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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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  1. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  2. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  3. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

  4. My dear Smith, I was beginning to fear, from your absense, that some Obrien of the Nanny State had you in Room 101. So glad to see you back and speaking truth to power, old chum.

  5. here is one from Reason magazine. these are not my words, but they are legitimate concerns. http://reason.com/blog/2010/03/03/fearmongering-at-the-splc quote: "The Southern Poverty Law Center, which would paint a box of Wheaties as an extremist threat if it thought that would help it raise funds, has issued a new "intelligence report" announcing that "an astonishing 363 new Patriot groups appeared in 2009, with the totals going from 149 groups (including 42 militias) to 512 (127 of them militias) -- a 244% jump." To illustrate how dangerous these groups are, the Center cites some recent arrests of right-wing figures for planning or carrying out violent attacks. But it doesn't demonstrate that any of the arrestees were a part of the Patriot milieu, and indeed it includes some cases involving racist skinheads, who are another movement entirely. As far as the SPLC is concerned, though, skinheads and Birchers and Glenn Beck fans are all tied together in one big ball of scary. The group delights in finding tenuous ties between the tendencies it tracks, then describing its discoveries in as ominous a tone as possible." --- I wonder if all the republicans that belong to the ISBA would like to know who and why this outfit was called upon to receive such accolades. I remember when they were off calling Trent Lott a bigot too. Preposterous that this man was brought to an overwhelmingly republican state to speak. This is a nakedly partisan institution and it was a seriously bad choice.

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