United States v. Skoien

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3770

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

S TEVEN S KOIEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08-cr-12-bbc—Barbara B. Crabb, Judge.

A RGUED M AY 20, 2010—D ECIDED JULY 13, 2010

Before E ASTERBROOK, Chief Judge, and B AUER, P OSNER,

F LAUM , K ANNE , R OVNER , W OOD , W ILLIAMS, S YKES,

T INDER, and H AMILTON, Circuit Judges.

E ASTERBROOK, Chief Judge. Steven Skoien has two con-

victions for “misdemeanor crime[s] of domestic vio-

lence” and therefore is forbidden to carry firearms in or

affecting interstate commerce. 18 U.S.C. §922(g)(9). Wis-

consin informed Skoien about this rule; he signed an

acknowledgment of the firearms disability. While he

2 No. 08-3770

was on probation from the second of his domestic-

violence convictions, he was found in possession of three

firearms: a pistol, a rifle, and a shotgun. He pleaded

guilty to violating §922(g)(9) by possessing the shotgun

and was sentenced to two years’ imprisonment. His

conditional guilty plea, see Fed. R. Crim. P. 11(a)(2),

reserves the right to contend that §922(g)(9) violates

the Constitution’s Second Amendment. We heard this

appeal en banc to decide whether §922(g)(9) comports

with that amendment, as interpreted in District of

Columbia v. Heller, 128 S. Ct. 2783 (2008). The eleventh

circuit has held that it does. United States v. White, 593

F.3d 1199, 1205–06 (11th Cir. 2010). The fourth circuit

has implied otherwise, though in a non-precedential

order. United States v. Chester, 2010 U.S. App. L EXIS 3739

(4th Cir. Feb. 23, 2010).

Heller concludes that the Second Amendment “protects

the right to keep and bear arms for the purpose of self-

defense” and that a law “that banned the possession of

handguns in the home” violates that right. McDonald v.

Chicago, No. 08–1521 (U.S. June 28, 2010), slip op. 1. The

United States submits that, before considering how the

amendment applies to shotguns and hunting (which is

how Skoien contends he used that weapon), we must

decide whether Congress is entitled to adopt categorical

disqualifications such as §922(g)(9). The prosecutor

relies on this passage from Heller:

Like most rights, the right secured by the Second

Amendment is not unlimited. . . . Although we

do not undertake an exhaustive historical

No. 08-3770 3

analysis today of the full scope of the Second

Amendment, nothing 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 condi-

tions and qualifications on the commercial sale

of arms.26

_________________

26

We identify these presumptively lawful regula-

tory measures only as examples; our list does not

purport to be exhaustive.

128 S. Ct. at 2816–17, reiterated by McDonald, slip op. 39–40

(plurality opinion). To this Skoien replies that his prior

offenses were misdemeanors rather than felonies, and

that §922(g)(9) is not a “longstanding” prohibition, having

been enacted in 1996. See United States v. Hayes, 129 S. Ct.

1079 (2009) (discussing its genesis). The prosecutor

rejoins by noting that the Court stated its holding this way:

[W]e hold that the District’s ban on handgun

possession in the home violates the Second

Amendment, as does its prohibition against ren-

dering any lawful firearm in the home operable

for the purpose of immediate self-defense. As-

suming that Heller is not disqualified from the

exercise of Second Amendment rights, the District

must permit him to register his handgun and

must issue him a license to carry it in the home.

4 No. 08-3770

128 S. Ct. at 2821–22. The reference to being “disqualified”

relates to prior convictions and mental illness. Id. at

2819. Heller also observes that the Second Amendment

“elevates above all other interests the right of law-abiding,

responsible citizens to use arms in defense of hearth and

home.” Id. at 2821. People convicted of domestic violence

are neither law-abiding nor responsible, the prosecutor

contends.

We do not think it profitable to parse these passages

of Heller as if they contained an answer to the question

whether §922(g)(9) is valid. They are precautionary lan-

guage. Instead of resolving questions such as the one

we must confront, the Justices have told us that the

matters have been left open. The language we have

quoted warns readers not to treat Heller as containing

broader holdings than the Court set out to establish: that

the Second Amendment creates individual rights, one

of which is keeping operable handguns at home for self-

defense. What other entitlements the Second Amendment

creates, and what regulations legislatures may establish,

were left open. The opinion is not a comprehensive

code; it is just an explanation for the Court’s disposition.

Judicial opinions must not be confused with statutes, and

general expressions must be read in light of the subject

under consideration. See Zenith Radio Corp. v. United

States, 437 U.S. 443, 462 (1978).

Although the passages we have quoted are not

dispositive, they are informative. They tell us that statu-

tory prohibitions on the possession of weapons by some

persons are proper—and, importantly for current pur-

No. 08-3770 5

poses, that the legislative role did not end in 1791. That

some categorical limits are proper is part of the original

meaning, leaving to the people’s elected representatives

the filling in of details. Heller identified, 128 S. Ct. at

2804, as a “highly influential” “precursor” to the Second

Amendment the Address and Reasons of Dissent of the

Minority of the Convention of the State of Pennsylvania

to Their Constituents. (This report is reprinted in Bernard

Schwartz, 2 The Bill of Rights: A Documentary History

662, 665 (1971).) The report asserted that citizens have

a personal right to bear arms “unless for crimes com-

mitted, or real danger of public injury”. Many of the

states, whose own constitutions entitled their citizens to

be armed, did not extend this right to persons convicted

of crime. See Stephen P. Halbrook, The Founders’ Second

Amendment 273 (2008) (concluding that this limitation

was understood in the eighteenth century even when not

stated expressly in the constitutional text); C. Kevin

Marshall, Why Can’t Martha Stewart Have a Gun?, 32

Harv. J.L. & Pub. Policy 695, 700–13 (2009) (surveying the

history of state laws limiting convicts’ entitlement to

possess firearms). See also United States v. McCane,

573 F.3d 1037, 1047–50 (10th Cir. 2009) (Tymkovich, J., con-

curring).

The first federal statute disqualifying felons from pos-

sessing firearms was not enacted until 1938; it also dis-

qualified misdemeanants who had been convicted of

violent offenses. Federal Firearms Act, c. 850, §2(f), 52 Stat.

1250, 1251. (Technically the crime was “receipt” of a

gun that had crossed state lines; the statute treated pos-

6 No. 08-3770

session as evidence of receipt.) A 1938 law may be

“longstanding” from the perspective of 2008, when

Heller was decided, but 1938 is 147 years after the states

ratified the Second Amendment. The Federal Firearms

Act covered only a few violent offenses; the ban on pos-

session by all felons was not enacted until 1961. Pub. L.

