McDonald vs. Chicago, What then?

[PDL]

It will just be one more milestone. If/when Chicago looses, they'll follow DC's lead. Back to court again to get SCOTUS off their butts to issue a real decision without dancing around the 'resonable regulations' BS. They were afraid to come close to that on the first go round. But they'll have to if Chicago loses. Maybe it will just need one more case to determine what constitutes 'reasonable'.
Hope for the best, but don't expect much from politicians. And don't kid yourselves, SCOTUS is full of politicians, just like the rest of the courts.

 

[Lew Archer]

If the 2nd Amendment is incorporated, as seems likely, the next case to watch is now pending before the 7th Circuit Court of Appeals: U.S. v. Skoien.

This case addressed the next big question in the evolution of 2nd Amendment jurisprudence:

What "standard of review" should be applied by the courts when considering a gun law that implicates the 2nd Amendment protections.

Briefly, in con law cases, the "standard of review" really determines the outcome of a given case. The tougher the standard--the higher the hurdle--the harder it is for a given law to survive legal challenge.

The toughest standard, the highest hurdle, is "strict scrutiny". For a law to survive legal challenge, the gov't must show that there is a compelling gov't interest and that the law in question was "narrowly tailored" to limit infringement of the constitutional right in question.

A lower hurdle (but still not a dunker for the government) is "intermediate" scrutiny. If that standard is applied, the gov't must show that the law is "substantially related" to an important gov't interest.

The lowest hurdle is the "rational basis test". This is usually a dunker for the gov't, which must merely show that the law is "rationally" related to a "legitimate" gov't interest. "Rational" doesn't mean "reasonable"...merely "rational". The gov't can usually show sufficient "rationality".

Generally, when strict scrutiny is applied, most laws fail and the gov't loses. When rational basis is applied, the law usually survives the challenge and the gov't wins. With intermediate review, who knows?

Mind you, I am oversimplying a little, but that's the gist. The point is that the standard of review is probably the single most important factor the courts look to when deciding a case in which constitutional rights are implicated.

In Skoien, a 3 judge panel noted that the correct standard of review in cases related to the right of self defense was "strict scrutiny." Yes, the toughest standard.

The panel ruled AGAINST Skoin's challenge to the Lautenberg Amendment (which prohibits those convicted of Domestic Violence from possessing firearms).

Why? Mr. Skoien argued that the Lautenberg Amendment infringed upon his right to hunt. He did not argue that his right to self defense was infringed by the law.

So, since the critical "self defense" aspect of the 2nd Amendment was not brought into the legal picutre, the 3 judge panel applied "intermediate" scrutiny (ie, the gov't must show the law is substantially related to an important gov't interest).

So, guess who is requesting that the 3 judge panel's decision be reviewed? The government. You see, the panel's statement that "strict scrutiny" is the correct test where self defense is concerned has HUGE implications. Think about it---the panel might have invalidated the Lautenberg Amendment had Skoien framed his argument around self defense.

So now the entire 7th Circuit will decide the question. Regardless of the outcome, we can expect an appeal to the Supreme Court.

Sooner or later, the Supreme Court will have to determine the correct standard of review, rather then leave it to the lower courts.

And if, down the road, the Supreme Court adopts strict scrutiny as the correct standard to apply against gun laws relating to self defense, and thus affirms the 3 judge panel's view, then that would be a tremendous victgory for gun rights.

So, after McDonald v. Chicago, U.S. v. Skoien is the one to watch.

If you have access to the May 2010 edition of "The Firing Line", a publication of the California Rifle and Pistol Association, you can read all about it.

 

[Pasifikawv]

If the 2nd Amendment is incorporated, as seems likely, the next case to watch is now pending before the 7th Circuit Court of Appeals: U.S. v. Skoien.

This case addressed the next big question in the evolution of 2nd Amendment jurisprudence:

What "standard of review" should be applied by the courts when considering a gun law that implicates the 2nd Amendment protections.

