US vs Skoien decision in

mack59 · July 13, 2010, 01:08 PM

http://www.ca7.uscourts.gov/fdocs/do...8-3770_004.pdf

Intermediate scrutiny for a fundamental right - lifetime ban for a misdemeanor okay - the court comes up with the evidence to support/make the governments case - the court dismisses as dicta all parts of Heller decision except reasonable restrictions. Lovely. Since I believe this is the circuit and the judges who will hear the lawsuits over the new Chicago gun laws it looks like they will be held constitutional and have to be appealed to the USSC again - if they will grant cert.

Seventh Circuit - rules 2nd applys only to keeping a hangun in the home subject to reasonable restrictions as determined by legislation.

Wildalaska · July 13, 2010, 01:39 PM

I think you read the decision wrong.

WildlookatthefactsaspresentedAlaska ™

DogoDon · July 13, 2010, 02:13 PM

Judge Sykes's dissenting opinion eloquently points out just how far the majority was willing to go to help out the government's case here. This decision is a farce.

Perhaps in the end the "right" answer may be that Skoien at least currently can be denied the right to possess a firearm without violating the 2nd amendment, but the way the 7th Circuit reaches that result is an awful thing to behold.

DD

Gary L. Griffiths · July 13, 2010, 03:53 PM

I somehow have difficulty finding too much fault with the court's decision to uphold a firearms possession charge against a twice-convicted violent criminal (albeit not felon) who acknowledged in writing that he understood he was prohibited from possessing a deadly weapon.

But that's just me.

**Tom Servo** · July 13, 2010, 03:55 PM

As the first major post-McDonald case, this is very disappointing.

The comparison between 1st and 2nd Amendment regulations is particularly disingenuous. A person convicted of obscenity is not prevented from ever exercising his 1st Amendment rights in any manner. He still has freedom of the press (just not to make stag films) and the right to petition for redress of grievances.

Yet Mr. Skoien is prohibited for the rest of his life, from exercising his 2nd Amendment rights in any form because of this regulation.

There's a big difference there.

DogoDon · July 13, 2010, 04:25 PM

Quote:

Yet Mr. Skoien is prohibited for the rest of his life, from exercising his 2nd Amendment rights in any form because of this regulation.

But didn't you read the majority's suggestion that he could have his conviction expunged or even be pardoned, and then be good to go? Right!

Bartholomew Roberts · July 13, 2010, 04:41 PM

Great dissent from Judge Sykes. I'm kind of mixed on this one... on the one hand, I don't think the Seventh Circuit majority had a good, logical legal basis for their decision. On the other, Skoien wouldn't be my choice for the guy to challenge the domestic violence prohibition - so seeing him shot down (and in a decision with poor analysis and no real attempt made to apply scrutiny no less) makes me think the door is still open for some better appellant to bring a case later.

It will be interesting to see if Skoien appeals to SCOTUS and whether he gets cert.

KyJim · July 13, 2010, 09:21 PM

Quote:

On the other, Skoien wouldn't be my choice for the guy to challenge the domestic violence prohibition - so seeing him shot down (and in a decision with poor analysis and no real attempt made to apply scrutiny no less) makes me think the door is still open for some better appellant to bring a case later.

The majority opinion specifically left open the possibility that someone well-behaved for an extended period of time could challenge the lifetime ban. That is troubling because it means the court would go far beyond the statutory language and craft exceptions of it's own choosing -- judicial activism at it's worst. The statute should simply be struck down as being over broad on its as a lifetime ban and then leave it to Congress to establish time limits or other reasonable limitations on the statute.

Quote:

It will be interesting to see if Skoien appeals to SCOTUS and whether he gets cert

I'm betting the Supreme Court is going to wait awhile for the lower courts to wrestle with the issues before stepping in. This provides a clearer picture of the issues and greater input from the various Courts of Appeals and other authorities.

vranasaurus · July 14, 2010, 07:46 AM

The dissent makes a great point that the majority fails to make the government carry it's burden and that the proper forum for making the government do that is the district court.

Skoein being a less than sympathetic character is not the basis for upholding the law. Many criminals, whose crimes are far worse than domestic violence, have been let go on 4th amendment grounds. If the 4th amendment were examined in a way similar to the majorities opinion we could say that even though the 4th amendment protects a person from unreasonable and warrantless search and siezure this guy is clearly a bad guy so a search even though warrantless and unreasonable is ok.

I don't think the lautenberg amendment would withstand strict scrutiny. However, the prohibition on those with DV restraining orders probably will. In most cases DV orders are temporary, imposed after due process is given, and involve those offenders who have most recently committed the crimes.

The government has a compelling interest in stopping domestic violence. Prohibiting those convicted of misdemeanor DV assault is a very broad brush and does not take into account a persons actual dangerousness or propensity to committ the acts the government has an interest to prevent. The DV order subset invovles a much narrower set of offenders and usually involves those who have most recently committed DV Assault.

Now if congress changed the lautenberg amendment to only a 5 year ban I am certain it would be considered consitutional under any standard.

mack59 · July 14, 2010, 10:10 AM

For some more possible insight into the damage to the RKBA done by this decision see the analysis here:

http://joshblackman.com/blog/?p=4861

http://joshblackman.com/blog/?p=4869

Also discussion on Volokh Conspiracy legal blog

Basically the 7th circuit seems to have adopted the view of the minority in Heller and McDonald and applied a balance test just like Justice Breyer wanted and as was explicitly rejected by the Majority in their rulings. This essentially sets a precendent that could justify almost all gun control laws.