87–342, 75 Stat. 757 (extending the disqualification to

all persons convicted of any “crime punishable by im-

prisonment for a term exceeding one year”, the current

federal definition of a “felony”). In 1968 Congress changed

the “receipt” element of the 1938 law to “possession,”

giving 18 U.S.C. §922(g)(1) its current form. If such a

recent extension of the disqualification to non-violent

felons (embezzlers and tax evaders, for example) is pre-

sumptively constitutional, as Heller said in note 26, it

is difficult to condemn §922(g)(9), which like the 1938

Act is limited to violent crimes. It would be weird to

say that §922(g)(9) is unconstitutional in 2010 but will

become constitutional by 2043, when it will be as “long-

standing” as §922(g)(1) was when the Court decided

Heller. Moreover, legal limits on the possession of

firearms by the mentally ill also are of 20th Century

vintage; §922(g)(4), which forbids possession by a

person “who has been adjudicated as a mental defective

or who has been committed to a mental institution”,

was not enacted until 1968. Pub. L. 90–618, 82 Stat.

1213, 1220.

So although the Justices have not established that any

particular statute is valid, we do take from Heller the

message that exclusions need not mirror limits that were

No. 08-3770 7

on the books in 1791. This is the sort of message that,

whether or not technically dictum, a court of appeals

must respect, given the Supreme Court’s entitlement to

speak through its opinions as well as through its

technical holdings. See United States v. Bloom, 149 F.3d 649,

653 (7th Cir. 1998). This means that some categorical

disqualifications are permissible: Congress is not limited

to case-by-case exclusions of persons who have been

shown to be untrustworthy with weapons, nor need

these limits be established by evidence presented in

court. Heller did not suggest that disqualifications would

be effective only if the statute’s benefits are first estab-

lished by admissible evidence.

Categorical limits on the possession of firearms would

not be a constitutional anomaly. Think of the First Amend-

ment, which has long had categorical limits: obscenity,

defamation, incitement to crime, and others. See United

States v. Stevens, 130 S. Ct. 1577, 1584 (2010). These cate-

gories are not restricted to those recognized in 1791, when

the states approved the Bill of Rights. The Justices have

held that legislatures may add child pornography

to the list, even though the materials do not meet the

historical definition of obscenity. New York v. Ferber, 458

U.S. 747 (1982). More recently, the Court held that speech

as part of a public employee’s job is categorically outside

the First Amendment. Garcetti v. Ceballos, 547 U.S. 410

(2006). There are other categories, which we need not

discuss. See generally John Hart Ely, Flag Desecration: A

Case Study in the Roles of Categorization and Balancing in

First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975).

Neither Ferber nor Garcetti conditioned the categorical

8 No. 08-3770

limit on proof, satisfactory to a court, that the exclu-

sion was vital to the public safety.

We do not mean that a categorical limit on the posses-

sion of firearms can be justified under the rational-basis

test, which deems a law valid if any justification for it

may be imagined. E.g., Vance v. Bradley, 440 U.S. 93 (1979).

If a rational basis were enough, the Second Amendment

would not do anything, see Heller, 128 S. Ct. at 2817–18

n.27—because a rational basis is essential for legislation

in general. The Court avoided deciding in Stevens

how great the public interest must be to adopt a new

categorical limit on speech—the United States had argued

for treating depictions of extreme animal cruelty the

same as child pornography—but stated that the showing

must be strong. The United States concedes that some

form of strong showing (“intermediate scrutiny,” many

opinions say) is essential, and that §922(g)(9) is valid

only if substantially related to an important govern-

mental objective. See Buckley v. American Constitutional

Law Foundation, Inc., 525 U.S. 182, 202–04 (1999) (using

this formula for some First Amendment questions);

Heckler v. Mathews, 465 U.S. 728, 744–51 (1984) (using

this formula for statutes that affect marriage and child-

bearing). The concession is prudent, and we need not get

more deeply into the “levels of scrutiny” quagmire, for no

one doubts that the goal of §922(g)(9), preventing armed

mayhem, is an important governmental objective. Both

logic and data establish a substantial relation between

§922(g)(9) and this objective.

“Misdemeanor crime of domestic violence” is a

defined term.

No. 08-3770 9

(A) Except as provided in subparagraph (C), the

term “misdemeanor crime of domestic violence”

means an offense that—

(i) is a misdemeanor under Federal, State, or

Tribal law; and

(ii) has, as an element, the use or attempted

use of physical force, or the threatened use of

a deadly weapon, committed by a current or

former spouse, parent, or guardian of the

victim, by a person with whom the victim

shares a child in common, by a person who is

cohabiting with or has cohabited with the

victim as a spouse, parent, or guardian, or by a

person similarly situated to a spouse, parent,

or guardian of the victim.

(B)(i) A person shall not be considered to have

been convicted of such an offense for purposes of

this chapter, unless—

(I) the person was represented by counsel in

the case, or knowingly and intelligently

waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense

described in this paragraph for which a

person was entitled to a jury trial in the juris-

diction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and

intelligently waived the right to

10 No. 08-3770

have the case tried by a jury, by

guilty plea or otherwise.

(ii) A person shall not be considered to have

been convicted of such an offense for purposes

of this chapter if the conviction has been ex-

punged or set aside, or is an offense for

which the person has been pardoned or has

had civil rights restored (if the law of the

applicable jurisdiction provides for the loss

of civil rights under such an offense) unless

the pardon, expungement, or restoration of

civil rights expressly provides that the person

may not ship, transport, possess, or receive

firearms.

18 U.S.C. §921(a)(33). A “misdemeanor crime of domestic

violence” thus is one in which violence (actual or at-

tempted) is an element of the offense; it is not enough if

a risky act happens to cause injury. Cf. Begay v. United

States, 553 U.S. 137 (2008); Johnson v. United States, 130

S. Ct. 1265 (2010); United States v. Howell, 531 F.3d 621

(8th Cir. 2008) (applying Begay to §921(a)(33)).

The belief underpinning §922(g)(9) is that people who

have been convicted of violence once—toward a spouse,

child, or domestic partner, no less—are likely to use

violence again. That’s the justification for keeping

firearms out of their hands, for guns are about five

times more deadly than knives, given that an attack with

some kind of weapon has occurred. See Franklin E.

Zimring, Firearms, Violence, and the Potential Impact of

No. 08-3770 11

Firearms Control, 32 J.L. Med. & Ethics 34 (2004) (collecting

studies).

Hayes, which we mentioned above, held that whether

a crime is one of “domestic violence” depends on the

identity of the victim rather than the elements of the

offense. When describing why §922(g)(9) was enacted, the

Court wrote (129 S. Ct. at 1087):

Existing felon-in-possession laws, Congress recog-

nized, were not keeping firearms out of the hands

of domestic abusers, because “many people who

engage in serious spousal or child abuse

ultimately are not charged with or convicted of

felonies.” 142 Cong. Rec. 22985 (1996) (statement of

Sen. Lautenberg). By extending the federal firearm

prohibition to persons convicted of “misdemeanor

crime[s] of domestic violence,” proponents of

§ 922(g)(9) sought to “close this dangerous loop-

hole.” Id., at 22986.

Construing § 922(g)(9) to exclude the domestic

abuser convicted under a generic use-of-force

statute (one that does not designate a domestic

relationship as an element of the offense) would

frustrate Congress’ manifest purpose. Firearms

and domestic strife are a potentially deadly combi-

nation nationwide.

