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.
There are three levels of judicial review. Under rational basis review, the government need not prove its case very hard to uphold the constitutionality of a law. They can simply say, “a law that fines people $25 for cursing on Sundays will promote higher moral values,” and the law will pass muster. As long as it could theoretically do some good, the law would be allowed to stand.
One of the hidden victories in Heller was the fact that rational basis was rejected as a standard of review for 2nd Amendment infringements.
The other pole is strict scrutiny. Under this standard of review, a law must be narrowly tailored to serve a compelling government interest, and it must do so using the least restrictive means possible. Strict scrutiny is supposed to be invoked automatically when the matter at hand involves a natural, fundamental right (see Heller, p. 20). The 2nd Amendment qualifies for such treatment.
Intermediate scrutiny, as the name implies, falls between the two. As Judge Sykes points out, there must be some balancing between means and ends, but the law need not be as narrowly tailored as with strict scrutiny.
It’s interesting to note that Mr. Skoien argued that his right to keep a firearm for hunting was being infringed. Had he argued that it was being kept for self-defense, strict scrutiny would have been the standard:
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.
By this criteria, any law that infringes upon the right to keep arms for self-defense is subject to the strictest level of scrutiny.
For this case, the court proposes a two-step standard of review. The first step asks whether a practice under review would have been accepted as customary under the original terms of Ratification, such as keeping arms for defense.
The second step says that, if the first condition is met, then the government has a hard road to hoe in proving that a given regulation is constitutional.
So constitutional text and history come first, then (if necessary) an analysis of the public-benefits justification for the regulation follows. If the first inquiry into the founding-era scope of the right doesn’t resolve the case, then the second inquiry into the law’s contemporary means-end justification is required.
Skoien follows two disappointing rulings in the lower courts on the same issue earlier this year in U.S. v Hayes and U.S. v Wyman. This case certainly shows an interesting sea-change in doctrine since last summer:
We have previously upheld the constitutionality of § 922(g)(9) under a collective-rights interpretation of the Second Amendment. Gillespie, 185 F.3d at 711. Heller’s rejection of that understanding of the Second Amendment displaces Gillespie and requires us to reconsider the constitutionality of the statute as applied in this case.
In Gillespie v. City of Indianapolis, the court ruled, among other things, that the 2nd Amendment only applied to organized state militias and therefore, “there can be no serious claim to any express constitutional right of an individual to possess a firearm.” This verdict was quoted in U.S. v Emerson.
I don’t know the circumstances of Mr. Skoien’s initial domestic violence conviction, so I won’t speculate. Unfortunately, many court cases challenging gun control ordnances come as part of a desperate appeals package on the part of a convicted criminal.
This is why Gura’s lawsuits have been so heartening. He can present a clean slate, in which a law-abiding citizen is petitioning the government for the relief of a greivance. It’s much easier to sell such lawsuits to the populace when they’re not being spearheaded by shady characters.