Adam Williams was convicted in Indiana for distribution of narcotics and possession of a firearm as a felon in 2008.  He chose to appeal his conviction to the 7th Circuit on several points, one of which was the constitutionality of § 922(g)(1).  The section in question bars convicted felons from owning firearms.

The Court's opinion is here [pdf].  Williams based his appeal in part on the Skoien decision, which has since been remanded.  The Court considered the applicability of that case in the current proceedings and found it wanting:

And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1). [p. 16]

Skoien considered the question of a misdemeanant, not a felon.  Furthermore, there is a big difference between a felony conviction for writing a few bad checks and one for violence.  Under the Skoien doctrine of "intermediate" scrutiny (and perhaps even strict scrutiny), the court finds that a ban on firearms possession by violent felons passes muster. Part of me agrees.

The 2nd Amendment Foundation is spearheading a lawsuit [pdf] to challenge Maryland's rigid scheme on the issuance of concealed carry permits.  In short, a civilian seeking a permit for "personal protection" must show "documented evidence of recent threats, robberies, and/or assaults, supported by official police reports or notarized statements from witnesses."

Plaintiff Raymond Woollard should therefore meet the criteria.  According to the complaint, his home was broken into on Christmas Eve, 2002.  Woollard was beaten by the intruder, and it took police over two hours to respond to his wife's 911 call.  His assailant was sentenced to probation at first, then imprisoned after assaulting a police officer.

Upon the assailant's release only three years later, Mr. Woollard was issued a permit.  In 2009, his renewal was denied by the defendants, who cited a lack of evidence to "support apprehended fear (i.e. - copies of police reports for assaults, threats, harassments, stalking).”

The man who assaulted Mr. Woollard in his home now lives three miles from him.  If that doesn't qualify as "apprehended fear," I'm not sure what does.

We've got our first post-McDonald decision [pdf], and it's a bit of a disappointment.  Judge Skyes' original decision, in which the 7th Circuit had applied strict scrutiny to the "core right" of the 2nd Amendment and "intermediate" scrutiny to the rest, has been overturned.

The Heller dicta regarding "presumptively lawful" regulations and "longstanding prohibitions" were on full display here.  I worry that those two phrases will continue to cause us trouble into the foreseeable future.

For now, the constitutionality of §922(g)(9) (the Lautenberg Amendment) still stands, and the bar for scrutiny has been lowered from strict to intermediate scrutiny across the board:

The United States concedes that some form of strong showing (“intermediate scrutiny,” many opinions say) is essential, and that §922(g)(9) is valid only if substantially related to an important governmental objective.  [p. 8]

So, we won. Or did we?

As David Cohen points out, Chicago theoretically won on both arguments.  The margins can be interpreted more than one way.  In essence, this case was an 8-1 loss for Gura's Privileges or Immunities argument.  Given that Justice Thomas’ vote was for PorI, we can also see this as a 4-5 loss for Due Process incorporation.

I’m going to throw temperance to the wind for a moment and suggest that Clarence Thomas is the only Justice currently sitting with a spine.

We did achieve a very important philosophical victory, but the practical ramifications remain to be seen.

The 7th Circuit's decision in McDonald v. Chicago has been reversed by the Supreme Court and remanded for further proceedings.  That means we won.

To some extent, that is.

The ruling [pdf] was a narrow 5-4 decision, and the 2nd Amendment has been incorporated against the states through the Due Process clause of the 14th.

We get incorporation, but Slaughterhouse stands.

Just yesterday, the Gun Owners of America was castigating the NRA for supposedly "selling out" other gun organizations by carving themselves an exemption from the provisions of HR 5175 (also known as the DISCLOSE Act).  Today, they're taking credit for killing the thing.  Go figure.

The NRA's "carve out" exemption was the poison pill that killed the act.  The 1st Amendment is at best a tangential issue for the NRA, but in this case, they had to get involved to protect the interests of their membership.  Getting directly involved in a 1st Amendment battle takes …

Apparently, some folks are unhappy with the NRA's actions leading up to the passage of SB 308.  In fact, they're so riddled with angst, they're quitting the NRA and urging others to do so.

Why?  The claim is that the NRA withdrew their support for the bill because the language re-legalizing carry in the insecure areas of Hartsfield-Jackson International Airport was stripped from the final version.   Allegations have been made that NRA lobbyists pressured Senators to vote against the bill, and that they attempted to "sabotage" it.

