U.S. 7TH. CIRCUIT CT. OF APPEALS RULES THAT DOMESTIC VIOLENCE BAN ON POSSESSION OF GUN HAS AN EXCEPTION UNDER 2ND. AMENDMENT. Deerhunter under a DVO, shot a deer. He was ordered released from Federal Prison On Possession of Firearm.
By Bruce Vielmetti of the Milwaukee – Journal Sentinel
Nov. 27, 2009
A Rock County man sentenced to two years in federal prison for shooting a deer while he was on probation for domestic violence has had his case overturned by a federal appeals court.
The case could have far-ranging impact in the gun-rights debate. For Steve Skoien, it meant he’ll be home for the holidays.
The 7th Circuit Court of Appeals in Chicago ruled earlier this month that, in light of a major Supreme Court ruling about individual gun rights last year, prosecutors need to show that a lifetime ban on gun ownership for those convicted of domestic violence has a reasonable connection to reducing domestic gun violence. That 1996 law, the appeals court found, should not be grouped with other “presumptively legal” firearm restrictions mentioned in the 2008 Supreme Court case, known as District of Columbia vs. Heller.
The opinion by Judge Diane Sykes says that Heller’s “reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights.”
And so Skoien’s conviction was reversed and his case sent back to Madison so prosecutors can try to meet that burden. On Wednesday, a judge ordered his release from federal prison in North Carolina, where he had been assigned to serve his sentence.
Skoien, 30, was convicted of misdemeanor domestic violence in 2006 and sentenced to probation. In 2007, probation agents learned Skoien had gotten a gun deer license. They went by his house and found a shotgun in his pickup. He admitted he’d used it to shoot a deer that morning. In fact, the carcass was in his garage.
A federal grand jury indicted Skoien for violation of a 1996 federal law that prohibits anyone convicted of domestic violence from ever possessing guns for any reason, often referred to as the Lautenberg Amendment. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.
From the beginning, Skoien argued that applying the federal law in his situation violated his 2nd Amendment right to possess a gun for hunting. U.S. District Judge Barbara Crabb denied a motion to dismiss, and a second motion made after the Heller ruling. That case found that the 2nd Amendment guarantees individual rights to have guns for self-defense, and that the total handgun ban in Washington, D.C., was therefore unconstitutional.
But the Heller court also said it wasn’t trying to undo the many “presumptively lawful” gun regulations, such as those prohibiting felons and the mentally ill from having guns, or restricting guns from certain places.
While Crabb thought the ban on guns for people convicted of misdemeanor domestic violence obviously fit the same category, Sykes found that conclusion premature.
“We take all this to mean that gun laws – other than those like the categorically invalid one in Heller itself – must be independently justified,” Sykes wrote after discussing aspects of the Heller ruling.
Sykes explains that an intermediate level of review should apply. In other words, the government would need to show more than just a rational basis for the law, but not have to meet the very high standard known as strict scrutiny.
Preventing domestic gun violence certainly qualified as an important government interest. But the government must still show a law that perpetually bans someone convicted of domestic violence from ever having a gun is a reasonable means to that end. Sykes said the government didn’t make enough of a record on that question, and sent the case back.
“If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction,” Sykes wrote