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).