For those in the extremist gun lobby and the libertarian right who view the Supreme Court's recent Second Amendment rulings as assault weapons ready to blow holes in America's gun laws, the Seventh Circuit's ruling this week in U.S. v. Skoien must be a bitter pill.
Skoien is no doubt the most significant lower court ruling on the Second Amendment since the Supreme Court's decision in District of Columbia v. Heller two years ago recognizing the right of individuals to have guns in the home for self-defense. The Seventh Circuit heard the case en banc (i.e. with all eleven judges sitting) and, by a vote of 10-1, upheld the conviction of Steven Skoien for violating the federal law barring possession of guns by individuals with misdemeanor convictions for domestic violence. Skoien, like many other convicted gun criminals, saw Heller as a way to avoid punishment by seeking to strike down as unconstitutional the law he had violated.
The Skoien ruling is a bucket of cold water thrown on the "gun rights" celebration following the Supreme Court's decision last month in McDonald v. City of Chicago striking down Chicago's handgun ban.
First, because appeals courts rarely sit en banc, seldom do they rule by such lopsided majorities. In sports terms, this one was a rout. More importantly, the 10-judge majority reflected the full sweep of the ideological spectrum. The majority opinion was written by Judge Frank Easterbrook, a leading conservative jurist and intellectual, and joined by six judges appointed by Republican Presidents and three appointed by Democratic Presidents.
Second, the restriction on gun ownership under attack in this case was not among those specifically blessed by the Heller majority as "presumptively legal," even under Heller's newly-discovered right to guns for self-defense. Whereas Heller had said "nothing in our opinion should cast doubt on longstanding prohibitions on the possession firearms by felons and the mentally ill" (among other "presumptively lawful" restrictions), it said nothing about misdemeanor domestic violence offenses.
Significantly, Judge Easterbrook's opinion reads the Heller language not as created a "comprehensive code" of permissible regulations, but rather as standing for the broader proposition that it remains proper to bar gun possession by some categories of persons, "leaving it to the people's elected representatives the filling in of details." Since the core of state and federal gun regulation has long been directed to keeping guns out of the hands of defined categories of dangerous people, this degree of legislative leeway promises to make gun control largely safe from successful constitutional attack. For example, it suggests that reasonable ways of enforcing these categorical prohibitions (like extending Brady Law background checks to private shows at gun shows and elsewhere) remain unthreatened by the new Heller right.
Third, the Seventh Circuit rejected any suggestion that Heller's reference to the presumptive legality of "longstanding" restrictions means that only those restrictions on the books in 1791 are currently permissible. After all, as the Circuit Court pointed out, even the "presumptively legal" prohibition on possession of guns by felons was not passed by Congress until 1938. Judge Easterbrook might also have added that it would be incongruous to allow as constitutionally permitted only the laws in place at the founding, when the Heller Court made handguns constitutionally protected because they are commonly owned for self-defense at the present time. That was not the case back in 1791.
Finally, for the court in Skoien, the constitutional test was not historical in nature, but rather was whether the statute at issue is "substantially related" to its objective of "preventing armed mayhem." The court had no trouble concluding that "both logic and data" demonstrate the lifesaving importance of barring domestic abusers from having guns. The court cited studies showing that domestic assaults with guns are far more lethal than assaults with other weapons, that guns in the home increase the risk of homicide, and that guns in the homes of domestic abusers are particularly a threat to police responding to domestic violence calls.
The Seventh Circuit's approach suggests that Second Amendment challenges will end up showcasing the impressive research, particularly by the public health community, documenting the devastating toll of gun violence on families and communities, as well as the importance of strong gun laws to public health and safety. Showcasing the importance of gun laws is not exact what the "gun rights" folks had in mind when they were celebrating the Heller decision two years ago.
It is easy to understand why libertarian bloggers like Josh Blackman are upset about the Skoien ruling, which he cites as evidence of the "epic failure" of both Heller and McDonald to truly establish a constitutional basis for the gutting of America's gun laws. Blackman frets that Judge Easterbrook's opinion in Skoien sets forth "a framework that will likely be relied upon by most courts." If he's right, and I think he is, strong gun control laws have little to fear from the Second Amendment.
For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)
Kaile Shilling: Fewer Guns in Public Means More Freedom
". . . automatically any time an enumerated right is involved. We do not treat First Amendment challenges that way. Strict scrutiny is triggered by content-based restrictions on speech in a public forum, but content-neutral time, place, and manner restrictions in a public forum trigger a form of intermediate scrutiny. . . . [more examples]
"Because § 922(k) was neither designed to nor has the effect of prohibiting the possession of any class of firearms, it is more accurately characterized as a regulation of the manner in which persons may lawfully exercise their Second Amendment rights. . . .
