7th Circuit Overturns Gun Ruling

Another bad ruling.

Steve Skoien, 30, was convicted of misdemeanor domestic violence in 2006 - it was his second domestic battery conviction - and sentenced to probation. In 2007, probation agents learned Skoien had obtained a gun deer license. They went by his house and found a shotgun in his pickup truck. He admitted he’d used the gun to shoot a deer that morning. The carcass was in his garage.

A federal grand jury indicted Skoien for violation of a 1996 federal law, often referred to as the Lautenberg Amendment, that prohibits anyone convicted of domestic violence from ever possessing guns for any reason. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.

Last fall, a three-judge panel of the 7th Circuit overturned his conviction. The opinion was written by Judge Diane Sykes of Milwaukee, who said that before the government can infringe on an enumerated right like keeping a gun, prosecutors needed to show a stronger connection between the lifetime gun ban and the goal of reducing domestic gun violence. That ruling freed Skoien and sent the case back to the trial court.

Federal prosecutors, however, asked that the case be reconsidered by all 11 7th Circuit Appeals Court judges, or “en banc.” It was re-argued in May. Skoien’s attorney again argued that lifetime prohibition on gun ownership over a misdemeanor violated Skoien’s Second Amendment rights, as highlighted in the 2008 U.S. Supreme court ruling that struck down Washington D.C.‘s ban on handguns.

Last week the court came out the other way - except for Sykes, who wrote an 18-page dissent.

Writing for the majority, Chief Judge Frank Easterbrook noted that that case, known as Heller, did allow for certain restrictions on the right to possess guns, and that if nonviolent felons can be banned from having guns, perpetrators of domestic violence certainly can.

In her biting dissent, Sykes accused her colleagues of making the government’s case for prosecutors, of misconstruing both Heller,of overstating what colonists thought about gun restrictions in state constitutions in 1791, and more.

Sykes reaches the same conclusion she did in November: The case should be sent back to the trial court, where prosecutors should meet their own burden of showing that the Lautenberg Amendment survives an intermediate level of scrutiny about its constitutionality in the wake of the U.S. Supreme Court’s latest views on the Second Amendment.

Like it or not, the right to keep and bear arms is protected by the constitution.  Although it is subject to some regulation, as all rights are, there is an extremely high burden for abridging that right.  Conviction on a misdemeanor does not meet that burden.

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