United States v. Skoien, Wisconsin Carry v. Doyle, Carry Possibilities!

[Gray Peterson]

From United States v. Skoien, a recent federal case that I noticed that no one seemed to bring up here. I have underlined the particularly

important parts, but to sum it up: Possessing a firearm for self defense is now subject to what is called "strict scrutiny" in the 7th Circuit Court

of Appeals, though as of this moment, it is currently only applicable to the US government. McDonald, however, would be applying this

idea to the states and localities, causing both the Unlawful Use of Weapons and the Aggravated Unlawful Use of Weapons law to be challenged

as unconstitutional, as they function as a total prohibition on carry in the State of Illinois.

 

Here is US v. Skoien, which I have attached to this post:

 

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9)

is invoke Heller's language about certain "presumptively lawful" gun regulations—notably, felon-dispossession laws. Not so.

Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion's

reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment

rights. 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. Skoien was convicted in state court of misdemeanor

domestic battery and was placed on probation. About a year later his probation agent found a hunting shotgun

in a truck parked outside his home. 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. Applying intermediate

scrutiny, we ask whether the government has established that the statute is substantially related to an important

governmental interest. No one questions the importance of the government's interest in protecting against

domestic-violence gun injury and death. The dispute here is about the fit between this important objective

and § 922(g)(9)'s blanket ban on firearms possession by persons who have been convicted of a domestic-violence

misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the

statute's means and its end, but it must at least establish a reasonable fit. The government has done almost nothing

to discharge this burden. Instead, it has premised its argument almost entirely on Heller's reference to the

presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes

constitutional muster. That's not enough. Accordingly, we vacate Skoien's conviction and remand to the district

court for further proceedings consistent with this opinion.

 

More:

 

Moreover, although Skoien's hunting shotgun has obvious utility as a defensive weapon as well as a hunting gun, he has not keyed

his constitutional challenge to the right of self-defense identified in Heller as the core Second Amendment right.

He has claimed only that § 922(g)(9) as applied to him infringes his right to possess his hunting shotgun for

hunting. We are not suggesting that keeping and bearing firearms for hunting falls outside the scope of the

Second Amendment; to the contrary, as we have noted, Heller specifically stated that "Americans valued the

ancient right . . . for self-defense and hunting." 128 S. Ct. at 2801 (emphasis added). We make this observation only

to clarify that § 922(g)(9) as applied in this case does not strike at the heart of the Second Amendment right as

explicated in Heller. Laws that restrict the right to bear arms are subject to meaningful review, but unless they

severely burden the core Second Amendment right of armed defense, strict scrutiny is unwarranted.

 

 

Footnote 8:

 

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 "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.

 

The US Conference of Mayors Amicus Brief to the US Supreme Court also bears this fear out.

 

Still, Heller creates the alarming possibility that gang members have a Second Amendment right to carry firearms, at least if visible. Distressingly,

the Court noted that early nineteenth-century cases had understood the Second Amendment to secure a right to carry firearms openly in public. See id. at 2809.

Accordingly, if applicable to state and local governments and confined to framing-era understandings, the eighteenth-century conception of the right to bear arms

would imperil the use of stop-and-frisk tactics against drug dealers and gang members, at least as long as they carry firearms openly and have not been previously

convicted of a felony or otherwise fall within the scope of the regulatory authority acknowledged in Heller.

 

 

This would facilitate violent competition in the drug trade, terrorizing law-abiding citizens, with police left helpless as long as gang members or drug dealers do not sell drugs

or otherwise breach the peace in the view of officers on patrol. Cities could license firearms, but in the context of vehicles, this Court has held that the Fourth Amendment forbids

investigative stops to check the driver's license and registration of a vehicle absent particularized reason to believe that there has been a violation of a licensing or other law.

See Delaware v. Prouse, 440 U.S. 648, 655-63 (1979). See also City of Indianapolis v. Edmond, 531 U.S. 32, 40-48 (2000) (invalidating roadblocks to check vehicles for guns

and drugs in high-crime areas). Equally alarming, police-power justifications for limiting the right to carry firearms are given all too little sway under the Second Amendment's

eighteenth century conception of the right to bear arms. In Heller, the Court rejected Justice Breyer's view that reasonable gun-control regulations should be upheld, 128 S. Ct. at 2817 n. 27, 2821,

as well as a balancing test that would weigh the right to bear arms against police-power justifications for regulation not rooted in framing-era understandings: "A constitutional

guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all." Id. at 2821. Accordingly, if incorporated within the Fourteenth Amendment,

there is a serious risk that the eighteenth-century conception of the right to bear arms could become a critical obstacle to the cities' efforts to combat violent crime. .

 

 

Waaa waaa freaking waaa. Looks like they're fearing the idea of people OCing in Illinois post-McDonald.

