Appeal from the United States District Court for the Western District of Wisconsin. No. 08-CR-12-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before BAUER, SYKES, and TINDER, Circuit Judges.
A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S.Ct. 2783 (2008). The district court denied the motion. Skoien pleaded guilty but reserved his right to appeal the district court's denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).
The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller'slanguageabout certain "presumptively lawful" gun regulations-notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion's reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational-basis test; this leaves either strict scrutiny or some form of "intermediate" review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.
Skoien was convicted in state court of misdemeanor domestic battery and was placed on probation. About a year later his probation agent found a hunting shotgun in a truck parked outside his home. Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the shotgun violates his Second Amendment right to bear arms for hunting. He has not, however, asserted a right to possess the gun for self-defense.
As such, the government's application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated. Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. No one questions the importance of the government's interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)'s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute's means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller'sreference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That's not enough. Accordingly, we vacate Skoien's conviction and remand to the district court for further proceedings consistent with this opinion.
In 2006 Steven Skoien was convicted of domestic battery in Wisconsin state court and was sentenced to two years' probation. Skoien was prohibited from possessing firearms both as a condition of his probation and because federal law prohibits any person convicted in any court of a misdemeanor crime of domestic violence from possessing a firearm. 18 U.S.C. § 922(g)(9); see also 18 U.S.C. § 921(a)(33)(A)(ii) (defining a misdemeanor crime of domestic violence as any offense that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon"). In 2007 Wisconsin probation agents learned that Skoien had purchased a deer-hunting license. Believing that Skoien had acquired a gun in violation of his probation, they searched his home and a pickup truck parked outside the home; they found a Winchester 12-gauge shotgun in the bed of the truck. Skoien admitted he had used the shotgun, which belonged to his father, to go deer hunting earlier that day. This was corroborated by other evidence found in the truck; namely, a blaze orange hunting jacket, ammunition, and a state-issued tag for a gun deer kill in the name of Steven Skoien. The deer carcass was in Skoien's garage. A federal grand jury indicted Skoien for possessing a firearm after having been convicted of a domestic-violence misdemeanor in violation of 18 U.S.C. § 922(g)(9).*fn1
Skoien moved to dismiss the indictment, arguing that applying this statute to him violated his Second Amendment right to bear arms. The district court denied the motion, citing this court's decision in Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), which held that § 922(g)(9) was constitutional under a collective-rights view of the Second Amendment. Skoien entered a conditional guilty plea, reserving his right to appeal the district court's Second Amendment ruling. After the Supreme Court decided Heller,Skoien renewed his motion to dismiss the indictment. The district court denied the motion a second time, holding that § 922(g)(9) remained constitutional after Heller. The judge said she would "assum[e] that the highest standard [of scrutiny] applies," and concluded that the statute was "narrowly tailored [because] it applies only to persons who have been found guilty by a court of domestic violence" and "[t]he government has a compelling interest in protecting the families of such persons." The judge also relied on the passage in Heller presumptively approving felon-dispossession laws. See Heller, 128 S.Ct. at 2816-17 ("nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons"). The judge read this language as "an explicit recognition of the fact that persons may forfeit their Second Amendment right to bear arms along with other rights when they commit serious crimes."
The case proceeded to sentencing, and the court imposed a sentence of two years in prison. Skoien appealed, reasserting his argument that applying § 922(g)(9) to him violates his Second Amendment right to bear arms as explained in Heller.
We have previously upheld the constitutionality of § 922(g)(9) under a collective-rights interpretation of the Second Amendment. Gillespie, 185 F.3d at 711. Heller's rejection of that understanding of the Second Amendment displaces Gillespie and requires us to reconsider the constitutionality of the statute as applied in this case.
Heller held that the Second Amendment secures an individual natural right to keep and bear arms for defense of self, family, and home. 128 S.Ct. at 2797-99. After a lengthy analysis of the text of the Amendment and the founding-era sources of its original public meaning, the Supreme Court held that the Amendment guarantees an individual right of armed defense not limited to militia service. Id. at 2801. The Court began with an analysis of the language of the "operative clause" of the Second Amendment-"the right of the people to keep and bear Arms, shall not be infringed," U.S. CONST. amend. II-and ...