"Regulations of the manner in which that speech takes place, however, receive intermediate scrutiny, under the time, place, and manner doctrine. Accordingly, we think § 922(k) also should merit intermediate, rather than strict, scrutiny. . . .
"Accordingly, preserving the ability of law enforcement to conduct serial number tracing—effectuated by limiting the availability of untraceable firearms—constitutes a substantial or important interest.
"Section 922(k) also fits reasonably with that interest in that it reaches only conduct creating a substantial risk of rendering a firearm untraceable."
So the precedent is developing -- established First Amendment caselaw on time, place and manner restrictions will apply to laws that regulate keeping and bearing firearms. Good news for people living in states that issue carry licenses based on a showing of "cause"!
Cold water!
"The Government argues a rational basis test should apply to § 922(k), but Heller rejects that standard for laws burdening Second Amendment rights. . . .
"Marzzarella, on the other hand, contends we must apply strict scrutiny because the right to bear arms is an enumerated fundamental constitutional right. Whether or not strict scrutiny may apply to particular Second Amendment challenges, it is not the case that it must be applied to all Second
Amendment challenges. Strict scrutiny does not apply
Pre-existing rights are also known as "God-given" or "Natural" rights. Meaning that they arise from the nature of our existence as human beings or are given to us by a higher power, depending on one's point of view. Not being given my human agency they can not be removed by human decisions either. http://en.wikipedia.org/wiki/Natural_and_legal_rights
Life, liberty and property were identified as the primary natural rights during the English enlightenment.
Life is a right by the very nature of our existence.
Liberty means the freedom to use our life as we see fit.
Property is defined as the means to sustain life.
Cruikshank vs US -- "The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall in 22 U. S. 211, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The Government of the United States, when established, found it in existence, with the obligation on the part of the States to afford it protection"
"The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference."
"The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress."
How would that affect things if there were only nine Bill of Rights amendments, excluding the RKBA? How would that affect legislatures who wish to ban arms?
The Constitution, and more to the point the Bill of Rights, considers most rights to be pre-existing. They are considered to be either natural or God given, depending on one's philosophy. Therefore, "God given rights" most certainly are Constitutional and protected by the BoR.
lets say the 2nd was as clear as the first..or clearer...
"defense of the the inalienable right to life and the ownership and use of arms shall not be denied to any citizen and we shall make no law that infringes or mitigates this right...."
even written this way a lot of gun control groups would still be screaming about what it means and the limits it puts on you and the president was shot and do it for the kids and that gun is scary looking and that gun can shoot a mile...yadda yadda yadda...
and it makes it more divisive because it would seem to say that you cannot restrict any ones right to protect themselves with a gun...
but clearly a person convicted of a felony under current law is supposed to lose the right to own a gun and the right to vote...but said person does not give up the right to self defense because of a conviction...surely one is not supposed to stand by and watch as a loved one is brought to death by the heinous act of another simply because you made a mistake in your life..one which you have paid for already...but we do disadvantage people in just that way..i am not up on cases which have been brought to trial but it seems that this would make an excellent civil rights case.
Gun prohibition will be as effective as prohibition of anything desired by a significant number of citizens. The bad guys will have guns. But so will the good guys, who own guns for protection or whatever will still have guns.
I know you guys interpret what gun control advocates say as having a secret meaning, but I think a ban on guns is something you're really not worried about.
The gun control advocates want regulation. The gun rights people want regulation.
It's fun to argue but isn't there a lot of common ground between the two camps. A lot of issues that are splitting Americans into camps can be negotiated. The issues can be narrowed.
Maybe demonization is more fun.
If firearms are prohibited, the good guys will not have firearms.
I'm not so sure. "Good guys vs. Bad guys" I'll define by what they choose to do, as in how they use the firearm ("Assault" is a behavior, not an object" as the say about the AWB). Good guys can still own them when they're illegal; they don't agree with the blanket ban, they don't intend any harm. It's unfortunate if their lives are ruined by being caught not harming anyone.
my position is not the same as every pro-rkba person...
i will take all the tests you want as long as you or the gun control crowd pays for them...these tests must not be biased in any way...and must be administered by a non interested third party with no agenda...these tests must not discriminate in any way...any one from age 18 may take the test....after passing the test you are fingerprinted and given your national ccw card...at which time it will be legal for you to carry the gun of your choice anytime and anywhere in the 50 states....
i am all for you type of regulation if it leads to more freedom with my gun not less...but that is not what you want is it....
