In another thread, we discussed US v. Skoien. Skoien challenged the Lautenberg Amendment, a federal law which prohibits persons convicted of certain misdemeanor domestic violence offenses from possessing firearms.
Skoien was so convicted. While on probation, he was found to be in possession of a shotgun, which he admitted using for hunting. He was charged and convicted of a violation of the so-called Lautenberg Amendment.
After the Supreme Court's decision in the Heller case, Skoien's appeal eventually reached a three judge panel of the 7th Circuit Court of Appeals, which vacated his conviction and remanded the case back to the District (trial) Court. The 7th Circuit panel concluded that the burden of proof was on the government to show that the Lautenberg Amendment was substantially related to an important government interest. The panel elaborated clearly what would be required of the gov't to meet that burden of proof.
This, in con law, is what is known as "intermediate scrutiny", a heightened level of judicial review. The panel said intermediate scrutiny was the appropriate standard of review in 2nd Amendment cases when a law affected the 2nd Amendment right to hunt. Importantly, the panel noted that when a gun law impacted the right to armed self defense (which is at the core of the 2nd Amendment, according to the Supreme Court), the correct standard of review is so-called "strict scrutiny".
And so the three judge 7th Circuit panel, in its 2009 opinion, remanded the case for the gov't to meet its burden of proof at the District Court level. Instead, the gov't asked for a re-hearing by the entire 7th Circuit Court of Appeals (which, incidently, is located in Chicago). In the meantime, both sides re-briefed the case to the 7th Circuit and both sides tweaked their arguments, with the panel's opinion as a kind of appellate road map.
Well, just a few weeks after McDonald, the 7th Circuit published its en banc decision, which you can read here:
http://www.ca7.uscourts.gov/tmp/ZE1FFTXL.pdf
In a nutshell, the Court ruled 10-1 in favor of the gov't. It largely avoided resolving the standard of review question. It noted that the gov't "conceded" that the Lautenberg Amendment, as applied to Skoien, must survive intermediate scrutiny to be upheld. The 7th Circuit en banc majority applied such scrutiny--after a fashion--and upheld the Lautenberg Amendment. Accordingly, the 7th Circuit re-instated Skoien's conviction under that statute.
The lone dissenter argued that the gov't should have met its own burden of proof by presenting evidence at the District Court level, to which Skoien would have the opportunity to respond. The dissent criticized the majority opinion for making the gov't's case at the appellate level, with various supporting material introduced by the majority itself, rather than the gov't.
So, what was left unanswered in Skoien?
The standard of review question (which the Court acknowledged was a "quagmire") was not fully answered.
However, the 7th Circuit did, in fact, apply intermediate scrutiny to the facts of this particular case. Nevertheless, the 7th Circuit did NOT embrace the previous panel's standard of review bifurcation:
Is it a 2nd Amendment self defense case? If so, the challenged law must survive strict scrutiny...and the burden is on the gov't, not the challenger, to meet that burden.
Is it a non-self defense 2nd Amendment case? If so, the challenged law must survive intermediate scrutiny...and the burden is again on the gov't to mee that burden.
That said, it's important to note that the 7th Circuit did not REJECT this bifurcation either. Nor did it reject the panel's earlier description of what exactly was meant by intermediate scrutiny.
Moreover, the 7th Circuit DID agree with the panel's rejection of the so-called "rational basis test" (the lowest standard of review). Rational basis review was precluded by the Supreme Court's decision in Heller.
This case is worthy of our discussion and understanding, not because of Skoien or his particular circumstance, but because it deals with the standard of review question largely dodged by the Supreme Court in Heller and McDonald. It is worth studying how the panel and the en banc court worked through the issue to resolve the case...as it will provide an idea of how other courts will analyze challenges to various laws under the 2nd Amendment in the wake of Heller and McDonald.
And, for those of us curious to see how the McDonald decision plays out in Chicago in the wake of Chicago's new restrictions, US v. Skoien is important. First, the District Court hearing the recently filed challenges to the new Chicago ordinance must follow precedent established by the 7th Circuit. The plaintiffs now can argue that strict scrutiny should apply, as the ordinance gets at the core of the 2nd Amendment. The plaintiffs, no doubt, will cite that 3 judge panel decision in support of that argument, which was not reviewed or rejected by the en banc decision. At the very least, the plaintiffs can argue that intermediate scrutiny is the lowest standard that should be applied, since "rational basis review" is clearly out. Intermediate and strict scrutiny are heightened levels of review and their application is critical if the right recognized in Heller and McDonald is to be fully protected.
Apart from the local interest in Chicago, the US v. Skoien case is important...as other Federal Circuit Court of Appeals and District Courts may look to it gor guidance. Some of those courts may go a different route concerning the "standard of review" question.
Sooner or later, there will likely be a conflict of opinion among the Federal Circuit Courts of Appeal, setting the stage for the Supreme Court to finally answer the key question left open after Heller and McDonald: What standard of review should be used to determine whether a given law runs afoul of the 2nd Amendment?
7th Circuit decides US v. Skoien
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