[Al Norris]

As you know, I am not an attorney, but here are my views, as a layperson.

1) How strong would the RTKBA be under the chosen method of review, compared to strict or intermediate scrutiny?

The Court in Heller used the Text of the amendment, its History and the associated Traditions (TH&T) to find that the right enumerated was a personal right. That right, at its core, was the right to self preservation (self defense). The Court observed that the laws in question, did not meet any means-end scrutiny (another name for "interest balancing) that the Court had used in evaluating core enumerated rights and struct them down as unconstitutionally infringing the core right to keep and bear arms.

The Court in McDonald used the same method to incorporate the 2A within the meaning of the 14th amendment and held that the States (and by direct implication, the local governments) could not infringe the core right of self defense. The Chicago gun laws were stricken as they pertained to banning firearms in the home.

The 7th Circuit in Skoien, opined the same thing. But because the matter in front of the panel dealt not with a law-abiding citizen, but a criminal convicted of domestic violence, this court found that a means-end scrutiny was warranted. The court went on to say that a different approach might be used, if the firearms were those that were protected for the core purpose of self defense, instead of the claimed hunting purpose of the appellant.

This was at least two steps away from the core of the right and means-end scrutiny was applied - In this case, Intermediate.

The 4th Circuit said the same thing in Chester. As did the 1st Circuit in Rehlander.


The 7th Circuit in Ezell used TH&T reasoning to arrive at the conclusion that training was a small step away from the core right and therefore banning gun ranges within the City when the city required range time to be unlawful. Again, because this was a step away (even if rather small) from the core, a means-end scrutiny was applied - Not quite Strict Scrutiny.

What this means is that a new test has been adopted by the Supreme Court that can (and has) avoid(ed) any issue(s) of scrutiny. This is a standard that is elevated above any broad (or narrow) issues of balancing the interests of the State against that of the citizen.

2) How likely is it that higher courts will use the method chosen here?

As explained in the above detailed answer, it is already being used.

3) How will this case affect the precedents and interpretations used by other courts, especially given the relatively narrow scope and "under-the-radar-ness?"

Lower court decisions are not precedent. They are not binding upon any other court, even those in the same district.

To become "precedent," a case must be appealed and the appeal must uphold the lower courts decision. However, even this is only "precedent" within that specific circuit. Other circuits can take notice, as this becomes "persuasive precedent."

That does not mean that this decision is without any merit. It can be cited as an authority. As more lower courts decide in our favor, it tends to gather steam and other district court judges will begin to take real notice.

The fact that this case was below the radar to us, means nothing. It merely means that those of us watching for this stuff, did not "see" it.

4) How will this affect those barred from owning firearms for misdemeanor domestic violence convictions/restraining orders?

It is going to have a place. How much of a place remains to be seen.

What we have to remember is that Gowder was not a violent criminal, whereas Lautenberg Amendment by its very wording was aimed at violent acts. We are really going to have to see what Donald Kilmer does with this, in his appeal with the Enos case.

My personal opinion? This is not going to have as much effect in either Enos or Schrader. The underlying facts are much different. But we shall see.

What I think we will begin to see is that the elevation of TH&T over strict scrutiny, in 2A cases, will be a good thing overall.