Briefly, in con law cases, the "standard of review" really determines the outcome of a given case. The tougher the standard--the higher the hurdle--the harder it is for a given law to survive legal challenge.

The toughest standard, the highest hurdle, is "strict scrutiny". For a law to survive legal challenge, the gov't must show that there is a compelling gov't interest and that the law in question was "narrowly tailored" to limit infringement of the constitutional right in question.

A lower hurdle (but still not a dunker for the government) is "intermediate" scrutiny. If that standard is applied, the gov't must show that the law is "substantially related" to an important gov't interest.

The lowest hurdle is the "rational basis test". This is usually a dunker for the gov't, which must merely show that the law is "rationally" related to a "legitimate" gov't interest. "Rational" doesn't mean "reasonable"...merely "rational". The gov't can usually show sufficient "rationality".

Generally, when strict scrutiny is applied, most laws fail and the gov't loses. When rational basis is applied, the law usually survives the challenge and the gov't wins. With intermediate review, who knows?

Mind you, I am oversimplying a little, but that's the gist. The point is that the standard of review is probably the single most important factor the courts look to when deciding a case in which constitutional rights are implicated.

In Skoien, a 3 judge panel noted that the correct standard of review in cases related to the right of self defense was "strict scrutiny." Yes, the toughest standard.

The panel ruled AGAINST Skoin's challenge to the Lautenberg Amendment (which prohibits those convicted of Domestic Violence from possessing firearms).

Why? Mr. Skoien argued that the Lautenberg Amendment infringed upon his right to hunt. He did not argue that his right to self defense was infringed by the law.

So, since the critical "self defense" aspect of the 2nd Amendment was not brought into the legal picutre, the 3 judge panel applied "intermediate" scrutiny (ie, the gov't must show the law is substantially related to an important gov't interest).

So, guess who is requesting that the 3 judge panel's decision be reviewed? The government. You see, the panel's statement that "strict scrutiny" is the correct test where self defense is concerned has HUGE implications. Think about it---the panel might have invalidated the Lautenberg Amendment had Skoien framed his argument around self defense.

So now the entire 7th Circuit will decide the question. Regardless of the outcome, we can expect an appeal to the Supreme Court.

Sooner or later, the Supreme Court will have to determine the correct standard of review, rather then leave it to the lower courts.

And if, down the road, the Supreme Court adopts strict scrutiny as the correct standard to apply against gun laws relating to self defense, and thus affirms the 3 judge panel's view, then that would be a tremendous victgory for gun rights.

So, after McDonald v. Chicago, U.S. v. Skoien is the one to watch.

If you have access to the May 2010 edition of "The Firing Line", a publication of the California Rifle and Pistol Association, you can read all about it.

Excellent post, Lew. I especially like the way you described the levels of scrutiny regarding standards of review in a way that is easy to understand.

I am hoping there is some direction from the SCOTUS opinion indicating that the RTKBA is a "fundemental" and therefore subject to strict scrutiny as with all other fundemental rights...

Opinion/order may be issued Monday... Hope it is favorable...

 

[DonD]

Opinion/order may be issued Monday... Hope it is favorable...

I certainly expect it will be favorable and if so I'll be smiling when I listen to Daley express his outrage while surrounded by his retinue of body guards. Don

 

[Lew Archer]

Excellent post, Lew. I especially like the way you described the levels of scrutiny regarding standards of review in a way that is easy to understand.

I am hoping there is some direction from the SCOTUS opinion indicating that the RTKBA is a "fundemental" and therefore subject to strict scrutiny as with all other fundemental rights...

Opinion/order may be issued Monday... Hope it is favorable...

Thanks for your kind words, I'm glad you found it useful...as for McDonald, I'm keeping my fingers crossed.

 

[Tom Servo]

A great post, Mr. Archer. I'm watching Skoien very carefully. The original decision is here [pdf].

According to the 7th Circuit:

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 government 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.

