Seventh Circuit Revisits the Second Amendment

Here’s another one to file under “no, we don’t want a revolution.”  A few days ago, I posted on a new Seventh Circuit opinion that seemed to adopt a minimalist reading of the Supreme Court’s recent decision in Carr v. United States.  Over a vigorous dissent, the Seventh Circuit reaffirmed the validity of pre-Carr decisions regarding the Sex Offender Registration and Notification Act.  Now, the Seventh Circuit has a new opinion that reaffirms the validity of a gun-control statute, and another dissent accuses the court of incorrectly limiting a recent Supreme Court decision.

Last year, I posted on the interesting panel decision in United States v. Skoien, in which the Seventh Circuit remanded to the district court for the government to attempt to justify 18 U.S.C. § 922(g) in the face of the defendant’s Second Amendment challenge.  The panel relied heavily on the Supreme Court’s 2008 decision in District of Columbia v. Heller.  However, the government successfully sought en banc review, and now the en banc court has decided simply to affirm Skoien’s conviction without further proceedings. 

To be sure, the court did not go so far as to say that § 922(g) will withstand all Second Amendment challenges, leaving open the possibility that a defendant with a cleaner record than Skoien might be able to present a successful overbreadth argument. 

Judge Sykes nonetheless dissented, objecting to the majority’s reliance on information not supplied by the government through the adversarial process — and thus, as she sees it, effectively relieving the government of its burden to justify the application of a statute that burdens a fundamental constitutional right.  This approach, she contended, “is difficult to reconcile with either the reasoning or the result in Heller” (37).

This Post Has 4 Comments

  1. Leif Rakur

    Gun-control disputes such as this one will clutter the courts for years to come, the result of the Supreme Court’s wrongly reading the Second Amendment as an individual right.

    It’s simply inconceivable that the Framers would have been so dumb as to say in the Second Amendment that it “shall not be infringed,” if they had really intended the Amendment to express an individual right to carry arms for private purposes. They were surely aware of the dangers posed by even 18th-century arms in the hands of the incompetent, the mentally disturbed, and the scofflaw. There’s no way they would have crafted an amendment to say that gun possession was an “individual right” of the people that could not be infringed while including no words under which exceptions could be made for persons who are a danger to the general public.

  2. Sean Samis


    I agree with you that Heller was wrongly decided, but in the extraordinary hypothetical that I was on the Court at that time, I would have concurred with the result, but dissented with the reasoning. Heller’s reasoning did violence to the text of the Second Amendment, effectively reducing the opening clause to nothing more than throat-clearing. So much for modest jurisprudence that gives meaning to the clear intent of the Framers!

    However, I would find the individual right to keep firearms for self-defense in the commanding language of the Ninth Amendment. Given our rights to “liberty and pursuit of happiness” are moot if we cannot defend our lives, clearly the Framers understood the need to be able to defend ones’ self, family and community. Firearms have been, since before the Constitution, essential to that physical self-defense. Like all other rights, such a right can be regulated to protect health, welfare, and safety; the near-absolute language of the Second Amendment’s final clause is another indication that it was not intended to apply to individual ownership of firearms, but to those kept for use in a “well-regulated militia”.

    If, in the interest of public safety, the government may condemn and demolish your property, or forbid certain uses of it, it is not extraordinary to think that the Framers understood the need to be able to infringe the right to keep firearms with the expectation that such firearms had to be kept in a manner consistent with public safety and welfare.

  3. William Heino Sr.

    Justice Amy Coney Barrett Second Amendment dilemma

    In some 229 years neither law professors, academic scholars, teachers, students or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of Second Amendment of the Constitution. I had taken up that challenge allowing  Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.

    I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    Militia, a body of citizens organized for military service.

    If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)

    The 4th Amendment reminds us, “The right of the people to be secure in their persons….”

    The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.

    It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”

    Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?

    Justice Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero reference to “person/s. Justice Barrett’s  view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
    Leaving Supreme Court Justice Barrett’s judgment in question.
    In the entire U.S. Constitution “militia” is mentioned 5 times. In these references there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.

    Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..

    And interestingly, the word “shall” appears in the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”

    “[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;

    The condition “Infringe” has put a stop as to any counter thoughts regarding the Second Amendment, as you shall  not infringe or encroach  on beliefs other to what is evident as to the subject “Militia.”

    Finally, clarifying “..the right of the people to keep and bear arms…
    People. Human beings making up a group or assembly or linked by common interest.

    In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.

    William Heino Sr.

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