SYKES, Circuit Judge.
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, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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).
The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9)18USCAS922LQ is invoke Heller's language about certain "presumptively lawful" gun regulations — notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion's reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational-basis test; this leaves either strict scrutiny or some form of "intermediate" review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.
Skoien was convicted in state court of misdemeanor domestic battery and was placed on probation. About a year later his probation agent found a hunting shotgun in a truck parked outside his home. Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the shotgun violates his Second Amendment right to bear arms for hunting. He has not, however, asserted a right to possess the gun for self-defense.
As such, the government's application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated. 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
In 2006 Steven Skoien was convicted of domestic battery in Wisconsin state court and was sentenced to two years' probation. Skoien was prohibited from possessing firearms both as a condition of his probation and because federal law prohibits any person convicted in any court of a misdemeanor crime of domestic violence from possessing a firearm. 18 U.S.C. § 922(g)(9); see also 18 U.S.C. § 921(a)(33)(A)(ii) (defining a misdemeanor crime of domestic violence as any offense that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon"). In 2007 Wisconsin probation agents learned that Skoien had purchased a deer-hunting license. Believing that Skoien had acquired a gun in violation of his probation, they searched his home and a pickup truck parked outside the home; they found a Winchester 12-gauge shotgun in the bed of the truck. Skoien admitted he had used the shotgun, which belonged to his father, to go deer hunting earlier that day. This was corroborated by other evidence found in the truck; namely, a blaze orange hunting jacket, ammunition, and a state-issued tag for a gun deer kill in the name of Steven Skoien. The deer carcass was in Skoien's garage. A federal grand jury indicted Skoien for possessing a firearm after having been convicted of a domesticviolence misdemeanor in violation of 18 U.S.C. § 922(g)(9).
Skoien moved to dismiss the indictment, arguing that applying this statute to him violated his Second Amendment right to bear arms. The district court denied the motion, citing this court's decision in Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.1999), which held that § 922(g)(9) was constitutional under a collective-rights view of the Second Amendment. Skoien entered a conditional guilty plea, reserving his right to appeal the district court's Second Amendment ruling. After the Supreme Court decided Heller, Skoien renewed his motion to dismiss the indictment. The district court denied the motion a second time, holding that § 922(g)(9) remained constitutional after Heller. The judge said she would "assum[e] that the highest standard [of scrutiny] applies," and concluded that the statute was "narrowly tailored [because] it applies only to persons who have been found guilty by a court of domestic violence" and "[t]he government has a compelling interest in protecting the families of such persons." The judge also relied on the passage in Heller presumptively approving
The case proceeded to sentencing, and the court imposed a sentence of two years in prison. Skoien appealed, reasserting his argument that applying § 922(g)(9) to him violates his Second Amendment right to bear arms as explained in Heller.
We have previously upheld the constitutionality of § 922(g)(9) under a collective-rights interpretation of the Second Amendment. Gillespie, 185 F.3d at 711. Heller's rejection of that understanding of the Second Amendment displaces Gillespie and requires us to reconsider the constitutionality of the statute as applied in this case.
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. The Court began with an analysis of the language of the "operative clause" of the Second Amendment — "the right of the people to keep and bear Arms, shall not be infringed," U.S. CONST. amend. II — and consulted historical source materials to identify the meaning of this language at the time of its adoption. As to this "operative clause," the Court concluded:
Heller, 128 S.Ct. at 2797-98.
The Court then moved to the meaning of the Amendment's "prefatory clause" — "[a] well regulated Militia, being necessary to the security of a Free State." U.S. CONST. amend. II. After reviewing the historical background relevant to the interpretation of the militia clause, the Court concluded that the clause described the motivating purpose for the codification of the natural right — to prevent the new government from destroying the militia by disarming the citizenry — but was not a limitation on the scope of the right. More specifically, the Court held:
Heller, 128 S.Ct. 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. Because "the inherent right of self-defense has been central to the Second Amendment right" and because the District's ban on handgun possession "extends ... to the home, where the need for defense of self, family, and property is most acute," the D.C. gun ban could not coexist with the Amendment. Id. at 2817-18. This was so, the Court said, "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." Id. at 2817. The Court held that "whatever 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." Id. at 2821.
But the Court also added this:
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.