The government's justification rested on Heller's reference to "presumptively lawful regulatory measures," to which the 7th Circuit replied, "that's not enough." If this becomes precedent, then the burden of proof will be much more stringent upon the government when it comes to defending gun-control regulations.

What's most interesting is the way that Heller has influenced subsequent jurisprudence:

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 Amendment displaces Gillespie and requires us to reconsider the constitutionality of the statute as applied in this case.

I think the Court will try their best to avoid setting a high standard of scrutiny in McDonald, so Skoien will be the next step. If we can get a similar case decided differently in another circuit, we've got an automatic split, which is a matter that needs to be decided by the Supreme Court.

 

[oldRoger]

Last Minute?

Are the Supremes going to make us wait until the last minute?

 

[oldRoger]

I have been told not to try to second guess SOTUS and its inner mysteries, still speculation is fun, did you see the death toll in chicago last weekend -----10 killed and 54 wounded.

 

[DonD]

did you see the death toll in chicago last weekend -----10 killed and 54 wounded.

OBVIOUSLY, draconia gun control really works. Don

 

[oldman45]

Not to be argumentative here but I think we may be speaking out of both sides of our mouths on this subject.

We say that it is not the gun that kills but the criminal that uses the gun. Then we say we want more guns in the hands of the people.

I bet those killed in Chicago were not the city's most affluent or upper crust. Chicago has long been known for it's high crime rate, large gang involvement, political corruption, low life housing projects and heavy illegal drug trade. Those being killed there are in the aforementioned group. If Chicago allows more guns, it will not make the criminal element any more law abiding. The high crime rate will still be there but we will then have some fingers being pointed back at the massive amount of weapons that are now allowed in the city.

Law abiding citizens have the right and should be allowed to own firearms. Yet that is not going to stop the murders since the law abiding people are not involved in any way.

My area is known for it's high crime rate and homicides almost weekly. For several years, it has been Black on Black murders and related to drugs and low income areas. Moving the people from these areas into places they cannot afford is not going to improve the person but rather bring crime into the new areas. We have had 17 homicides in the local area this year. All have been Black on Black, not one Caucasian or Hispanic. All have been in the low income areas. Increasing the number of guns is not going to clean those areas or people up at all. It will just give more houses (apartments) that can be burglarized to put more guns in the hands of the street scum, which in turn will raise the rate of gun related crime.

Consider if each person in Chicago owned a gun how high their crime rate would soar. People now having limited exposure to guns would be shooting more people than currently being done. Then again, that may not be such a bad thing there.

 

[7shooter]

oldman45 ... I think you are mistaken in your view that more guns in the hands of law abiding citizens will have a negative effect. John Lott and others ( More Guns, Less Crime ) has done persuasive empirical research showing that the greater the number of carry permits in a particular area the lower the violent crime rate goes. I met Dr. Lott at an economics conference at a university in my town. He is a brilliant researcher who almost single handedly has changed the carry permit map in America and in so doing has probably saved countless lives. Here is a summary of his findings from the latest edition of his book :

"AN OVERVIEW

This book offers a critical review of the existing evidence on gun control and crime. The primary focus will be on whether gun laws save or cost lives.

To answer these questions I use a wide array of data. For instance, I have employed polls that allow us to track how gun ownership has changed over time in different states, as well as the massive FBI yearly crime rate data for all 3.054 U.S. counties from 1977 to 1992. I use additional, more recently available data for 1993 and 1994 later to check my results. Over the last decade, gun ownership has been growing for virtually all demographic groups, though the fastest growing group of gun owners is Republican women, thirty to forty-four years of age, who live in rural areas. National crime rates have been falling at the same time as gun ownership has been rising. Likewise, states experiencing the greatest reductions in crime are also the ones with the fastest growing percentages of gun ownership.