There are three propositions in this passage: first that

domestic abusers often commit acts that would be charged

as felonies if the victim were a stranger, but that are

charged as misdemeanors because the victim is a rela-

tive (implying that the perpetrators are as dangerous as

12 No. 08-3770

felons); second that firearms are deadly in domestic

strife; and third that persons convicted of domestic vio-

lence are likely to offend again, so that keeping the

most lethal weapon out of their hands is vital to the

safety of their relatives. Data support all three of these

propositions.

Start with prosecuting domestic violence as a misde-

meanor when similar acts against a stranger would be a

felony (a practice often called “undercharging”). Prosecu-

tors face two major obstacles to obtaining felony con-

victions: some family members are willing to forgive

the aggressors in order to restore harmonious relations,

while others are so terrified that they doubt the ability

of the police to protect their safety. Either way, victims of

domestic violence are less willing to cooperate with

prosecutors, who may need to reduce charges to obtain

even limited cooperation and thus some convictions. See

Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The

Criminal Justice Response 177–89 (3d ed. 2002). Indeed,

either forgiveness or fear induces many victims not to

report the attack to begin with. The result is that

many aggressors end up with no conviction, or a misde-

meanor conviction, when similar violence against a

stranger would produce a felony conviction. See, e.g.,

Report of the Florida Supreme Court Gender Bias Study Com-

mission, reprinted in 42 Fla. L. Rev. 803, 859–60 (1990);

Sarah Eaton & Ariella Hyman, The Domestic Violence

Component of the New York Task Force Report on Women

in the Courts: An Evaluation and Assessment of New York

City Courts, 19 Fordham Urb. L.J. 391, 461–62 (1992);

Patrick A. Langan & Christopher A. Innes, Preventing

No. 08-3770 13

Domestic Violence Against Women 2 (Bureau of Justice

Statistics 1986).

That firearms cause injury or death in domestic situa-

tions also has been established. Domestic assaults with

firearms are approximately twelve times more likely to

end in the victim’s death than are assaults by knives or

fists. Linda E. Saltzman, James A. Mercy, Patrick W.

O’Carroll, Mark L. Rosenberg & Philip H. Rhodes, Weapon

Involvement and Injury Outcomes in Family and Intimate

Assaults, 267 J. Am. Medical Ass’n 3043 (1992). Part of this

effect stems from the fact that some would-be abusers go

buy a gun, see Susan B. Sorenson & Douglas J. Wiebe,

Weapons in the Lives of Battered Women, 94 Am. J. Pub.

Health 1412 (2004), and much from the fact that guns

are more lethal than knives and clubs once an attack

begins. See Zimring, Firearms & Violence, supra. The pres-

ence of a gun in the home of a convicted domestic

abuser is “strongly and independently associated with

an increased risk of homicide.” Arthur L. Kellermann,

et al., Gun Ownership as a Risk Factor for Homicide in the

Home, 329 New England J. Medicine 1084, 1087 (1993). See

also, e.g., Jacquelyn C. Campbell, et al., Risk Factors for

Femicide in Abusive Relationships: Results from a Multisite

Case Control Study, 93 Am. J. Pub. Health 1089, 1090

(2003); James E. Bailey, et al., Risk Factors for Violent Death

of Women in the Home, 157 Archives of Internal Medicine

777 (1997); Douglas J. Wiebe, Homicide and Suicide

Risks Associated with Firearms in the Home: A National Case-

Control Study, 41 Annals of Emergency Medicine 771

(2003). And for this purpose the victims include police

as well as spouses, children, and intimate partners. Re-

14 No. 08-3770

sponding to a domestic-disturbance call is among an

officer’s most risky duties. Approximately 8% of officers’

fatalities from illegal conduct during 1999 through 2008

arose from attempts to control domestic disturbances.

FBI, Law Enforcement Officers Killed and Assaulted 2008

Table 19 (2009).

Finally, the recidivism rate is high, implying that there

are substantial benefits in keeping the most deadly weap-

ons out of the hands of domestic abusers. For example, a

study of persons arrested for misdemeanor domestic

violence in Cincinnati concluded that 17% of those who

remained in the area were arrested again for domestic

violence within three years. John Wooldredge & Amy

Thistlethwaite, Reconsidering Domestic Violence Recidivism:

Individual and Contextual Effects of Court Dispositions and

Stake in Conformity vi (1999). The full recidivism rate

includes violence that does not lead to an arrest. Estimates

of this rate come from survey research and range from

40% to 80% “when victims are followed longitudinally

and interviewed directly.” Carla Smith Stover, Domestic

Violence Research, 20 J. Interpersonal Violence 448, 450

(2005). See also Julia C. Babcock, et al., Does Batterers’

Treatment Work? A Meta-Analytic Review of Domestic

Violence Treatment, 23 Clinical Psychology Rev. 1023, 1039

(2004) (estimating a 35% recidivism rate based on part-

ners’ reports). Skoien cites, as if it were favorable, a study

showing that within three years of conviction 48%

of domestic abusers “suspended” their abusive con-

duct—which means that the other 52% did not, and that

even the 48% may have committed new crimes within

three years after conviction. John H. Laub & Robert J.

No. 08-3770 15

Sampson, Understanding Desistance from Crime, 28 Crime

& Justice 1, 31 (2001). No matter how you slice these

numbers, people convicted of domestic violence remain

dangerous to their spouses and partners.

By the time this appeal reached oral argument en banc,

Skoien’s principal argument had shifted. Instead of

denying the logical and empirical basis of §922(g)(9), he

contended that Congress overreached by creating a

“perpetual” disqualification for persons convicted of

domestic violence. This goes too far, according to

Skoien, because the propensity for violence declines with

advancing age, and people who are not convicted of

additional offenses have demonstrated that they no

longer pose risks to other members of their households.

Applying §922(g)(9) to older persons who have not been

in legal trouble for many years cannot be substantially

related to an important governmental objective, the

argument concludes.

Although the statute provides that expungement,

pardon, or restoration of civil rights means that a convic-

tion no longer disqualifies a person from possessing

firearms, see 18 U.S.C. §921(a)(33)(B)(ii), Skoien main-

tains that, as a practical matter, these routes to restora-

tion are unavailable to domestic-battery misdemeanants

in Wisconsin. We have our doubts. As the Supreme

Court observed in Logan v. United States, 552 U.S. 23 (2007),

although Wisconsin does not deprive misdemeanants

of the civil rights to vote, serve on a jury, or hold public

office—so these rights cannot be “restored” by the

passage of time, as felons’ rights often are—the state

16 No. 08-3770

does give misdemeanants an opportunity to seek pardon

or expungement. Some of the largest states make

expungement available as of right to misdemeanants

who have a clean record for a specified time. California,

for example, has such a program. Cal. Penal Code

§1203.4a. See also Robert A. Mikos, Enforcing State Law in

Congress’s Shadow, 90 Cornell L. Rev. 1411, 1463–64 &

nn. 187, 188 (2005) (finding that expungement increased

following the enactment of §922(g)(9)). This means

that §922(g)(9) in its normal application does not create

a perpetual and unjustified disqualification for a person

who no longer is apt to attack other members of the

household. True, the statute tolerates different outcomes

for persons convicted in different states, but this is true

of all situations in which a firearms disability (or any

other adverse consequence) depends on state law. The

Justices held in Logan that this variability does not call

into question federal firearms limits based on state con-

victions that have been left in place under the states’

widely disparate approaches to restoring civil rights.