As far as I can gather, this comes from three sources:

a poorly-written article with a misspelled title
a claim from an organization that's voiced hostility to the NRA before, and
the utterances of two Senators who were opposed to the bill's passage.

Of course, none of the three people who foamed at the mouth to me about it in person could tell me exactly what was said, who said it, or in what context it was said.

Well, if you're making a claim like that, I'd expect proof, not hearsay.

Some folks may remember last summer's dust-up over this. There was a bill before Congress to get the District of Columbia a seat in the House. John Ensign tacked the Second Amendment Enforcement Act onto it, and it became something of a poison pill. Democrats were unable to excise his amendment, and if the District was to get a house seat, they'd have to comply with the Heller ruling.

Rather than risk abandoning the District's unconstitutional and disastrous regulations, Congress chose to simply drop the whole matter completely.

Well, history repeats itself, though rarely this quickly. …

Long story short, with the exception of Breyer, there appears to be no significant opposition to incorporation through Due Process.  With the exception of Ginsburg, the Court showed no interest in revisiting the Privileges or Immunities clause.

So, it's a win, but only for the 2nd Amendment. Although Slaughterhouse and Cruikshank stand for the time being, incorporation here will whittle away at them, as it did in Gitlow and Benton.

The transcript [pdf] is up here. Josh Blackman was there, and has his commentary here.

I was saddened to see how quickly Scalia and Roberts dismissed the idea of overturning Slaughterhouse. I'd worried that Scalia would be opposed to revisiting Privileges or Immunities, and I was sadly proven right.

Regarding selective incorporation, a doctrine he's been wary of in the past, Scalia said, "As much as I think it's wrong, even I have acquiesced in it."

Breyer's "imaginary importance of ordered liberty chart" is truly a surreal idea. He tried to get a few digs in at the Heller majority but failed. He did his best to waste some of Gura's time with irrelevancies.

Oral arguments are tomorrow morning at 10:00 EST.  Check for transcripts after lunch.

Though they did so in Heller, the Court has chosen not to allow a recording of the proceedings.  I'd have hoped that, with Souter gone, the Court would consider broadcasting, but that appears not to be the case.

Though the Justices' minds are likely made up at this point, the tenor and nature of their questions may give us an idea where they lean.  It should be fun to see Chicago counsel dissemble while trying to pretend Heller didn't mean what it said.

They're …

News comes from Eugene Volokh that the 7th Circuit wants the Skoien case reheard en banc.  There are two possibilities here.

The first is that there was widespread disagreement with Judge Sykes' decision, and that the others on the panel hope to reverse it should we lose the McDonald case.  This would be similar to the Nordyke situation, in which the initial decision was similarly remanded pending the Supreme Court's decision.

The second possibility is that they want to try for a more lenient standard of scrutiny, which seems unlikely.  Heller took rational basis off the table, and Sykes' opinion was as close to "intermediate" scrutiny as could be workable.  All that remains is strict scrutiny for the 2nd Amendment.

Maybe, just maybe, there's actually support for that.  We'll have to wait and see.

In the meantime, the 4th Circuit has quietly agreed with the 7th, vacating William Chester's conviction on similar grounds in an unpublished opinion.  Though an "unpublished" opinion is not binding precedent, its very existence shows a certain amount of support for Skykes' interpretation.

Well, it looks like I agree with Sarah Brady on one thing, at least.

The Brady Campaign gave President Obama an "F" rating on gun-control issues in a report issued this week [pdf].

In just one year, Barack Obama has signed into law more repeals of federal gun policies than in President George W. Bush’s eight years in office. From the repeal of Reagan Era rules keeping loaded guns out of national parks to the repeal of post-9/11 policies to safeguard Amtrak from armed terrorist attacks, President Obama’s stance on guns has endangered our communities and threatened our national security.

That first sentence is particularly telling.  Obama knows the new truth when it comes to gun control:  paying lip service to it is a great rhetorical ploy, but attempting to follow through is political suicide.  Now he's in a rather unenviable position: he was expected to support gun control, but he lacks the wherewithal to do so.  As such, he's being branded a turncoat by the very people who put him into office.

Wait until the health-care bill tanks, and we'll really see sparks.  The last half of his term isn't going to be very chipper.