Should Felons Own Guns?

I thought she was fully retired, but Associate Justice Sandra Day O’Connor sat in with Circuit Judges Kanne and Rovner, to hear, among other claims, convicted drug dealer Adam Williams’ argument that the statute dispossessing felons of firearms was unconstitutional. Welcome to UNITED STATES OF AMERICA, v. ADAM WILLIAMS . . .

As part of a narcotics investigation, in early 2008 the Hammond, Indiana Police Department enlisted the help of a confidential informant (“CI”) in making controlled purchases of crack cocaine and marijuana from Appellant Adam Williams. On three separate occasions, the CI, wearing audio and video recording devices, purchased narcotics from Williams. Based on this electronic surveillance, Hammond police officers obtained a search warrant for Williams’s house.

In April 2008, officers arrived at Williams’s home to execute the warrant. After knocking on the door to announce their presence and receiving no answer from within, the officers broke down the door. As one of the officers entered, he saw Williams approaching with a handgun pointed toward the doorway. As the other officers entered the house, Williams retreated to his bedroom and placed the gun on the ground a few inches from him. The officers then arrested Williams without incident.

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The jury acquitted Williams on one count of marijuana distribution and one count of possessing a firearm in furtherance of drug trafficking. But the jury found Williams guilty on one count of distributing marijuana,two counts of distributing cocaine base, one count of possessing with intent to distribute crack cocaine, and one count of possessing a firearm as a felon. Williams now appeals his conviction.

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Williams next argues that the felon-in-possession statute, 18 U.S.C. § 922(g)(1), is unconstitutional as applied to him. Prior to trial, Williams moved to dismiss the charge against him for being a felon in possession of a firearm. As support for his motion, he cited the Supreme Court’s recent decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and our panel opinion in United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), vacated and remanded, No. 08-3770, 2010 WL 2735747 (7th Cir. July 13, 2010) (en banc). Based on Heller, Williams argued that the statute criminalizing his possession of a firearm as a convicted felon was unconstitutional because it infringed on his right to possess firearms for use in self-defense. The district court denied the motion, relying on Heller’s now-famous dictum that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .” 128 S. Ct. at 2816-17. Williams appeals the denial of his motion. Reviewing de novo the district court’s denial of Williams’s No. 09-3174 11 motion to dismiss the indictment, United States v. Greve, 490 F.3d 566, 570 (7th Cir. 2007), we affirm.

Williams argues that because the Heller Court determined that the “core” ideal the Second Amendment protects is self-defense, the statute criminalizing his possession of a firearm is unconstitutional as applied to him. 128 S. Ct. at 2817; see also McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188, at *22 (U.S. June 28, 2010) (plurality opinion). Using our panel opinion in Skoien as support, Williams argues that the Heller dictum relied on by the district court should not be given so much credence. Skoien involved a challenge to the prohibition on firearm possession by misdemeanants convicted of domestic violence under 18 U.S.C. § 922(g)(9). Williams proffers that the now vacated analytical approach promulgated by the Skoien panel is the approach we should use in determining the scope of his rights.

That vacated opinion adopted a two-step approach to evaluate Second Amendment challenges. First, the panel determined that courts should examine whether the challenged conduct falls within the scope of the Second Amendment’s protection in the first instance. If not, the challenged regulation is valid. If so, then the court must move on to step two, which requires courts to apply some level of “means-ends” scrutiny to establish whether the regulation passes constitutional muster. 587 F.3d at 808-09.

Thereafter, Skoien was reheard en banc. Without deciding the question of whether those convicted of violent crimes were outside the scope of the Second Amendment’s protection at the founding, we determined in our en banc opinion that “some categorical disqualifications [on firearm possession] are permissible.” Skoien, 2010 WL 2735747, at *3. To be permissible, however, we held that categorical exclusions must satisfy “some form of strong showing.” Id. Finding that § 922(g)(9) satisfied this requisite “strong showing,”we affirmed Skoien’s conviction.

Because briefing and argument in Williams’s case were completed prior to the en banc argument in Skoien, Williams anticipated a potential reversal of Skoien’s panel opinion, and so clarified in his reply brief that his argument was not dependent on our resolution of Skoien. Rather, he argued that Heller standing alone supported his as-applied challenge to § 922(g)(1). But we think that the en banc decision in Skoien is instructive, especially when read in conjunction with Heller and the Supreme Court’s most recent decision in McDonald v. City of Chicago, 2010 WL 2555188.

In Heller, the Court stated that “[a]ssuming 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 2822 (emphasis added). This language indicates that the threshold inquiry is whether Williams is qualified to possess a firearm in the first instance. In the Skoien en banc opinion, we implicitly addressed this issue by beginning our analysis with a reiteration of Heller’s idea that some categorical exclusions of firearm possession are constitutional. 2010 WL No. 09-3174 13 2735747, at *3. This notion was also recently affirmed by the Supreme Court in McDonald, where it “repeat[ed] [its] assurances” that Heller’s dictum regarding disqualifications on firearm possession by felons was valid. 2010 WL 2555188, at *25 (plurality opinion).

