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Old November 19, 2009, 01:01 PM   #7
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,541
In general, I believe the circuit court got this one right.

In particular, I want to focus on footnote #5:
If strict scrutiny did apply here, there is reason to doubt whether Skoien’s conviction under § 922(g)(9) could survive Second Amendment challenge. A law subject to strict scrutiny must be narrowly tailored to achieve a compelling governmental interest. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Although “[s]trict scrutiny is not strict in theory, but fatal in fact,” id. (internal quotation marks omitted), it is an exacting standard and deliberately difficult to pass, in deference to the primacy of the individual liberties the Constitution secures. Section 922(g)(9) bars all persons who have been convicted of a domestic-violence misdemeanor from ever possessing a firearm for any reason. It is a comprehensive lifetime ban; the prohibition does not expire after a certain period of time, nor does it permit the offender to reacquire the right to possess a gun on a showing that he is no longer a danger. There are no exceptions. The statute does not require any individualized finding that the misdemeanant presents a risk of using a gun in a future crime. Skoien was caught in possession of a hunting shotgun about a year after his domestic-violence misdemeanor conviction, while he was still on probation—not five or ten or twenty years later. Perhaps that should make some difference in the analysis. But while preventing domestic gun crime is unquestionably a compelling governmental interest, United States v. Salerno, 481 U.S. 739, 749 (1987), the government has made precious little effort here to establish that § 922(g)(9)’s automatic, exceptionless, and perpetual firearms prohibition is the least restrictive means available to achieve this goal.
A careful reading of this footnote (and the way the court highlighted the text) provides valuable insight on how the defendant might challenge § 922(g)(9).

The defendant could possibly challenge the law because the only time he would "possess" a firearm would be to exercise the "right to hunt" (Heller, 128 S. Ct. at 2801). This might mean (or not) that while he could not outright own a firearm, he could temporarily possess the firearm to exercise the right.

The court seemed to agree that § 922(g)(9) would probably fail if the firearm were one the defendant used in his home for the core purpose of self-defense.

The court also seemed to be "troubled" that the restriction was a lifetime ban for a misdemeanor offense (which is a good reading of the core right, give them credit for this, guys), that is Heller indicated that possession by felons was OK, but left open the idea that misdemeanors might not be as good a reason. In this sense, the prohibition is overly broad for the type of crime committed.

However, while I can see several possible ways to get § 922(g)(9) overturned, in this case there is one mitigating fact: The defendant was on probation.

In all cases (that I have ever seen or heard about), the defendant agrees to certain conditions in order to partake of parole or probationary status. One of those restrictions is a general firearms prohibition... Whether that's a legal condition or not, is another discussion.

Here, the defendant may fail, because of that voluntary restriction.

The bottom line, as I see it, is that the general lifetime firearms disability may now be challenged based upon Heller.
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