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]
They go on from there to quote sociological studies presented by plaintiffs in an effort to prove that §922 serves some compelling government interest.
The concession is prudent, and we need not get more deeply into the “levels of scrutiny” quagmire, for no one doubts that the goal of §922(g)(9), preventing armed mayhem, is an important governmental objective. Both logic and data establish a substantial relation between §922(g)(9) and this objective. [ibid]
To justify the infringement of Mr. Skoien’s rights, the Court turns to precedent allowing restrictions on the exercise of 1st Amendment rights.
Categorical limits on the possession of firearms would not be a constitutional anomaly. Think of the First Amendment, which has long had categorical limits: obscenity, defamation, incitement to crime, and others. [p. 7]
That’s a disingenuous comparison. A law that prohibits me from making stag films doesn’t bar me from other freedoms of the press. Even if I were convicted of obscenity, I would still have the right to exercise the other (“core”) facets of the 1st Amendment, such as freedom of the press and the right to petition for the redress of grievances.
However, a conviction under the Lautenberg Amendment rescinds any exercise of any of my 2nd Amendment rights, for the rest of my life. While I have little sympathy for violent felons, much less those who harm loved ones, the provisions of §922 affect even those convicted of the least offensive misdemeanor. The provisions are overbroad and leave no avenue for rehabilitation and reinstatement of rights.
(Oddly enough, the 7th Circuit relies on the 2010 Stevens case for precedent, which is a bit ironic since the Court found the law in question to be “a criminal prohibition of alarming breadth.”)
This may not have been the ideal test case for §922, and unless a similar case is decided differently in another Circuit, I doubt we’ll see this appealed to the Supreme Court. Nonetheless, there are several challenges pending, most of which are in California.
The Nordyke case, which was on hold pending the outcome of McDonald, is now back in play. Plaintiffs in Nordyke seek further clarification of the “sensitive places” language in Heller. Following disposition, Skykes v. Mcginness will challenge arbitrary and restrictive carry licensing, and Peña v. Cid challenges the validity of California’s Certified Handgun Roster.
Despite the setback, our prospects look good going forward.