New Court Ruling Mutes “Gun Rights” Celebration
For those in the extremist gun lobby and the libertarian right who view the Supreme Court’s recent Second Amendment rulings as assault weapons ready to blow holes in America’s gun laws, the Seventh Circuit’s ruling this week in U.S. v. Skoien must be a bitter pill.
Skoien is no doubt the most significant lower court ruling on the Second Amendment since the Supreme Court’s decision in District of Columbia v. Heller two years ago recognizing the right of individuals to have guns in the home for self-defense. The Seventh Circuit heard the caseen banc (i.e. with all eleven judges sitting) and, by a vote of 10-1, upheld the conviction of Steven Skoien for violating the federal law barring possession of guns by individuals with misdemeanor convictions for domestic violence. Skoien, like many other convicted gun criminals, saw Heller as a way to avoid punishment by seeking to strike down as unconstitutional the law he had violated.
The Skoien ruling is a bucket of cold water thrown on the “gun rights” celebration following the Supreme Court’s decision last month in McDonald v. City of Chicago striking down Chicago’s handgun ban.
First, because appeals courts rarely sit en banc, seldom do they rule by such lopsided majorities. In sports terms, this one was a rout. More importantly, the 10-judge majority reflected the full sweep of the ideological spectrum. The majority opinion was written by Judge Frank Easterbrook, a leading conservative jurist and intellectual, and joined by six judges appointed by Republican Presidents and three appointed by Democratic Presidents.
Second, the restriction on gun ownership under attack in this case was not among those specifically blessed by the Heller majority as “presumptively legal,” even under Heller’s newly-discovered right to guns for self-defense. Whereas Heller had said “nothing in our opinion should cast doubt on longstanding prohibitions on the possession firearms by felons and the mentally ill” (among other “presumptively lawful” restrictions), it said nothing about misdemeanor domestic violence offenses. Significantly, Judge Easterbrook’s opinion reads theHeller language not as created a “comprehensive code” of permissible regulations, but rather as standing for the broader proposition that it remains proper to bar gun possession by some categories of persons, “leaving it to the people’s elected representatives the filling in of details.” Since the core of state and federal gun regulation has long been directed to keeping guns out of the hands of defined categories of dangerous people, this degree of legislative leeway promises to make gun control largely safe from successful constitutional attack. For example, it suggests that reasonable ways of enforcing these categorical prohibitions (likeextending Brady Law background checks to private shows at gun shows and elsewhere) remain unthreatened by the new Heller right.
Third, the Seventh Circuit rejected any suggestion that Heller’s reference to the presumptive legality of “longstanding” restrictions means that only those restrictions on the books in 1791 are currently permissible. After all, as the Circuit Court pointed out, even the “presumptively legal” prohibition on possession of guns by felons was not passed by Congress until 1938. Judge Easterbrook might also have added that it would be incongruous to allow as constitutionally permitted only the laws in place at the founding, when the Heller Court made handguns constitutionally protected because they are commonly owned for self-defense at the present time. That was not the case back in 1791.
Finally, for the court in Skoien, the constitutional test was not historical in nature, but rather was whether the statute at issue is “substantially related” to its objective of “preventing armed mayhem.” The court had no trouble concluding that “both logic and data” demonstrate the lifesaving importance of barring domestic abusers from having guns. The court cited studies showing that domestic assaults with guns are far more lethal than assaults with other weapons, that guns in the home increase the risk of homicide, and that guns in the homes of domestic abusers are particularly a threat to police responding to domestic violence calls.
The Seventh Circuit’s approach suggests that Second Amendment challenges will end up showcasing the impressive research, particularly by the public health community, documenting the devastating toll of gun violence on families and communities, as well as the importance of strong gun laws to public health and safety. Showcasing the importance of gun laws is not exact what the “gun rights” folks had in mind when they were celebrating the Heller decision two years ago.
