The Sixth Circuit Court of Appeals isn’t one of the country’s more progressive courts, but on Thursday it came through, upholding a critical gun safety law.
In a 2-1 decision, judges on the Sixth Circuit Court of Appeals upheld the Lautenberg Amendment, a 1996 law that added lower-level domestic violence convictions to the list of prohibitors for gun sales.
The case, Stimmel v. Sessions, was brought by an Ohio man who was denied a gun purchase in 2002 after a background check showed he had pleaded no contest to domestic assault. According to an arrest report filed in the 1997 case, Terry Lee Stimmel injured his then-wife’s head during an altercation in which he threw her against a wall, shoved her to the ground, and tried to forcibly remove her wedding rings. Stimmel served one day of a 180-day jail sentence, and has never been convicted of another crime, a record of good behavior he claimed should result in the restoration of his gun rights.
The Sixth Circuit disagreed. As Judge Richard Griffin wrote in his opinion, misdemeanor domestic violence isn’t like other lesser crimes. It is particularly dangerous, especially because abusers tend to be recidivists. “Essential here is that the victim is more likely to be killed when a gun is present,” he noted.
What’s more, all three judges on the appeals court panel were appointed by Republican presidents. Senior Judge Danny Julian Boggs is a Reagan appointee; Judge Richard Allen Griffin and Judge Helene N. White came to us via President George W. Bush. The latter two made up the two-judge majority that upheld the gun safety amendment, consistent with other circuits’ opinions.
[W]e join the growing consensus of our sister circuits that have unanimously upheld the constitutionality of the domestic violence misdemeanant restriction to firearms possession.
The Sixth Circuit decision was based on the ruling that invented an individual right to bear arms: District of Columbia v. Heller. The morass in which we find ourselves now vis-à-vis gun safety is the legacy of the late Justice Antonin Scalia, who both created a right against all historical, textual, and jurisprudential reason, and conceded that right could be regulated.
After decades in which the courts had concluded that there was no individual right to bear arms—Chief Justice Warren Burger, a zealous conservative, famously called the individual rights argument a “fraud”—the majority in Heller changed course, found a right, and then also waved their arms saying that of course this right could be subject to regulation, in terms of where weapons could be carried and the types of arms that could be regulated. As Scalia clarified in Heller: “We also recognize another important limitation on the right to keep and carry arms … that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”
The Supreme Court, then, has both announced that there is a personal right to bear arms, which is what the gun lobby had been begging for, and also announced that it is permissible to regulate that right, which is what government has continued to do. Indeed, lower courts continue to uphold all sorts of regulations and the gun lobby continues to hoot and holler that they are all unconstitutional. All the while, the Supreme Court has refused to act, leaving a massive Scalia-shaped hole in the doctrine.
This decision merely holds the line on gun safety, but it’s nonetheless auspicious. If two George W. Bush appointees can find their way to that conclusion, hopefully others can, too.