The Seventh Circuit last week vacated a man’s conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence.

However, the court did not strike the statute down as unconstitutional, but remanded the case to the district court to give the government the opportunity to “establish a reasonable fit” between the “statute’s means and its end.”

Addressing the record made before the district court, Judge Diane S. Sykes wrote for the court, “The government … has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that sec. 922(g)(9) therefore passes constitutional muster. That’s not enough.”

In 2006, Steven Skoien was convicted of domestic battery in Wisconsin state court and placed on probation. In 2007, he was arrested with a hunting shotgun in his truck. He admitted he had gone hunting and shot a deer earlier in the day. He did not own the gun.

Skoien was charged in federal court and sentenced to two years in prison after pleading guilty before U.S. District Court Judge Barbara B. Crabb; however, he reserved his right to challenge the denial of his motion to dismiss the indictment on Second Amendment grounds. The Seventh Circuit reversed the conviction on Nov. 18.

Dicta

The government’s argument, and the district court’s denial of Skoien’s motion to dismiss, were both based on the following statement in the U.S. Supreme Court’s 2008 opinion in District of Columbia v. Heller, 128 S.Ct. 2783: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Calling the passage dicta, the Seventh Circuit concluded it was not dispositive of whether Skoien’s possession of the firearm was protected by the Second Amendment. Instead, the court concluded that all gun laws must be independently justified.

Examining the statute, and the individual facts in this case, the court noted that the firearm was a “conventional hunting gun,” and therefore within the scope of the Second Amendment as understood at the time of its adoption.

The court also noted that the ban on firearms possession by domestic-violence misdemeanants (the “Lautenberg Amendment”) is not longstanding, but “quite new” – it was enacted in 1996.

The court thus rejected the district court’s conclusion that the statute fell squarely within the Heller dicta.

Intermediate scrutiny

The court next addressed the appropriate standard of scrutiny to apply and concluded that intermediate scrutiny was appropriate.

In Heller, the Supreme Court explicitly rejected rational basis review for bans on possession of firearms.

The Seventh Circuit held that the Court in Heller also implicitly rejected strict scrutiny by stating that some firearms laws are “presumptively lawful.”

Left with only intermediate scrutiny as an option for the appropriate standard of review, the court articulated it as follows: “for gun laws that do not severely burden the core Second Amendment right of self-defense there need only be a ‘reasonable fit’ between an important governmental end and the regulatory means chosen by the government to serve that end,” with the government bearing the burden of proof.

Because the government in this case rested its entire case on the Heller dicta, the court held that it had failed to meet its burden, vacated Skoien’s conviction, and remanded the case to the trial court to give the government a further opportunity to meet its burden.

Related article by David Ziemer.