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7th Circuit upholds gun ban for domestic violence offender

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A Wisconsin man who pled guilty to possessing firearms after he was convicted of a domestic battery misdemeanor is not allowed to have those firearms, even though he argued they were used for hunting, the 7th Circuit Court of Appeals ruled Tuesday following an en banc oral argument that took place May 20.

The latest opinion for United States of America v. Steven Skoien, No. 08-3770, appealed from the United States District Court for the Western District of Wisconsin, starts by stating that Steven Skoien had been found guilty of domestic violence misdemeanors on two separate occasions, and that he pled guilty to having guns even though he was not allowed to own them under the terms of his probation.

Statute 18 USC 922 (g) (9), which is a result of The Brady Handgun Violence Prevention Act (often called the Brady Bill), defines who can or cannot have guns.

That statute includes 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.

In its Nov. 18, 2009, decision following a hearing in April 2009, the court vacated and remanded the District Court’s decision that he could not have a gun because of the past misdemeanor convictions, stating the U.S. government didn’t make a strong enough case for prohibiting Skoien from ever possessing firearms.

During the most recent hearing, one of the arguments made by the defense counsel was that the statute had only existed for about 15 years, and that it was weak because of how it was passed. During the argument, judges questioned why it mattered how a bill was passed as long as it was indeed passed and signed into law.

The defense also argued that those who are excluded from owning guns under the statute due to domestic violence misdemeanors would find it nearly impossible to again own guns.

Chief Judge Frank Easterbrook wrote in the July 13 opinion, “… 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.”

The opinion also addressed that because Skoien had a history of recidivism for domestic violence misdemeanors, he was “poorly situated” to argue “the statute creates a lifetime ban for someone who does not pose any risk of further offenses.”

The opinion also stated that even though Skoien’s crimes were misdemeanors, they would be considered felonies if committed against a stranger, which was why the statute included domestic violence misdemeanants among those who could not own firearms.

“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,” Chief Judge Easterbrook wrote.

Judge Diane S. Sykes, who was on the panel for the November decision along with Judges William J. Bauer and John Daniel Tinder, and wrote that majority opinion, dissented, writing the government should need to make a stronger case for imprisoning Steven Skoien for exercising his Second Amendment rights.

Indiana Coalition Against Domestic Violence Legal Director Kerry Hyatt Blomquist previously told Indiana Lawyer she had followed this case because she knows of similar situations in Indiana courts where someone has been granted a protective order, which is included in the Brady disqualifiers, and then the judge questioned whether he needed to restrict the respondent from having a gun during hunting season.

She has also had clients where the victim had proof that even though the abuser was Brady disqualified, he still obtained a gun.
 

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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

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  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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