Legal Commentary

Seventh Circuit En Banc Argument in the Second Amendment / Violent Misdemeanants Case (Skoien)

By Eugene Volokh

The Seventh Circuit en banc in United States v. Skoien took place today, and is available online. This is the case where the panel held that 18 U.S.C. § 922(g)(9), which bans gun possession by people convicted of misdemeanor crimes of domestic violence, might be too broad:

Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. No one questions the importance of the government?s interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)?s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute?s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller?s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That?s not enough. Accordingly, we vacate Skoien?s conviction and remand to the district court for further proceedings consistent with this opinion.

Full post as published by The Volokh Conspiracy on May 20, 2010 (boomark / email).