By Jacob Sullum
Last week the U.S. Court of Appeals for the 7th Circuit cast doubt on the constitutionality of a 1996 federal law that bars anyone convicted of a misdemeanor involving domestic violence from owning a gun for the rest of his life. Other courts, including the 10th Circuit, have concluded that the law is consistent with D.C. v. Heller, the 2008 case in which the Supreme Court declared that the Second Amendment protects an individual right to arms.
"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment," Justice Antonin Scalia wrote for the majority in Heller, "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 as the 7th Circuit noted in a case involving a man who was caught with a shotgun a year after he was convicted of domestic battery, Heller did not address the constitutionality of taking gun rights away from people convicted of misdemeanors.
To justify that policy, the appeals court concluded, the government must do more than assert its constitutionality. Since the shotgun in this case was used for hunting (as opposed to self-defense in the home, the issue at the center of Heller), and since the challenged restriction applies only to people convicted of certain crimes (as opposed to all citizens, as in Heller), the 7th Circuit decided that "intermediate scrutiny" is the appropriate standard. Accordingly, it sent the case back to the trial court for consideration of whether "the challenged law is substantially related to an important governmental interest."
CBS News.com correspondent (and Reason contributor) Declan McCullagh notes that the law at issue in this case is not the only conviction-related restriction on Second Amendment freedoms that can reasonably be challenged now that the Supreme Court has recognized gun possession as a fundamental, pre-existing right guaranteed by the Constitution. He cites a recent Harvard Journal of Law & Public Policy article—titled "Why Can't Martha Stewart Have a Gun?"—that questions the justification for denying nonviolent felons the right to arms.
"In an age when Americans can be non-violent felons for possession of a short lobster or sharing MP3 files," McCullagh asks, "is a lifetime ban constitutional?" Although Heller suggests the general ban on gun possession by felons is constitutional, it does not actually uphold that policy, which was not at issue in the case. So it's conceivable the Court will at some point ask whether the Second Amendment allows the government to permanently deprive tax evaders, pot growers, and online casino operators of their right to arms.
The 7th Circuit's ruling is here (PDF).
By Jacob Sullum