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July 14, 2010

Skoien and the many challenges of Second Amendment jurisprudence

The Seventh Circuit's Skoien en banc ruling yesterday, which via this opinion by Chief Judge Easterbrook, rejects a Second Amendment challenge to the federal law criminalizing gun possession by anyone previously convicted of a domestic violence misdemeanor, reinforces my sense that Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead.  Here are just some of the ways the Skoien majority opinion highlights these realities:

1.  Uncertainty about the standard of reviewThe Skoien opinion properly cites Heller to reject a "rational-basis test" for the Second Amendment, but then avoids giving any more content to the proper standard of review through this passage:

The United States concedes that some form of strong showing (“intermediate scrutiny,” many opinions say) is essential, and that § 922(g)(9) is valid only if substantially related to an important governmental objective.... The concession is prudent, and we need not get more deeply into the “levels of scrutiny” quagmire, for no one doubts that the goal of § 922(g)(9), preventing armed mayhem, is an important governmental objective.  Both logic and data establish a substantial relation between § 922(g)(9) and this objective.

Skoien foreshadows a "quagmire" if (and when?) Second Amendment jurisprudence has to start sorting through levels of scrutiny, and its seeks to avoid this quagmire by positing that (any and all?) gun regulations are substantially related to an important governmental objective.  But given that gun regulations are always aimed at improving public safety and that the creators of such regulations surely see their restrictions as substantially related to this goal, it is unclear how much more real bite is being given to a standard of review here in Skoien.

2.  Too ready justification for gun restrictionAs hinted above, the real problem with Skoien may not be how it avoid a clear legal test for the Second Amendment, but how readily it concludes that such a test is satisfied by the criminal law being challenged.  If preventing gun violence (i.e., "armed mayhem") is always going to qualify as an important governmental objective, and if "logic and data" of the sort set out in Skoien is adequate to justify a very broad criminal prohibition on gun possession by a large class of persons, it seem very unlikely that many (or really any) partial gun bans will be struck down.  Gun control advocates always can and often do seek to make logical and statistical arguments that a specific gun ban will reduce access to guns and thus reduce the potential for gun violence.

3.  Questionable analogies to the First Amendment and sex offender restrictions:  The majority opinion in Skoien justifies its ruling by developing or referencing analogies to First Amendment jurisprudence and sex offender restrictions, but the analogies are suspect in many respects.  As the dissent notes, there are no categories of persons who are subject to criminal prosecution just for seeking to exercise a freedom to speak.  (There are categories of speech not subject to constitutional protection, but this is analgouos to arms like bazookas and bombs that I assume are categorically excluded from coverage by the Second Amendment.)  Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes "generally proper" a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights.

As my comments above suggest, I am unimpressed by the constitutional method in Skoien.  For this reason (and others), I also find the ultimate ruling not so convincing.  But the point of this post is not merely to dicker with the outcome; rather, I principally wanted to highlight how hard it is going to be for courts to sort through all the challenging constitutional issues implicated by modern gun restrictions and the new constitutional gun rights set out in Heller and McDonald.

A few related Second Amendment posts on Skoien and related issues:

July 14, 2010 at 12:21 PM | Permalink


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I haven't read the opinions yet, but I have thought about the issue. Given how broad the DV laws are, and how many people plead to misdemeanors based on extremely attenuated facts (indeed, where the facts admitted might not even meet the elements of the offense if someone was paying attention), along with numerous other factors that make misdemeanor convictions a poor measure of long-term potential for violence, it seems to me that the ban in question takes a legitimate governmental objective and sweeps way too broadly in applying it.

Such a poor/extremely rough fit would be fine under a rational-basis test (government can rationally conclude that cost of sweeping in, say, 60% of people who aren't actually or potentially dangerous is outweighed by benefit of keeping guns out of hands of other, dangerous 40%), but I fail to see how such a shotgun, broad-brush approach can meet heightened scrutiny.

Posted by: anon | Jul 14, 2010 12:42:20 PM

ps- i am a progressive, though also a civil libertarian, and generally in favor of many, *reasonable* gun control measures that strike an appropriate balance between security and liberty.

pps- we should remember also that the federal ban applies to *firearms*, not *handguns*. people subject to this limitation cannot legally own a hunting rifle (even though their local/state authorities often are not aware of this aspect of federal law and may specifically tell them that it is ok for them to have a hunting rifle).