But let us assume that the effect of §922(g)(9) should be

assessed state by state, rather than for the nation as a

whole. The fact remains that Skoien is poorly situated

to contend that the statute creates a lifetime ban for

someone who does not pose any risk of further offenses.

First, Skoien is himself a recidivist, having been convicted

twice of domestic battery. The first victim (in 2003) was

his wife; after that marriage ended, the second victim

(in 2006) was his new fiancée. And Skoien was arrested

for possessing multiple guns just one year after that

second conviction—while he was still on probation.

No. 08-3770 17

A person to whom a statute properly applies can’t

obtain relief based on arguments that a differently

situated person might present. See United States v.

Salerno, 481 U.S. 739, 745 (1987). Although the Salerno

principle has been controversial, and the Justices have

allowed “overbreadth” arguments when dealing with

laws that restrict speech and reach substantially more

conduct than the justifications advanced for the statute

support, see Stevens, 130 S. Ct. at 1587, the Court has

continued to cite Salerno favorably in other situations.

See, e.g., Washington State Grange v. Washington State

Republican Party, 552 U.S. 442, 449–50 (2008); cf. Gonzales

v. Carhart, 550 U.S. 124, 167–68 (2007) (observing that

“facial” challenges to statutes generally are restricted to

litigation under the First Amendment). If convictions

may be used to limit where sex offenders can live (and

whether they must register), see Connecticut Department of

Public Safety v. Doe, 538 U.S. 1 (2003), a disqualification-on-

conviction statute such as §922(g)(9) also is generally

proper. Whether a misdemeanant who has been law

abiding for an extended period must be allowed

to carry guns again, even if he cannot satisfy

§921(a)(33)(B)(ii), is a question not presented today.

There will be time enough to consider that subject when

it arises.

A FFIRMED

18 No. 08-3770

S YKES, Circuit Judge, dissenting. Steven Skoien was

indicted under 18 U.S.C. § 922(g)(9) for possessing

a hunting shotgun after he was convicted of a misde-

meanor crime of domestic violence. He argued in the

district court and reiterated here that applying the

statute to his possession of a long gun for hunting

violated his Second Amendment right to keep and bear

arms as explained in District of Columbia v. Heller, 128

S. Ct. 2783 (2008).1 The government invoked Heller’s

anticipatory language about certain “presumptively law-

ful” firearms regulations—specifically, felon-dispossession

laws—as a sort of “safe harbor” for analogous prohibi-

tions. Heller, 128 S. Ct. at 2816-17 & n.26; Brannon P.

Denning & Glenn H. Reynolds, Heller, High Water(mark)?

Lower Courts and the New Right to Keep and Bear Arms,

60 H ASTINGS L.J. 1245, 1250 (2009) (noting that Heller’s

dicta about “presumptively lawful” exceptions to the

Second Amendment right may have opened a “safe

harbor” for a wide swath of firearms regulation).

This approach fell far short of the legal heavy lifting

normally required to justify criminally punishing the

exercise of an enumerated constitutional right.

The now-vacated panel opinion rejected the govern-

ment’s argument and instead read Heller’s holdings in

light of its limiting language about exceptions, distilling

1

The Second Amendment provides: “A well regulated Militia,

being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.” U.S.

C ONST . amend. II.

No. 08-3770 19

a decision method focused first on a textual and

historical inquiry into “the terms of the [Second Amend-

ment] right as publicly understood when the Bill of

Rights was ratified,” and then—if this inquiry didn’t

resolve the case—an application of a degree of heightened

judicial review appropriate to the nature of the challenged

law’s burden on the right. United States v. Skoien, 587

F.3d 803, 809 (7th Cir. 2009). Because the government

hadn’t argued that domestic-violence misdemeanants

were excluded from the scope of the Second Amendment

right as a textual-historical matter, we assumed Skoien’s

Second Amendment rights were intact. Id. at 810. Nor

had the government tried to establish a strong relation-

ship between the important governmental objective of

reducing firearm violence against domestic intimates

and § 922(g)(9)’s permanent disarmament of domestic-

violence misdemeanants like Skoien. Id. at 814. So we

vacated Skoien’s conviction and remanded for applica-

tion of intermediate scrutiny on an appropriately devel-

oped record. Id. at 815-16.

The en banc court now performs the analysis that would

have occurred on remand had we not reheard this case.

That’s understandable, I suppose, given the considerable

shift in the government’s approach before the en banc

court. My colleagues flag the recalibration in Skoien’s

argument on rehearing, Majority Op. at 15, but it is

just as important—even more so, I think—that the gov-

ernment has (belatedly) developed arguments about the

original meaning of the Second Amendment right and

the means-end justification for § 922(g)(9). The gov-

ernment argued on rehearing that domestic-violence

20 No. 08-3770

misdemeanants are excluded from the scope of the

Second Amendment right as it was originally under-

stood, or if they are not, that § 922(g)(9) survives inter-

mediate scrutiny, at least as applied to Skoien.

My colleagues discuss but do not decide the scope

question and avoid the standard-of-review “quagmire”

by simply accepting the government’s “concession” that

“some form of strong showing (’intermediate scrutiny,’

many opinions say) is essential, and that §922(g)(9) is

valid only if substantially related to an important gov-

ernmental objective.” Majority Op. at 8. When it comes

to applying this standard, they give the government a

decisive assist; most of the empirical data cited to

sustain § 922(g)(9) has been supplied by the court. This

is an odd way to put the government to its burden of

justifying a law that prohibits the exercise of a constitu-

tional right. With respect, I cannot join the en banc opin-

ion. The court declines to be explicit about its deci-

sion method, sends doctrinal signals that confuse rather

than clarify, and develops its own record to support the

government’s application of § 922(g)(9) to this defendant.

My colleagues start with an incomplete reading of the

Supreme Court’s opinion in Heller. They say the Court

held only that “the Second Amendment creates

individual rights, one of which is keeping operable hand-

guns at home for self-defense. What other entitlements

the Second Amendment creates, and what regulations

legislatures may establish, were left open. The opinion

is not a comprehensive code; it is just an explanation

for the Court’s disposition.” Majority Op. at 4.

