Seventh Circuit Revisits the Second Amendment

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit

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).

3 thoughts on “Seventh Circuit Revisits the Second Amendment”

  1. 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. Leif:

    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.

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