A World Turned Upside Down

When British troops surrendered to General Washington at Yorktown in 1781, tradition is that they played a song titled, “The World Turned Upside Down.”  That song describes a world where horses rode men, men nursed babies, and women carried muskets.  To the British military, to be so overwhelmingly defeated by a bunch of colonials was every bit as unbelievable.

We seem to be in every bit as bizarre of a world, at least with respect to gun rights.  In 1989, when I first became actively involved in gun rights politics, it seemed as though we were fighting a losing battle.  We were fighting as hard as we could—but it was not difficult to see that we were on the losing side of history.  The Baby Boomers, who had lost three beloved leaders to gunfire (John Kennedy, Robert Kennedy, and Martin Luther King, Jr.), were in the ascendancy.  All of the popular news and entertainment media was against us.  

Scholarly opinion, while not quite as one-sided as the news business, was pretty strongly against us.  To the extent that there was any scholarly support for our position, it was primarily an admission that history was on our side—but the few scholars who admitted this, generally argued that the right to keep and bear arms was obsolete.

Today, the world is indeed turned upside down.  Not only did the U.S. Supreme Court rule 5-4 that the Second Amendment applies to the states in McDonald v. Chicago (2010), but we are seeing an astonishing rush to implement the Second Amendment in the lower courts.  Even where the courts are upholding particular gun control laws, they are doing so with a level of respect for the Second Amendment that would have seemed the equivalent of horses riding men, just a few years ago.

Last year, in U.S. v. Skoien (7th Cir. 2010), the U.S. 7th Circuit Court of Appeals upheld a conviction of Steven Skoien for possession of a firearm, after having been convicted of a misdemeanor crime of domestic violence.  The Court of Appeals decided that this indeed involved a serious question concerning the Second Amendment.  

Let me start out by saying that I believe that the federal law in question is far too broadly written.  The definition of “domestic violence” is now so loosely defined in many states that it has lost all meaning.  My daughter is a social worker, and counsels domestic violence victims and abusers—and sees how really serious, brutal abuse is now being trivialized by lumping it in with a woman who pushes her husband out of the way so that she can leave the house during an argument.  It is absurd that beating your spouse to the point of needing medical treatment is thrown into the same bin as throwing a cup across the room.  Yes, everyone needs to learn to control his or her temper.  But the pendulum has swung a bit too far from the days when police seldom made an arrest in a domestic fight.

That said, Skoien does not seem to be one of those examples of an overcharged trivial dispute.  His crime of domestic violence earned him two years probation, and the judge in that case prohibited Skoien from possessing firearms.  While still on probation for that crime, Skoien was arrested with a shotgun while headed out hunting, and charged with the federal law that prohibited domestic violence misdemeanants from possessing firearms.  Once the case reached the Court of Appeals, the judges acknowledged that the Second Amendment did not completely prohibit all regulation of guns.  On the question of whether this particular law violated the Second Amendment, the Court of Appeals acknowledged that this was not an easy question to answer.  

A more difficult question is whether a person convicted of a domestic-violence misdemeanor is categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions.  The government has not made this argument, either.  Scholars disagree about whether and to what extent persons convicted of crimes—more specifically, felons—were considered excluded from the right to bear arms during the founding era.”1  (And nicely enough, they cited a law review article by Don Kates and myself along the way.)2

What the Court of Appeals ruled was that in deciding whether a particular law violates the Second Amendment, the correct standard to use is “intermediate scrutiny.”  This means that a gun control law, to be constitutional, must be “substantially related to an important governmental interest,” and may not destroy or abolish a core aspect of the right to keep and bear arms.  Pretty clearly, preventing violent crime is “an important governmental interest.”  But is the connection of domestic violence misdemeanors to violent crime a good fit?  The Court of Appeals seemed to suggest that it might be, but that the government had not really done its job of showing that this was the case.

Is possessing a firearm to go hunting part of the “core aspect” of the Second Amendment?  Had Skoien been in possession of a firearm for self-defense in his home, he might have a stronger case.  (Hunting is recreation, and the Second Amendment does not protect a right to hunt with a gun.)  Nonetheless, the Court of Appeals concluded that the lower court had erred in allowing the government to simply claim that the law in question was constitutional.  They ordered the trial court to start over, and figure out whether the somewhat demanding requirements of intermediate scrutiny protected Skoien’s right to have a gun.  (As this went to press, I found out that Skoien has worked its way back to the 7th Circuit, and this time, an en banc panel upheld the law3—doubtless opening up the question for Supreme Court Review.)

Would I have preferred the Court of Appeals to have used strict scrutiny as the standard?  Sure.  But even intermediate scrutiny means that the government needs to have a pretty good reason to prohibit someone from owning a gun.  It is not enough to say, “We think members of group X are too dangerous to own guns.”  The government needs to demonstrate a strong connection between someone’s behavior, a problem of violence, and disarming that person.  Compared to where we were headed in 1989, this is horses riding men!

In U.S. v. Williams (7th Cir. 2010), the 7th Circuit Court of Appeals delivered another quite astonishing bombshell.  The defendant in this case was a convicted felon in possession of a firearm, arrested during a drug raid.  Williams argued that his Second Amendment rights were being violated.  As in U.S. v. Skoien, the Court of Appeals followed Justice Scalia’s opinion in D.C. v. Heller (2008) that held that the right to keep and bear arms did not invalidate felon in possession laws:

To pass constitutional muster under intermediate scrutiny, the government has the burden of demonstrating that its objective is an important one and that its objective is advanced by means substantially related to that objective…. We find that the government satisfies its burden. In this case, the government’s stated objective is to keep firearms out of the hands of violent felons, who the government believes are often those most likely to misuse firearms....”

This was no real surprise—they continued to use intermediate scrutiny, as in Skoien.  The real surprise was what the Court of Appeals pointed out next:

“And although we recognize that § 922(g)(1) [the felon in possession statute] may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams.  Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him.... Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).”4

Is this clear enough?  They were inviting someone convicted on a non-violent felony (say, turning back a car odometer) to challenge the felon in possession statute.  Presumably, the government would have a very hard time meeting the burden of proof required in such a case.

A world turned upside: where courts treat the Second Amendment with deference; where Democrats run from gun control measures; where gun ownership reaches levels unknown in recent decades.  I better hope that it is only a Shetland pony that will be riding me next week.

1 U.S. v. Skoien, No. 08-3770 (7th Cir. 2009).

2 Don B. Kates & Clayton E. Cramer, “Second Amendment Limitations and Criminological Considerations,” 60 Hastings Law Journal 1339 (2009).

3 U.S. v. Skoien, No. 08-3770 (7th Cir. en banc 2010).

4 U.S. v. Williams, No. 09-3174 (7th Cir. 2010).