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