Court: Criminal Record May Not Prevent Gun Ownership

(AP (file))

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.

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Declan McCullagh is a correspondent for CBSNews.com. He can be reached at [e-mail] and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.

[santeelite]

Right on Mike,

The burden of "precedent" is what is continuing to allow the government to circumvent the Constitution. The Constitution, and not the twisting and perverting of it, is the Law of the Land. The needs and benefits of government are already stated in the Constitution. The perversion of the Constitution, is what we have now.

The government is limited by the Constitution and not given the right to control what it is controling. The dependence on and the power of unconstitutional "precedent" must be broken.

[LeeDimin]

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..."It seems Justice Scalia rakes the liberty of adding to or detracting from, existing constitutional Amendments. In the Heller case he completely ignores the fist 13 words of the Second Amendment, "A WELLREGULATED MILITIA, BEING NECESSARY TO THE SECURITY OF A FREE STATE..." This is ot a rare bit of judicial acrivism on the part of Justice Scalisa.

At a speech before the students of Ohio State University Justice Scslia mademthefollowing statement, "DID ANY PROVISION OF THE CONSTITUTION GUARANTEE A RIGHT TO ABORTION? NO ONE THOUGHT SO FOR ALMOST TWO CENTURIES AFTER THE FOUNDING." (But he Constitution also failed to procude any limitation on a wonman's right to pursue medical care without the interference of the government0 "DID ANY PROVISION OF THE CONSTITUTION GUARANTEE A RIGHT TO HOMOSEXUAL SODOMY? SAME ANSWER." Rhe same exception that nowhere within the Constitution is Congress empoowered to regulate sexualk orientation.

Justice Scali's problem ishis inability tio separate his religious beoiefs from his duties to inrepret the provisions of the Constitution, threby being in opersonal violation of the First Amendment's "Establishment Clause" and his Oath of Office to support, protect and defend the Constitution of the Uited States - not the holy Bible.

[declanm-2009]

I think this was Nelson Lund's example:
"Being that the instructor is sick, class is cancelled."

If the instructor is lying and is at home watching Buffy the Vampire Slayer reruns, class is still cancelled. If the instructor was misunderstood and was merely running 30 minutes late, class is still cancelled.

Scalia's approach is different, and worth reading in its entirety. More to the point, it's the law of the land. Arguing that the Second Amendment protects some amorphous collective right is, post-Heller, a bit like arguing for the phlogiston theory of fire.

[jake137]

I think you are confused by what the Constitution does and what is in it. Whatever you believe about abortion and homosexual sodomy it is pretty clear to any 12 year old that reads the Constitution that nothing so interesting is found therein. So he is not saying that Congress should pass those laws or that they shouldn't. He is simply saying that because the Constitution doesn't say anything about them it is up to legislatures (state or federal depending on the issue) to make decisions on those subjects. This is not a religious view, it is a jurisprudnce philosophy.
I don't completely undersand what you were saying because of a plethora of typos- but it is clear that Scalia is saying that Texas has a right to pass a law forbiding abortions just like they have a right to pass a law allowing homosexual marriage if they wanted to.

[MikeSettles]

Good article.

I personally would like to see the passing of the perennially introduced bill which would require that Congress cite the Constitutional authority for each piece of legislation passed.

I would also like to see that Justices in SCOTUS review the Constitution, before they look at precedent, for each decision that they make.

Ultimately, the burden of proof rests with the government to show a dire need and benefit to the American people, before they do ANYTHING.