No. 08-3770 21

I appreciate the minimalist impulse, but this character-

ization of Heller is hardly fair. It ignores the Court’s

extensive analysis of the original public meaning of the

Second Amendment and understates the opinion’s central

holdings: that the Amendment secures (not “creates”) an

individual natural right of armed defense not limited to

militia service, Heller, 128 S. Ct. at 2801, and at the core

of this guarantee is the right to keep and bear arms for

defense of self, family, and home, id. at 2797-99; see also

id. at 2817 (invalidating the District of Columbia’s ban

on handgun possession because “the inherent right of self-

defense has been central to the Second Amendment

right” and the D.C. handgun ban “extends . . . to the home,

where the need for defense of self, family, and property

is most acute”); McDonald v. City of Chicago, No. 08-1521,

2010 WL 2555188, at *22 (U.S. June 28, 2010) (plurality

opinion) (The “central holding in Heller” is “that the

Second Amendment protects a personal right to keep

and bear arms for lawful purposes, most notably for self-

defense within the home.”). Heller was “the biggest

Second Amendment case ever decided,” 2 a “landmark

ruling [that] merits our attention for its method as well

as its result,” 3 “the most extensive consideration of the

Second Amendment by the Supreme Court in its history,” 4

and “the most explicitly and self-consciously originalist

2

Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning,

122 H ARV . L. R EV . 145, 147 (2008).

3

Id.

4

Sanford Levinson, United States: Assessing Heller, 7 I NT ’L J.

C ONST . L. 316, 319 (2009)

22 No. 08-3770

opinion in the history of the Supreme Court.” 5 It is true

that Heller left many issues open, but that is not an invita-

tion to marginalize the Court’s holdings or disregard

its decision method.

The en banc court reads Heller’s reference to exceptions

as a warning not to apply the opinion too broadly. Fair

enough. This “precautionary language”—especially the

inclusion of felon-disqualification laws on the list of

“presumptively lawful” firearms regulations—is “infor-

mative” but not “dispositive,” and conveys a message

that “whether or not technically dictum, a court of appeals

must respect.” Majority Op. at 4, 7. I agree, and all the

more so after McDonald.6 2010 WL 2555188, at *25 (plurality

opinion) (reiterating the presumptive validity of certain

“longstanding regulatory measures”). But my colleagues

are not clear about how this limiting dicta should inform

the constitutional analysis. The court thinks it “not . . .

profitable to parse these passages of Heller as if they

contained an answer to the question whether §922(g)(9) is

valid,” Majority Op. at 4, but proceeds to parse the pas-

sages anyway. My colleagues read Heller’s dicta to

mean that “statutory prohibitions on the possession of

weapons by some persons are proper—and, importantly

5

Cass R. Sunstein, Second Amendment Minimalism: Heller as

Griswold, 122 H ARV . L. R EV . 246, 246 (2008).

6

The Supreme Court held in McDonald that the Second Amend-

ment “applies equally to the Federal Government and the

States.” McDonald v. City of Chicago, No. 08-1521, 2010 WL

2555188, at *28 (U.S. June 28, 2010) (plurality opinion).

No. 08-3770 23

for current purposes, that the legislative role did not end

in 1791. That some categorical limits are proper is part of

the original meaning, leaving to the people’s elected

representatives the filling in of details.” Id.

There are several problems with this analysis. First, no

one has suggested that the legislative role ended in 1791;

the pertinent question is how contemporary gun laws

should be evaluated to determine whether they infringe

the Second Amendment right. More significantly, that

“categorical” disarmament is “proper” as “part of the

original meaning” of the Second Amendment has not

been established. Heller certainly did not say this; its

reference to exceptions was—and remains—unexplained.

See Heller, 128 S. Ct. at 2821 (“[S]ince this case represents

this Court’s first in-depth examination of the Second

Amendment, one should not expect it to clarify the

entire field . . . . [T]here will be time enough to expound

upon . . . the exceptions we have mentioned . . . .”); McDon-

ald, 2010 WL 2555188, at *25 (plurality opinion) (repeating,

without more, Heller’s “assurances” about exceptions).

My colleagues imply that the original meaning of the

Second Amendment right excluded persons convicted of

a crime, citing the Minority Report of the Pennsylvania

ratifying convention, in which Pennsylvania’s dissenting

Anti-Federalists proposed amendments to the new Con-

stitution for the protection of individual rights, including

the right to bear arms. Majority Op. at 5; see also S TEPHEN P.

H ALBROOK , T HE F OUNDERS ’ S ECOND A MENDMENT :

O RIGINS OF THE R IGHT TO B EAR A RMS 195 (2008). The

Pennsylvania dissenters proposed an amendment guaran-

24 No. 08-3770

teeing that “the people have a right to bear arms for

defence of themselves and their own State or the United

States, or for the purpose of killing game,” and providing

that “no law shall be passed for disarming the people or

any of them unless for crimes committed, or real danger

of public injury from individuals.” B ERNARD S CHWARTZ,

2 T HE B ILL OF R IGHTS: A D OCUMENTARY H ISTORY 662, 665

(1971). It is true that Heller identified this report as

“highly influential” in the run-up to the Second Amend-

ment, but it did so in the context of concluding that the

Amendment codified an individual right not limited to

militia service. 128 S. Ct. at 2804. There is no reference

in Heller to the “unless” clause in the Pennsylvania dis-

senters’ proposal, and needless to say, this limiting lan-

guage did not find its way into the Second Amendment.

The court also asserts that “[m]any of the states, whose

own constitutions entitled their citizens to be armed, did

not extend this right to persons convicted of crime.”

Majority Op. at 5. This is a considerable overstatement.

Only four state constitutions had what might be con-

sidered Second Amendment analogues in 1791—Massa-

chusetts, North Carolina, Pennsylvania, and Vermont—and

none of these provisions excluded persons convicted of

a crime. See Heller, 128 S. Ct. at 2802-03; McDonald, 2010

WL 2555188, at *17; see also Eugene Volokh, State Con-

stitutional Rights to Keep and Bear Arms, 11 T EX. R EV. L. &

P OL. 191, 197-204 (2006); Amar, supra note 2, at 172-73 &

nn. 101-02. The sources cited by the court for this very

broad proposition simply do not bear it out. To the con-

trary, two of the cited works specifically emphasize the

lack of founding-era evidence that persons convicted of a

No. 08-3770 25

crime were categorically excluded from possessing fire-

arms. See C. Kevin Marshall, Why Can’t Martha Stewart

Have a Gun?, 32 H ARV . J.L. & P UB. P OL’Y 695, 728-35 (2009);

United States v. McCane, 573 F.3d 1037, 1047-50 (10th Cir.

2009) (Tymkovich, J., concurring). The third, Stephen

Halbrook’s The Founders’ Second Amendment, does not

support the court’s suggestion that “many” states

during the founding period imposed a general firearms

disability on anyone convicted of a crime.7

Regardless, the court hazards these historical observa-

tions but ultimately leaves the matter unresolved, moving

on to compare categorical limits on firearms posses-

sion to categorical limits on the freedom of speech:

“obscenity, defamation, incitement to crime, and others.” 8

7

The author is legal counsel to the National Rifle Association

and filed an amicus brief in support of the defendant in this

case; he will probably be surprised to see his work construed

in this way.

