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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. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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