Does the right to keep and bear arms include the right to fire them?  According to today's 7th Circuit opinion [pdf], it does.

In order to keep a functional firearm in the home, Chicago residents must acquire a permit.  Part of getting the permit involves proving proficiency through a live-fire course at a range.  However, the city has an ordinance that prohibits anyone from opening a range in which the average person can do so.  Read that again.  Yep.

The 2nd Amendment Foundation sought an injunction against enforcement of the ordinance last year, but Judge Kendall upheld its constitutionality in District Court.  The case moved to the 7th Circuit in April, and they were not pleased with the city.

Stung by the result of McDonald v. City of Chicago, the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live range training as it was a thumbing of the municipal nose at the Supreme Court. [Judge Rovner's concurrence, p. 51]

Nor did they appreciate Kendall's somewhat apathetic treatment of the constitutional issues.

To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. (…) [but] The harm to [plaintiffs'] Second Amendment rights cannot be remedied by damages, their challenge has a strong likelihood of success on the merits, and the City’s claimed harm to the public interest is based entirely on speculation. [p. 3]

Arguments were heard by Judges Rovner, Kanne, and Sykes.  You may recall that the latter judge was the author of the Skoien opinion, which figures strongly in this case. All three agreed that the Chicago ordinance fails to pass any sane standard of constitutional scrutiny.

At the end of the day, the issue of building shooting ranges is peripheral: the real question is whether infringements on the 2nd Amendment must pass the same level of scrutiny as infringements on other enumerated rights.

In a way, this case is a rematch.  In one corner, we have Alan Gura, who represented us admirably in McDonald v. Chicago.  In the other corner, we have Chicago counsel James Feldman, who utterly crashed and burned in his attempts to argue the city's claims in that case.  Apparently, Feldman isn't willing to settle for one failure in front of the nation's highest court, so he's repeating it here.

The case at hand is Ezell v. Chicago, a challenge to Chicago's ban on the construction of indoor shooting ranges within the city limits.  The ban presents something of a Catch-22, due to the Responsible Gun Ownership Ordinance (also known as the "We're Cooperating As Little As Humanly Possible With The Damn Court" ordinance).  The Ordinance requires that registration of a handgun include

an affidavit signed by a firearm instructor certified by the State of Illinois to provide firearm training courses attesting that the applicant has completed a firearm safety and training course, which, at a minimum, provides one hour of range training

That's a hard thing to do when there are no firing ranges around.  Judge Diane Sykes summed it up best:

We're not talking about regulation.  This is a ban.  The city has simultaneously mandated live-fire training as a condition of licensure and prohibited it.  How can that be permissible, and not a burden of a very significant sort on the 2nd Amendment right?  [19:19]

Audio of the arguments is available here [mp3].

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.

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]

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.

Steven Skoien was indicted under § 922(g)(9) for possessing firearms after being convicted of midsdemeanor domestic violence.  He appealed, arguing that the statute under which he was convicted is unconstitutional under the terms of the Heller decision.

The 7th Circuit has agreed and is vacating his indictment [pdf] until such a time that the government can prove that its interests are in balance with the means involved.  The law in question places a lifetime prohibition on gun ownership for those convicted of domestic violence, even if only a misdemeanor.

The importance? Up until now, it has not been established what standard of review Heller implied for the constitutionality of gun laws. According to the 7th Circuit:

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.

The government's justification rested on Heller's reference to "presumptively lawful regulatory measures," to which the 7th Circuit replied, "that's not enough."  If this becomes precedent, then the burden of proof will be much more stringent upon the government when it comes to defending gun-control regulations.