It is easy to understand why libertarian bloggers like Josh Blackman are upset about theSkoien ruling, which he cites as evidence of the “epic failure” of both Heller and McDonald to truly establish a constitutional basis for the gutting of America’s gun laws. Blackman frets that Judge Easterbrook’s opinion in Skoien sets forth “a framework that will likely be relied upon by most courts.” If he’s right, and I think he is, strong gun control laws have little to fear from the Second Amendment.
For more information, see Dennis Henigan’s Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)
Sign up for the OV Daily Newsletter
OV Social
Do guns make us safe?
Woman kills her returning rapist with shotgun
Woman Shoots Would-Be Rapist
Cocoa Store Owner Shoots Robber
Okla. mom Sarah McKinley defends her infant sons life from armed intruders
Woman Uses .22 Pistol to Shoot & Kill Invader
84-year-old Cincinnati man uses gun to defend himself during home invasion
Licensed gunpacker at GAS STATION shoots to defend himself
Mom with Ohio concealed handgun license fires gun to ward off sex offender's violent attack
Woman kills her returning rapist with shotgun
Pizza Guy Pulls Gun on Robber
Man at ATM Shoots Armed Robbers
Woman who shot 12-year-old won't face charges, but boy will
Concealed Carry works
Gun Owners Busy Shooting Thugs in Toledo
It was them or my family
Dont bring a knife to a gunfight
Appalachian School of Law shooting
A principal and his gun
Armed 11 year old Girl Defends Home from 3 armed Burglars: Armed Citizen
Texas 15 Year Old Defends Self, Sister; Shoots Burglar
Child Shoots Intruder - Port Allen, LA
Boy Uses Dad's AR-15 to Shoot Invader
Houston Self Defense Shooting CCW
Tire Shop Robber Shot by Armed Citizen (TX)
Shot Boy 11, Shoots Illegal Alien Home Invader
Woman Speaks Out After Shooting Attackers
Police: Shooting Was Self-Defense
Man Stops criminal with his concealed handgun
Woman kills her returning rapist with shotgun
84-year-old Woman Shoots Intruder
Elderly Apartment Owner Shoots Invader
Kentucky Homeowner Shoots Would-be Thief
Armed Pastor Holds Crooks at Gunpoint for Police
Kid Shoots Home Invader
Metro Mom Kills Home Invader
FoxNews: Pregnant Mom Holds Burglar at Gunpoint
HOME INTRUDER IS FATALY SHOT 10PM
89-Year-Old Fires Gun at Intruder
Woman In Home Kills Intruder
Man Fires Shotgun to Kill Home Invader
Man Shoots And Kills Intruder
Gun Owner Kills Burglar
Resident Kills Intruder, Wounds Another
Chicago Elderly Kills Intruder With Handgun
71-year-old homeowner shoots burglar
69-Year-Old Shoots Home Intruder
Armed Samaritan Thwarts Bank Robber
Man Shoots Armed Robbers
Woman Shoots Crazed Gunman at Mega-Church
Ailing Elderly Man Shoots Robber
Another 911 Caller Shoots & Kills Intruder
Texas Father Protects Family, Kills Intruders
Man Uses Handgun to Protect Home
Houston Self Defense Shooting CCW
Ambushed Dad Shoots Back at Robbers
Security Video: Woman With Gun Shoots Robber
Armed Customer Shoots Knife-Wielding Man
Man at ATM Shoots Armed Robbers
Good reason to be armed...
