                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3770

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

S TEVEN M. S KOIEN,
                                           Defendant-Appellant.


           Appeal from the United States District Court
               for the Western District of Wisconsin.
           No. 08-CR-12—Barbara B. Crabb, Chief Judge.



     A RGUED A PRIL 6, 2009—D ECIDED N OVEMBER 18, 2009




  Before B AUER, S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. A grand jury indicted Steven
Skoien for possessing a firearm after having been con-
victed 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
2                                                 No. 08-3770

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’s language about 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 gov-
ernment 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 shot-
gun to kill a deer. He argued below and maintains here
that prosecuting him under § 922(g)(9) for possessing the
No. 08-3770                                              3

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 gov-
ernment 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’s reference 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.


                     I. Background
  In 2006 Steven Skoien was convicted of domestic battery
in Wisconsin state court and was sentenced to two years’
4                                                 No. 08-3770

probation. Skoien was prohibited from possessing fire-
arms 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 threat-
ened use of a deadly weapon”). In 2007 Wisconsin proba-
tion 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).1



1
  The probation search also turned up two firearms in Skoien’s
home, a Winchester .308-caliber rifle and a Paramount .25-
caliber handgun. Skoien was indicted for possessing all three
guns, but the prosecutor conceded at Skoien’s change-of-plea
hearing that he could not prove the handgun and the rifle
found in the home were Skoien’s. Some evidence apparently
                                                (continued...)
No. 08-3770                                                5

  Skoien moved to dismiss the indictment, arguing that
applying this statute to him violated his Second Amend-
ment 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 condi-
tional 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 pro-
tecting 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



1
  (...continued)
suggested that the handgun belonged to Skoien’s wife, Gidget,
and the rifle belonged to Darin Rudolph, their roommate.
Accordingly, Skoien’s conditional guilty plea was based only
on his possession of the Winchester hunting shotgun found in
the truck. At sentencing, however, Skoien did not contest
“constructive possession” of the two additional guns for
purposes of increasing his base offense level by two levels
under U.S.S.G. § 2K2.1(b)(1)(A).
6                                              No. 08-3770

(“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 ap-
pealed, reasserting his argument that applying § 922(g)(9)
to him violates his Second Amendment right to bear
arms as explained in Heller.


                     II. Discussion
  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 Amend-
ment 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
No. 08-3770                                                   7

bear Arms, shall not be infringed,” U.S. C ONST. amend.
II—and consulted historical source materials to identify
the meaning of this language at the time of its adoption.
As to this “operative clause,” the Court concluded:
    Putting all of the[] textual elements together, we find
    that they guarantee the individual right to possess
    and carry weapons in case of confrontation. This
    meaning is strongly confirmed by the historical back-
    ground of the Second Amendment. We look to this
    because it has always been widely understood that
    the Second Amendment, like the First and Fourth
    Amendments, codified a pre-existing right. The very
    text of the Second Amendment implicitly recognizes
    the pre-existence of the right and declares only that
    it “shall not be infringed.” As we said in United States
    v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876),
    “[t]his is not a right granted by the Constitution.
    Neither is it in any manner dependent upon that
    instrument for its existence. The Second amendment
    declares that it shall not be infringed . . . .”
Heller, 128 S. Ct. at 2797-98.2
  The Court then moved to the meaning of the Amend-
ment’s “prefatory clause”—“[a] well regulated Militia,
being necessary to the security of a Free State.” U.S. C ONST.



2
  For an interesting discussion of Heller and the foundations of
the natural right of armed defense in Western philosophy, see
David B. Kopel, The Natural Right of Self-Defense: Heller’s Les-
son for the World, 59 S YRACUSE L. R EV . 235 (2008).
8                                               No. 08-3770

