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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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