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 case en 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 the Heller 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 (like extending 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 the Skoien 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)