amend. II. After reviewing the historical background
relevant to the interpretation of the militia clause, the
Court concluded that the clause described the
motivating purpose for the codification of the natural
right—to prevent the new government from destroying
the militia by disarming the citizenry—but was not a
limitation on the scope of the right. More specifically, the
Court held:
    It is therefore entirely sensible that the Second Amend-
    ment’s prefatory clause announces the purpose for
    which the right was codified: to prevent elimination
    of the militia. The prefatory clause does not suggest
    that preserving the militia was the only reason Ameri-
    cans valued the ancient right; most undoubtedly
    thought it even more important for self-defense and
    hunting. But the threat that the new Federal Govern-
    ment would destroy the citizens’ militia by taking
    away their arms was the reason that right—unlike
    some other English rights—was codified in a
    written Constitution.
Heller, 128 S. Ct. at 2801.
  Applying this understanding of the Second Amendment,
the Supreme Court invalidated the District of Co-
lumbia’s comprehensive prohibition on handgun posses-
sion. Id. at 2821-22. Because “the inherent right of self-
defense has been central to the Second Amendment
right” and because the District’s ban on handgun posses-
sion “extends . . . to the home, where the need for defense
of self, family, and property is most acute,” the D.C. gun
ban could not coexist with the Amendment. Id. at 2817-18.
No. 08-3770                                               9

This was so, the Court said, “[u]nder any of the
standards of scrutiny that we have applied to enumerated
constitutional rights.” Id. at 2817. The Court held that
“whatever else [the Second Amendment] leaves to
future evaluation, it surely elevates above all other inter-
ests the right of law-abiding, responsible citizens to
use arms in defense of hearth and home.” Id. at 2821.
  But the Court also added this:
    [N]othing 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 for-
    bidding the carrying of firearms in sensitive places,
    such as schools and government buildings, or laws
    imposing conditions and qualifications on the com-
    mercial sale of arms.
Id. at 2816-17. The Court said in a footnote that it was
“identify[ing] these presumptively lawful regulatory
measures only as examples; our list does not purport to
be exhaustive.” Id. at 2817 n.26.
  There are several ways to understand this limiting
language. We note for starters that it is dicta, and
although we can hardly ignore it, we think it would be a
mistake to uphold this or other gun laws simply by
invoking the Court’s reference to these “presumptively
lawful regulatory measures,” without more. But beyond
that, it is not entirely clear whether this language should
be taken to suggest that the listed firearms regulations
are presumed to fall outside the scope of the Second
Amendment right as it was understood at the time of the
framing or that they are presumptively lawful under
10                                              No. 08-3770

even the highest standard of scrutiny applicable to laws
that encumber constitutional rights. The Court said it
was not attempting “an exhaustive historical analysis
today of the full scope of the Second Amendment,” id.
at 2816, and specifically deferred judgment on the outer
limits of its original meaning: “[T]here will be time
enough to expound upon the historical justifications for
the exceptions we have mentioned if and when
those exceptions come before us,” id. at 2821. The Court
also conspicuously declined to set a standard of review.
Id. at 2817. We take all this to mean that gun laws—
other than those like the categorically invalid one in
Heller itself—must be independently justified.
  But by what kind of justification? Although the
language about presumptive exceptions makes for
some analytical difficulty, we read Heller as establishing
the following general approach to Second Amendment
cases. First, some gun laws will be valid because they
regulate conduct that falls outside the terms of the right
as publicly understood when the Bill of Rights was
ratified. If the government can establish this, then the
analysis need go no further. If, however, a law regulates
conduct falling within the scope of the right, then the
law will be valid (or not) depending on the govern-
ment’s ability to satisfy whatever level of means-end
scrutiny is held to apply; the degree of fit required between
the means and the end will depend on how closely the law
comes to the core of the right and the severity of the
law’s burden on the right. See generally Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-
Defense: An Analytical Framework and a Research Agenda, 56
No. 08-3770                                                     11

UCLA L. R EV. 1443 (2009) (describing the scope, burden,
and danger-reduction justifications for gun regulations
post-Heller).
   So constitutional text and history come first, then
(if necessary) an analysis of the public-benefits justifica-
tion for the regulation follows.3 If the first inquiry into
the founding-era scope of the right doesn’t resolve the
case, then the second inquiry into the law’s contempo-
rary means-end justification is required. See generally
Nelson Lund, The Second Amendment, Heller, and Originalist
Jurisprudence, 56 UCLA L. R EV. 1343, 1372-75 (2009) (pro-
posing this sort of sequential analysis of Second Amend-
ment challenges post-Heller); see also Adam Winkler,
Heller’s Catch-22, 56 UCLA L. R EV. 1551, 1572-73 (2009);
Glenn H. Reynolds & Brannon P. Denning, Heller’s Future
in the Lower Courts, 102 N W . U. L. R EV. 2035 (2008). This ap-
proach gives effect to the Supreme Court’s emphasis on
the original public meaning of the Second Amendment
right; it also attempts to reconcile the Court’s invalidation



