Lautenberg Undermined by Federal Judge

[Katya Mullethov]

November 19, 2009 2:07 PM
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.")

[X_Digger]

1. I wonder..

.. if this is an unforeseen consequence of Heller.. not the language about 'longstanding prohibitions', but generally.

Before, when no court had ruled it an individual right at the federal level since 1868, there was no yardstick to hold up to individual laws. If the SCOTUS incorporates in one of the cases floating around, they'll likely set a standard by which to evaluate the constitutionality of not just state laws, but also federal ones.

It would have been hard for any law to be challenged before it was ruled as an individual right- nobody would have had standing.

[aquart]

2. Maybe "domestic violence" shouldn't be a "misdemeanor".

Just a thought.

[lepus]

3. I can go with that,,,

but as long as it is a misdemeanor, constitutional rights should not be able to be removed over it.

[Euromutt]

4. A misdemeanor can entail several months' jail sentence

There's such a thing as "misdemeanor assault," so I don't have a major issue with misdemeanor-level convictions for domestic violence. Call me "soft on crime" but I'm not big on the idea of putting people in the slammer for more than a year for every transgression.

That having been said, I actually support the Lautenberg amendment, because domestic homicides are typically the culmination of an escalating pattern of abuse and violence, and given that it's pretty difficult to get a conviction--even a misdemeanor one--for domestic violence, it's a clear early warning sign. Maybe it's easy for me to say because I've never raised a hand to a significant other, but if you can't be counted on to refrain from inflicting enough violence on the people you're supposed to love most in the world to get convicted of an offense, you can't be counted on to be responsible with a firearm.

I will allow that it's possible for people to better their ways, and maybe the court has a point that a default irrevocable lifetime ban goes too far. But that means there needs to be an avenue whereby someone who has lost his RKBA as a result of DV conviction can petition to have his rights restored. I don't think the court was justified in just overturning the guy's conviction, because he was obviously guilty.

[Tejas]

5. a clarification

"I don't think the court was justified in just overturning the guy's conviction, because he was obviously guilty."


The court overturned the firearms conviction, not the DV conviction. Yes, he was guilty of the firearms charge but in my eyes should not have been found so.

On a side note, Congress should get off their duffs and budget the money for the program that restores felons RKBA rights.

[Euromutt]

6. Yes, I understand that

The guy had a misdemeanor DV conviction, and was subsequently caught in possession of a firearm, the possession of which was prohibited to him under the Lautenberg Amendment to the Gun Control Act of 1968. Ergo, the verdict of guilty of illegal possession of a firearm was, in my opinion, just.

The 7th Circuit noted in its opinion that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." Well, why the hell not? Personally, I think there's a lot more justification for stripping someone with a misdemeanor conviction for a violent offense of his firearm rights than someone with a felony conviction for embezzlement or tax evasion. The argument that misdemeanors are not felonies doesn't hold water in my book; they're a distinction of degree, not of principle, and given that some 90% of criminal cases in this country are resolved by plea-bargaining, a hell of a lot of people with misdemeanor convictions should, in an ideal world, have been convicted of felonies.

Moreover, as I pointed out, domestic homicides are typically the culmination of an escalating pattern of domestic abuse and violence; thus, a domestic violence conviction--even a misdemeanor one--is a powerful predictor is strong predictor of a homicide, and frankly, I don't have enough sympathy for wife-beaters to think I should stand up for their 2nd Amendment rights. Should've kept their hands to themselves.

I can see the merits of having a review process whereby someone with a prior felony or DV misdemeanor conviction could petition to have their RKBA restored if they can show to the satisfaction of a court that they have been successfully rehabilitated and no longer present a threat to the well-being of others, but I can't see why the taxpayer should have to foot the bill for it.