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U.S. v. Skoien, 7th Cir No. 08-3770, 7/13/10

7th circuit court of appeals decision (en banc)

Second Amendment – Categorical Ban on Possession

Categorical legislative bans on gun possession are permissible under the second amendment, including those for convictions of misdemeanor crimes of domestic violence per 18 U.S.C. § 922(g)(9), which the court now upholds.

District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. Chicago, No. 08–1521 (U.S. June 28, 2010), hold that “that the Second Amendment ‘protects the right to keep and bear arms for the purpose of self-defense’ and that a law ‘that banned the possession of handguns in the home’ violates that right. … What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.” Left open, but only to a point, according to the court: as suggested above, the court doesn’t construe Heller to require scrutiny of “limits that were on the books in 1791. … This means that 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. Heller did not suggest that disqualifications would be effective only if the statute’s benefits are first established by admissible evidence.” The court nonetheless upholds the DV ban only after extensive analysis showing the “substantial relation” between the DV-based ban and “preventing armed mayhem, … an important governmental objective.” The court assumes, without actually deciding, that heightened (rather than rational-basis review) is required. Scholarly dissent from Wisconsin’s own Judge Sykes, highly recommended, but in the end hers is a lone voice.

(Much more detailed analysis from Josh Blackman, who sees this as “a very significant case that should have rippling implications, and may wind its way up to SCOTUS in the near future.”)

Now that we know that the categorical ban on gun ownership survives Heller, we want to know whether this automatic dispossession remains a collateral consequence of conviction under State v. Frank J. Kosina , 226 Wis.2d 482, 488-89, 595 N.W.2d 464 (Ct. App. 1999): “Because the prohibition to possessing firearms arises from a body of law that is collateral to the state court proceedings, any consequence arising under that law must also be collateral. Whether Kosina experiences the effect of the federal statute is not a decision in which the trial court participates.” Substitute “deportation” for “the prohibition to possessing firearms” and you’ll very quickly see that the ratio decidendi of Kosina doesn’t holds water after Padilla.

As if on cue: mere days later, the Wisconsin court of appeals released a decision pledging undying fealty to Kosina, without remotely taking stock of the change wrought by Padilla, State v. Kurt D. Neis, No. 2009AP1287-CR, District IV, 7/15/10.

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