Losing Lautenberg

The Knox Update

From the Firearms Coalition

An End to the Lautenberg Amendment?

By Jeff Knox

(Manassas, VA, January 7, 2009) The Federal Court of Appeals for the 7th Circuit recently declared that the infamous Lautenberg Amendment, barring possession of firearms from anyone ever convicted of a misdemeanor crime of domestic violence, is a violation of Second Amendment rights.

That’s good news, but don’t fire up the band just yet.  The actual conclusion of the 7th Circuit panel was not that Lautenberg violates the Second Amendment, but that prosecutors had failed to effectively argue that it does not.  Rather than 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 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.”  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, but even that isn’t assured because the court didn’t only provide instructions to the prosecution, they also dropped a hint or two for the defense.

The case against the defendant is pretty straightforward.  Police went to Steven Skoien’s home and in his pickup parked out front they found a freshly killed deer, a shotgun, ammunition, and a lawful deer tag made out in Skoien’s name.  Skoien’s admitted that he had been hunting that morning and used the shotgun to kill the deer.

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 decision to the effect that their 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 a “compelling need” simply were not good enough.  The panel also noted that since the defendant claimed to only possess the shotgun for the purpose of hunting and did not assert a self-defense argument, that his claim did not warrant the full protection of the Second Amendment.

All of this is wrapped around two problematic positions taken by the panel:

  1. That the dicta in Heller is binding.
  2. That cases involving guns possessed for self-defense deserve more protection from the courts than those involving guns possessed for other than defensive purposes.


In the legal system there are three different ways a court can judge an argument. These three different standards are referred to as levels of scrutiny and they are applied based on the issues being dealt with.  The highest and most rigorous of the three is called “Strict Scrutiny” and is applied to matters dealing with fundamental rights.  Under strict scrutiny the government must demonstrate a compelling need to interfere with a person’s rights and that interference must be narrowly focused to be as minimal as possible to meet the compelling need.  At the other end of the spectrum is what is called “Rational Basis.”  This level of scrutiny is used when fundamental rights are not really an issue.  At this level the government need only demonstrate that their rules are reasonable to meet a general need for order.  Between these two extremes is “Intermediate Scrutiny.”  Intermediate scrutiny is applied when there is only limited involvement of civil rights and no direct impact on any fundamental rights.  The government must tread carefully around these rights issues and must demonstrate not only a compelling need, but also a careful application so as to show proper respect and consideration for the rights involved.

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 amended the words “for self defense” to the end of the Second Amendment.

Now prosecutors will no doubt build a case tailored to meeting the court’s call for intermediate scrutiny and the defense will assert that Skoien also possessed the shotgun for self-defense purposes and the 7th Circuit will probably get another shot at sorting it all out.  By then it is to be hoped that the Supreme Court will have rendered a favorable decision in the McDonald case and clarified some of the ambiguity in Heller.

Permission to reprint or post this article in its entirety is hereby granted provided this credit is included.    Text is available at www.FirearmsCoalition.org.    To receive The Firearms Coalition’s bi-monthly newsletter, The Knox Hard Corps Report, write to PO Box 3313, Manassas, VA 20108.

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