Court: Criminal Record May Not Prevent Gun Ownership (Lautenberg Amendment)

[TMMT]

Court: Criminal Record May Not Prevent Gun Ownership

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.

A review of cases since the Heller decision shows that nearly all judges have been content to say that it means that the federal law, 18 U.S.C. 922(g)(9), is perfectly acceptable. Here are excerpts from opinions written by other judges, usually trial judges, who rarely engaged in a complete analysis of the Second Amendment and instead typically assumed 922(g)(9) was perfectly constitutional:

U.S. v. Holbrook: "Thus, the Heller opinion itself does not 'cast doubt' on the limitation on firearm possession set forth in Section 922(g)(9), and Holbrook makes no other argument that her convictions are violative of the Second Amendment."

U.S. v. Montalvo: "Defendant has not cited any post-Heller decisions declaring 18 U.S.C. 922(g)(8) to be unconstitutional, and does not attempt to distinguish the post- Heller cases cited by the government. This is not surprising, since 'it appears that every court which has considered a Second Amendment challenge to 18 U.S.C. Section 922, post-Heller, has upheld the statute as constitutional.'"

People v. Marsh: "We conclude that (a similar section of California law) falls within this category of prohibitions which are permitted despite the right to bear arms afforded by the Second Amendment. Post-Heller decisions addressing the constitutionality of various firearm possession restrictions have taken a similar approach..."

U.S. v. Luedtke: "Nothing in Heller suggests that the court intended to permit only those precise regulations accepted at the founding. Rather, the court's examples are best understood as representing the types of regulations that pass constitutional muster... Sections 922(g)(8) and (9) are regulations of a type traditionally permitted in this nation..."

U.S. v. Li: "I am satisfied that the provisions of section 922(g)(9) pass constitutional muster, even in the wake of Heller. Li has not offered any persuasive reason to believe that post-Heller constitutional jurisprudence should render it otherwise."

U.S. v. Chester: "The court finds that the prohibition by Congress as embodied in Section 922(g)(9) of the possession of a firearm by a misdemeanant who has committed a crime of domestic violence is a lawful exercise by the government of its regulatory authority notwithstanding the Second Amendment."

U.S. v. Engstrum: "While it is troubling to the court that Section 922(g)(9) may be used to deprive otherwise law-abiding citizens, who pose no prospective risk of violence, of their Second Amendment rights as a result of a single past transgression, the court cannot say, as a matter of law, that defendant poses no prospective risk of violence, and that he is constitutionally entitled to an exception to Section 922(g)(9)."

U.S. v. Robinson: "To my knowledge, no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. Section 922(g) constitutionally suspect."

U.S. v. White: "On its face, then, Heller did not disturb or implicate the constitutionality of Section 922(g), and was not intended to open the door to a raft of Second Amendment challenges to Section 922(g) convictions. White's Motion to Dismiss would place far more weight on the Heller decision than its plain text can reasonably bear."

In re: United States of America (U.S. v. Engstrum): "Nothing suggests that the Heller dictum, which we must follow, is not inclusive of Section 922(g)(9) involving those convicted of misdemeanor domestic violence."

The last case came from the Tenth Circuit Court of Appeals, which was a 2-1 decision that I wrote about in August. The dissent, from Judge Michael Murphy, is more interesting. It says: "There is simply no authority for the government's assertion that Section 922(g)(9) is constitutional in light of Heller... I would grant a stay of the proceedings below and order further briefing on the constitutional question."

The constitutional question is more open than many CBSNews.com readers might suspect. C. Kevin Marshall, a former Bush Justice Department attorney who's of counsel to Jones Day in Washington, D.C., wrote a law review article earlier this year titled "Why Can't Martha Stewart Have a Gun?"

Its surprising conclusion: federal law's lifetime prohibition on non-violent felons possessing firearms is relatively recent and probably not consistent with the views of the Second Amendment's framers. In an age when Americans can be non-violent felons for possession of a short lobster or sharing MP3 files (other examples here), is a lifetime ban constitutional?

For other constitutional rights such as the First Amendment, it's relatively common to see acts of Congress struck down as going too far, as anyone who's followed the series of cases about Internet pornography or abortion can attest.

That hasn't been the situation with the Second Amendment even after the Heller decision, in part because some judges have not taken constitutional arguments seriously, and in part because the Supreme Court has not provided a road map to follow. The justices now have a chance to remedy that oversight in the case currently before the court, McDonald v. Chicago. If they don't, expect this constitutional confusion to continue.

Court: Criminal Record May Not Prevent Gun Ownership - Taking Liberties - CBS News

[TMMT]

This could open up a can-o-worms for the liberals.

It would seem with the constitutional question now raised about misdemeanor DV charges carrying the same weight and consequences of the Felony Scarlet Letter, the time has come to question the inclusion of non-violent felons as well.

[macville]

Why shouldn't anyone who's served their time not be able to own a firearm again? Let me put it this way... If they can't be trusted with a firearm after serving their time, should they be back out on the streets? It's really the same argument as for permit holders being able to carry anywhere. If you can't trust us in schools/federal buildings/etc, then why can you trust us carrying at Wal-Mart? There's no logic in the anti's arguments!

Matthew

[strickj]

Why shouldn't anyone who's served their time not be able to own a firearm again? Let me put it this way... If they can't be trusted with a firearm after serving their time, should they be back out on the streets? It's really the same argument as for permit holders being able to carry anywhere. If you can't trust us in schools/federal buildings/etc, then why can you trust us carrying at Wal-Mart? There's no logic in the anti's arguments!

Matthew

Why? Because most are repeat offenders.

Never seen a violent felon who only messed up that

"one" time.

Why are they let out if they cant be trusted?

Because you can not incarcerate someone because they're not trustworthy.

It's a little different of an argument between a criminal not being trusted,and the law abiding. I should be trusted because I haven't committed any crimes.

I'm far from an anti,yet I don't want any laws that say its ok for felons to own guns!

Edited November 23, 2009 by strickj

[Guest Revelator]

All that's really going on here is the appeals court is telling the federal government to get its act together and finish the job it started. The defendant moved to dismiss his indictment based on the 2nd Amendment as explained in the Heller case. The DOJ essentially replied that Heller lets us do this. The court is now saying to the feds, you must justify this law not based on Heller but on the proper intermediate scrutiny standard. And they will. They were just being lazy, as the article notes. I highly doubt that any law banning ownership of firearms based on a misdemeanor crime of domestic violence, state or federal, will ever be overturned on 2nd Amendment grounds.

[TNRobocop]

If you have kept your nose clean for 7 years like a DUI conviction in TN, and that is your only misdemeanor, then there should be no reason why you can't have your rights restored.

I always though DV convictions were a crock of s*it in a lot of cases.

The DV laws need a major overhaul.

On the other hand, I have been to alot of domestics where I arrested the female in the situation who had kittens because she thought that she couldn't be arrested even though she was the primary aggressor.

[TMMT]

Misdemeanor DV convictions carrying the same weight as felonies (for firearms ownership) is/was just to test the waters for later inclusion of other lesser crimes as events allow.

Make no mistake about it.