What I have been focusing on is the input from folks here, most of whom support gun rights in some form. I'm trying to reconcile it with the decisions by the court in support of the principle of regulation but which reserves their right to intervene.
I might go for that. A sort of federal law over all the states, to resolve difficult issues.
the "carry license" should have nothing to do with ownership of what sort, just as a driver's license has nothing to do with ownership, and you may own whatever sort of monstrously non-road-legal vehicle you want, it just can't be driven on public tax supported roads.
I might even suggest a federal grant to let people get top-quality training and a carry piece... Probably more effective at deterring crime than hiring more police.
Maybe $150 K per police officer per year, versus at most $5K per civilian per year, and probably less, since the good tactical classes are a couple thousand (say, every other year?), and regular maintenance of skills wouldn't be that much between updates of your license.
Do you think such displays advance or inhibit persuasion of those who are open-minded about gun issues. Do you think that the folks who pack heat openly on occasions when heat isn't normally needed advance the cause?
As long as the firearms are carried in full compliance with the law, not brandished, then I see this in the same way as burning the US flag as political protest -- it is protected free speech. Not everyone may like it, but there it is.
"Do you think such displays advance or inhibit persuasion of those who are open-minded about gun issues. "
Depends on how it is done. For example the recent display at Hermosa Beach in California was done in a very positive manner.
"Do you think that the folks who pack heat openly on occasions when heat isn't normally needed advance the cause? "
They can. But some people are going to be scared regardless. Those who are not scared by the mere sight of a firearm are likely to say, "you know, I keep seeing people carrying and nothing bad seems to be happening."
That they had the right to burn the flag is indisputable. And so, apparently did the pistol packers have the right to order lattes without worrying about being assaulted. But did the Starbuckers engender more support than ridicule? It would be an interesting poll question.
If it were demystified, how did that advance public support for whatever the pistol packers have in mind? And what did they have in mind?
"There has been a spate of particularly brutal and senseless attacks on the police," said O'Donnell, a former police officer and prosecutor in New York. "It seems to me, an unprecedented level of disrespect and willingness to challenge police officers all over the place." He said a rise in mental health problems and scathing criticism of police, such as the comments found on some blogs, could be fueling the brazenness and disregard for authority.
John Firman, director of research at the Alexandria, Va.-based International Association of Chiefs of Police, said his group is working to reduce rampant gun violence to which officers find themselves responding.
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/21/AR2010072100092.html
certainly states such as vermont and maine impose no restrictions on its citizens having firearms...they also seem to hate militias and standing armies as well....since they recognize the right to own a gun without any service to the government are they not in violation of the 2nd according to the left leaning gun banners who believe that the 2nd is all about the militia....
http://www.nraila.org/statelawpdfs/VTSL.pdf
http://www.nraila.org/statelawpdfs/MESL.pdf
I still have it.
From the JPFO: "Anyone who can't be trusted with a firearm, shouldn't be trusted to walk freely unsupervised in civilized society" or to vote, or drive, or to raise children, I'd say.
Many under the age of 18, some as young as 12 I'd trust before many "adults" I know.
would you please post a link to the scotus ruling in which the majority of justices stated unequivocally that the 2nd amendment is a collective right and applies only to the states and not the individual...
i will wait.....
thanks
scott
Oh, and sorry you have to wait so long.
as i have said before we were carrying guns when we landed at plymouth rock..
we have carried and used them for all purposes both good and bad for at least 300 years on this continent...
if history is an indicator of precedent then surely the pro-rkba crowd has way more standing than the anti-gun crowd...
Then along comes this decision by predominantly Republican appointed judges, who state, in effect, "Well, not so much." They state legislatures can add ifs, and, and buts.
So, what is the argument to be used when gun advocates are fighting legislatures interested in gun regulation? Certainly, they cannot say, the Second Amendment prohibits legislatures from regulating gun ownership and use. Or, can they? At best, the gun guys have case law, including this case law.
It appears the judiciary and the legislature can call the shots (so to speak). The Second Amendment has been downgraded to mere historical inspiration, a vague expression of the regard the framers had for arms back in the militia days.
If you're asking me whether I think the Second Amendment precludes such regulation, the answer is: no.
If you're asking me if I think organizations like the NRA have become too dependent upon an interpretation of the Second Amendment consistent with their resistance to gun regulation, I would say yes.
