USA v. Skoien, No. 08-3770.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: EASTERBROOK, Chief Judge.
• Citation: 614 F.3d 638
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven SKOIEN, Defendant-Appellant.
• Docket Number: No. 08-3770.
• Decision Date: 13 July 2010

614 F.3d 638

UNITED STATES of America, Plaintiff-Appellee,
v.
Steven SKOIEN, Defendant-Appellant.

No. 08-3770.

United States Court of Appeals,Seventh Circuit.

Argued May 20, 2010.
Decided July 13, 2010.

614 F.3d 638

Elizabeth Dorsey Collery, Attorney, Michael R. Dreeben (argued), Department of Justice, Washington, DC, for Plaintiff-Appellee.

Michael W. Lieberman, Assistant Federal Public Defender (argued), Federal Defender Services, Madison, WI, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER, POSNER, FLAUM, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.

614 F.3d 639

EASTERBROOK, Chief Judge.

Steven Skoien has two convictions for “misdemeanor crime[s] of domestic violence” and therefore is forbidden to carry firearms in or affecting interstate commerce. 18 U.S.C. § 922(g)(9). Wisconsin informed Skoien about this rule; he signed an acknowledgment of the firearms disability. While he was on probation from the second of his domestic-violence convictions, he was found in possession of three firearms: a pistol, a rifle, and a shotgun. He pleaded guilty to violating § 922(g)(9) by possessing the shotgun and was sentenced to two years' imprisonment. His conditional guilty plea, see Fed.R.Crim.P. 11(a)(2), reserves the right to contend that § 922(g)(9) violates the Constitution's Second Amendment. We heard this appeal en banc to decide whether § 922(g)(9) comports with that amendment, as interpreted in District of Columbia v. Heller, --- U.S. ----, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The eleventh circuit has held that it does. United States v. White, 593 F.3d 1199, 1205-06 (11th Cir.2010). The fourth circuit has implied otherwise, though in a non-precedential order. United States v. Chester, 367 Fed.Appx. 392 (4th Cir.2010).

Heller concludes 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. McDonald v. Chicago, ---- U.S. ----, 130 S.Ct. 3020, 3021, 177 L.Ed.2d 894 (2010). The United States submits that, before considering how the amendment applies to shotguns and hunting (which is how Skoien contends he used that weapon), we must decide whether Congress is entitled to adopt categorical disqualifications such as § 922(g)(9). The prosecutor relies on this passage from Heller:

Like most rights, the right secured by the Second Amendment is not unlimited.... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.²⁶

128 S.Ct. at 2816-17, reiterated by McDonald, at 3063 (plurality opinion). To this Skoien replies that his prior offenses were misdemeanors rather than felonies, and that § 922(g)(9) is not a “longstanding” prohibition, having been enacted in 1996. See United States v. Hayes, ---U.S. ----, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (discussing its genesis). The prosecutor rejoins by noting that the Court stated its holding this way:

[W]e hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

128 S.Ct. at 2821-22. The reference to being “disqualified” relates to prior convictions and mental illness. Id. at 2819. Heller also observes that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 2821. People

614 F.3d 640

convicted of domestic violence are neither law-abiding nor responsible, the prosecutor contends.

We do not think it profitable to parse these passages of Heller as if they contained an answer to the question whether § 922(g)(9) is valid. They are precautionary language. Instead of resolving questions such as the one we must confront, the Justices have told us that the matters have been left open. The language we have quoted warns readers not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open. The opinion is not a comprehensive code; it is just an explanation for the Court's disposition. Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration. See Zenith Radio Corp. v. United States, 437 U.S. 443, 462, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978).

Although the passages we have quoted are not dispositive, they are informative. They tell us that statutory prohibitions on the possession of weapons by some persons are proper-and, importantly for current purposes, that the legislative role did not end in 1791. That some categorical limits are proper is part of the original meaning, leaving to the people's elected representatives the filling in of details. Heller identified, 128 S.Ct. at 2804, as a “highly influential” “precursor” to the Second Amendment the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents. (This report is reprinted in Bernard Schwartz, 2 The Bill of Rights: A Documentary History 662, 665 (1971).) The report asserted that citizens have a personal right to bear arms “unless for crimes committed, or real danger of public injury”. Many of the states, whose own constitutions entitled their citizens to be armed, did not extend this right to persons convicted of crime. See Stephen P. Halbrook, The Founders' Second Amendment 273 (2008) (concluding that this limitation was understood in the eighteenth century even when not stated expressly in the constitutional text); C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Policy 695, 700-13 (2009) (surveying the history of state laws limiting convicts' entitlement to possess firearms). See also United States v. McCane, 573 F.3d 1037, 1047-50 (10th Cir.2009) (Tymkovich, J., concurring).

The first federal statute disqualifying felons from possessing firearms was not enacted until 1938; it also disqualified misdemeanants who had been convicted of violent offenses. Federal Firearms Act, c. 850, § 2(f), 52 Stat. 1250, 1251. (Technically the crime was “receipt” of a gun that had crossed state lines; the statute treated possession as evidence of receipt.) A 1938 law may be “longstanding” from the perspective of 2008, when Heller was decided, but 1938 is 147 years after the states ratified the Second Amendment. The Federal Firearms Act covered only a few violent offenses; the ban on possession by all felons was not enacted until 1961. Pub.L. 87-342, 75 Stat. 757 (extending the disqualification to all persons convicted of any “crime punishable by imprisonment for a term exceeding one year”, the current federal definition of a “felony”). In 1968 Congress changed the “receipt” element of the 1938 law to “possession,” giving 18 U.S.C. § 922(g)(1) its current form. If such a recent extension of the disqualification to non-violent felons (embezzlers and tax evaders, for example) is presumptively constitutional, as Heller said in note 26, it is difficult to condemn § 922(g)(9), which like the 1938 Act is limited to violent

614 F.3d 641

crimes. It would be weird to say that § 922(g)(9) is unconstitutional in 2010 but will become constitutional by 2043, when it will be as “longstanding” as § 922(g)(1) was when the Court decided Heller. Moreover, legal limits on the possession of firearms by the mentally ill also are of 20th Century vintage; § 922(g)(4), which forbids possession by a person “who has been adjudicated as a mental defective or who has been committed to a mental institution”, was not enacted until 1968. Pub.L. 90-618, 82 Stat. 1213, 1220.

So although the Justices have not established that any particular statute is valid, we do take from Heller the message that exclusions need not mirror limits that were on the books in 1791. This is the sort of message that, whether or not technically dictum, a court of appeals must respect, given the Supreme Court's entitlement to speak through its opinions as well as through its technical holdings. See United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998). 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.

Categorical limits on the possession of firearms would not be a constitutional anomaly. Think of the First Amendment, which has long had categorical limits: obscenity, defamation, incitement to crime, and others. See United States v. Stevens, --- U.S. ----, ----, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010). These categories are not restricted to those recognized in 1791, when the states approved the Bill of Rights. The Justices have held that legislatures may add child pornography to the list, even though the materials do not meet the historical definition of obscenity. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d...