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has implied otherwise, though in a non-precedential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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