There are several ways to understand this limiting language. We note for starters that it is dicta, and although we can hardly ignore it, we think it would be a mistake to uphold this or other gun laws simply by invoking the Court's reference to these "presumptively lawful regulatory measures," without more. But beyond that, it is not entirely clear whether this language should be taken to suggest that the listed firearms regulations are presumed to fall outside the scope of the Second Amendment right as it was understood at the time of the framing or that they are presumptively lawful under even the highest standard of scrutiny applicable to laws that encumber constitutional rights. The Court said it was not attempting "an exhaustive historical analysis today of the full scope of the Second Amendment," id. at 2816, and specifically deferred judgment on the outer limits of its original meaning: "[T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us," id. at 2821. The Court also conspicuously declined to set a standard of review. Id. at 2817. We take all this to mean that gun laws — other than those like the categorically invalid one in Heller itself — must be independently justified.
But by what kind of justification? 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
So constitutional text and history come first, then (if necessary) an analysis of the public-benefits justification for the regulation follows.
Applying this framework here, the first inquiry doesn't resolve the question whether § 922(g)(9) violates Skoien's Second Amendment right to bear arms. To begin with, the government hasn't argued that a domestic-violence misdemeanant like Skoien or the particular firearm he possessed — a shotgun used primarily for deer hunting — falls outside the scope of the Second Amendment as understood at the time of its adoption. Indeed, it would be odd to argue that a conventional hunting gun is wholly unprotected by the Second Amendment. Heller referred to the founding-era importance of the right to bear arms "for self-defense and hunting," 128 S.Ct. at 2801 (emphasis added), and a long gun used primarily for hunting is obviously useful for defensive purposes as well. Heller gave some consideration to the types of arms that are or may be unprotected by the Second Amendment, see id. at 2815-17 (explaining generally that the sorts of weapons protected are those that were in common civilian use for lawful purposes at the time the Amendment was ratified), but nothing in this part of the opinion remotely suggests that a standard hunting shotgun is excluded.
We need not resolve the historical question here. Short of a wholly conclusory statement that domestic-violence misdemeanants, like felons, "forfeit" their Second Amendment rights, the government has not tried to justify § 922(g)(9) on this basis. We therefore assume that Skoien's Second Amendment rights are intact notwithstanding his misdemeanor domestic-violence conviction.
This brings up the second inquiry, which asks whether the restriction on Skoien's right to bear arms is justified under the applicable standard of review for evaluating laws that burden constitutional rights. This requires that we decide on a level of scrutiny — a question, as we have noted, 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 ("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 prohibition on irrational laws, and would have no effect."). This leaves either strict scrutiny — typically reserved for laws that classify on the basis of race or restrict certain fundamental rights, Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), and content-based restrictions on speech, United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) — or some form of intermediate scrutiny.
We take our cues about the appropriate standard of review from the language of Heller's holding and that enigmatic reference to "presumptively lawful" gun regulations.
But 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. We do not see how the listed laws could be "presumptively" constitutional if they were subject to strict scrutiny — a point Justice Breyer made (somewhat overbroadly) in dissent. Id. at 2851 (Breyer, J., dissenting) ("[T]he majority implicitly, and appropriately, rejects [a strict scrutiny standard] by broadly approving a set of laws — prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales — whose constitutionality under a strict scrutiny standard would be far from clear."). Accordingly, strict scrutiny cannot apply across the board.
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.
In the First Amendment free-speech context, the rigor of this heightened form of review tends to fluctuate with the character and degree of the challenged law's burden on the right and sometimes also with the specific iteration of the right. For example, election regulations that encumber the expressive association rights of voters, candidates, and parties are subject to a varying standard of review depending upon the nature and severity of the burden on the right; laws imposing severe burdens get strict scrutiny, while regulatory measures imposing more modest burdens are reviewed more leniently. See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 1191-92, 170 L.Ed.2d 151 (2008). More specifically, the Supreme Court has held that election regulations imposing severe burdens must be narrowly tailored to serve a compelling state interest, but regulations imposing lesser burdens need only be reasonable, politically neutral, and justified by an important regulatory interest. Id.; see also Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (ballot-access restrictions are subject to a flexible standard of review that weighs the "character and magnitude of the asserted injury to the rights protected... against the precise interests put forward by the [government] ... taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights" (internal quotation marks omitted)); Lee v. Keith, 463 F.3d 763, 768 (7th Cir.2006) (referring to the Burdick standard as a flexible "sliding scale").