8

Before moving to the First Amendment comparison, however,

the court briefly traces the history of federal felon-dispossession

laws, noting that the “first federal statute disqualifying

felons from possessing firearms was not enacted until 1938”

and that this law “also disqualified misdemeanants who had

been convicted of violent offenses.” Majority Op. at 5. The

court then compares § 922(g)(9) to the 1938 Act insofar as

“§ 922(g)(9) . . . like the 1938Act is limited to violent crimes.” Id.

at 6. This is a little misleading. Section 2(f) of the 1938 Federal

Firearms Act (15 U.S.C. §§ 901-910, repealed, Pub. L. 90-351,

June 19, 1968) created the first federal firearms disability and

(continued...)

26 No. 08-3770

Majority Op. at 7. Adapting First Amendment doctrine

to the Second Amendment context is sensible in some

cases; indeed, Heller expressly approved the comparison

of the Second Amendment to the First. See 128 S. Ct. at

2799, 2821; see also Eugene Volokh, Implementing the

Right To Keep and Bear Arms for Self-Defense: An Analytical

Framework and a Research Agenda, 56 UCLA L. R EV. 1443,

1449, 1452, 1454-55 (2009); Nelson Lund, The Second Amend-

ment, Heller, and Originalist Jurisprudence, 56 UCLA L. R EV.

1343, 1375-76 (2009). But this particular First Amend-

ment analogy doesn’t work here. Obscenity, defamation,

incitement, and so on are among the few “ ‘well-defined

and narrowly limited classes of speech, the prevention

and punishment of which have never been thought to

raise any Constitutional problem.’ ” United States v. Stevens,

130 S. Ct. 1577, 1584 (2010) (quoting Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942)). These “historic

and traditional categories [of speech] long familiar to the

8

(...continued)

made it “unlawful for any person who has been convicted of a

crime of violence . . . to receive any firearm or ammunition

which has been shipped or transported in interstate commerce.”

A “crime of violence” was defined in § 1(6) of the Act as

“murder, manslaughter, rape, mayhem, kidnaping, burglary,

housebreaking; assault with intent to kill, commit rape, or rob;

assault with a dangerous weapon, or assault with intent to

commit any offense punishable by imprisonment for more

than one year.” Of these, housebreaking is likely the only

misdemeanor. The rest of the listed crimes are serious

violent felonies.

No. 08-3770 27

bar” are “outside the reach of that Amendment alto-

gether—[] they fall into a ‘First Amendment Free

Zone.’ ” Id. at 1584-85 (quotation marks omitted).

But my colleagues elide the historical-scope question;

they do not decide whether persons convicted of a

domestic-violence misdemeanor are completely “outside

the reach” of the Second Amendment as a matter of

founding-era history and background legal tradition.

For this analogy to hold up, the court would have to

make a judgment on the matter. Absent that, it’s hard

to make sense of the court’s reliance on this strain of

First Amendment doctrine.9

9

The court mentions New York v. Ferber, 458 U.S. 747 (1982)

(child pornography), and Garcetti v. Ceballos, 547 U.S. 410 (2006)

(public-employee speech), as examples of cases approving

categorical limits on speech that lack roots in First Amend-

ment history and tradition. Majority Op. at 7. As the Supreme

Court made clear in Stevens, however, “Ferber presented a

special case: The market for child pornography was ‘intrin-

sically related’ to the underlying abuse, and was therefore ‘an

integral part of the production of such materials, an activity

illegal throughout the Nation.’ ” 130 S. Ct. at 1586 (quoting

Ferber, 458 U.S. at 759, 761). Ferber held that the First Amend-

ment has never been understood to protect “speech or writing

used as an integral part of conduct in violation of a valid

criminal statute.” 458 U.S. at 762. As such, Ferber “grounded

its analysis in a previously recognized, long-established

category of unprotected speech.” Stevens, 130 S. Ct. at 1586.

Garcetti did not hold that public-employee speech is wholly

unprotected; when public employees “speak[] as citizens about

(continued...)

28 No. 08-3770

Moreover, it is one thing to say that certain narrowly

limited categories of speech have long been understood

to fall outside the boundaries of the free-speech right

and are thus unprotected by the First Amendment. It is

quite another to say that a certain category of persons

has long been understood to fall outside the boundaries

of the Second Amendment and thus may be excluded

9

(...continued)

matters of public concern,” the First Amendment “limits the

ability of a public employer to leverage the employment

relationship to restrict” that speech. 547 U.S. at 419. Garcetti

drew a distinction between a bona fide free-speech claim by a

public employee and a mere employment grievance: “[W]hen

public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate

their communications from employer discipline.” Id. at 421. As

the Supreme Court explained: “Underlying our cases has

been the premise that while the First Amendment invests

public employees with certain rights, it does not empower them

to ‘constitutionalize the employee grievance.’ ” Id. at 420

(quoting Connick v. Myers, 461 U.S. 138, 154 (1983)). Garcetti

thus declined to expand the traditional understanding of the

free-speech rights of public employees in order to prevent

the “constitutionalization” of employment disputes about

statements made in the course of carrying out job-related

duties. Id.

It’s worth noting as well the Court’s caution in Stevens: “Ferber

and other cases cannot be taken as establishing a freewheeling

authority to declare new categories of speech outside the

scope of the First Amendment.” 130 S. Ct. at 1586.

No. 08-3770 29

from ever exercising the right. The relevant question

for our purposes is whether domestic-violence misde-

meanants are wholly unprotected by the Second Amend-

ment. By invoking this line of First Amendment

caselaw, my colleagues imply an affirmative answer,

but do not see the analysis through.1 0

The better approach is to acknowledge the limits of the

scope inquiry in a more straightforward way: The his-

torical evidence is inconclusive at best. As noted in the

panel opinion, scholars disagree about the extent to

which felons—let alone misdemeanants—were con-

sidered excluded from the right to bear arms during the

founding era. Compare, e.g., Marshall, supra, at 714-28 (the

founding-era understanding of the right to keep and

bear arms for self-defense did not categorically ex-

clude persons convicted of a crime), with Don B. Kates &

Clayton E. Cramer, Second Amendment Limitations and

Criminological Considerations, 60 H ASTINGS L.J. 1339, 1359-

64 (2009) (the founding generation understood that per-

sons convicted of common-law felonies could be dis-

armed), and Don B. Kates, Jr., Handgun Prohibition and the

Original Meaning of the Second Amendment, 82 M ICH. L. R EV.

204, 266 (1983) (same); see also Adam Winkler, Heller’s

Catch-22, 56 UCLA L. R EV. 1551, 1562-66 (2009); Lund,

10

This particular analogy is inapt for other reasons that need

not be elaborated here. See generally Eugene Volokh, The First and

Second Amendments, 109 C OLUM . L. R EV . S IDEBAR 97 (2009)

(explaining why the analogy between the Second Amend-

ment and First Amendment obscenity jurisprudence is flawed).

