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7th Circuit rehears Second Amendment case

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7th Circuit Court of Appeals judges in Chicago didn’t take the issue of Second Amendment rights lightly when they heard oral arguments en banc Thursday for United States of America v. Steven M. Skoien, No. 08-3770.

That case, which a 7th Circuit panel first heard April 6, 2009, and decided Nov. 18, involved Steven Skoien, a Wisconsin man who had been convicted of misdemeanor domestic violence charges and admitted he had used a hunting rifle to kill a deer. He was prohibited from owning a gun as a condition of his probation for his domestic violence misdemeanor conviction.

At issue in the argument was the Brady Handgun Violence Prevention Act, often called the Brady Bill, which states that gun ownership is prohibited for, among others, anyone who has been convicted of a felony; those who have been adjudicated to be mentally ill; someone who has had a misdemeanor conviction of domestic violence where the defendant was an intimate partner, parent, guardian, or someone who had a child with the victim; and those who are subject to a protective order.

Skoien’s attorney, Michael W. Lieberman of the Federal Defender Services of Wisconsin Inc., started his argument by saying that “the Second Amendment guarantees a fundamental individual right,” referring to the Supreme Court of the United States’ decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

But one of the judges quickly cut him off, saying it’s not that the 7th Circuit doesn’t respect the Heller decision, but “to say the Second Amendment creates an individual right, that seems to say that is the beginning of the conversation not the end.”

Another judge then asked Lieberman if the Second Amendment should also apply to 3-year-olds and the mentally ill. He agreed that the amendment shouldn’t apply to children, and that the Founding Fathers didn’t consider the rights of children when drafting the amendment. But Lieberman did say the line gets “fuzzy” when it comes to who could or couldn’t own a firearm in terms of adults who can own firearms.

Judges also asked him if he thought that convicted felons also shouldn’t lose civil liberties other than Second Amendment rights, such as the right to vote. One judge asked if Lieberman thought there was a constitutional difference between convicts losing their Second Amendment rights and the widely accepted laws that take away a convict’s right to vote – whether it’s a felon or misdemeanant, depending on the state.

Lieberman said he wasn’t sure there was a difference, and emphasized that his client was not a felon, and that a misdemeanor charge of domestic violence wasn’t enough of a reason for him to lose his Second Amendment rights indefinitely.

The court then responded that there were scenarios where a convicted felon or misdemeanant could restore his Second Amendment rights, such as expungement or pardon. The court added that they weren’t there to weigh the possibility of a scenario where rights would be restored, but stated the possibility was there.

The time frame for how long a convict loses his Second Amendment rights was also addressed when Deputy Solicitor General Michael R. Dreeben argued on behalf of the U.S. Department of Justice.

When a judge asked him if there could or should be a state law that would limit how long someone’s Second Amendment rights were taken away, he said that in Nevada and California there were similar laws that allowed someone to reinstate his or her rights, depending on various factors.

But, Dreeben added, even if Wisconsin passed such a law “tomorrow,” as one judge asked, Skoien would not be a good candidate to get his rights back under such a law, considering his history of recidivism when it comes to domestic violence convictions.

In his arguments, Dreeben also argued that Congress added domestic violence misdemeanors to the list of those prohibited from having a gun under the Brady Bill as a response to the passage of the Violence Against Women Act. That act, he said, sent a message that even if crimes against women, such as domestic violence, aren’t considered a felony in all jurisdictions, it is something that is not to be taken lightly by the community, including judges.

He also responded to Lieberman’s arguments that taking a gun away from someone convicted of a domestic violence misdemeanor doesn’t necessarily reduce the risk of a domestic homicide according to statistics Lieberman cited in his briefs.

“Guns, which are valuable for self defense, are for the same reasons very threatening when placed in the hands of people who are dangerous with them,” Dreeben said.
 

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