Similarly, in the commercial-speech context, the Court applies an intermediate standard of scrutiny that accounts for the "subordinate position" that commercial speech occupies "in the scale of First Amendment values." Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (internal quotation marks omitted). This standard requires "a fit between the legislature's ends and the means chosen to accomplish those ends, ... a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served." Id. at 480, 109 S.Ct. 3028 (internal quotation marks and citation omitted); see also Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460, 462 (7th Cir.2009) (applying intermediate scrutiny to municipal regulation of adult bookstores and requiring "evidence that the restrictions actually have public benefits great enough to justify any curtailment of speech"). The Court's speech-forum doctrine also uses a two-tiered standard of review. Regulations in a traditional public or designated public forum get strict scrutiny; restrictions on speech in a nonpublic forum "must not discriminate on the basis of viewpoint and must be reasonable in light of the forum's purpose." Choose Life Ill., Inc. v. White, 547 F.3d 853, 864 (7th Cir.2008) (internal quotation marks omitted).
Adapting this doctrine to the Second Amendment context makes sense. The Second Amendment is no more susceptible to a one-size-fits-all standard of review than any other constitutional right. Gun-control regulations impose varying degrees of burden on Second Amendment rights, and individual assertions of the right will come in many forms. A severe burden on the core Second Amendment right of armed self-defense should require strong justification. But less severe burdens on the right, laws that merely regulate rather than restrict, and laws that do not implicate the central self-defense concern of the
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, 109 S.Ct. 3028. This "require[s] the government goal to be substantial, and the cost to be carefully calculated." Id. The inquiry tests whether the regulation's "scope is in proportion to the interest served," id. (internal quotation marks omitted), 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, 109 S.Ct. 3028.
This intermediate standard is "far different" from rational-basis review, however. Id. at 480, 109 S.Ct. 3028. Under rational-basis review, "it suffices if the law could be thought to further a legitimate governmental goal, without reference to whether it does so at inordinate cost." Id. Stated differently, under the prevailing rational-basis test, the challenged law is presumed to be constitutional, and "all a court need do is ask whether a sound justification of a law may be imagined." Annex Books, 581 F.3d at 463. Intermediate scrutiny, like strict scrutiny, reverses the presumption. The government "bears the burden of justifying its restrictions, [and] it must affirmatively establish the reasonable fit" that the test requires. Fox, 492 U.S. at 480, 109 S.Ct. 3028 (internal citation omitted). In other words, "the public benefits of the restrictions must be established by evidence, and not just asserted[;] .... lawyers' talk is insufficient." Annex Books, 581 F.3d at 463.
The version of intermediate scrutiny articulated in Fox seems most appropriate here because Skoien's constitutional challenge does not implicate the core Second Amendment right of armed self-defense identified in Heller. Applying it, we need not spend much time addressing whether reducing domestic gun violence qualifies as an important governmental interest; the Supreme Court has already held that it does, see United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("the government's interest in preventing crime ... is both legitimate and compelling"), and Skoien does not argue otherwise. 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.
The government has rested nearly its entire case on Heller's reference to felon-dispossession laws, asserting, without analysis, that "Congress permissibly concluded that a narrow additional range of serious criminal offenses should likewise result in the forfeiture of the right to possess a firearm, even though the offenses are defined as misdemeanors under applicable law." For support the government cites a statement in the Congressional Record from the principal Senate sponsor of § 922(g)(9) discussing the purpose of the statute, see 142 CONG. REC. 22985 (1996) (statement of Sen. Lautenberg), and a single study from the Justice Department's Bureau of Justice Statistics, see U.S. Dep't of Justice, Bureau of Justice Statistics (July 11, 2007), http://www. ojp.usdoj.gov/bjs/homicide/intimates.htm
Accordingly, we cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important objective of reducing domestic gun violence and § 922(g)(9)'s permanent disarmament of all domestic-violence misdemeanants. In fairness, because Heller did not establish a standard of review, the government did not know what its burden would be. Like the district court, it proceeded on the assumption that the highest standard of scrutiny applied and then relied almost entirely on conclusory reasoning by analogy from Heller's reference to the "presumptive" constitutionality of felon-dispossession laws. That was a mistake, for the reasons we have explained. In any event, our discussion here of the appropriate standard of review should provide guidance for the proceedings on remand.
Before closing, we offer a few additional observations to help those proceedings along. Intermediate scrutiny tolerates laws that are somewhat overinclusive. See, e.g., Fox, 492 U.S. at 480, 109 S.Ct. 3028; Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 327-28 (4th Cir. 1996) (recognizing that intermediate scrutiny in the commercial-speech context allows some latitude between the regulation and the governmental objective). How much is too much is hard to say; it depends on the scope and reach of the law and how much room it leaves for the exercise of the right. See Fox, 492 U.S. at 481, 109 S.Ct. 3028 (noting "the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires"). We note that § 922(g)(9) is overinclusive on several fronts: The firearms prohibition exists indefinitely;
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.
VACATED AND REMANDED.