s not enough.”
In 2006, Steven Skoien was convicted of domestic battery in Wisconsin state court and placed on probation. In 2007, he was arrested with a hunting shotgun in his truck. He admitted he had gone hunting and shot a deer earlier in the day. He did not own the gun.
Skoien was charged in federal court and sentenced to two years in prison after pleading guilty before U.S. District Court Judge Barbara B. Crabb; however, he reserved his right to challenge the denial of his motion to dismiss the indictment on Second Amendment grounds. The Seventh Circuit reversed the conviction on Nov. 18.
Dicta
The government’s argument, and the district court’s denial of Skoien’s motion to dismiss, were both based on the following statement in the U.S. Supreme Court’s 2008 opinion in District of Columbia v. Heller, 128 S.Ct. 2783: “[N]othing 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.”
Calling the passage dicta, the Seventh Circuit concluded it was not dispositive of whether Skoien’s possession of the firearm was protected by the Second Amendment. Instead, the court concluded that all gun laws must be independently justified.
Examining the statute, and the individual facts in this case, the court noted that the firearm was a “conventional hunting gun,” and therefore within the scope of the Second Amendment as understood at the time of its adoption.
The court also noted that the ban on firearms possession by domestic-violence misdemeanants (the “Lautenberg Amendment”) is not longstanding, but “quite new” – it was enacted in 1996.
The court thus rejected the district court’s conclusion that the statute fell squarely within the Heller dicta.
Intermediate scrutiny
The court next addressed the appropriate standard of scrutiny to apply and concluded that intermediate scrutiny was appropriate.
In Heller, the Supreme Court explicitly rejected rational basis review for bans on possession of firearms.
The Seventh Circuit held that the Court in Heller also implicitly rejected strict scrutiny by stating that some firearms laws are “presumptively lawful.”
Left with only intermediate scrutiny as an option for the appropriate standard of review, the court articulated it as follows: “for gun laws that do not severely burden the core Second Amendment right of self-defense there need only be a ‘reasonable fit’ between an important governmental end and the regulatory means chosen by the government to serve that end,” with the government bearing the burden of proof.
Because the government in this case rested its entire case on the Heller dicta, the court held that it had failed to meet its burden, vacated Skoien’s conviction, and remanded the case to the trial court to give the government a further opportunity to meet its burden.
The idea that all domestic violence progresses to the murder of women is a crock, anyway.
It’s also been used as a club by divorce lawyers. It’s part of every attorney’s divorce proceedings boilerplate.
Tell that to O.P.Simpson's wife and her family.
Nicole Brown was practically decapitated. O.J. would routinely beat her up.
Yes, domestic violence, very often leads to murder.
It's out of control passion.
I would say not only that "not ALL domestic violence progresses to murder", but that "MOST domestic violence does NOT progress to murder". I'm in the business, and I see a lot of cases. Most never progress even to use of a weapon, let alone murder. Even the repeat offenders who wind up doing time.
Plus, these days, false accusations of domestic violence (and false accusations of child molestation) are thrown around in every divorce case. The lawyers used to be restrained by SOME sense of ethics and probity, but not any more. The judges have finally realized that a lot of the child molestation accusations are false . . . but they haven't quite realized the same thing wrt the domestic violence accusations yet.
Seventh Circuit Vacates Conviction ...
The 7th Circuit needs new caselaw, because its exiting law is that the federal (not state) law banning possession by domestic violence misdemeanants is based on a defunct theory that the 2nd amendment is a collective right.
I don't believe the 7th Circuit is signaling relaxing its hostility to gun possession, or support for whatever gun right stripping laws Congress passes.
OMG, there should be another federal law, making felons out of domestic violence misdemeanants who possess fixed blade knives.
This guy may have been living with the same person he was convicted of domestic battery against. Ironic that he was also charged with (and his sentence was increased to account for) constructive possession of his wife's pistol.
To your point, I've read that men (maybe some women too) plead guilty because the direct penalty is slight - overlooking that the plea results in being banned for life from possession of a firearm. Either that, or in light of the fact that mounting a defense is costly with little likelihood of success. "Domestic Battery" can be little more than a shouting match.
Why won’t some Conservative grow a pair and introduce legislation to overturn the Lautencadever law ?
I remember once hearing of a case where a woman lost her second amendment rights because she spanked her child. She was arrested for “domestic violence.”
The Mighty Media Monolith has COVERED UP the fact that MOST domestic violence is committed by WOMEN against men, though.
Believe it or not, in some states simply raising your voice at your spouse is a form of battery and will get your right to own firearms yanked.
Seems to me that a conviction of battery, whether domestic or not, indicates and inability to control oneself when under stress. I do not have a problem with such a person losing the right to possess a firearm.
I want to be clear, I mean conviction not arrest.
To me that would fall under the terms of a “well regulated” militia. You dont want thugs running around with firearms, do we?
you obviously do not understand the meaning of a “well-regulated militia” and are bastardizing it with what you think it means... regulated as in restricted...
well- regulated at time of writing meant well-drilled, trained... you are definitely unaware of... “shall not be infringed” meaning what it means.
teeman
Puhleeze! We can always drag out some horrific anecdotal example for just about anything and end up outlawing everything. I’ve been to hundreds of “domestic violence” calls. How many have you handled? I’m guessing zero.
Holy smokes! Some common sense has entered the debate. If I had a dollar for every family beef I went to where the woman gave as good as she got I could buy a hell of a nice dinner for six. Never mind the ones where everyone is drunk.
There is also a complaint call for service now titled “domestic violence - verbal”. People can’t even get pissed off and yell at each other now with out the cops showing up. This inflates the DV stats and the money follows. Amazing, ain’t it? I’m glad that I retired.
“Yes, domestic violence, very often leads to murder.
“
And your expertise to say that is what?
Yes. As long as I have one too.
Laws are not going to stop thugs from acquiring, bearing and using firearms. Such laws are aimed squarely at the citizens, not the criminal class.
In the mid 90's I lived in a nice townhouse in the Art Museum are of Philly... one Saturday my girlfriend and I were extra-playfull and were running up and down the steps and through our house(we owned it) having some fun.
Loud banging at our door got our attention and it was followed by the shout of "Police Officers".
I open the door to find two cops, mouths open, wide eyed as they tell me they are looking into a domestic violence call.
My girlfriend had joined me - both of us were still laughing hysterically, we had lost most clothing and were covered with shaving cream and cake decorating sprinkles...
Cops: "sorry to bother you"
Along those lines the thing that I always wondered why the police never publish where guns used in crimes come from. You would have to get through several locks and a safe to get my guns. I feel safe they won’t be used improperly.
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