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Posted 08 February 2010 - 08:47 AM
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:
Quote
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.
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:
Quote
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.
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:
Quote
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.
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.
The US Conference of Mayors Amicus Brief to the US Supreme Court also bears this fear out.
Quote
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. .
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.
Attached File(s)
-
USvSkoien.pdf (177.47K)
Number of downloads: 33 -
WCIvDoyle.pdf (179.25K)
Number of downloads: 23 -
USConferenceMayorsChicagoBrief.pdf (228.87K)
Number of downloads: 26
MultiQuote
