So, the Heller revolution may have legs after all. In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court breathed new life into the moribund Second Amendment, holding that there is indeed an individual right to bear arms. Heller seemed to mark a major shift in Second Amendment jurisprudence and cast a shadow over much gun control legislation. On the other hand, the Heller Court was remarkably coy about many aspects of the individual right to bear arms, leaving open the possibility that Heller would prove no more than a flash in the pan.
When Heller was decided, I was reminded of United States v. Lopez, 514 U.S. 549 (1995), in which the Court seemed to overturn a half-century of precedent on the scope of Congress’s Commerce Clause power. A revolution (or, perhaps more accurately, a counter-revolution) seemed afoot. I was a law student then, and I vividly recall — just hours after Lopez was handed down — one of my professors announcing in class, only half facetiously, that the Supreme Court had just overturned the New Deal. Then, when I clerked for a federal judge after law school, I recall several defendants raising Lopez challenges to federal criminal statutes. But it all came to nought. The lower federal courts never really bought into the Lopez revolution — if you keycite Lopez today, you will see 267 cases listed as either declining to extend or distinguishing Lopez — and the Supreme Court itself effectively threw in the towel with its decision in Gonzales v. Raich, 545 U.S. 1 (2005).
I have been wondering if the Heller revolution would go the way of the Lopez revolution. And, indeed, it has seemed generally to be business as usual in the circuit courts post-Heller, with little sense that the intermediate appellate judges have any inclination to read Heller for all it is worth.
But the Seventh Circuit’s decision last week in United States v. Skoien (No. 08-3770) (Sykes, J.) suggests that Heller may have more life than Lopez.
In 2006, Steven Skoien was convicted of domestic battery in Wisconsin state court and sentenced to two years of probation. In 2007, probation agents learned that Skoien had purchased a deer-hunting license. A search of his home and truck uncovered a shotgun, an orange hunting jacket, a deer carcass, and similar evidence. Skoien admitted that he had used the shotgun to go hunting earlier that day. A federal grand jury then indicted Skoien for possessing a firearm after having been convicted of a domestic-violence misdemeanor in violation of 18 U.S.C. § 922(g)(9). Skoien entered a conditional guilty plea, reserving his right to litigate whether the application of § 922(g) to him violated his Second Amendment rights.
On appeal, the Seventh Circuit could have rejected Skoien’s claim with little effort, for the Heller Court itself stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 128 S. Ct. at 2816. Indeed, the Court went so far as to characterize such prohibitions as “presumptively lawful regulatory measures.” Id. at 2817 n.26. The government’s argument in Skoien rested almost entirely on this language. Under a minimalist, but still plausible, reading of Heller, the government should have needed to say little more.
Remarkably, though, the Seventh Circuit used Skoien as an opportunity to develop a new test for Second Amendment claims and to signal the government that it could not necessarily rely on the Heller presumption to defeat such claims.
More specifically, the court adopted a two-part test:
First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified. If the government can establish this, then the analysis need go no further. If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right. (Op. at 10.)
Applying the first part of the test to Skoien’s claim, the fact that his gun was “a shotgun used primarily for deer hunting” seemed enough to bring his asserted right within “the terms of the right as publicly understood when the Bill of Rights was ratified”:
[I]t would be odd to argue that a conventional hunting gun is wholly unprotected by the Second Amendment. Heller referred to the founding-era importance of the right to bear arms “for self-defense and hunting,” and a long gun used primarily for hunting is obviously useful for defensive purposes as well. (12)
The court did question, though, whether “a person convicted of a domsestic-violence misdemeanor is categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions.” (13) In this regard, the court noted scholarly debate over whether felons lost the right to bear arms duing the founding era. The court did not have to resolve the debate, however, because the government was not pressing historical arguments.
It is unfortunate, then, that much remains uncertain about the first, history-oriented part of the new Second Amendment test. I, for one, hope that the court will not lay much emphasis on this part of the test. Gun technology, the social role of guns, and legal culture generally have changed so much since the 1790’s that the historical analysis is bound to turn on strained and uncertain analogies to practices from long ago. Why not just keep things at a high level of generality (e.g., it was generally accepted that citizens had a right to own long guns useful for hunting) and move on? The fact that there is or is not a long tradition of excluding a particular class of people from gun ownership can be taken into account in the second part of the test, without fetishizing the legal understandings of one particular, long-ago period of our history.
In any event, the Skoien court moved on to the second part of its new test. This inquiry required the court to decide whether to apply the strict or intermediate standard of review to Second Amendment claims. The court suggested that the answer to this question would depend on the nature of the conduct being regulated. On the one hand, “gun laws that severely restrict the core Second Amendment right identified in Heller — that of ‘law-abiding, responsible citizens to use arms in defense of hearth and home’ — should receive exacting scrutiny.” (15) On the other hand, “applying strict scrutiny to all restrictions on gun rights is obviously incompatible with Heller‘s dicta about ‘presumptively lawful’ firearms laws.” (16) In the end, the court decided to employ intermediate scrutiny because the “Second Amendment challenge in this case is several steps removed from the core constitutional right identified in Heller.” (17) Specifically, Skoien’s prior conviction meant that he was not a “law-abiding, responsible citizen” and Skoien did not “key his constitutional challenge to the right of self-defense.”
Query whether any type of prior conviction (no matter the age or nature of the offense) would be enough to remove a defendant from the protection of strict scrutiny. Query also whether the standard of review would have been different if Skoien had said at the time the gun was discovered, “Yes, I just used the gun for hunting, but the real reason I got the gun was to protect my home.” (Until the analysis is clarified, defense counsel would do well to frame their Second Amendment claims as far as possible along self-defense lines, as opposed to hunting rights.)
The court elaborated on the intermediate scrutiny analysis this way:
What this means more specifically is that for gun laws that do not severely burden the core Second Amendment right of self-defense there need only be a “reasonable fit” between an important governmental end and the regulatory measure chosen by the government to serve that end. (22)
Skoien did not dispute that there was an “important government end” behind § 922(g)(9): the reduction of domestic gun violence. Thus,
The disputed question here is the relationship between the government’s means and its end — whether there is a “reasonable fit” between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates.
Because the record on “fit” had not been adequately developed, the court remanded to give the government another opportunity to carry its intermediate-scrutiny burden.
Some closing obervations by the court in Skoien invite speculation about how demanding the court intends for intermediate scrutiny to be. The catch-phrase “reasonable fit” has little meaningful content on its own; it will be up to the court to develop the standard in common-law style. And Skoien provides no real assurance that the Heller revolution will indeed have a lasting impact in the Seventh Circuit. In addition to rejecting strict scrutiny in all but a (not clearly defined) “core” of Second Amendment cases, the court also made clear that intermediate scrutiny “tolerates laws that are somewhat overinclusive.” (25)
With respect to § 922(g)(9) more specifically, the court noted approvingly that it “targets a specific class of violent offender.” (26) On the other hand, the court was also appropriately concerned that the statute is overinclusive in several respects:
The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense. (26)
Given this expression of concern, the tea leaves are difficult to read. Assuming that Skoien (or a similar § 922(g)(9) case) returns to the Seventh Circuit with a more developed record, we should get a much clearer indication of how serious the court is about protecting gun rights in a post-Heller world.