3
  The First Circuit recently upheld a different subsection of
18 U.S.C. § 922—§ 922(x)(2)(A), a restriction on juvenile posses-
sion of handguns—by consulting historical evidence of federal
and state restrictions on handgun possession by minors. See
United States v. Rene E., 583 F.3d 8 (1st Cir. 2009). The court
concluded that the founding-era understanding of the
Second Amendment right likely excluded juvenile handgun
possession from the scope of the right. The court therefore did
not proceed to the question of the standard of review or specifi-
cally address the public-benefits justification for § 922(x)(2)(A).
12                                                    No. 08-3770

of the D.C. gun ban “under any standard of scrutiny” with
its reference to the existence of “presumptively lawful”
exceptions to the right to keep and bear arms.
   Applying this framework here, the first inquiry
doesn’t resolve the question whether § 922(g)(9) violates
Skoien’s Second Amendment right to bear arms. To begin
with, the government hasn’t argued that a domestic-
violence misdemeanant like Skoien or the particular
firearm he possessed—a shotgun used primarily for
deer hunting—falls outside the scope of the Second
Amendment as understood at the time of its adoption.
Indeed, it would be odd to argue that a conventional
hunting gun is wholly unprotected by the Second Amend-
ment. Heller referred to the founding-era importance of
the right to bear arms “for self-defense and hunting,” 128
S. Ct. at 2801 (emphasis added), and a long gun
used primarily for hunting is obviously useful for defen-
sive purposes as well. Heller gave some consideration
to the types of arms that are or may be unprotected by
the Second Amendment, see id. at 2815-17 (explaining
generally that the sorts of weapons protected are those
that were in common civilian use for lawful purposes at
the time the Amendment was ratified), but nothing in
this part of the opinion remotely suggests that a
standard hunting shotgun is excluded.4


4
  Scholarly commentators have raised some practical and
historical questions about this aspect of Heller. See, e.g., Volokh,
supra, at 1479-83 (discussing some difficulties in applying
                                                     (continued...)
No. 08-3770                                                 13

  A more difficult question is whether a person con-
victed of a domestic-violence misdemeanor is categori-
cally excluded from exercising the Second Amendment
right as a matter of founding-era history and back-
ground legal assumptions. The government has not
made this argument, either. Scholars disagree about
whether and to what extent persons convicted of
crimes—more specifically, felons—were considered ex-
cluded from the right to bear arms during the
founding era. Compare, e.g., C. Kevin Marshall, Why Can’t
Martha Stewart Have a Gun?, 32 H ARV . J.L. & P UB. P OL’Y
695, 714-28 (2009) (maintaining that the founding-era
understanding of the right to keep and bear arms for self-
defense did not categorically exclude persons convicted
of a crime), with Don B. Kates & Clayton E. Cramer,
Second Amendment Limitations and Criminological Con-
siderations, 60 H ASTINGS L.J. 1339, 1359-64 (2009) (main-
taining that the founding-era understanding excluded
felons from firearms possession), and Don B. Kates, Jr.,
Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 M ICH. L. R EV. 204, 266 (1984) (same); see
also Winkler, supra, at 1562-66; Lund, supra, at 1356-57;
Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 T ENN. L. R EV. 461, 480 (1995) (collecting
originalist scholarship). The federal prohibition on fire-
arms possession by felons, 18 U.S.C. § 922(g)(1), was not