Overall, my conclusion is that criminals as a group tend to behave rationally - when crime becomes more difficult, less crime is committed. Higher arrest and conviction rates dramatically reduce crime. Criminals also move out of jurisdictions in which criminal deterrence increases. Yet criminals respond to more than just the actions taken by the police and the courts. Citizens can take private actions that also deter crime. Allowing citizens to carry concealed handguns reduces violent crimes, and the reductions coincide very closely with the number of concealed-handgun permits issued. Mass shootings in public places are reduced when law-abiding citizens are allowed to carry concealed handguns.

Not all crime categories showed reductions, however. Allowing concealed handguns might cause small increases in larceny and auto theft. When potential victims are able to arm themselves, some criminals turn away from crimes like robbery that require direct attacks and turn instead to such crimes as auto theft, where the probability of direct contact with victims is small.

There were other surprises as well. While the support for the strictest gun control laws is usually strongest in large cities, the largest drops in violent crime from legalized concealed handguns occurred in the most urban counties with the greatest populations and highest crime rates. Given the limited resources available to law enforcement and our desire to spend those resources wisely to reduce crime, the results of my studies have implications for where police should concentrate their efforts. For example, I found that increasing arrest rates in the most crime-prone areas led to the greatest reductions in crime. Comparisons can also be made across different methods of fighting crime. Of all the methods studied so far by economists, the carrying of concealed handguns appears to be the most cost effective method for reducing crime. Accident and suicide rates were unaltered by the presence of concealed handguns.

Guns also appear to be the great equalizer among the sexes. Murder rates decline when either more women or more men carry concealed handguns, but the effect is especially pronounced for women. One additional woman carrying a concealed handgun reduces the murder rate for women by about 3-4 times more than one additional man carrying a concealed handgun reduces the murder rate for men. This occurs because allowing a woman to defend herself changes her ability to defend herself much more than it would for a man. After all, men are usually bigger and stronger.

While some evidence indicates that increased penalties for using a gun in the commission of a crime reduce crime, the effect is small. Furthermore, I find no crime-reduction benefits from state-mandated waiting periods and background checks before allowing people to purchase guns. At the federal level, the Brady law has proven to be no more effective. Surprisingly, there is also little benefit from training requirements or age restrictions for concealed handgun permits. "


Reprinted with permission from John R. Lott, Jr. “More Guns Less Crime, Understanding Crime and Gun Control Laws” Third Edition,, p.20-21.

 

[oldman45]

oldman45 ... I think you are mistaken in your view that more guns in the hands of law abiding citizens will have a negative effect. John Lott and others ( More Guns, Less Crime ) has done persuasive empirical research showing that the greater the number of carry permits in a particular area the lower the violent crime rate goes. I met Dr. Lott at an economics conference at a university in my town. He is a brilliant researcher who almost single handedly has changed the carry permit map in America and in so doing has probably saved countless lives. Here is a summary of his findings from the latest edition of his book :
.

I am well aware of Dr Lott, his works and his background. I also have a copy of his original book and the latest revision.

Yet his research does not address the issue such as in Chicago.

The murder and gun crime rate in Chicago is not in the areas where law abiding gun carrying citizens will be. Murders there are taking place in the housing projects where drug deals are rampant. They take place in alleyways where law abiding citizens will not be. They take place in apartments where drug dealers are confronting other drug dealers. They take place on the gang turf where those present are gang members.

The findings of Dr Lott deal more with places like Miami FL where people were victims of home invasions in upperscale communities, like those going into the airport to drop people off or leaving places of business like Lowes or Home Depot.

Once FL got CC, the bad guys changed their methods of criminal pursuit. They began targeting those coming into the US in rental cars as they left the airport since they could not be armed. Or like in Louisiana where the guys began going to areas where guns would not be found or in neighboring parishes where they were not at such a high risk of being caught. Crime was not limited to areas of high drug traffic, high gang presence or government housing areas.

Chicago has areas honest citizens are not going to be found but those are where the murders take place. They take place where people do not have the money to buy guns for protection. They take place where the taxpayers are paying rent on durg dealing apartments.