30 No. 08-3770

supra, at 1356-57; Glenn Harlan Reynolds, A Critical Guide

to the Second Amendment, 62 T ENN. L. R EV. 461, 480 (1995)

(collecting originalist scholarship). We simply cannot say

with any certainty that persons convicted of a domestic-

violence misdemeanor are wholly excluded from the

Second Amendment right as originally understood.1 1

Because Skoien is not categorically unprotected, the gov-

ernment’s use of § 922(g)(9) against him must survive

Second Amendment scrutiny.1 2

11

No one argues that Skoien’s possession of a hunting shotgun

for hunting is unprotected as a matter of the Second Amend-

ment’s original meaning. See Heller, 128 S. Ct. at 2801 (“Ameri-

cans valued the ancient right . . . for self-defense and hunting.”

(emphasis added)).

12

McDonald did not elaborate on how this analysis should

proceed. The plurality reiterated Heller’s point that the scope of

the Second Amendment right should not be determined by

“judicial interest balancing.” 2010 WL 2555188, at *24 (plurality

opinion) (“In Heller, . . . we expressly rejected the argument that

the scope of the Second Amendment right should be deter-

mined by judicial interest balancing.”). But the plurality did not

address how infringement claims should be decided if the

inquiry into the original scope of the right doesn’t clearly

exclude the claim or conclusively resolve it against the gov-

ernment, as in Heller itself. See Heller, 128 S. Ct. at 2821

(“[W]hatever else [the Second Amendment] leaves to future

evaluation, it surely elevates above all other interests the

right of law-abiding, responsible citizens to use arms in

defense of hearth and home.”). Heller hinted that the Court’s

heightened-scrutiny jurisprudence remains relevant. See 128

(continued...)

No. 08-3770 31

My colleagues evidently agree; they move on to

discuss the standard for determining whether the dis-

armament of domestic-violence misdemeanants is con-

stitutionally permissible. This inquiry is necessary only

if Skoien’s Second Amendment rights are intact notwith-

standing his domestic-violence conviction. The court

properly concludes that some form of heightened

judicial scrutiny is required; rational-basis review has

been ruled out. Heller, 128 S. Ct. at 2818 n.27 (“If all that

was required to overcome the right to keep and bear

arms was a rational basis, the Second Amendment

would be redundant with the separate constitutional

prohibitions on irrational laws, and would have no ef-

fect.”); Majority Op. at 8. The court assumes without

deciding that intermediate scrutiny applies, and holds

that data establish a substantial relationship between

§ 922(g)(9) and the important governmental objective

of “preventing armed mayhem.” Id. What follows is a

discussion of the Supreme Court’s decision in United

States v. Hayes, 129 S. Ct. 1079 (2009)—in particular, its

reference to a statement in the congressional record by

the principal Senate sponsor of § 922(g)(9)—and several

pages of social-science research on the criminal-justice

12

(...continued)

S. Ct. at 2817 (The D.C. handgun ban is invalid “[u]nder any of

the standards of scrutiny that we have applied to enumerated

constitutional rights.”). Unless every claimed infringement of

the right gets strict scrutiny—a proposition difficult to

reconcile with Heller’s reference to presumptively lawful

firearms regulations—we are left to choose from among the

Court’s “intermediate” standards of judicial review.

32 No. 08-3770

system’s treatment of domestic-violence cases, firearm

violence in the home, and recidivism by domestic-violence

offenders. Most of this data, as I have noted, has been

supplied by the court.

The court thus accepts that it is the government’s

burden to make a “strong showing” of the danger-reduc-

tion justification for stripping domestic-violence mis-

demeanants of their Second Amendment rights but in

the end makes the case for itself. This relieves the gov-

ernment of its burden and deprives Skoien of the oppor-

tunity to review the outcome-determinative evidence,

let alone subject it to normal adversarial testing. One

obvious peril in this approach: The court’s understanding

of the research on domestic violence might be mistaken.

That is certainly true of my colleagues’ conclusion that

“domestic abusers often commit acts that would be

charged as felonies if the victim were a stranger, but that

are charged as misdemeanors because the victim is a

relative.” Majority Op. at 11. The court has misread the

materials it cites for this conclusion, which document

the well-recognized difficulty of prosecuting domestic

violence because of victim fear or noncooperation but

do not establish that acts of domestic violence are “of-

ten” chargeable as felonies but for the domestic dy-

namic. Perhaps the government can discharge its bur-

den in this case, but the place for it to do so in the first

instance is in the district court, not the court of appeals.1 3

13

On rebriefing before the en banc court, the government cited

several reports showing high recidivism rates among domestic-

(continued...)

No. 08-3770 33

The court also dismisses Skoien’s contention that

§ 922(g)(9) is impermissibly overinclusive because it is a

permanent disqualification and provides no effective

13

(...continued)

violence offenders. See Carla Smith Stover, Domestic Violence

Research: What Have We Learned and Where Do We Go From Here?,

20 J. OF I NTERPERSONAL V IOLENCE 448 (2005); Julia C. Babcock,

et al., Does Batterers’ Treatment Work? A Meta-Analytic Review

of Domestic Violence Treatment, 23 C LINICAL P SYCHOL . R EV . 1023

(2004); John H. Laub & Robert J. Sampson, Understanding

Desistance From Crime, 28 C RIME AND JUSTICE 1 (2001); John

Wooldredge & Amy Thistlethwaite, Reconsidering Domestic

Violence Recidivism: Individual and Contextual Effects of

Court Dispositions and Stake in Conformity, Project Report Sub-

mitted to the Nat’l Inst. of Justice (1999), available at

http://www.ncjrs.gov/pdffiles1/nij/grants/188509.pdf (last visited

June 30, 2010). On the more precise question of the relation-

ship between ready access to a gun and the risk that a gun

will be used against a domestic intimate, the government

cited two studies showing a correlation: Jacqueline C. Campbell,

et al., Risk Factors for Femicide in Abusive Relationships: Results

from a Multisite Case Control Study, 93 A M . J. OF P UB . H EALTH

1089 (2003), and Arthur L. Kellermann, et al., Gun Ownership

as a Risk Factor for Homicide in the Home, 329 N EW E NG . J. M ED .

1084 (1993). The most recent of these, however, also establishes

that a “prior arrest for domestic violence actually decreased the

risk for femicide, suggesting that arrest of abusers protects

against future intimate partner femicide risks.” Campbell, supra,

at 1092. Another study cited by the government shows that

domestic assaults with a firearm are more likely to result in

death than domestic assaults with other types of weapons. See

Linda E. Saltzman, et al., Weapon Involvement and Injury Out-

comes in Family and Intimate Assaults, 267 JAMA 3043 (1992).

34 No. 08-3770

way for an offender to reacquire his Second Amendment

rights. It is true, as the court notes, that a pardon,

expungement, or restoration of civil rights will lift the

federal firearms ban. See 18 U.S.C. § 921(a)(33)(B)(ii)

(excluding domestic-violence convictions that have

been pardoned, expunged, or for which civil rights have

been restored unless the pardon, expungement, or restora-

tion of rights provides that the person may not possess

firearms). But as my colleagues acknowledge, in

Wisconsin misdemeanants do not lose their civil rights,

and rights not lost cannot be “restored” for purposes of

the statutory exception. See Logan v. United States,

552 U.S. 23, 36 (2007). The court nonetheless maintains

that “the state does give misdemeanants an opportunity

to seek pardon or expungement.” Majority Op. at 15-16.