Posted by: anon | Jul 14, 2010 12:46:24 PM

ppps- Here's a question. Let's say I plead to a misdemeanor, and my attorney and the court told me, accurately, that under state law I would be restricted from owning a handgun for 5 years but would be allowed to own a rifle or shotgun. No one mentioned the lifetime ban under federal law.

If I am later prosecuted under federal law, can I make a Padilla v. Kentucky claim challenging the underlying conviction (and or move for a stay in federal court while I file a post-conviction challenge to my prior conviction in state court)? If I am a life-long hunter, I may have a pretty strong claim that there is a "reasonable probability" that I wouldn't have plead guilty if I'd known I was forfeiting my right to hunt for the rest of my life.

Posted by: anon | Jul 14, 2010 12:50:58 PM

After reading the majority opinion, I was left with an incomplete feeling about the analysis; much more was to be desired, IMO.

I would also like to point out one important issue that looms in the opinion but is not directly addressed. The majority premises its analysis, inter alia, on the idea that prior misd. Domestic violence convictions have "violence" as an element, and that those who have a misd. domestic violence conviction "have been convicted of violence." (Slip Op. at 10).

This premise, however, is only correct if the Circuit's holding in Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) (interpreting 18 USC 16) and the Court's holding in Johnson v. US, 130 S.Ct. 1265 (2010) (interpreting ACCA) also applies to 18 USC 921(a)(33)(defining misd. crime of DV). Although I believe those holdings should apply in this context, the Johnson Court implied that may not be the case. See id. at 1273. What the Court may not have realized is that in order to avoid any Second Amendment problems, such holdings may have to be applied in the misd. crime of domestic violence context.

Posted by: DEJ | Jul 14, 2010 12:52:46 PM

DEJ - see the Fourth Circuit's recent opinion in _White_ (http://pacer.ca4.uscourts.gov/opinion.pdf/094114.P.pdf). It basically comes out that way.

Posted by: JDB | Jul 14, 2010 1:14:16 PM

One of the major problems of these indepth analyses of the 2nd Amendment is that we allow lawyers to make them.

The Founders were not "lawyers" but understood the meanings of Liberty, Tyranny and Freedom from an overreaching Federal Government. Perhaps an "armed American Citizenry" should remove these jackasses from their sinecures in the Congress and Judiciary.

There is a continuing obfuscation by "lawyers" about the meaning of the 2nd Amendment. Someone should just tell them to STFU.

Posted by: jgreene | Jul 14, 2010 1:41:25 PM

The Court’s failure to set a tier of scrutiny or explain how laws should be considered in McDonald and Heller has become quite significant. Easterbrook set forth a framework that will likely be relied upon by most courts. Sykes, who seeks to use an originalist framework, is alone in dissent. Even though the Supreme Court rejected a balancing test, following Skoien lower courts will start weighing interests, which is exactly what Breyer wanted.


Posted by: Josh Blackman | Jul 14, 2010 1:56:00 PM

From my perspective as an engineer, it seems that there are two issues.

First, can civil rights be permanently forfeited on the basis of a misdemeanor conviction? I think an argument can be made that they cannot - that only a felony, by definition, cna be punished by forfeiture of rights.

Second, does the current law violate the Constitutional prohibition on ex post facto law? I believe that it does.

That being said, I think that the Second Amendment raises major issues only if the courts allow their personal prejudices to obstruct the law. From my perspective, it is clear that convicted felons may be permanently prohibited from owning arms. Other individuals may be temporarily restricted - in a manner, and to a degree, parallel to restrictions on freedom of speech. The more people affected, the greater the area affected, and the longer the restriction is active, the higher the standard of scrutiny should be.

As to what types of arms...it is possible for a governmet to impose safety regulations, but given the track record of such as harassments of law-abiding citizens, the burden of proof is on the government to prove that their regualtions are actually there for safety, and are in conformance with industry safety standards applicable to the firearm design in question.

Posted by: Mike M. | Jul 14, 2010 2:07:58 PM

Here is my prediction:

The same justices who voted for the result in Heller are not fond of “balancing tests” that take decades to calibrate via judge-made law.

I suspect that they will endorse a bright-line rule that once you are convicted of any crime, the state may enact any restriction on your Second Amendment rights. The only conceivable exclusion I can imagine is for offenses that have no violence element whatsoever (e.g., Martha Stewart’s conviction for lying to investigators).

I don’t think they will sign up for any kind of “intermediate scrutiny,” which would be merely a shorthand for saying that the issue won’t be resolved in our lifetimes.

Posted by: Marc Shepherd | Jul 14, 2010 2:22:41 PM

As a retired lawyer, I agree with JDB!!