4
  (...continued)
this test); Lund, supra, at 1362-67 (questioning the historical
basis for this aspect of Heller).
14                                              No. 08-3770

enacted until 1968, although a narrower predecessor
prohibition had been in place since the 1930s. See
Marshall, supra, at 698-707 (describing the history of
federal-felon disarmament). Section 922(g)(9)’s ban on
firearms possession by domestic-violence misdemean-
ants is quite new; it was enacted in 1996. See Pub. L. No.
104-294, § 603(g), 110 Stat. 3488, 3504 (1996) (the
“Lautenberg Amendment,” adding subsections (g)(8)
and (g)(9) to 18 U.S.C. § 922).
  We need not resolve the historical question here.
Short of a wholly conclusory statement that domestic-
violence misdemeanants, like felons, “forfeit” their
Second Amendment rights, the government has not tried
to justify § 922(g)(9) on this basis. We therefore assume
that Skoien’s Second Amendment rights are intact not-
withstanding his misdemeanor domestic-violence con-
viction.
  This brings up the second inquiry, which asks
whether the restriction on Skoien’s right to bear arms is
justified under the applicable standard of review for
evaluating laws that burden constitutional rights. This
requires that we decide on a level of scrutiny—a question,
as we have noted, the Supreme Court expressly reserved
in Heller. We know that rational-basis review is out;
Heller was explicit about that. 128 S. Ct. at 2818 n.27 (“If
all that was required to overcome the right to keep and
bear arms was a rational basis, the Second Amendment
would be redundant with the separate constitutional pro-
hibition on irrational laws, and would have no effect.”).
This leaves either strict scrutiny—typically reserved for
No. 08-3770                                               15

laws that classify on the basis of race or restrict certain
fundamental rights, Clark v. Jeter, 486 U.S. 456, 461 (1988),
and content-based restrictions on speech, United States v.
Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000)—or
some form of intermediate scrutiny.
  We take our cues about the appropriate standard of
review from the language of Heller’s holding and
that enigmatic reference to “presumptively lawful” gun
regulations. In invalidating the D.C. handgun ban, the
Supreme Court emphatically identified the right of law-
abiding citizens to possess arms for self-defense as the
central concern of the Second Amendment: “[W]hatever
else it leaves to future evaluation, [the Second Amend-
ment] surely elevates above all other interests the right
of law-abiding, responsible citizens to use arms in defense
of hearth and home.” 128 S. Ct. at 2821. The Court held that
“[u]nder any . . . standard[] of scrutiny[,] . . . banning
from the home the most preferred firearm in the nation
to keep and use for protection of one’s home and
family would fail constitutional muster.” Id. at 2817-18
(emphasis added) (internal quotation marks and citation
omitted). In this context, saying a law is unconstitutional
“under any standard of scrutiny” means that the law is
unconstitutional under any of the heightened standards
of scrutiny (rational basis having been ruled out)—or
perhaps that the law is per se unconstitutional. Either way,
this language suggests, at a minimum, that gun laws
that severely restrict the core Second Amendment right
identified in Heller—that of “law-abiding, responsible
citizens to use arms in defense of hearth and home,” id.
at 2821—should receive exacting scrutiny.
16                                                    No. 08-3770

  But applying strict scrutiny to all restrictions on gun
rights is obviously incompatible with Heller’s dicta about
“presumptively lawful” firearms laws. Though unex-
plained, the Court’s willingness to presume the constitu-
tionality of various firearms restrictions—especially
prohibitions on firearms possession by felons—gives us
ample reason to believe that strict scrutiny does not
apply here. We do not see how the listed laws could be
“presumptively” constitutional if they were subject to
strict scrutiny—a point Justice Breyer made (somewhat
overbroadly) in dissent. Id. at 2851 (Breyer, J., dissenting)
(“[T]he majority implicitly, and appropriately, rejects [a
strict scrutiny standard] by broadly approving a set of
laws—prohibitions on concealed weapons, forfeiture by
criminals of the Second Amendment right, prohibitions
on firearms in certain locales, and governmental regula-
tion of commercial firearm sales—whose constitu-
tionality under a strict scrutiny standard would be far
from clear.”). Accordingly, strict scrutiny cannot apply
across the board.5