Armed Citizen Halts Liquor Store Robbery
Good Samaritan Kills Woman's Attacker
Liquor Store Owner V Armed Robber
Robber killed by clerk, robber's accomplice charged with it
Robber's Victim Pulls His Own Gun
Man Uses Shotgun to Protect Home
Man's Shooting Spree Thwarted by Armed Citizen
Gas Station Clerk Fires Gun at Robbery Suspects
Woman Uses Handgun to Shoot Invader
Armed Citizen Shoots Violent Ex-Boyfriend
Clerk Shoots Armed Robber
Gunfight Caught on Tape: Store Owner vs. 2 Armed Robbers
Robber Gets Shot By Clerk
Having guns doesn't mean you can rob everybody
Man Shoots Home Invader
Home Intruder Fatally Shot & killed by elderly man During 911 Call
Armed Beauty Queen Fatally Shoots Intruder in Florida Home Invasion
Man with concealed-carry permit kills robbery suspect in Cleveland
teen robber shot by Wal-Mart shopper
Richmond Store owner grateful for man who shot robber
Would-Be Robber Fatally Shot
Pizza Delivery Man Shoots, Kills Robber
Man Shoots, Kills Robber
Dunkin' Donuts robbery suspect dies after being shot
Customer shoots, kills robber at L.A. Tan
Clerk Who Shot Robber Acted in Self Defense
Man who shot robber a hero
Diner owner shoots robber in self defense
Clerk says he shot robber in self-defense
Church's customer shoots robber in neck
Beach pizza shop owner fatally shoots robber, police say
The Lautenberg Act made misdemeanor domestic violence a bar to purchasing a firearm in the mid ninties and has been upheld by SCOTUS. That makes the whole claim of "cold water splased in the face of gun rights supporters" so much noise. Anyone who didn't expect this turnout was deluded.
For two years now, the Brady Campaign has been shouting from the rooftops to any who would listen that SCOTUS somehow has found a "new right" in the 2nd amendment. Nothing could be further from the truth. In over 200 years of jurisprudence, SCOTUS has never suggested anything of the like, rather, it has held repeatedly that the 2nd applied to the federal govenment only. The true significance of the Heller decision, was not that the court said the 2nd proteced an individual rights to arms but that it finally said so in a case that specifically asked that question.
But does the Brady Campaign respect that answer? NO.
Instead they spin this kind of crap...
"Judge Easterbrook might also have added that it would be incongruous to allow as constitutionally permitted only the laws in place at the founding, when the Heller Court made handguns constitutionally protected because they are commonly owned for self-defense at the present time. That was not the case back in 1791." What a brazen attempt to distort the truth to support their position to ban handguns.
The 2nd plainly speaks to the right to keep and bear arms. Handguns are arms, regardless of their commonality for use as self defense in 1791. Blackstone, a legal scholar whose work was heavily relied on by the founders, when speaking to the right to arms said the right does not protect exceptionally dangerous or unusal weapons, Handguns, even in 1791, were in no way exceptionally dangerous or unusual. In fact they were common enough that many specimens have survived to this day, and common enough in militia use that the the Militia Act of 1792 requires officers to have a brace (two).
My last sentence speaks to the Miller decision, often used in past by groups like the Brady Campaign to say there was no individual 2nd Amendment right to arms, but that is not what the decison said at all. What the decision says is not only is there an individual right to arms, but the arms most protected are those most useful for militia purposes. I wouldn't be surprised if next, the Brady Campaign will be arguing that handguns have no militia purpose.
Skoien does nothing but uphold what has been federal law for the last 14 years and can be expected to be so for the forseeable future. No surprises, no bad pills, unless you are the Brady Campaign and must attempt to turn a rather mundane case with an obvious outcome into a victory, because they have been unable to win supprot for thier position in the courts.
Finally, note that it is interesting that the only people to reply to anything that Paul Helmke and Dennis Hennigan write, be it found here or an Huntington Post, is 2nd Amendment supporters. Perhaps that is because what they write is so obvioulsly distorted, that even those who might support them find themselves unable to do so.
Excellent comment, John!! I agree 100%!
