Skoien

7 posts
Civil Rights

United States v. Chovan

The 9th Circuit has ruled that §922(g)(9), also known as the Domestic Violence Offender Gun Ban, does not violate the 2nd Amendment. Furthermore, they found that it continues to bar firearms ownership, even after all other civil rights have been restored.

The upshot is this:

  • Despite restoration of other civil rights, the lifetime ban on firearms ownership is constitutional
  • Intermediate scrutiny applies to 2nd Amendment challenges
  • The “core” right acknowledged by Heller applies to “law-abiding, responsible citizens to use arms in defense of hearth and home.”
  • Mr. Clovan’s misdemeanor conviction for domestic violence forever exempts him from that category.

Daniel Chovan was convicted of corporal injury on a spouse in 1996. In 2009, he attempted to buy a gun and was denied. Upon further investigation, the FBI found videos Mr. Chovan posted on YouTube in which he carried firearms while participating in improvised border patrols and fired guns across the border into Mexico.

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Civil Rights

Ezell v. Chicago: Full of Win

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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.

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Civil Rights

Ezell v. Chicago Orals

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. 

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Civil Rights

U.S. v. Williams

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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.

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Civil Rights

U.S. v Skoien Decided

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]

Civil Rights

U.S. v. Skoien To Be Reheard

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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. 

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Civil Rights

U.S. v Skoien and Review Standards

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.

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