July 13, 2010, 01:08 PM	#1
mack59 Senior Member Join Date: July 14, 2004 Posts: 447	US vs Skoien decision in http://www.ca7.uscourts.gov/fdocs/do...8-3770_004.pdf Intermediate scrutiny for a fundamental right - lifetime ban for a misdemeanor okay - the court comes up with the evidence to support/make the governments case - the court dismisses as dicta all parts of Heller decision except reasonable restrictions. Lovely. Since I believe this is the circuit and the judges who will hear the lawsuits over the new Chicago gun laws it looks like they will be held constitutional and have to be appealed to the USSC again - if they will grant cert. Seventh Circuit - rules 2nd applys only to keeping a hangun in the home subject to reasonable restrictions as determined by legislation.

July 13, 2010, 03:53 PM	#4
Gary L. Griffiths Senior Member Join Date: April 7, 2000 Location: AZ, WA Posts: 1,466	I somehow have difficulty finding too much fault with the court's decision to uphold a firearms possession charge against a twice-convicted violent criminal (albeit not felon) who acknowledged in writing that he understood he was prohibited from possessing a deadly weapon. But that's just me. __________________ Violence is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and valorous feeling which believes that nothing is worth violence is much worse. Those who have nothing for which they are willing to fight; nothing they care about more than their own craven apathy; are miserable creatures who have no chance of being free, unless made and kept so by the valor of those better than themselves. Gary L. Griffiths (Paraphrasing John Stuart Mill)

July 13, 2010, 03:55 PM	#5
Tom Servo Staff Join Date: September 27, 2008 Location: Foothills of the Appalachians Posts: 13,059	As the first major post-McDonald case, this is very disappointing. The comparison between 1st and 2nd Amendment regulations is particularly disingenuous. A person convicted of obscenity is not prevented from ever exercising his 1st Amendment rights in any manner. He still has freedom of the press (just not to make stag films) and the right to petition for redress of grievances. Yet Mr. Skoien is prohibited for the rest of his life, from exercising his 2nd Amendment rights in any form because of this regulation. There's a big difference there. __________________ Sometimes it’s nice not to destroy the world for a change. --Randall Munroe

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July 13, 2010, 01:39 PM	#2
Wildalaska Junior member Join Date: November 25, 2002 Location: In my own little weird world in Anchorage, Alaska Posts: 14,172	I think you read the decision wrong. WildlookatthefactsaspresentedAlaska ™

July 13, 2010, 02:13 PM	#3
DogoDon Senior Member Join Date: January 8, 2010 Location: Charlotte, NC Posts: 368	Judge Sykes's dissenting opinion eloquently points out just how far the majority was willing to go to help out the government's case here. This decision is a farce. Perhaps in the end the "right" answer may be that Skoien at least currently can be denied the right to possess a firearm without violating the 2nd amendment, but the way the 7th Circuit reaches that result is an awful thing to behold. DD

July 13, 2010, 04:41 PM	#7
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	Great dissent from Judge Sykes. I'm kind of mixed on this one... on the one hand, I don't think the Seventh Circuit majority had a good, logical legal basis for their decision. On the other, Skoien wouldn't be my choice for the guy to challenge the domestic violence prohibition - so seeing him shot down (and in a decision with poor analysis and no real attempt made to apply scrutiny no less) makes me think the door is still open for some better appellant to bring a case later. It will be interesting to see if Skoien appeals to SCOTUS and whether he gets cert.

July 14, 2010, 07:46 AM	#9
vranasaurus Senior Member Join Date: November 16, 2008 Posts: 1,184	The dissent makes a great point that the majority fails to make the government carry it's burden and that the proper forum for making the government do that is the district court. Skoein being a less than sympathetic character is not the basis for upholding the law. Many criminals, whose crimes are far worse than domestic violence, have been let go on 4th amendment grounds. If the 4th amendment were examined in a way similar to the majorities opinion we could say that even though the 4th amendment protects a person from unreasonable and warrantless search and siezure this guy is clearly a bad guy so a search even though warrantless and unreasonable is ok. I don't think the lautenberg amendment would withstand strict scrutiny. However, the prohibition on those with DV restraining orders probably will. In most cases DV orders are temporary, imposed after due process is given, and involve those offenders who have most recently committed the crimes. The government has a compelling interest in stopping domestic violence. Prohibiting those convicted of misdemeanor DV assault is a very broad brush and does not take into account a persons actual dangerousness or propensity to committ the acts the government has an interest to prevent. The DV order subset invovles a much narrower set of offenders and usually involves those who have most recently committed DV Assault. Now if congress changed the lautenberg amendment to only a 5 year ban I am certain it would be considered consitutional under any standard.

July 14, 2010, 10:10 AM	#10
mack59 Senior Member Join Date: July 14, 2004 Posts: 447	For some more possible insight into the damage to the RKBA done by this decision see the analysis here: http://joshblackman.com/blog/?p=4861 http://joshblackman.com/blog/?p=4869 Also discussion on Volokh Conspiracy legal blog Basically the 7th circuit seems to have adopted the view of the minority in Heller and McDonald and applied a balance test just like Justice Breyer wanted and as was explicitly rejected by the Majority in their rulings. This essentially sets a precendent that could justify almost all gun control laws.