United States v. Steven Skoien, No. 08-3770 (Nov. 18, 2009 7th Cir. 2009)
A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9).
Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
The district court denied the motion. Skoien pleaded guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).
Heller held that the Second Amendment secures an individual natural right to keep and bear arms for defense of self, family, and home. 128 S. Ct. at 2797-99. After a lengthy analysis of the text of the Amendment and the founding-era sources of its original public meaning, the Supreme Court held that the Amendment guarantees an individual right of armed defense not limited to militia service. Id. at 2801.
Applying this understanding of the Second Amendment, the Supreme Court invalidated the District of Columbia’s comprehensive prohibition on handgun possession. Id. at 2821-22.
But the Court also added this: “[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.” Id. at 2816-17. The Court said in a footnote that it was “identify[ing] these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Id. at 2817 n.26.
Although the language about presumptive exceptions makes for some analytical difficulty, we read Heller as establishing the following general approach to Second Amendment cases. First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified. If the government can establish this, then the analysis need go no further.
If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right.
This requires that we decide on a level of scrutiny–a question the Supreme Court expressly reserved in Heller. We know that rational-basis review is out; Heller was explicit about that. 128 S. Ct. at 2818 n.27. This leaves either strict scrutiny or some form of intermediate scrutiny.
Applying strict scrutiny to all restrictions on gun rights is obviously incompatible with Heller’s dicta about “presumptively lawful” firearms laws. Though unexplained, the Court’s willingness to presume the constitutionality of various firearms restrictions–especially prohibitions on firearms possession by felons–gives us ample reason to believe that strict scrutiny does not apply here.
That leaves us with intermediate scrutiny, which is less demanding than strict scrutiny and we think the most appropriate standard of review given Heller’s reference to “presumptively lawful” gun regulations. This more flexible standard generally requires the government to establish that the challenged law is substantially related to an important governmental interest. Jeter, 486 U.S. at 461. The Supreme Court has applied a particularly rigorous version of this standard in the context of evaluating laws that classify by gender.
In United States v. Virginia, the Court held that gender-based classifications will survive intermediate scrutiny only if “the proffered justification is exceedingly persuasive.” 518 U.S. 515, 533 (1996). The Court said this “burden of justification is demanding and it rests entirely on the State,” which “must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Id.
What this means more specifically is that 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. See Fox, 492 U.S. at 480. The inquiry tests whether the regulation’s “scope is in proportion to the interest served,” id., but also accounts for “the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires,” id. at 481.
The disputed question here is the relationship between the government’s means and its end– whether there is a “reasonable fit” between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates. We cannot resolve this question on the present state of the record; the government has made little effort to discharge its burden of demonstrating the relationship between § 922(g)(9)’s means and its end.
To summarize, we conclude that intermediate scrutiny applies to Skoien’s Second Amendment challenge to this § 922(g)(9) prosecution.
The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest– § 922(g)(9)’s total disarmament of domestic-violence misdemeanants.
Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion. If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.
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