Different towns have different problems and must be addressed differently. I am all for people to have rights in IL and it's cities. But putting more guns into Chicago is not going to change the crime rate but will allow more guns to be part of the stats. Just as in Louisiana, everyone owns guns and many own lots of guns. We also have an extremely high homicide rate. The anti gunners point to the amount of guns in LA but that only shifts the findings. If they took the murder stats out of the housing projects in New Orleans and the slums of Shreveport, the state would be one of the lowest crime states in the US. All the guns in the world does not help stop crime in the mentioned areas since there are so few law abiding people carrying in those places.

 

[oldman45]

Klas, with all due respect to you and even deferring somewhat to you being a resident of Chicago, you may not be aware of it but the Chicago Police Department has a section that maintains where crimes occur in every district of Chicago. They will furnish a copy of their crime compilation data to you.

According to their research, the vast majority of crimes happen in lower income areas, mostly gang and/or drug related and by perpetrated by those knowing their victims.

Those few I know living in Chicago say they feel safe going out to eat in the better areas and in their neighborhoods but there are areas where they would not feel safe and therefore remain clear of those areas.

I feel this is pretty much like other metro areas across the US.

I also still think the people of Chicago should be able to own guns as it is their right to do so but I do not feel it would stop the majority of crime there.

 

[cmort666]

The murder and gun crime rate in Chicago is not in the areas where law abiding gun carrying citizens will be.

Really? I was born in one of those "areas", grew up in it and several more and still have relatives living in them.

Are you saying that EVERYBODY who lives at 69th and Indiana, 84th and Loomis, and 78th and Honore is a criminal? Or are you saying that the people in those neighborhoods who AREN'T criminals don't deserve to be able to protect themselves? If they don't deserve to protect themselves, who exactly IS going to protect them? Not the police.

• Police have no legal duty to protect individuals.
• Police have no legal liability when they fail to protect individuals.
• Police have virtually no physical ability to protect individuals.

When your life is in danger right now, you'll either protect yourself or you just won't get protected at all. Police protection of individuals, especially in those "areas" is at best a fantasy, at worst a lie. Not surprisingly, this was yet again shown to be 100% true by the elderly man who shot and killed an armed home invader recently.

Take Amtrak into Chicago some time and see what disarming the NON-criminals produces. All you can see is high iron fences and gates, and iron bars on the windows. Your approach has turned the south side of Chicago into one huge zoo for people where the predators prey on the honest with impunity. And strangely, THEY have no trouble getting guns at all.

Leaving aside the numerous deficits of the Chicago Police department, material and moral, the best, most honest police department in the world isn't going to "protect" the individual from a robbery, rape, home invasion, or murder.

Your prescription for the NON-criminals in those "areas" appears to be:

"We don't have to protect you and we won't let you protect yourself."

 

[cmort666]

Klas, with all due respect to you and even deferring somewhat to you being a resident of Chicago, you may not be aware of it but the Chicago Police Department has a section that maintains where crimes occur in every district of Chicago. They will furnish a copy of their crime compilation data to you.

At Daley's direction, the Chicago PD is running a disinformation and propaganda operation that would turn Joe Stalin green with envy.

They've even come up with the original idea of "inside" and "outside" murders, the former supposedly "unpreventable". They don't seem to be preventing many of EITHER.

There is a longstanding practice of intentional downplaying of and falsely locating crimes of violence.

I would no more trust "official" crime stats coming out of the Chicago PD and Daley's office than I'd trust Mahmoud Ahmadinejad's descriptions of Iran's nuclear program.

 

[7shooter]

oldman45 ... I don't like to disagree with you since I often think the way you do on most issues you post here and respect your point of view. My thinking is based on knowing good people who live and work in some pretty bad areas of big cities ( my son does pro bono legal work in the Liberty City area of Miami a couple days a month ). It certainly is true that scumbag drug dealers are more likely to be killing each other there but there are a lot of good folks living in those areas that would greatly benefit from legal access to the means to defend themselves. Criminals who might have to worry that the elderly potential mugging victim might have a 38 might pause before risking their worthless hides. I also think Lotts research directly addresses the issue we are discussing:

"There were other surprises as well. While the support for the strictest gun control laws is usually strongest in large cities, the largest drops in violent crime from legalized concealed handguns occurred in the most urban counties with the greatest populations and highest crime rates."

