Constitutional Law- Second Amendment - En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional

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The Supreme Court's decision in District of Columbia v. Heller (1) established that the Second Amendment protects an individual right to bear arms for the purpose of self-defense. (2) However, the Court cautioned that its decision did not jeopardize "longstanding" and "presumptively lawful" firearm restrictions, such as laws prohibiting felons from possessing guns, (3) and offered little guidance on the standards of review that might apply to future Second Amendment challenges. (4) Thus, since Heller, lower courts have been left to craft their own approaches to determining the constitutionality of various firearm regulations (5) and have sometimes relied on analogies to First Amendment jurisprudence in determining standards of scrutiny. (6) Recently, in its en banc decision in United States v. Skoien, (7) the Seventh Circuit joined this trend when it upheld the constitutionality of 18 U.S.C. [section] 922(g)(9), which prohibits those who have been convicted of a misdemeanor of domestic violence from possessing firearms. (8) While the outcome was unsurprising, the decision's comparison of the restriction to "categorical" First Amendment limits, such as obscenity regulations, (9) risks subjecting future firearm regulations to overly stringent scrutiny. Courts can reach Skoien's form of intermediate scrutiny but sidestep its questionable analogy to categorical limits by relying on more nuanced First Amendment principles, such as the ability to respond, which are easier to transfer to the Second Amendment context.

Steven Skoien was twice convicted of domestic battery, a misdemeanor, in Wisconsin state court--once in 2003 and once in 2006.10 In 2007, probation officers discovered a shotgun in Skoien's truck, and Skoien admitted he had used the shotgun for deer hunting. (11) Skoien was indicted for violating [section] 922(g)(9), which prohibits anyone "who has been convicted in any court of a misdemeanor crime of domestic violence" from possessing a firearm in or affecting interstate commerce. (12) Skoien challenged the statute's validity, but the district court denied his motion to dismiss the indictment, finding that [section] 922(g)(9) would survive even "the highest standard" of scrutiny: the statute was "narrowly tailored" and covered "only ... persons who have been found guilty by a court of domestic violence." (13) Furthermore, Heller's finding of an individual right did not disturb prior Seventh Circuit precedent holding [section] 922(g)(9) constitutional. (14)

A panel of the Seventh Circuit vacated the district court judgment and remanded. (15) Writing for the panel, Judge Sykes (16) held that Heller had established a two-tier approach in gun restriction cases. The court first asked whether the regulated conduct was covered by the Second Amendment, based on original public understanding, and found that it was. (17) Heller did not suggest that hunting firearms lay outside its protection, (18) and the government had not strongly argued that the original understanding excluded the gun rights of felons and misdemeanants. (19) Judge Sykes next considered the appropriate standard of review. Under Heller, rational basis was foreclosed, (20) and strict scrutiny would be inappropriate since the rights of violent offenders did not lie "at the heart of the Second Amendment right." (21) Thus, Judge Sykes applied intermediate scrutiny to [section] 922(g)(9), seeking "only . . . a 'reasonable fit' between an important governmental end" and the chosen means of achieving that end. (22) The panel found that the government had not yet demonstrated that fit by presenting empirical evidence about the link between firearm possession and domestic violence, and remanded for further factfinding. …


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