Interesting DV case

[KMaurer]

The Court of Appeals for the 7th Circuit handed down an interesting ruling today. Steven Skoien was charged with possession of a firearm (a shotgun) after having been previously convicted of a misdemeanor crime of domestic violence. He entered a guilty plea, but reserved his right to appeal on 2nd Amendment grounds. The court held that, since he based his appeal only on his right to hunt, the lower court should have applied intermediate scrutiny in determining whether the government had a proper interest in restricting his right. His conviction was overturned, and the case returned to the lower court for fact finding.

This seems encouraging for two reasons. First, the court is taking Heller seriously and demanding that the government establish a sound basis for laws and regulations (in this case, the Lautenberg Amendment) that infringe on 2nd Amendment rights. The second is the suggestion that while there is a protected right to hunt, it's of less importance than the right to self-defense, which might have demanded a higher level of scrutiny (i.e. strict scrutiny). Tough luck, Fudds.

http://www.ca7.uscourts.gov/tmp/SP13Y3QQ.pdf

Ken

 

[appraiser]

the problem is that the SOCUS refused to hear a Lautenberg challenge earlier this year, so it stands until changed in the U.S Congress, and that is never going to happen.

If you are accused of DV, you have less rights than a convicted felon.

A convicted felon in possession of a loaded gun will be out of jail years before someone convicted under Lautenberg for possession of 10 empty, non primed shell cases

 

[KMaurer]

The above case refutes that negative view. At least in the 7th Circuit (not known as being one of the more openly pro-gun ones), it seems as if the feds have their work cut out for them if they want to use Lautenberg. It's likely that the if another case comes up, the defense would base their appeal on the right to self-defense, which the court's language suggests could trigger strict scrutiny. Hardly a prediction or a reason to stop fighting, but much better than most people would have expected.

Ken

 

[KMaurer]

From the courts decision:

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.

Ken

 

[steveyc272]

Indeed, it would be odd to argue that a conventional hunting gun is wholly unprotected by the Second Amendment. Heller referred to the founding-era importance of the right to bear arms “for self-defense and hunting,” 128 S.Ct. at 2801 (emphasis added), and a long gun used primarily for hunting is obviously useful for defensive purposes as well.

While this may seem obvious to us, it is always nice to hear from an Cir. Ct. of Appeals.

A more difficult question is whether a person convicted of a domestic-violence misdemeanor is categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions. The government has not made this argument, either. Scholars disagree about whether and to what extent persons convicted of crimes-more specifically, felons-were considered excluded from the right to bear arms during the founding era.

As Ken stated, "it seems as if the feds have their work cut out for them if they want to use Lautenberg."

Thanks for the read.