Steven Skoien has two convictions for "misdemeanor crime[s] of domestic violence" and therefore is forbidden to carry firearms in or affecting interstate commerce. 18 U.S.C. § 922(g)(9). Wisconsin informed Skoien about this rule; he signed an acknowledgment of the firearms disability. While he 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, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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 The fourth circuit has implied otherwise, though in a non-precedential order.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, 367 Fed.Appx. 392 (4th Cir.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, ___ U.S. ___, 130 S.Ct. 3020, 3021, 177 L.Ed.2d 894 (2010). 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:
128 S.Ct. at 2816-17, reiterated by McDonald, at 3063 (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, ___ U.S. ___, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (discussing its genesis). The prosecutor rejoins by noting that the Court stated its holding this way:
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
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 language. 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, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978).
Although the passages we have quoted are not dispositive, they are informative. They tell us that statutory prohibitions on the possession of weapons by some persons are proper—and, importantly 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. 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 committed, 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., concurring).
The first federal statute disqualifying felons from possessing firearms was not enacted until 1938; it also disqualified 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 possession 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 possession 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 imprisonment 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 presumptively constitutional, as Heller said in note 26, it is difficult to condemn § 922(g)(9), which like the 1938 Act is limited to violent
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 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 established by admissible evidence.
Categorical limits on the possession of firearms would not be a constitutional anomaly. Think of the First Amendment, which has long had categorical limits: obscenity, defamation, incitement to crime, and others. See United States v. Stevens, ___ U.S. ___, ___, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010). These categories 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, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (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, 126 S.Ct. 1951, 164 L.Ed.2d 689 (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 limit on proof, satisfactory to a court, that the exclusion was vital to the public safety.
We do not mean that a categorical limit on the possession 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, 99 S.Ct. 939, 59 L.Ed.2d 171 (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 governmental objective. See Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 202-04, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (using this formula for some First Amendment questions); Heckler v. Mathews, 465 U.S. 728, 744-51, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (using this formula
"Misdemeanor crime of domestic violence" is a defined term.
18 U.S.C. § 921(a)(33). A "misdemeanor crime of domestic violence" thus is one in which violence (actual or attempted) 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, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 176 L.Ed.2d 1 (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 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):
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 relative (implying that the perpetrators are as dangerous as felons); second that firearms are deadly in domestic strife; and third that persons convicted of domestic violence 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 misdemeanor when similar acts against a stranger would be a felony (a practice often called "undercharging"). Prosecutors face two major obstacles to obtaining felony convictions: 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 misdemeanor conviction, when similar violence against a stranger would produce a felony conviction. See, e.g., Report of the Florida Supreme Court Gender Bias Study Commission, 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 Domestic Violence Against Women 2 (Bureau of Justice Statistics 1986).
That firearms cause injury or death in domestic situations 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 presence 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
Finally, the recidivism rate is high, implying that there are substantial benefits in keeping the most deadly weapons 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 partners' reports). Skoien cites, as if it were favorable, a study showing that within three years of conviction 48% of domestic abusers "suspended" their abusive conduct— 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. 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 conviction no longer disqualifies a person from possessing firearms, see 18 U.S.C. § 921(a)(33)(B)(ii), Skoien maintains that, as a practical matter, these routes to restoration 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, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007), although Wisconsin
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.
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, 107 S.Ct. 2095, 95 L.Ed.2d 697 (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, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008); cf. Gonzales v. Carhart, 550 U.S. 124, 167-68, 127 S.Ct. 1610, 167 L.Ed.2d 480 (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, 123 S.Ct. 1160, 155 L.Ed.2d 98 (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.
SYKES, 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 misdemeanor 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
The now-vacated panel opinion rejected the government's argument and instead read Heller's holdings in light of its limiting language about exceptions, distilling a decision method focused first on a textual and historical inquiry into "the terms of the [Second Amendment] 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 relationship 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 application of intermediate scrutiny on an appropriately developed 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 644-45, but it is just as important— even more so, I think—that the government has (belatedly) developed arguments about the original meaning of the Second Amendment right and the means-end justification for § 922(g)(9). The government argued on rehearing that domestic-violence misdemeanants are excluded from the scope of the Second Amendment right as it was originally understood, or if they are not, that § 922(g)(9) survives intermediate 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 governmental objective." Majority Op. at 641. 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.
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 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." Majority Op. at 640.
I appreciate the minimalist impulse, but this characterization 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, ___ U.S. ___, 130 S.Ct. 3020, 3023, 177 L.Ed.2d 894 (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,"
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 "informative" but not "dispositive," and conveys a message that "whether or not technically dictum, a court of appeals must respect." Majority Op. at 639-40, 641. I agree, and all the more so after McDonald.
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...."); McDonald, at 3047 (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 Constitution for the protection of individual rights, including the right to bear arms. Majority Op. at 640; see also STEPHEN P. HALBROOK, THE FOUNDERS' SECOND AMENDMENT: ORIGINS OF THE RIGHT TO BEAR ARMS 195 (2008). The Pennsylvania dissenters proposed an amendment guaranteeing 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." BERNARD SCHWARTZ, 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 662, 665 (1971). It is true that Heller identified this report as "highly influential" in the run-up to the Second Amendment, 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 dissenters' proposal, and needless to say, this limiting language 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 640. This is a considerable overstatement. Only four state constitutions had what might be considered Second Amendment analogues in 1791—Massachusetts, 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, at 3037; see also Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 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 contrary, two of the cited
Regardless, the court hazards these historical observations but ultimately leaves the matter unresolved, moving on to compare categorical limits on firearms possession to categorical limits on the freedom of speech: "obscenity, defamation, incitement to crime, and others."
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
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 from ever exercising the right. The relevant question for our purposes is whether domestic-violence misdemeanants are wholly unprotected by the Second Amendment. By invoking this line of First Amendment caselaw, my colleagues imply an affirmative answer, but do not see the analysis through.
The better approach is to acknowledge the limits of the scope inquiry in a more straightforward way: The historical evidence is inconclusive at best. As noted in the panel opinion, scholars disagree about the extent to which felons—let alone misdemeanants—were considered 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 exclude persons convicted of a crime), with Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological
My colleagues evidently agree; they move on to discuss the standard for determining whether the disarmament of domestic-violence misdemeanants is constitutionally permissible. This inquiry is necessary only if Skoien's Second Amendment rights are intact notwithstanding 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 effect."); Majority Op. at 641-42. 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, ___ U.S. ___, 129 S.Ct. 1079, 172 L.Ed.2d 816 (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 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
The court also dismisses Skoien's contention that § 922(g)(9) is impermissibly overinclusive because it is a permanent disqualification and provides no effective 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 restoration 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, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007). The court nonetheless maintains that "the state does give misdemeanants an opportunity to seek pardon or expungement." Majority Op. at 645. 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
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 probation."
Garcetti did not hold that public-employee speech is wholly unprotected; when public employees "speak as citizens about 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, 126 S.Ct. 1951. 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, 126 S.Ct. 1951. 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, 126 S.Ct. 1951 (quoting Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 75 L.Ed.2d 708 (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.