The federal statute making it a crime for a person subject to a domestic violence injunction to possess a firearm does not violate the right to bear arms.

U.S. District Judge Lynn Adelman distinguished the ban from the Washington D.C. gun control law, struck down by the U.S. Supreme Court’s decision in D.C. v. Heller, 128 S.Ct. 2783 (2008).

“Heller held only that the federal government may not forbid possession of handguns for self-defense in the home,” Adelman wrote in a recent decision.

The case involved Kenneth Luedtke, who was charged with a violation of the statute, 18 U.S.C. 922(g)(8). Luedtke moved to dismiss the complaint on Second Amendment grounds, but Judge Adelman denied the motion on Nov. 18.

Adelman relied primarily on the following language 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…” Heller, 128 S.Ct. at 2816-17.

Adelman acknowledged that the statute -- part of the Lautenberg Amendment, which also prohibited possession of a firearm by a person convicted of misdemeanor domestic violence -– was not enacted until 1996, and thus, is not a “longstanding” prohibition.

Nevertheless, he concluded that the examples given in Heller are not an exhaustive list of permissible restrictions, but “are best understood as representing the TYPES of regulations that pass constitutional muster (emphasis added by court).”

Accordingly, Adelman framed the question as “whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of ‘longstanding prohibitions’ that survive Second Amendment scrutiny (quoting U.S. v. Booker, 570 F.Supp.2d 161, 163 (D.Me.2008).”

Noting that the statutes prohibiting possession of firearms by felons and the mentally ill were designed to keep firearms out of the hand of “potentially irresponsible persons,” Adelman concluded that the 1996 amendments were similar enough to pass constitutional muster.

“Nothing in Heller suggests that Congress may not -- based on further experience and study -- close such loopholes, adding to the list of dangerous individuals historically barred from firearm possession,” Adelman wrote.

He further held that the statute was neither overbroad nor did it contain insufficient procedural protections.

Under Wisconsin law, sec. 813.12(4)(a)3, a domestic abuse injunction may not be issued unless there are reasonable grounds to believe that the person has or may engage in domestic abuse of the petitioner, and the court must warn the person that he may not possess a firearm.

Accordingly, Adelman concluded the statute was not procedurally flawed, and denied the motion to dismiss.

Analysis

Unlike some previous cases in Wisconsin’s U.S. district courts -- U.S. v. Skoien, 08-CR-12 (W.D.Wis., Aug. 27, 2008); U.S. v. Yancey, 08-CR-103 (W.D.Wis., Oct. 3, 2008) -- the opinion in this case at least acknowledges that the 1996 Lautenberg Amendment, which created the restriction at issue, is not a “longstanding” prohibition on the possession of firearms.

Still, the court’s analysis leaves other avenues for defense attorneys to make constitutional arguments against the law not addressed by the parties or the court in this case.

For example, in footnote 3 of the opinion, the court rejected a claim by Luedtke that the originalist approach used by the Supreme Court in Heller disapproves supplanting constitutional protections with 21st century policy decisions.

Adelman wrote, “He cites no authority in support of this argument, and many of the procedural protections criminal defendants now take for granted did not exist in the 18th century (citing Gideon v. Wainwright, 372 U.S. 335 (1963)).”

However, defense attorneys can easily find authority for the proposition that the Second Amendment protections are static, and cannot be supplanted by modern policy decisions -- most notably, the U.S. Supreme Court’s recent Confrontation Clause jurisprudence.

In Giles v. California, 128 S.Ct. 2678 (2008), and Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court effectively read the Sixth Amendment’s Confrontation Clause as carved in 18th century stone, and held that the right must be interpreted only by reference to 18th century common law.

Whether the Second Amendment should be read the same way or not may be subject to debate, but if defense attorneys cite these Confrontation Clause cases, at least no court can say they have produced “no authority” for such a reading.

In addition, it is not clear why Gideon v. Wainwright has any bearing on the issue. Gideon expanded constitutional rights; in contrast, the congressional restrictions on firearm possession, like the evidentiary rules at issue in Crawford and Giles, contract those rights.

Later, in footnote 5, Adelman wrote, “I can leave for another day the issue of whether a viable constitutional challenge to sec. 922(g)(8) may be mounted if the applicable state law fails to provide the fundamentals of due process.”

This also leaves a lot of room for argument. Before a person can be prohibited from possessing a firearm based on a felony conviction or a misdemeanor conviction for domestic violence, he has the full panoply of constitutional protections available: right to jury trial; proof beyond a reasonable doubt; right to counsel; etc.

For a domestic violence injunction to issue under Wisconsin law, however, the respondent need not even engage in domestic violence. All that is necessary is that a court find “reasonable grounds” that the respondent “may engage in [] domestic abuse.”

Thus, the ease with which an injunction may be obtained, compared to a criminal conviction, gives defense attorneys room to make a Second Amendment/due process argument against the statute, at least where the underlying injunction was issued in Wisconsin.

Defense attorneys should take advantage of this opening, and continue to argue in future cases that while a person may forfeit the constitutional right to bear arms by committing, and being convicted of, a crime, he cannot forfeit it based on a civil court’s prediction of what “may” occur.