Thursday, November 19, 2009
The Seventh Circuit, which spawned McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court, ruled yesterday that the federal government failed to sufficiently justify its ban on firearms for domestic violence convicts under the Second Amendment.
First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified. If the government can establish this, then the analysis need go no further. If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government's ability to satisfy whatever level of means-end scrutiny is held to apply.
Skoien, at 10 (citing Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda; Lund, The Second Amendment, Heller, and Originalist Jurisprudence; Winkler, Heller's Catch-22; and Reynolds and Denning, Heller's Future in the Lower Courts.)
As to the first part, the court ruled that Skoien's hunting shotgun was squarely within the Second Amendment's protection, relying on D.C. v. Heller's reference "to the founding-era importance of the right to bear arms 'for self-defense and hunting.'" (Quoting Heller, with emphasis added.)
As to the second part, the court ruled that intermediate scrutiny was the best standard (because Heller specified none, but suggested that neither rational basis nor strict scrutiny was the right test) and that the government failed to meet this: The government simply neglected to argue that its ban "reasonably fit" its objective to reduce domestic gun violence. (Instead, the government relied only on the dicta in Heller saying that felon dispossession laws would withstand Second Amendment scrutiny.) The court remanded with this instruction: "If the government successfully discharges its burden [under intermediate scrutiny], the district court shall reinstate Skoien's conviction."
Skoien involves a federal gun ban. It therefore says nothing about whether the Second Amendment applies against the states--the issue now before the Supreme Court.