 

[writerinmo]

I frequent a website that gathers headlines from newspapers across the world, and stumbled upon this teaser. "8 people were killed and at least 44 more where shot this past weekend in war-striken Afghanis... oh wait, it was in Chicago..."
The link went to a news story reporting the "at least 50 shootings" that took place over the weekend in Chicago. These included a 29 year old man found dead in the street, wearing womens' clothing, a 1-year old little girl who suffered a graze wound to the neck when gunfire erupted during a BBQ, a 16 year old girl who was shot in the back and others.

Gun ban? What gun ban? If I were a 'law abiding citizen' I would still be protecting my family, legal or not to have one. Rule #1 of a gunfight is still "Bring a gun"

 

[oldRoger]

More Violence?

Chicago has had very strict “gun control” at least since the 60s when I lived in Oak Park, actually the laws were old then.
The only way to legally buy a handgun was to have “connections”, so politicians, their friends, and the mob all had firepower. The rest of humanity was armed only if it was willing to violate the law.

Certainly putting more guns into the hands of people all too willing to violate the law will not help anything. However, these people already have guns; I understand that you can rent one for the job of the day if you can’t afford to buy.
Do a search for Chicago Sun Times---ten dead among 54 shot---June 21 to see what was going on there. Example:
“The latest victims were found naked, shot to death and lying face down on railroad property near West 91st Street and South Holland Road on the South Side about 8:50 am Monday, according to a Calumet Area sergeant. Both were shot at some point Sunday night.”
This is raw human aggression at its worst.
All of the gun control over all of the years has not stopped this, nor IMO will it.
Further the progressives and community organizers have not corrected the root causes yet, nor IMO will they ever do so. More free stuff from the Government Stash has only made things worse. In the 50s I could walk around in Englewood, but now? Not a chance. These are the areas by the way where BHO worked his magic.

But do the good people living and I hope working there not deserve to exercise their basic human right to self defense?
Since the bad guys are already armed how will letting the citizen protect him or herself increase gang violence?
In the end I could tolerate an increase in gang killings in order to let the good people of Chicago defend themselves.
But I doubt that happening, IMO the gangs are killing everyone they want to now—they have a free hand to do as they like.

 

[oldRoger]

LBJ’s war on poverty was going to fix the poverty problem, the big high rise affordable housing projects were part of the answer, welfare for all the desirable end.
The root cause was poverty-----we will fix it and everyone will live happily and peacefully forever, kumbaya, my friends, kumbaya.
So the Robert Taylor Homes were built, Saul Alinsky wrote his rules, the community organizers did what they do, the gun control laws became more draconian,...............and the violence increased!

We will fix it by more of the same, applied by the same people? I for one am to old to believe that fairy tale.

 

[cmort666]

Those old housing projects have been torn down. Their residents have been spread out around town. Some people worried that their crime would then spread to the neighborhoods where the former project residents moved to.....

And that's exactly what happened. I watched the two episodes on "Gangland" where they described what happened after the demise of Cabrini Green and the Robert Taylor Homes. It was remarkably similar to the barbarian migrations that culminated in the fall of the Roman Empire.

One gang gets displaced from it's "homeland", it in turn displaces another weaker one to find a home, who in turn displace someone weaker still. Needless to say, sometimes the original inhabitants don't go gently into that good night.

There hasn't been adult supervision, even corrupt adult supervision, in Chicago since Saddam... I mean Richard J. Daley died. Now Uday's in charge with completely predictable results.

When I was a kid in Chicago in the '60s, it was the heyday of the highly organized and hierarchical gangs like the Blackstone Rangers/El Rukns and the Disciples. When the projects came down, that autocratic structure came down with them. Now it's anarchy.