Posted by: Melvin Schaupp | Jul 14, 2010 2:35:54 PM

Gun-control disputes such as this one will clutter the courts for years to come, the result of the Supreme Court's wrongly reading the Second Amendment as an individual right.

It’s simply inconceivable that the Framers would have been so dumb as to say in the Second Amendment that it "shall not be infringed,” if they had really intended the amendment to express an individual right to carry arms for private purposes. They were surely aware of the dangers posed by even 18th-century arms in the hands of the incompetent, the mentally disturbed, and the scofflaw. There’s no way they would have crafted an amendment to say that gun possession was an “individual right” of the people that could not be infringed, while including no words under which exceptions could be made for persons who were a danger to the general public.

Posted by: Leif Rakur | Jul 14, 2010 3:47:34 PM

^^Yep, those dumb Framers and their guns! Watta bunch of maroons, not to be as smart as Sarah Brady, right?

Posted by: DaveP. | Jul 14, 2010 4:02:17 PM

Too right Lief, which is why in 1792 under the Militia Act, the Founders required all able-bodied male citizens ages 18-45 to own a rifle suitable for military use, and ammunition. Turns out that under current federal law (10 USC 311) all able-bodied male citizens ages 17-45 (who are not enlisted in the actual military) are ... members of the militia. Anachronism? Nope. Law was last amended in the 1950s.

Posted by: RKV | Jul 14, 2010 4:28:54 PM

loved this!

"Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes "generally proper" a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights."

OF COURSE some of us have been saying for YEARS that allowing criminal and illegal retroactive sex offender laws was gonna come around and bite the rest of us in the ASS. Guess that day has come.

Posted by: rodsmith | Jul 14, 2010 4:33:23 PM

My perhaps eccentric notion is that Heller has nothing to do with the Second Amendment. Rather, the Court has discovered a previously unenumerated Ninth Amendment right of individuals to keep a handgun at home, for self defense, subject to government approval. By substituting this changeling for the original Second Amendment, the Court has written any general RKBA right out of the Constitution, and with it all the awkward questions that it didn't want to deal with.

My prediction is that "subject to government approval" will soon be the most significant part of the 'right'.

Posted by: PersonFromPorlock | Jul 14, 2010 4:34:18 PM

better get some glasses mike!

"That being said, I think that the Second Amendment raises major issues only if the courts allow their personal prejudices to obstruct the law. From my perspective, it is clear that convicted felons may be permanently prohibited from owning arms."

up till the 1960's if you were arrested with weapons af the end of your sentence THEY WERE RETURNED on your way out. Sorry last time i looked the RIGHT TO OWN a weapean PREDATES the constitution and was IN FACT as well as LAW the ONLY reason we NOW HAVE a constitution.

Posted by: rodsmith | Jul 14, 2010 4:35:19 PM

Thanks for the capitals, @rodsmith. They don’t help your case.

Even the five justices in the Heller majority said that their opinion should not be construed to overturn bans on gun possession by felons, the mentally ill, possession in sensitive places (schools, etc.), and so forth. The same justices made the point again this Term. Clearly the minority justices would agree with this too.

Those who think that felons are going to get their guns back when they walk out of prison are whistling in the dark.

Posted by: Marc Shepherd | Jul 14, 2010 4:50:59 PM

"Gun control advocates always can and often do seek to make a logical and statistical arguments that a specific gun ban will reduce access to guns and thus reduce the potential for gun violence."

This isn't obvious to me. In the case of people convicted of a domestic violence misdemeanor, that logical and statistical connection is going to be present (indeed, it is probably stronger than the case for many felons). But, in cases involving people with no criminal history (Heller actually involved a law enforcement officer), or even in cases involving people with a misdemeanor criminal history not obviously related to gun violence risk (e.g. contempt citations for failure to pay child support), the logical and statistical inferences that are required will be much more attenuated.

Even for another situation with seemingly meaningful logical and statistical connections like mental health involuntary commitment, it would seem more plausible that an as applied challenge under the Second Amendment arguing that the particular mental health issue in question wasn't logically or statistically linked, even if there are some mental health commitments that are, would have merit.

For example, I would think that a woman in a high crime neighborhood who was involuntarily committed for anorexia to prevent her own death from starvation a number of years ago would make a very attractive plaintiff in an as applied challenge to a categorical mental health commitment ban. The argument would be that the Second Amendment requires that categorical bans have some sort of tailoring to the harm that the limitation is trying to address, at least in the case of people who are not felons for whom there is well established precedent for broad civil disabilities upon a conviction.

