U.S. v Skoien: A review standard for Heller?

[Tom Servo]

The decision [pdf] is here.

Essentially, Steven Skoien was indicted under § 922(g)(9) for possessing firearms after being convicted of domestic violence. He appealed his conviction, arguing it was unconstitutional under Heller.

The 7th Circuit has agreed and is vacating his conviction.

The importance? Up until now, it has not been established what standard of review Heller mandated for the constitutionality of gun laws. 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 case 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 higher for the government to defend a gun-control regulation.

Skoien 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, 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.

They propose a two-step standard of review. The first step asks whether a practice would have been accepted under the original terms of Ratification, such as keeping arms for defense.

The second step says that, if the first condition is met, then the government has a hard road to hoe in proving that a given regulation is constitutional.

So constitutional text and history come first, then (if necessary) an analysis of the public-benefits justification for the regulation follows. If the first inquiry into the founding-era scope of the right doesn’t resolve the case, then the second inquiry into the law’s contemporary means-end justification is required.

They propose that strict scrutiny is out of the question because of the "presumptively lawful" utterance in Heller (thanks, guys), but at least we have a decent standard of review.

I don't know the circumstances of Mr. Skoien's initial domestic violence conviction, and I'm in no way excusing abuse of a spouse. Let's not take it in that direction, please.

[maestro pistolero]

Wait a minute, isn't this one of the same circuits that wouldn't acknowledge incorporation? Unless I'm mistaken about that, how can they rely on Heller?

[Tom Servo]

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.

[Bartholomew Roberts]

Wait a minute, isn't this one of the same circuits that wouldn't acknowledge incorporation? Unless I'm mistaken about that, how can they rely on Heller?

The law Skoien was convicted of breaking is a federal law and not a state law (18 USC 922(g)(9)), so the incorporation issue isn't relevant to this case.

Haven't been able to read the decision yet with everything else that is going on; but the parts Tom Servo has quoted are certainly interesting.

The implication that strict scrutiny does not imply to non-defensive firearms is interesting both in that the standard that does apply is still relatively strict and of course because it suggests that defensive firearms DO enjoy a strict scrutiny standard. It should be a very interesting case.

The cases (and progress) are starting to come quicker and quicker now... especially for those of us who remember the 1990s where a groundbreaking case was something like Thompson Centerfire Contender (which is still basically ignored by ATF) and only came once a decade.

[Brian Pfleuger]

The implication that strict scrutiny does not imply to non-defensive firearms is interesting both in that the standard that does apply is still relatively strict and of course because it suggests that defensive firearms DO enjoy a strict scrutiny standard. It should be a very interesting case.

Which also begs the question of how exactly any particular firearm would be classified as "non-defensive"? It should seem pretty simple to make an argument for ALMOST any firearm to have a potentially defensive purpose.

[RDak]

Thanks for the link Tom. (I had forgotten that that case was appealed.)

First off, I'm baffled as to why Skoien did not argue for both hunting and self-defense purposes. (Maybe because his initial statement to the probation officer was he wanted the shotgun for hunting only?)

The 7th Circuit concluded the standard of review, after Heller, was strict scrutiny for self-defense purposes and intermediate scrutiny for, I assume, all other intended uses of firearms.

Both strict scrutiny and intermediate review, according to the 7th Circuit, shift the burden of proof to the government.

The government must now show that Skoien, convicted of a misdemeanor, should be prevented from ever owning a firearm based on concrete evidence that such a prohibition has a compelling benefit to society. (The case was remanded back to the District Court.)

VERY interesting decision. I recommend everyone read it.

I simply cannot believe the sea change that has occurred in the last one and one half year. I am one happy proponent of the 2nd Amendment.

[Al Norris]

In general, I believe the circuit court got this one right.

In particular, I want to focus on footnote #5:

If strict scrutiny did apply here, there is reason to doubt whether Skoien’s conviction under § 922(g)(9) could survive Second Amendment challenge. A law subject to strict scrutiny must be narrowly tailored to achieve a compelling governmental interest. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Although “[s]trict scrutiny is not strict in theory, but fatal in fact,” id. (internal quotation marks omitted), it is an exacting standard and deliberately difficult to pass, in deference to the primacy of the individual liberties the Constitution secures. Section 922(g)(9) bars all persons who have been convicted of a domestic-violence misdemeanor from ever possessing a firearm for any reason. It is a comprehensive lifetime ban; the prohibition does not expire after a certain period of time, nor does it permit the offender to reacquire the right to possess a gun on a showing that he is no longer a danger. There are no exceptions. The statute does not require any individualized finding that the misdemeanant presents a risk of using a gun in a future crime. Skoien was caught in possession of a hunting shotgun about a year after his domestic-violence misdemeanor conviction, while he was still on probation—not five or ten or twenty years later. Perhaps that should make some difference in the analysis. But while preventing domestic gun crime is unquestionably a compelling governmental interest, United States v. Salerno, 481 U.S. 739, 749 (1987), the government has made precious little effort here to establish that § 922(g)(9)’s automatic, exceptionless, and perpetual firearms prohibition is the least restrictive means available to achieve this goal.

A careful reading of this footnote (and the way the court highlighted the text) provides valuable insight on how the defendant might challenge § 922(g)(9).

The defendant could possibly challenge the law because the only time he would "possess" a firearm would be to exercise the "right to hunt" (Heller, 128 S. Ct. at 2801). This might mean (or not) that while he could not outright own a firearm, he could temporarily possess the firearm to exercise the right.

The court seemed to agree that § 922(g)(9) would probably fail if the firearm were one the defendant used in his home for the core purpose of self-defense.

The court also seemed to be "troubled" that the restriction was a lifetime ban for a misdemeanor offense (which is a good reading of the core right, give them credit for this, guys), that is Heller indicated that possession by felons was OK, but left open the idea that misdemeanors might not be as good a reason. In this sense, the prohibition is overly broad for the type of crime committed.

However, while I can see several possible ways to get § 922(g)(9) overturned, in this case there is one mitigating fact: The defendant was on probation.

In all cases (that I have ever seen or heard about), the defendant agrees to certain conditions in order to partake of parole or probationary status. One of those restrictions is a general firearms prohibition... Whether that's a legal condition or not, is another discussion.

Here, the defendant may fail, because of that voluntary restriction.

The bottom line, as I see it, is that the general lifetime firearms disability may now be challenged based upon Heller.

[green-grizzly]

This case gives a lot more thought to the issue than any of the other appellate opinions I have read. By implication, if you have a gun in your house for self defense strict scrutiny applies.

IIRC, this was a very similar issue to what was presented in Emerson (that 5th circuit case that started this whole thing). He had a pistol, presumably for self defense, but was probhibited from having a gun because he had a protective order against him. So the reasoning in this case is an improvement. Except maybe if you are a hunter.

I wonder how those two "conservative" judges, Easterbrook and Posner, would have handled the case. I bet they would have affirmed. Maybe the DOJ will seek a rehearing with the full 7th circuit. We were fortunate in the slection of the panel; all three are Republican apppointees.

[publius42]

Just because you're hunting does not mean you won't have to defend yourself. There are wild pigs, bears, panthers, and poachers, among other dangerous critters, in the Florida woods. They're not all good to eat.

[CowTowner]

Just because you're hunting does not mean you won't have to defend yourself. There are wild pigs, bears, panthers, and poachers, among other dangerous critters, in the Florida woods. They're not all good to eat.

As is true in most "woods" I have hunted in.
However, I think intent may play a part in this. Mr. Skoien was not in possession of the firearm for defensive purposes. His intent was to hunt for food.
Hey, I've been out in left field and wrong before.

[Bartholomew Roberts]

Well, definitely a lot of food for thought in that opinion. On the negative side, I see the implication that an exercise of the Second Amendment right that falls outside the scope of how the Founders envisioned it is still a rational basis test - that leaves a great deal of room to debate what is "inside the boundaries" so to speak.

Once inside the boundaries, we have this weird sliding scale of scrutiny that increases as we approach the "core right" discussed by Heller.

Overall, I think the opinion is a plus and well reasoned. Heller was purposefully vague on a lot of issues and the court here made an effort to fairly discern what guidance might be taken from it. They also treated the Second Amendment right as a serious, fundamental, civil right - which I like.

Even after Heller, a lot of courts have relied on the dicta about firearms restrictions against felons being presumptively lawful and made no attempt at all to do the difficult analysis that this court did. The Seventh really slammed the government for their lackadaisical approach to the case. I particularly like how the Seventh noted the government's claim that it was "presuming the highest standard of scrutiny applied" in its prosecution and then proceeded to point out exactly what that level of scrutiny meant and how far the government had fallen short of meeting that burden. As rebukes go, they nailed everyone in the lower court proceedings pretty well.