I Was convicted of a domestic violence 11 years ago for grabbing my ex's arm and telling her to let me out of her vehicle. I regret that this ever took place and I learned a big life lesson but should I lose the right to bare arms for life because of this? I have held down the same job for 9 years now as well as graduating from college with a B.S degree in business management. I have done all that I possibly can to prove that I am a productive member of sociaty. About 2 years ago I applied to become a highway patrol officer and passed all of the tests for a academy appointment, including a lie detector and a QAP which entails explaining your entire past to panel members. I have the ok from a law enforcement agency but I can go no further because of this ban that I had no clue about when I pled no contest to the crime 11 years ago. I have expunged my record per 1203.4, 12021.c, as well as petitioned the court for a Corum Nobis. When petitioning the court I had the backing of my ex girlfriend whom I was with when I was charged with the DV as well my background officer, both support me getting my rights back. The petition was denied based on my rights should be restored to me via my expungement as well as state law, California bans people for 10 years for a mistomeanor DV conviction. I have completely exhausted every avenue exept for a pardon and I am going to sent out that paperwork shortly. So you can see how impossible it is to redeem oneself after such a minor offense. And just to clarify how easy it is to lose your rights forever all one has to do is throw a wad of paper at yor domestic partner or if you spank your child and the police are called out you are looking at a D V charge. If the readers of this think that I am blowing hot air then just research this subject a little further and you will see many cases of very minor offenses that has resulted in a lifetime ban of a fundemental right. I am not saying everyone deserves to have thier gun rights restored but there should be a program in place to determine if a person has demostrated that he/she deserves a second chance. And one last thing before I stop ranting, my home was broken into two times last year and I can't even get a sling shot to protect my wife and baby girl if someone happens to break in to our house when we are home. It is a very helpless feeling knowing that you and your family are at the mercy of criminals.
Sent from my iPhone
Excellent argument, Chris! If a man is deemed good enough not to be or remain in prison, then he should have possession of all rights including weapons for defense. If society doesn't deem a former convict responsible enough to possess guns , then they should not have let him out of prison and back into society. It's as simple as that! God bless you, Chris! I wish you well!
The constitution has provisions in it to allow a court of law to strip any right from a man. Life Liberty or property.
However, if a law is unconstitutional in the beginng, how can one loose their rights for breaking it, when it was already restricting rights?
If you want a dose of lethal logic go stroll through Chicago streets with a fat wad of cash in hand . Now try it in any city in Vermont.
Your logic says that Chicago would be safer because there are less guns , and that you would be robbed in Vermont because they are everywhere.
I suggest you take your stroll through Vermont first. You won't get to if you don't.
Beautiful response! Excellent suggestion and comparison with the Chicago/Vermont scenarios!!! Thank you for speaking the truth!
Our courts have held the right to keep and bear arms may be denied felons and mentally ill persons.
The trouble is, misdemeanors are NOT felonies. While no reasonable person would condone domestic violence , there are aspects of the situation that raise serious concerns. In too many cases, domestic violence laws have been applied so liberally that an accusation is as good as a conviction. It's a handy accusation to make in custody battles, or simply for revenge. Convictions rarely involve jury trials, and, more often than not, are the result of plea bargains. On advice of an attorney, a person not truly guilty, may accept a misdemeanor conviction over the uncertainties of a lengthy and expensive trial .
IMO, there are two very real aspects of the situation. 1. If a person's assault on a family member is so serious it should result in denial of fundamental rights, it should not be treated as a misdemeanor. 2. If an offense is minimal to the point of being no more than a misdemeanor, it should not result in elimination of fundamental rights.
I don't see how you can have it both ways. It seems to me for the law to be other than unconstitutionally broad would require law that provides for a class of First Degree domestic violence that at the very least constitutes a Class C felony.
Where do you draw the line once the door has been opened? Should those convicted of drunk driving lose their Second Amendment rights? How about a college kid that gets into a fist fight at school ? What other petty offenses subject to the lowest due process standards, of the lowest municipal courts, should result in consequences comparable to serious crimes?
The Brady Bunch says, "strong gun control laws have little to fear from the Second Amendment". Here, as it has many times in the past, the Brady Bunch flies its true colors and states the true purpose of its criminal enterprise is to strip American citizens of fundamental civil rights under the color of law.
We don't tolerate that sort of thing from Klansmen and we shouldn't tolerate it from the Brady Bunch.
Well stated, sir! I totally concur!