A great post, Mr. Archer. I'm watching
Skoien very carefully. The original decision is
here [pdf].
Tom, thanks for your kind words...and thanks particularly for posting the opinion in Skoien. I had read a brief summary, but have now read the full text of the opinion.
Never rely on summaries!
I discovered that my original post was in error in some respects with regard to the 7th's Circuit's opinion in Skoien. My apologies.
A little background: Skoien was convicted of a misdemeanor domestic violence charge. While on probation, he was found in possession of a shotgun, which he admitted was for hunting. He was charged with a violation of the so-called Lautenberg admendment, which prohibits those convicted of certain domestic violence charges from EVER possessing firearms, for any purpose. Under this federal law, there is no means by which one can restore one's 2nd Amendment rights. The amendment was previously upheld by the 7th Circuit (pre-Heller), which then viewed the 2nd Amendment as a collective, not individual right. Skoien challenged the law after Heller, so a three judge panel of the 7th Circuit had to reconsider whether the Lautenberg amendment ran afoul of the Skoien's indiviudal 2nd Amendment rights.
Specifically, I misunderstood the case's disposition. I thought the 7th had applied intermediate scrutiny and then found against Skoien.
Not correct. Skoien's Lautenberg conviction was vacated and the case remanded. The government was given guidance as to its burden of proof (more below) and instructed to meet it. If it can meet that burden of proof, then Skoien's conviction could be re-instated.
But, for our purposes, a little more detail is in order:
The 7th Circuit noted that in Heller, the US Supreme Court did not establish the standard by which challenged laws would be reviewed under the 2nd Amendment. However, Heller did reject "rational basis review" , the lowest standard. The 7th Circuit concluded that a more exacting standard should be adopted.
After much discussion of case law regarding standards of review, the 7th Circuit concluded that when the core right of the 2nd Amendment--armed self defense--was implicated in a challenge to a law, the standard of review would be strict scrutiny (where the law must be narrowly tailored to advance a compelling government interest). This is the most difficult level of review, often "fatal" to challenged laws, as the 7th Circuit opinion observed.
Importantly, with strict scrutiny, the burden is on the government to show that the law is, in fact, narrowly tailored to that compelling interest. In other words, the burden is NOT on the challenger to show that the law is NOT narrowly tailored or that the government's interest is not, indeed, compelling.
However, the 7th Circuit also concluded that where the challenged law does NOT implicate that core self defense right, than a form of "intermediate" review should be applied to the challenged law. This gets a little tricky...
Rather than try to paraphrase (and maybe get something wrong), here's what the 7th Circuit said:
...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 the government goal to be substantial, and the cost to be carefully calculated.” Id. The inquiry tests whether the regulation’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 pointat which restrictions become more extensive than their objective requires,” id. at 481....(t)he government “bears the burden of 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."
So, having established the government's burden of proof (which is quite high, requiring evidence, and not mere assertions), the 7th Circuit remanded the case back down to the District Court. If the government is able to meet its burden, then Skoien will lose.
Nevertheless, the government appealed for rehearing by the entire 7th Circuit (remember, the above decision was unanimous, but was made by a three judge panel).
Whatever the entire 7th Circuit ultimately rules, its decision will be looked to by other courts for guidance (just as the 7th looked to how other federal district and appellate courts were analysing 2nd Amendment cases since Heller).
And, if other Circuits come up with different conclusions (which is likely), the stage will be set for the US Supreme Court to address the vital standard of review question. One of the criteria the Supreme Court uses when deciding to take a case is whether there is a split of opinon among the federal appellate courts. All this will take quite awhile, likely years.
If you are really interested in how 2nd Amendment caselaw may evolve, it is instructive to see how this federal Court of Appeals really tried to apply Heller to a case before it.
Having finally read the whole opinion, in my view, we would be very lucky indeed if the Supreme Court ultimately adopts the standards of review as articulated by the 7th Circuit panel in Skoien. And, until that happens, we would be lucky if other federal district and appellate courts follow the lead of this panel.
Heller and McDonald are promising, but just the beginning.