5
  If strict scrutiny did apply here, there is reason to doubt
whether Skoien’s conviction under § 922(g)(9) could survive
Second Amendment challenge. A law subject to strict scrutiny
must be narrowly tailored to achieve a compelling govern-
mental interest. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326
(2003). Although “[s]trict scrutiny is not strict in theory, but
fatal in fact,” id. (internal quotation marks omitted), it is an
exacting standard and deliberately difficult to pass, in
deference to the primacy of the individual liberties the Con-
                                                      (continued...)
No. 08-3770                                                 17

   The Second Amendment challenge in this case is
several steps removed from the core constitutional right
identified in Heller. Section 922(g)(9)’s prohibition on
firearms possession extends only to persons convicted of
a misdemeanor crime of domestic violence, not the “law-
abiding, responsible citizens” whose natural right of
armed defense was identified in Heller as the central
concern of the Second Amendment. As we have
explained, this does not necessarily mean that domestic-
violence misdemeanants have no Second Amendment
rights, but it does support the application of a more



5
   (...continued)
stitution secures. Section 922(g)(9) bars all persons who have
been convicted of a domestic-violence misdemeanor from
ever possessing a firearm for any reason. It is a comprehensive
lifetime ban; the prohibition does not expire after a certain
period of time, nor does it permit the offender to reacquire
the right to possess a gun on a showing that he is no longer
a danger. There are no exceptions. The statute does not
require any individualized finding that the misdemeanant
presents a risk of using a gun in a future crime. Skoien was
caught in possession of a hunting shotgun about a year after
his domestic-violence misdemeanor conviction, while he
was still on probation—not five or ten or twenty years later.
Perhaps that should make some difference in the analysis. But
while preventing domestic gun crime is unquestionably a
compelling governmental interest, United States v. Salerno, 481
U.S. 739, 749 (1987), the government has made precious
little effort here to establish that § 922(g)(9)’s automatic,
exceptionless, and perpetual firearms prohibition is the
least restrictive means available to achieve this goal.
18                                                     No. 08-3770

lenient standard of review. Moreover, although Skoien’s
hunting shotgun has obvious utility as a defensive
weapon as well as a hunting gun, he has not keyed
his constitutional challenge to the right of self-defense
identified in Heller as the core Second Amendment right.
He has claimed only that § 922(g)(9) as applied to him
infringes his right to possess his hunting shotgun for
hunting. We are not suggesting that keeping and bearing
firearms for hunting falls outside the scope of the
Second Amendment; to the contrary, as we have noted,
Heller specifically stated that “Americans valued the
ancient right . . . for self-defense and hunting.” 128 S. Ct. at
2801 (emphasis added). We make this observation only
to clarify that § 922(g)(9) as applied in this case does not
strike at the heart of the Second Amendment right as
explicated in Heller. Laws that restrict the right to bear
arms are subject to meaningful review, but unless they
severely burden the core Second Amendment right of
armed defense, strict scrutiny is unwarranted.
  That leaves us with intermediate scrutiny, which is less
demanding than strict scrutiny and we think the most
appropriate standard of review given Heller’s reference
to “presumptively lawful” gun regulations. 6 This more


6
  We note that some district courts have applied intermediate
scrutiny to review federal-firearms regulations after Heller.
See, e.g., United States v. Miller, 604 F. Supp. 2d 1162 (W.D. Tenn.
2009) (using intermediate scrutiny to uphold 18 U.S.C.
§ 922(g)(1), the federal ban on firearms possession by felons);
United States v. Marzzarella, 595 F. Supp. 2d 596 (W.D. Pa. 2009)
                                                       (continued...)
No. 08-3770                                                      19

flexible standard generally requires the government to
establish that the challenged law is substantially related
to an important governmental interest. Jeter, 486 U.S. at
461. The Supreme Court has applied a particularly rigorous
version of this standard in the context of evaluating laws
that classify by gender. In United States v. Virginia, the
Court held that gender-based classifications will
survive intermediate scrutiny only if “the proffered
justification is exceedingly persuasive.” 518 U.S. 515, 533
(1996) (internal quotation marks omitted). The Court
said this “burden of justification is demanding and it
rests entirely on the State,” which “must show at least
that the [challenged] classification serves important
governmental objectives and that the discriminatory
means employed are substantially related to the achieve-