 

WCI v. Doyle was also recently filed, and will likely use Skoien plus the McDonald case together to strike down Wisconsin's 1000 foot school zones ban,

which along with the "vehicle case carry" law, are the biggest impediments to open carry up in Wisconsin.

USvSkoien.pdf

WCIvDoyle.pdf

USConferenceMayorsChicagoBrief.pdf

[junglebob]

I see that Skoien hasn't his challenge to Wisconsin law with the right of self defense identified in Heller. Might the state come back an allow only firearms suitable for hunting if he wins?

[Gray Peterson]

I see that Skoien hasn't his challenge to Wisconsin law with the right of self defense identified in Heller. Might the state come back an allow only firearms suitable for hunting if he wins?

 

It was the United States of America that prosecuted Mr. Skoien, not the State of Wisconsin. He challenged a provision contained in Title 18, United States Code, Section 922. Remember that the 7th Circuit Court of Appeals decision in McDonald is still in effect, preventing application of the 2nd amendment to the states, until SCOTUS overturns that decision. Because it's purely a 2A case (as that's what's applied to the US government), this 3 judge panel is not bound by the McDonald 7th Circuit panel's decision in regards to Chicago's violation of the 14th amendment.

 

To allay your confusion, there are three standards of judicial scrutiny which applies to rights: Rational Basis, Intermediate Scrutiny, and Strict Scrutiny. The difficulty against the government is raised with each step. As Skoien only used "2nd amendment right to hunt", the 7th Circuit used "intermediate scrutiny" to determine whether or not the US government met it's burden. In fact, they made it clear that if Skoien used "self defense", he might have won his case entirely because they specifically stated self defense=strict scrutiny. As the gun was in his vehicle, and not in the home, you can take with it what they determined, as they didn't dispose of the case just because it was "outside of the home".

[johnyt101]

Will the fact the the 7th Circuit used strict scrutiny in this case be brought up in oral arguments during McDoanld?

[lockman]

Will the fact the the 7th Circuit used strict scrutiny in this case be brought up in oral arguments during McDoanld?

 

I do not know about that being brought up in orals before SCOTUS in McDonald, but if SCOTUS rules in favor of McDonald, absent a specified level of scrutiny by SCOTUS, Strict scrutiny will be the default in the 7th circuit.

[Don Gwinn]

I doubt it will come up unless a Justice brings it up for some reason. Chicago would like to make this an argument over levels of scrutiny, judging by their brief, but the NRA brief gave them a good slap for that. It's not at issue in this case, which only raises the issue of incorporation.

[johnyt101]

I know I am getting into "what ifs" here but if SCOTUS rules in our favor in McDonald and doesnt address scrutiny or the bear arms aspect of the amendment...then would that mean we are almost certain to get carry sooner rather than later?

 

If no scrutiny level is set the as posted before we could by default get strick beacuse we are in the 7th circuit. Being said there is no way Illinois complete carry ban could pass constitutional muster. So if the 7th gives us carry would SCOTUS even be inclined to hear such a case? Or would they probably take it so they can set the precedent on carry as well?

[Federal Farmer]

I doubt it will come up unless a Justice brings it up for some reason. Chicago would like to make this an argument over levels of scrutiny, judging by their brief, but the NRA brief gave them a good slap for that. It's not at issue in this case, which only raises the issue of incorporation.

 

That is why I get the feeling that McDonald will prevail on the handgun ban but the case will be tossed back down to the 7th to address the issues raised with respect to Chicago's registration scheme.

[burningspear]

United States v. Skoien -- level of scrutiny not strict. The comment is dictum. Was not the basis of the court's decision.

[lockman]

United States v. Skoien -- level of scrutiny not strict. The comment is dictum. Was not the basis of the court's decision.

 

The principals, guidance and reasoning for any decision are explained in the dicta. To ignore or relegate as irrelevant is to accept the result but not apply the same equation to the next similar sets of data.

 

The remedy in Heller was that Mr. Heller has the right to have a handgun in the home for self defense. The dicta lay out the reasoning for future courts to decide the details and limits allowed. The dicta are the guidance to future courts in the area of relevance. Devil or Divine, it is in the dicta.

[Gray Peterson]

 

That is why I get the feeling that McDonald will prevail on the handgun ban but the case will be tossed back down to the 7th to address the issues raised with respect to Chicago's registration scheme.

 

No, they will address the issues before it. They did it with Heller by requiring the "license to carry in the home" to be issued and striking "guns must be unloaded in the home" law entirely off the books. If the issue is specifically addressed in the cert petition, it will be decided on it's own facts. The SCOTUS *could* choose to not address it, but it's out of character for them.

[Federal Farmer]

This is going en banc in the 7th circuit.

http://volokh.com/2010/02/22/seventh-circuit-will-rehear-u-s-v-skoien-en-banc/