Based on these recent decisions and our reasoning in the Skoien en banc opinion, we need not address whether convicted felons fell outside the scope of the Second Amendment’s protections at the time of the founding, as the Skoien panel opinion did. The academic writing on the subject of whether felons were excluded from firearm possession at the time of the founding is “inconclusive at best,” Skoien, 2010 WL 2735747, at *11 (Sykes, J., dissenting), and we refrain now from making a determination
based on contradictory views. Instead, as we must, we follow the en banc majority’s holding that some categorical bans on firearm possession are constitutional. Id. at *3 (majority opinion); see also United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010). For purposes of Williams’s case, this means that if he falls within one of the categorical bans, the Second Amendment does not apply to him, assuming, of course, that the ban satisfies “some form of strong showing.” Skoien, 2010 WL 2735747, at *3. One such categorical ban is on firearm possession by a convicted felon. See McDonald, 2010 WL 2555188, at *25 (plurality opinion); Heller, 128 S. Ct. 2816-17. And because Williams is a convicted felon, the ban applies to him.

But the government does not get a free pass simply because Congress has established a “categorical ban”; it still must prove that the ban is constitutional, a mandate 14 No. 09-3174 that flows from Heller itself. Heller referred to felon disarmament bans only as “presumptively lawful,” which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as applied challenge. Therefore, putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper. And to determine whether the presumption of lawfulness gives way in this case, we must apply Skoien’s “strong showing” requirement to § 922(g)(1) as that statute was applied in this case. In Skoien we declined to adopt a level of scrutiny applicable to every disarmament challenge, although we hinted that it might look like what some courts have called intermediate scrutiny.

Consequently, for purposes of Williams’s challenge to § 922(g)(1) as it applies to him, we can examine his claim using the intermediate scrutiny framework without determining that it would be the precise test applicable to all challenges to gun restrictions.

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. Cf. Skoien, 2010 WL 2735747, at *3. 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. See, Note, Selective Incapacitation: Reducing Crime Through Predictions of Recidivism, 96 Harv. L. Rev. 511, 515 & n.24 No. 09-3174 15 (1982) (noting a study that found that felons convicted of robbery were among those most likely to commit future crimes); see also Skoien, 2010 WL2735747, at *3 (“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.”); cf. Landers v. State, 299 S.E.2d 707, 709-10 (Ga. 1983) (“[T]he General Assembly sought to keep guns out of the hands of those individuals who by their prior conduct had demonstrated that they may not possess a firearm without being a threat to society.”). We cannot say that this objective is not an important one. Cf. Skoien, 2010 WL2735747, at *3 (“[N]o one doubts that the goal of §
922(g)(9), preventing armed mayhem, is an important governmental objective.”).

We next must determine whether § 922(g)(1) is substantially related to this objective in Williams’s case. The government attempts to show a substantial relationship between its objective of preventing felons access to guns and § 922(g)(1) by pointing to Williams’s own violent past. The government’s evidence passes constitutional muster.

Williams was convicted of felony robbery. In Indiana, where Williams’s conviction occurred, robbery is violent by definition. See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). In fact, Williams’s specific crime involved his beating the victim so badly that the victim required sixty-five stitches. (App. at 29.) The fact that Williams was convicted of a violent felony defeats any claim he has that § 922(g)(1) is not substantially 16 No. 09-3174 related to preventing him from committing further violence.

And although we recognize that § 922(g)(1) 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. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”). Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

We are further guided in our determination by the fact that every court to address the constitutionality of § 922(g)(1) in light of Heller has upheld that statute. See United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir. 2010) (per curiam); Vongxay, 594 F.3d at 1114-18; United States v. Khami, 362 F. App’x. 501, 507-08 (6th Cir. 2010) (unpublished); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), cert. denied, 130 S. Ct. 1686 (2010); United States v. Stuckey, 317 F. App’x 48, 50 (2d Cir. 2009) (per curiam); United States v. Anderson, 559 F.3d 348, 352 & n.6 (5th Cir. 2009), cert. denied, 129 S. Ct. 2814 (2009); United States v. Brunson, 292 F. App’x 259, 261 (4th Cir. 2008) (per curiam) (unpublished); United States v. Irish, 285 No. 09-3174 17 F. App’x 326, 327 (8th Cir. 2008) (per curiam)
(unpublished).

Because Williams was convicted of a violent felony, his claim that § 922(g)(1) unconstitutionally infringes on his right to possess a firearm is without merit. We also note that our en banc decision in Skoien considered and disposed of an issue similar to Williams’s equal protection argument, so we need not address it further. 2010 WL 2735747, at *6 (“True, the statute tolerates different outcomes for persons convicted in different states, but this is true of all situations in which a firearms disability . . . depends on state law.”).

So it seems the door may be open to a more rehabilitated felon challenging the loss of his Second Amendment rights.