Similarly, I think that a total ban on gun ownership by someone under the age of twenty-one, as applied to a twenty year old war veteran or law enforcement office from another jurisdiction would present a pretty powerful as applied challenge under the Second Amendment.

But, absent a contrary to the facts plea, even a "marginal" DV misdemeanor conviction is going to be reasonably close to involving the risk that the statute is designed to address. And, the notion that someone who made that kind of plea are receiving a sanction that is more than they bargained for is inapplicable to anyone who made that plea after the federal law was enacted (at least).

Also, while the 7th Circuit talks about a possible "intermediate level of scrutiny," there is a textual case for instead looking at regulations and carrying out an analysis to determine if they are "reasonable" ways to further a state interest in having the rights and obligations of gun owners be "well regulated." This might have more bite than a rational basis test, but probably less than the rights subject to intermediate scrutiny like gender based laws today. In particular, a state interest in having gun owners be "well regulated" might not necessarily require as tight a nexus between the regulation and the harm to be prevented. This might make the difference if, for example, a state adopted a regulation requiring someone with a valid concealed carry permit to visit a police station in a jurisdiction to introduce themselves to local law enforcement in any place where that individual used their already granted concealed carry permit.

Posted by: ohwilleke | Jul 14, 2010 5:17:52 PM

Regarding the dicta from Heller that Marc mentions, why the heck shouldn't a new understanding of what the 2nd means cast doubt on any "longstanding prohibitions" of that right? When they were adopted Heller hadn't been decided, so the 2nd being an individual right wasn't the law of the land. If it had been it's possible the prohibitions wouldn't have passed muster, not as currently worded at least. Why shouldn't a new understanding of a right cause a re-examination of restrictions on that right? Makes no sense.

Posted by: DanF | Jul 14, 2010 6:28:02 PM

danf "Why shouldn't a new understanding of a right cause a re-examination of restrictions on that right?"

me: because one or more justices would not sign off on the creation of an individual right to bare arms unless it was made clear that banning felons and wife beaters from having guns would still be allowed.

Posted by: virginia | Jul 14, 2010 8:48:20 PM

1 or more of the 5 justices in the majority, obviously

Posted by: virginia | Jul 14, 2010 8:48:53 PM

Who says gun owners are supposed to be "well regulated"? The 2nd says that a well-regulated militia is necessary to the security of a free state. And that the right of the people shall not be infringed. To the extent that gun owners are part of "the people," the implication is that their right shall not be infringed, not that it will be well-regulated (whatever that means).

Posted by: tom swift | Jul 14, 2010 11:45:50 PM

I Was convicted of a domestic violence 11 years ago for grabbing my ex's arm and telling her to let me out of her vehicle. I regret that this ever took place and I learned a big life lesson but should I lose the right to bare arms for life because of this? I have held down the same job for 9 years now as well as graduating from college with a B.S degree in business management. I have done all that I possibly can to prove that I am a productive member of sociaty. About 2 years ago I applied to become a highway patrol officer and passed all of the tests for a academy appointment, including a lie detector and a QAP which entails explaining your entire past to panel members. I have the ok from a law enforcement agency but I can go no further because of this ban that I had no clue about when I pled no contest to the crime 11 years ago. I have expunged my record per 1203.4, 12021.c, as well as petitioned the court for a Corum Nobis. When petitioning the court I had the backing of my ex whom I was with when I was charged with the DV as well my background officer, both support me getting my rights back. The petition was denied based on my rights should be restored to me via my expungement as well as state law, California bans people for 10 years for mistomeanor DV convictions. I have completely exhausted every avenue exept for a pardon and I am going to send out that paperwork shortly. So you can see how impossible it is to redeem oneself after such a minor offense. And just to clarify how easy it is to lose your rights forever all one has to do is throw a wad of paper at yor domestic partner or if you spank your child and the police are called out you are looking at a D V charge. If the readers of this think that I am blowing hot air then just research this subject a little further and you will see many cases of very minor offenses that has resulted in a lifetime ban of a fundemental right. I am not saying everyone deserves to have thier gun rights restored but there should be a program in place to determine if a person has demostrated that he/she deserves a second chance. And one last thing before I stop ranting, my home was broken into two times last year and I can't even get a sling shot to protect my wife and baby girl if someone happens to break in to our house when we are home. It is a very helpless feeling knowing that you and your family are at the mercy of criminals.

