U.S. v. Skoien To Be Reheard

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the 4th Circuit has quietly agreed with the 7th, vacating William Chester’s conviction on similar grounds in an unpublished opinion.  Though an “unpublished” opinion is not binding precedent, its very existence shows a certain amount of support for Skykes’ interpretation.

Chester pled guilty but reserved the right to appeal the merits of § 922(g)(9) on 2nd Amendment grounds.  However, his arguments were not articulated clearly, and as such, the Court did not have much to work with.

As did the Seventh Circuit in Skoien, we must remand this case for the creation of a record, one that includes argument and judicial analysis, which we, as an appellate court, can meaningfully review.  p. 3

(…) as in Skoien, if we assume possession of a firearm by a misdemeanant falls within the scope of the Second Amendment right, there is no record, argument or analysis in the district court as to why § 922(g)(9) meets “whatever level of means end scrutiny is held to apply.” We have no record as to the particular basis Chester uses to ground his claim to the Second Amendment, much less an analysis from the district court as to how or why that claim merits a particular level of constitutional scrutiny. Without such a basic underpinning in the record, we are left with the prospect of issuing an advisory opinion which is not within our province to do.  p.13

The point?  They support the 7th Circuit opinion, and they want to rule on the matter.  This could create an circuit split, and it’s a step towards gutting the Lautenberg amendment.

Back in November, the 7th Circuit ruled that Steven Skoien’s conviction under § 922(g)(9) was unconstitutional and vacated it.  Counsel for the government were told that “because it’s the law” wasn’t a good enough justification to deprive Mr. Skoien of his right to keep and bear arms.  At issue was the question of scrutiny, and the initial 3-judge panel came to an interesting conclusion.

They ruled that any law infringing on the right to keep firearms for self-defense was subject to strict scrutiny, but that the right to keep and bear arms for other purposes would be subject to a less stringent standard of intermediate scrutiny.  The government’s arguments against Mr. Skoien fit neither standard.

Heller left the issue a bit cloudy.  Though “interest balancing” and “rational basis”–the most lenient standards of scrutiny–were found inapplicable, they declined to articulate what level should apply.  They found that the 2nd Amendment protected a fundamental civil right, and as such, it should be subject to strict scrutiny.  We just lack a clear articulation of that.

If the Court finds that the 2nd Amendment is binding against the states (and I’ve little doubt they will), then they’ll have to revisit the issue.  Skoien gives a great deal of guidance.  Like Nordyke, it is a peripheral case to the matter at hand, but one that can exert great influence.