An End to the Lautenberg Amendment?

By Jeff Knox

The Federal Court of Appeals for the 7th Circuit recently accepted the Second Amendment as valid grounds for reversing a conviction under the infamous Lautenberg Amendment, barring possession of firearms from anyone ever convicted of a misdemeanor crime of domestic violence.

That's good news, but don't fire up the band just yet. The actual conclusion of the 7th Circuit panel was that prosecutors had failed to effectively argue that Lautenberg does not violate the Second Amendment - which is a far cry from declaring the law unconstitutional and throwing the case out.

The court reversed the guilty verdict and sent the case back to the lower court to give federal prosecutors another chance to build a better case. Included in the decision are rather detailed instructions explaining what arguments the prosecution needs to make if they wish to prevail. Like a child's game, the court said, "You forgot to say 'Mother may I' so try it again – and this time say 'Mother may I.'" If prosecutors carefully apply the lessons laid out in the 7th Circuit's order, the case should result in another conviction that would then be upheld on appeal. On the other hand, the court also dropped a hint or two for the defense.

The case against defendant Steven Skoien, who was sentenced to probation in 2006 for misdemeanor domestic violence, is pretty straightforward. After being alerted by the game department that Skoien had purchased a deer tag, police went to his home where, in his pickup parked out front, they found a freshly killed deer, a shotgun, and ammunition. Skoien admitted that he had been hunting that morning.

In court Skoien argued that he only possessed the gun for hunting and that denying him the right to arms was a violation of the Second Amendment.

Prosecutors pointed to a comment made in the Heller opinion to the effect that the decision "should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." They argued that this should be recognized to include persons prohibited under Lautenberg, and that the government had a compelling need to restrict guns from domestic violence abusers because such abuse is an indicator for future acts of violence.

The three-judge panel of the 7th Circuit rightly pointed out that a person convicted of a domestic violence misdemeanor is not a felon, and concluded that the government's arguments supporting the assertion of "compelling need" simply weren't good enough. The panel also concluded though that since the defendant claimed to only possess the shotgun for the purpose of hunting and did not assert a self-defense argument, his situation did not warrant the full protection of the Second Amendment.

The important issues in this case all hinge on two problematic positions taken by the panel:

  1. That the extraneous comments made in Heller are binding
  2. That guns possessed for self-defense deserve more protection from the courts than those involving guns possessed for other purposes.

There are three standards a court uses in judging arguments, referred to as levels of scrutiny. The highest and most rigorous of the three is "strict scrutiny" - applied to issues of fundamental rights - wherein prosecutors must demonstrate a compelling need to interfere with a person's rights, with minimal interference to meet that compelling need, and prove that the government's action effectively does meet the stated need. "Intermediate scrutiny" is applied when there is only limited involvement of civil rights and no direct impact on any fundamental rights. The government is given much more leeway under this standard. The third, "rational basis," is applied when neither civil nor fundamental rights are at issue. Under this standard the government has little requirement to prove need or effect.

In the Skoien case, the 7th Circuit concluded that intermediate scrutiny was appropriate because self-defense was not raised as an issue. They also suggested that if the issue of self-defense had been raised, the court would have to move up to a strict scrutiny standard for reviewing the case. This conclusion begs anyone wishing to use the Second Amendment as a legal defense to be sure to invoke the right to arms in a self-defense context and suggests that the court has injected the words "for self defense" into the Second Amendment.

If the remanded case is not dismissed, prosecutors will no doubt build a case tailored to the court's instructions for stricter scrutiny, and the defense will assert that Skoien also possessed the shotgun for self-defense purposes. Meanwhile, it is to be hoped that the Supreme Court will have rendered a favorable decision in the McDonald v. Chicago case and that that decision will clear up some of the ambiguities surrounding Heller.

Permission to reprint or post this article in its entirety is hereby granted provided this credit is included. Text is available at

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