Shooting Heller in the Foot?: Applying and Misapplying District of Columbia v. Heller 's "Presumptively Lawful" Dicta in United States v. Skoien

IntroductionIn 2008, in District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects an individual's right to bear arms in the home for self-defense.1 Heller triggered a salvo of litigation challenging federal firearms regulations on the grounds that those regulations violate the Second Amendment.2 Heller did not, however, adopt a standard of scrutiny or establish a framework for analyzing Second Amendment challenges, and lower courts have therefore had difficulty resolving those challenges.3 The clearest guidance Heller provided was enumerating, in dicta, a list of firearms regulations that are "presumptively lawful" under the Second Amendment.4 Heller did not explain why these regulations are presumptively lawful5In 2010, in United States v. Skoien (Skoien II ), the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, upheld 18 U.S.C. § 922(g)(9), a statute prohibiting domestic violence misdemeanants from owning firearms, against a Second Amendment challenge.6 This Comment examines how federal courts apply the Supreme Court's presumptively lawful dicta in Heller to Second Amendment challenges to § 922(g)(9), and evaluates whether the approaches comport with the Heller opinion.7 Part I identifies three approaches lower courts have taken when interpreting the Heller dicta.8 Part II examines how each approach applies the Heller dicta.9 Part III evaluates whether lower courts are on target in applying the Heller Court's dicta, or are instead shooting Heller in the foot.10 The Comment concludes that the Skoien II court's approach is on target in applying Heller's "longstanding" language, but misses the mark in applying Heller's "presumptively lawful" language.11I. Three Approaches to Second Amendment Analysis After District of Columbia v. HellerA. District of Columbia v. Heller's Lack of an Analytical FrameworkIn 2008, in District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual's right to keep and bear arms in the home for self-defense.12 The Court held that two District of Columbia laws effectively banning handgun use would be unconstitutional under any standard of scrutiny.13 The Court did not adopt a standard of review or establish a framework for analyzing Second Amendment challenges, but ruled out rational basis scrutiny or an interest-balancing test.14 In dicta, the Court provided a nonexhaustive list of "longstanding" regulations that are "presumptively lawful" under the Second Amendment,15 including 18 U.S.C. § 922(g)(1) which bans felons from owning firearms.16 The Court did not explain what it meant by "longstanding" or "presumptively lawful," or why these attributes made the laws constitutional.17Lower courts considering Second Amendment challenges to 18 U.S.C. § 922(g) have had trouble divining an analytical framework from the Supreme Court's analysis in Heller,18 and generally turn to the Court's "presumptively lawful" dicta for guidance.19 Courts have taken three approaches when applying the Heller Court's dicta:20 the analogy or "safe harbor" approach, the independent justification approach, and the unique Seventh Circuit en banc majority approach.21B. Three Approaches to Interpreting the Dicta in Heller1. Approach One: Analogy to the Heller Court's "Presumptively Lawful" DictaA majority of published lower court decisions have determined the constitutionality of § 922(g)(9) by comparing that section to the firearms laws that Heller called "presumptively lawful"22-the "analogy" or "safe harbor" approach.23The 2010 opinion by the U.S. Court of Appeals for the Eleventh Circuit in United States v. White exemplifies the analogy approach.24 In White, the court upheld § 922(g)(9) on the grounds that it applies only to violent offenders and is therefore narrower than the presumptively lawful § 922(g)(1), which bans firearm possession for both violent and nonviolent offenders. …