Pardon, yes; expungement, no—at least not in the

typical case. In Wisconsin the expungement remedy is

extremely narrow; it applies only to misdemeanants

under the age of 21 and must be ordered at the time of

sentencing.14 W IS. S TAT. § 973.015(1)(a). There is no after-

the-fact or generally available opportunity to seek

14

The statute was amended in the 2009 budget bill to make

expungement available to offenders under the age of 25 and to

broaden the class of crimes covered to include some minor

felonies. 2009 W IS . A CT 28 §§ 3384-3386. But it remains true

that expungement must be ordered at the time of sentencing,

and the amendment applies only to sentencing proceedings

occurring after the Act’s effective date, July 1, 2009. Id. at

§ 9309(1). Skoien was over 21 when convicted of domestic

battery and was sentenced prior to the amendment’s effec-

tive date.

No. 08-3770 35

expungement. It is true that the pardon power is very

broad, but I doubt that governors—in Wisconsin or

elsewhere—pardon domestic-violence misdemeanants

with any regularity. So Skoien is right that the § 922(g)(9)

ban is effectively permanent, at least as to him.1 5

This brings me to the court’s final point: that Skoien

is “poorly situated” to complain about the perpetual

nature of the § 922(g)(9) ban because he is a recidivist

who was caught with “multiple guns just one year

after [his] second conviction—while he was still on proba-

tion.” 16 Majority Op. at 16. Maybe so. Skoien’s status as

15

My colleagues engage in some overbroad generalization

about the availability of expungement in “[s]ome of the

largest states,” Majority Op. at 16, citing the expungement

statute in just one—California—and a law-review article the

relevant passages of which are sourced to a few anecdotal

newspaper articles and emails to the author from crime-

data technology managers in four states. From this meager

evidence, my colleagues confidently conclude that Ҥ 922(g)(9)

in its normal application does not create a perpetual and

unjustified disqualification for a person who no longer is apt

to attack other members of the household.” Id. This statement

is gratuitous and unsupported.

16

The court’s reference to “multiple guns” requires some

elaboration. Skoien’s conviction was based on his possession

of the hunting shotgun, which he admitted using to kill a deer

on the morning of his arrest. Two other guns were found in

his home: a handgun and a hunting rifle. The prosecutor

conceded that he could not prove the handgun and rifle were

Skoien’s; there was evidence suggesting that the handgun

belonged to Skoien’s wife and the rifle belonged to their

(continued...)

36 No. 08-3770

a recent domestic-violence recidivist certainly diminishes

the force of his argument about the permanent feature

of § 922(g)(9) as the statute has been applied to him. The

court properly reserves the question whether applica-

tion of § 922(g)(9) would survive a Second Amendment

challenge by “a misdemeanant who has been law abiding

for an extended period.” Majority Op. at 17. Still, I think

it highly inappropriate for the court to resolve this chal-

lenge to the application of the statute without requiring

the government to shoulder its burden—and giving Skoien

the opportunity to respond—on remand in the district

court. The sort of empirical inquiry normally required

by intermediate scrutiny should not be performed by

the court of appeals in the first instance.1 7

16

(...continued)

roommate. Nonetheless, at sentencing Skoien did not contest

constructive possession of the two additional guns for

purposes of increasing his base offense level by two levels

under U.S.S.G. § 2K2.1(b)(1)(A). The parties agreed that the

handgun “was maintained for protection of the home” (these

are the prosecutor’s words), and Skoien told the court at

sentencing that there had been several attempted break-ins at

his home.

17

My colleagues close with another inappropriate analogy. They

say that “[i]f convictions may be used to limit where sex

offenders can live (and whether they must register), see Connecti-

cut Department of Public Safety v. Doe, 538 U.S. 1 (2003), a

disqualification-on-conviction statute such as §922(g)(9) also

is generally proper.” Majority Op. at 17. This statement is

both unnecessary and—in the context of this case—completely

misplaced. Connecticut Department of Public Safety was a pro-

(continued...)

No. 08-3770 37

The court thus short-circuits the usual process and

resolves this case on a record of its own creation, prema-

turely ending Skoien’s challenge and leaving markers

for the future that will immunize most applications of

§ 922(g)(9) from serious Second Amendment scrutiny.

This approach is difficult to reconcile with either the

reasoning or the result in Heller, though it might be

thought consistent with an aggressive reading of the

Court’s reference to presumptively lawful firearms reg-

ulations. Of course there are several ways to understand

the Court’s analysis in Heller in light of its limiting dicta

about exceptions.18 But we cannot read Heller’s dicta in

17

(...continued)

cedural due-process case involving a Connecticut statute

requiring sex offenders to register upon release and periodically

update the information required by the registry. 538 U.S. at 5-6.

A class of recently released offenders brought a pre-enforcement

challenge to the statute and argued that a contemporaneous

hearing on their present dangerousness was necessary to

sustain the registration requirement as a matter of procedural

due process. The Supreme Court summarily disagreed, saying

the offenders had received all the process they were due

when they were convicted of the underlying offense. Id. The

Connecticut statute did not “limit where sex offenders can

live,” and the case does not remotely support the proposition

that under the Second Amendment, a “disqualification-on-

conviction statute such as § 922(g)(9) . . . is generally proper.”

18

See, e.g., Volokh, Implementing the Right To Keep and Bear Arms

for Self-Defense, supra, at 1445-72; Lund, supra, at 1372-75;

Winkler, supra, at 1572-75; Mark Tushnet, Permissible Gun

(continued...)

38 No. 08-3770

a way that swallows its holdings. The government nor-

mally has the burden of justifying the application of

laws that criminalize the exercise of enumerated con-

stitutional rights. We should follow that norm, not pay

lip service to it. I would remand for the government to

make its own case for imprisoning Steven Skoien for

exercising his Second Amendment rights.

18

(...continued)

Regulations After Heller: Speculations About Method and Outcomes,

56 UCLA L. R EV . 1425, 1426-32 (2009); Lawrence B. Solum,

District of Columbia v. Heller and Originalism, 103 N W . U. L. R EV .

923, 972-80 (2009); Levinson, supra note 4, at 322-23; Pamela S.

Karlan, Bullets, Ballots, and Battles on the Roberts Court, 35 O HIO

N. U. L. R EV . 445, 452-56 (2009); Brannon P. Denning & Glenn H.

Reynolds, Five Takes on District of Columbia v. Heller, 69 O HIO

S T . L.J. 671, 688-99 (2008); Sunstein, supra note 5, at 267-73;

Brannon P. Denning, The New Doctrinalism in Constitutional

Scholarship and District of Columbia v. Heller, 75 T ENN . L.

R EV . 789, 797-800 (2008).

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