6
  (...continued)
(using intermediate scrutiny to uphold 18 U.S.C. § 922(k),
the federal prohibition on possessing a firearm with an obliter-
ated serial number). Others have applied strict scrutiny. See, e.g.,
United States v. Engstrum, 609 F. Supp. 2d 1227 (D. Utah 2009)
(applying strict scrutiny and upholding § 922(g)(9)’s prohibition
on firearms possession by domestic-violence misdemeanant
against an as-applied challenge). Other courts more or less
analogize to the list of “presumptively lawful” regulations
mentioned in Heller without specifying a standard of review.
See, e.g., United States v. Luedke, 589 F. Supp. 2d 1018, 1021-22
(E.D. Wis. 2009) (upholding application of § 922(g)(8) by
analogy to felon-dispossession laws, which are “presumptively”
valid under Heller); United States v. Booker, 570 F. Supp. 2d 161,
163-64 (D. Me. 2008) (using similar analogy to uphold ap-
plication of § 922(g)(9)).
20                                                No. 08-3770

ment of those objectives.” Id. (brackets in original) (internal
quotation marks and citation omitted).
  In the First Amendment free-speech context, the rigor
of this heightened form of review tends to fluctuate
with the character and degree of the challenged
law’s burden on the right and sometimes also with
the specific iteration of the right. For example, election
regulations that encumber the expressive association
rights of voters, candidates, and parties are subject to a
varying standard of review depending upon the nature
and severity of the burden on the right; laws imposing
severe burdens get strict scrutiny, while regulatory mea-
sures imposing more modest burdens are reviewed
more leniently. See, e.g., Wash. State Grange v. Wash. State
Republican Party, 128 S. Ct. 1184, 1191-92 (2008). More
specifically, the Supreme Court has held that election
regulations imposing severe burdens must be narrowly
tailored to serve a compelling state interest, but regula-
tions imposing lesser burdens need only be reasonable,
politically neutral, and justified by an important
regulatory interest. Id.; see also Burdick v. Takushi, 504
U.S. 428, 434 (1992) (ballot-access restrictions are subject
to a flexible standard of review that weighs the “character
and magnitude of the asserted injury to the rights pro-
tected . . . against the precise interests put forward by
the [government] . . . taking into consideration the
extent to which those interests make it necessary to
burden the plaintiff’s rights” (internal quotation marks
omitted)); Lee v. Keith, 463 F.3d 763, 768 (7th Cir. 2006)
(referring to the Burdick standard as a flexible “sliding
scale”).
No. 08-3770                                               21

   Similarly, in the commercial-speech context, the
Court applies an intermediate standard of scrutiny
that accounts for the “subordinate position” that com-
mercial speech occupies “in the scale of First Amendment
values.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.
469, 477 (1989) (internal quotation marks omitted). This
standard requires “a fit between the legislature’s ends
and the means chosen to accomplish those ends, . . . a
fit that is not necessarily perfect, but reasonable; that
represents not necessarily the single best disposition
but one whose scope is in proportion to the interest
served.” Id. at 480 (internal quotation marks and citation
omitted); see also Annex Books, Inc. v. City of Indianapolis,
581 F.3d 460, 462 (7th Cir. 2009) (applying intermediate
scrutiny to municipal regulation of adult bookstores
and requiring “evidence that the restrictions actually
have public benefits great enough to justify any curtail-
ment of speech”). The Court’s speech-forum doctrine
also uses a two-tiered standard of review. Regulations in
a traditional public or designated public forum get
strict scrutiny; restrictions on speech in a nonpublic
forum “must not discriminate on the basis of viewpoint
and must be reasonable in light of the forum’s purpose.”
Choose Life Ill., Inc. v. White, 547 F.3d 853, 864 (7th Cir.
2008) (internal quotation marks omitted).
  Adapting this doctrine to the Second Amendment
context makes sense. The Second Amendment is no more
susceptible to a one-size-fits-all standard of review than
any other constitutional right. Gun-control regulations
impose varying degrees of burden on Second Amend-
ment rights, and individual assertions of the right will
22                                              No. 08-3770