The NRA looked for a shortcut to resisting gun regulation. They will now have to develop their defense on the basis of merit. And, that may be turn out to be a good thing for the NRA. They have been lumped together with gun rights absolutists. And that has turned off moderates, who believe in regulation. They now can go after middle-of-the-roaders on an issue by issue basis. They are better off arguing that a particular gun regulation doesn't make sense, rather than the argument the state can't do this because of the Second Amendment. There are some pretty clever folks at the NRA; they have been seeing the writing on the wall for years. Their supporters, not so much.
No Guns for You — You’ve Slammed Doors Very Hard
Eugene Volokh • July 19, 2010 3:47 pm
In a few states — including New Jersey — people need a license to even get a firearm to keep at home, and the police may deny such a license if they think the person poses a danger to others. This isn’t limited to getting concealed carry licenses; it applies to having a gun in the first place. And it isn’t limited to people who have been convicted of a felony or a violent misdemeanor, or even to people who have been found by a preponderance of the evidence to have committed or threatened violent acts (that’s the standard usually used for domestic restraining orders).
The State of New York requires a license to possess any handgun, however, even in the home. (There are a couple exceptions but they generally and/or realistically do not apply to private citizens.)
7 years ago, in my last year of law school, we put on a small symposium on the Second Amendment. We invited Nelson Lund from George Mason, and we also invited Mr. Hennigan to speak.
Mr. Lund *began* by saying that the truly significant issue is going to be the standard of review. He said that as a textual matter it was clear the 2A concerned an individual right because of the federal government's control over the militia provided in Articles I and II. The intention could not possibly have been to protect state militias against the federal government--it would contradict Articles I and II of the Constitution. Mr. Hennigan's response (I am not making this up): He draw a line between the two clauses of the Second Amendment and said, "well, there *are* two clauses." That was it. He then segwayed into an argument centered on the fact that the NRA contributes money to George Mason University.
So here's the comic irony: Does Mr. Hennigan really not recognize the significance of the Seventh Circuit's decision? The significance is the standard of review, which even before Heller is what was understood to be the ultimate, dispositive issue. And I know for a fact that people have directly told Mr. Hennigan this.
If he does recognize the significance of it, why is he claiming that it is a victory for the BC? What's the agenda?
George Mason University is funded by the billionaire Charles Koch. He also funds Representative Todd Tiahrt, Tiahrt Amendment. Mr. Koch spends a lot to deregulate not only the oil business, but the gun business as well. To the detriment of our public health and safety in the USA.
Your spin on things is a grostesque charade.
Game, set, match.
Please justify all assertions in this statement.
If you ask one of the gun-control fanatics who posts on this site regularly what his or her position is, you will almost immediately get ad hominem arguments, although sometimes, before that you'll get links to all kinds of news articles about random gun violence incidents that have really nothing to do with the topic under discussion.
Any rational person reading the whole collection of their posts together would conclude that they want a ban on all guns. However, if you make a comment to that effect, they'll call you a liar.
If you ask them to correct your misapprehension, and explain to you exactly what it is they propose to solve the "gun violence problem", they'll tell you that they don't need to explain themselves to you, and imply that you must be an idiot for even having to ask.
But they'll never actually answer the question. And around and around she goes.
Pot kettle black.
Nearly everyday I hear that complaint from “conservatives”.
The truth is:
A bigger waste is what each taxpayer pays for the prosecution, hospitalization, housing and imprisoning of HANDGUN USERS. Why should the public have to pay for the results of actions made by owners of a privately manufactured machine? Law enforcement agencies’ gun use liability is backed by the government. Gun manufacturers or gun insurance 'pools' should be paying for all of the victims' medical treatments as well as the court, police and facility costs of dealing with affects caused by a private industry. Other private industries have liability insurance. Gun owners should have to buy insurance on each handgun purchased and registered just as automobiles are. It's as if because they have a right to drive across the country, they want the public to pay for them getting home when they run out of gas. Forcing the public to use their tax dollars to pay for the results of usage of private industries' machines is corporate socialism. Municipalities, hospitals, correctional facilities should be able to request reimbursements from the private insurer for costs incurred by handgun usage. “Conservatives” are always complaining about 'socialism' in America and being taxed too much. I'm tired of paying taxes to cover the costs of PRIVATE handgun use. This is costing the public way too much. Make these insurance plans pay for handgun usage and then we’ll all see how expensive handguns truly are.
100% correct. Brady and VPC are both seriously hurting for cash and their membership is nearly non-existant.