Wait a minute, isn't this one of the same circuits that wouldn't acknowledge incorporation?
I've got a sneaky suspicion that their decision to refuse incorporation was strategic. If you listen to the oral arguments
, Easterbrook seemed to be all but waving the hanky as he passed the case up the ladder to SCOTUS. He admitted that it was high time to revisit Slaughterhouse
, and even seemed supportive of the idea himself.
Now we have this case, which follows and contradicts two disappointing rulings in the lower courts on the same issue earlier this year in U.S. v Hayes
and U.S. v Wyman
. It certainly shows an interesting sea-change in doctrine since last summer:
We have previously upheld the constitutionality of § 922(g)(9) under a collective-rights interpretation of the Second Amendment. (Gillespie v. City of Indianapolis). 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.
There was a great deal of shouting over the fact that Heller
wasn't immediately followed up by a series of decisive victories in the courts, and the first few post-Heller
decisions were certainly worrisome.
Of course, some people don't understand that the system takes time to work. Now we've got a decision at the Circuit level, and it should make some serious waves.
Upon re-reading at my leisure tonight, I also noticed this bit:
Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the 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.
So, they used intermediate scrutiny because the "core" right of Heller was not invoked. By their logic, if a gun is kept for self-defense,
then a law restricting it would
be subject to strict scrutiny.
Going forward, I see two possibilities. First, the 7th Circuit's opinion may become precedent, in which case we're in good shape.
Otherwise, we get another Circuit split, and it's off to the Supreme Court again in 2011.