come in many forms. A severe burden on the core
Second Amendment right of armed self-defense should
require strong justification. But less severe burdens on
the right, laws that merely regulate rather than restrict,
and laws that do not implicate the central self-defense
concern of the Second Amendment, may be more easily
justified.
   What this means more specifically is that for gun laws
that do not severely burden the core Second Amendment
right of self-defense there need only be a “reasonable
fit” between an important governmental end and the
regulatory means chosen by the government to serve that
end. See Fox, 492 U.S. at 480. This “require[s] the gov-
ernment goal to be substantial, and the cost to be care-
fully calculated.” Id. The inquiry tests whether the regula-
tion’s “scope is in proportion to the interest served,” id.
(internal quotation marks omitted), but also accounts for
“the difficulty of establishing with precision the point
at which restrictions become more extensive than their
objective requires,” id. at 481.
  This intermediate standard is “far different” from
rational-basis review, however. Id. at 480. Under rational-
basis review, “it suffices if the law could be thought
to further a legitimate governmental goal, without refer-
ence to whether it does so at inordinate cost.” Id. Stated
differently, under the prevailing rational-basis test, the
challenged law is presumed to be constitutional, and “all
a court need do is ask whether a sound justification of a
law may be imagined.” Annex Books, 581 F.3d at 463.
Intermediate scrutiny, like strict scrutiny, reverses the
presumption. The government “bears the burden of
No. 08-3770                                               23

justifying its restrictions, [and] it must affirmatively
establish the reasonable fit” that the test requires. Fox,
492 U.S. at 480 (internal citation omitted). In other
words, “the public benefits of the restrictions must be
established by evidence, and not just asserted[;] . . . .
lawyers’ talk is insufficient.” Annex Books, 581 F.3d at 463.
   The version of intermediate scrutiny articulated in
Fox seems most appropriate here because Skoien’s con-
stitutional challenge does not implicate the core
Second Amendment right of armed self-defense iden-
tified in Heller. Applying it, we need not spend much
time addressing whether reducing domestic gun
violence qualifies as an important governmental
interest; the Supreme Court has already held that it
does, see United States v. Salerno, 481 U.S. 739, 749 (1987)
(“the government’s interest in preventing crime . . . is
both legitimate and compelling”), and Skoien does not
argue otherwise. The disputed question here is the rela-
tionship between the government’s means and its end—
whether there is a “reasonable fit” between the perpetual
disarmament of domestic-violence misdemeanants
and the important goal of preventing gun violence
against domestic intimates. We cannot resolve this ques-
tion on the present state of the record; the government
has made little effort to discharge its burden of demon-
strating the relationship between § 922(g)(9)’s means
and its end.
  The government has rested nearly its entire case on
Heller’s reference to felon-dispossession laws, asserting,
without analysis, that “Congress permissibly concluded
that a narrow additional range of serious criminal
24                                                    No. 08-3770

offenses should likewise result in the forfeiture of the
right to possess a firearm, even though the offenses are
defined as misdemeanors under applicable law.”
For support the government cites a statement in the
Congressional Record from the principal Senate sponsor of
§ 922(g)(9) discussing the purpose of the statute, see
142 C ONG. R EC. 22985 (1996) (statement of Sen.
Lautenberg), and a single study from the Justice Depart-
ment’s Bureau of Justice Statistics, see U.S. Dep’t of
Justice, Bureau of Justice Statistics (July 11, 2007),
http://www.ojp.usdoj.gov/bjs/homicide/intimates.htm
(last visited Nov. 9, 2009). The study shows that 11% of
all murder victims in the United States between 1976 and
2005 were killed by intimates; one-third of all female
murder victims during this period were killed by an
intimate; and between 1990 and 2005, over two-thirds of
spouse and former-spouse homicide victims were killed
with guns. Senator Lautenberg’s floor statement and the
DOJ study help establish the magnitude of the public-
safety problem, but they do not specifically address the
more pertinent questions of recidivism among offenders
who commit domestic-violence misdemeanors and
whether there is any relationship between ready access
to a gun and the risk that a gun will be used against
a domestic intimate. We have reason to believe both
propositions have been studied, but that’s based on our
own research, not because the government has made
its case.7