Posted by: Chris | Jul 15, 2010 9:10:01 AM

virginia - I'm sure you're correct, it's just puzzling this citizen how Scalia's dicta, which seems contrary to the intent of the decision it supports, can hold any weight. Since Heller that dicta has been the deciding factor for a number of cases, as if it were the law of the land. Never mind a strict reading of what the constitution says, ignore the fact that Heller confirmed that the RTKBA is a fundamental, individual right. Nevermind Scalia's flawed representation of the prohibitions as "longstanding". And forget about any future judicial review. Why? Because Scalia says so.

Chris - There used to be a safety valve to reduce the burden imposed by a lifetime prohibition on gun ownership by convicted felons. Then Congress defunded it.

Posted by: DanF | Jul 15, 2010 10:27:08 AM

@DanF, I think you’re over-simplifying. Although Scalia wrote those words, four other justices signed off on them. Then McDonald comes along two years later, and Alito restates practically the identical dicta, again with the same justices joining him unreservedly.

If the five majority justices weren’t aware of the import those words carried in Heller (which I doubt), they must certainly have been aware of them by the time McDonald was announced. One must conclude that this is their sincere view of how the Second Amendment must be interpreted, and they find nothing “puzzling” about it.

I do realize that these statements are technically dicta, but the justices are surely well aware that they are sending a very strong signal to the lower courts, which those courts are, in fact, interpreting in precisely the way one would expect.

Posted by: Marc Shepherd | Jul 15, 2010 2:10:25 PM

It is also worth recalling that Skoien was on probation at the time he was arrested for gun possession. He also pleaded guilty without preserving his objection to the gun ban that would follow. It is hard to imagine that even a very strong Second Amendment would include a right to bear arms while serving a criminal sentences for domestic violence, and in a case where there has been a guilty plea to the firearm possession offense.

Part of what limits Skoien as a tool for formulating overall Second Amendment guidelines is that it is too easy a case. Just about any standard of scrutiny from rational basis to strict scrutiny would have upheld his conviction.

@tom swift:

"Who says gun owners are supposed to be "well regulated"? The 2nd says that a well-regulated militia is necessary to the security of a free state. And that the right of the people shall not be infringed. To the extent that gun owners are part of "the people," the implication is that their right shall not be infringed, not that it will be well-regulated (whatever that means)."

The Second Amendment's "well-regulated militia" provision is almost unique in U.S. constitutional law in expressly acknowledging that a right is subject to regulation. A militia, as others have noted, included all armed adult men at the time. The clear implication is that "the people" who were synonymous with "the militia" at the time, were subject to regulation. Thus, state regulation of gun possession and usage was subject at least to the kind of strict regulations that could be applied to member of a militia.

Existing activity duty and national guard soldiers are subject to extensive regulation in terms of time, place and manner in which they can bear arms. A fair reading of the Second Amendment suggests that regulations similar in rigor and character should be permissible with regard to all members of the unorganized militia.

For example, just as quartermaster regulations routinely require safe storage of firearms for all members of military units, it would similarly be permissible for a state to mandate safe storage of firearms by members of the unorganized militia of gun owners.

Posted by: ohwilleke | Jul 15, 2010 3:07:39 PM

I would be more than willing to pay the ATF to investigate me in order to just get a shot at my firearms rights being restored. Can't the government at least give a person that has shown that he/she has completely turned thier lives around a chance? it just seems un-American to me that a person that has made a mistake over a decade ago ( with out any other breaking of any laws) can not get any relief. After I turn in my pardon paperwork I will have exhusted every avenue of relief.

Posted by: Chris | Jul 15, 2010 7:13:03 PM


"The Second Amendment's "well-regulated militia" provision is almost unique in U.S. constitutional law in expressly acknowledging that a right is subject to regulation. A militia, as others have noted, included all armed adult men at the time. The clear implication is that "the people" who were synonymous with "the militia" at the time, were subject to regulation. Thus, state regulation of gun possession and usage was subject at least to the kind of strict regulations that could be applied to member of a militia."

horse pucky! in most cases the govt didn't even know how many people they even had let alone which ones had or didnt' have a weapon. Plus at that point in time people were making theier OWN! so friggin way to regulate that and it was never even tried.

the right to keep and bear arms was specifically inserted into that document becasue it PREDATED that document and was in fact and in law the only reason the document was even written! The other main reason it was placed there was as a "check and balance" againt the future misuse of that document that the founding fathers going by their own history in europe KNEW was coming!

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