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Old November 18, 2009, 07:49 PM   #1
Tom Servo
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 12,158
U.S. v Skoien: A review standard for Heller?

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.
Sometimes it’s nice not to destroy the world for a change.
--Randall Munroe
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