7
   See, e.g., N ORA K. P UFFETT & C HANDRA G AVIN , C TR . FOR C T .
I NNOVATION , P REDICTORS OF P ROGRAM O UTCOME & R ECIDIVISM AT
                                                   (continued...)
No. 08-3770                                                      25

  Accordingly, we cannot conclude on this record that
the government has carried its burden of establishing a
reasonable fit between the important objective of reducing
domestic gun violence and § 922(g)(9)’s permanent disar-
mament of all domestic-violence misdemeanants. In
fairness, because Heller did not establish a standard of
review, the government did not know what its burden
would be. Like the district court, it proceeded on the
assumption that the highest standard of scrutiny
applied and then relied almost entirely on conclusory
reasoning by analogy from Heller’s reference to the “pre-
sumptive” constitutionality of felon-dispossession laws.
That was a mistake, for the reasons we have explained.
In any event, our discussion here of the appropriate
standard of review should provide guidance for the
proceedings on remand.
  Before closing, we offer a few additional observations
to help those proceedings along. Intermediate scrutiny
tolerates laws that are somewhat overinclusive. See, e.g.,
Fox, 492 U.S. at 480; Anheuser-Busch, Inc. v. Schmoke, 101


7
  (...continued)
THE  B RONX M ISDEMEANOR D OMESTIC V IOLENCE C OURT 2 (2004),
available at http://courtinnovation.org/_uploads/documents/
predictorsbronxdv.pdf (finding that over 60% of domestic-
violence misdemeanants in the study were rearrested within
two years of their initial offense, though only a small percentage
of these rearrests were for weapons offenses); Jacquelyn C.
Campbell et al., Risk Factors for Femicide in Abusive Relationships:
Results from a Multisite Case Control Study, 93 A M . J. OF P UB .
H EALTH 1089, 1092 (2003) (suggesting that access to firearms
increases the risk of homicide by an intimate partner fivefold).
26                                                 No. 08-3770

F.3d 325, 327-28 (4th Cir. 1996) (recognizing that inter-
mediate scrutiny in the commercial-speech context
allows some latitude between the regulation and the
governmental objective). How much is too much is hard
to say; it depends on the scope and reach of the law and
how much room it leaves for the exercise of the right.
See Fox, 492 U.S. at 481 (noting “the difficulty of estab-
lishing with precision the point at which restrictions
become more extensive than their objective requires”).
We note that § 922(g)(9) is overinclusive on several
fronts: The firearms prohibition exists indefinitely;8
it contains no exceptions nor any basis for potential
restoration of gun rights; and it does not require an
individualized finding of risk that the domestic-violence
misdemeanant might use a gun in a future offense. On
the other hand, the statutory definition of “misdemeanor
crime of domestic violence” limits the applicability of
§ 922(g)(9)’s firearms disability to those who actually
used or attempted to use physical force or threatened
the use of a deadly weapon in a domestic disturbance. See
18 U.S.C. § 921(a)(33)(A)(ii). The statute thus targets a
specific class of violent offender; only those who have
already used or attempted to use force or have threatened
the use of a deadly weapon against a domestic victim
are banned from possessing firearms.
  To summarize, we conclude that intermediate scrutiny
applies to Skoien’s Second Amendment challenge to this



8
  This contrasts with the temporary prohibition in 18 U.S.C.
§ 922(g)(8), which applies when a domestic-violence re-
straining order is entered but expires when the order is lifted.
No. 08-3770                                          27

§ 922(g)(9) prosecution. The government has the burden
of establishing a reasonable fit between its important
interest in reducing domestic gun violence and the
means chosen to advance that interest—§ 922(g)(9)’s
total disarmament of domestic-violence misdemean-
ants. Accordingly, we vacate Skoien’s conviction and
remand for further proceedings consistent with this
opinion. If the government successfully discharges its
burden, the district court shall reinstate Skoien’s con-
viction.
                               V ACATED AND R EMANDED.




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