Wednesday, July 14, 2010

Another Critique of the Decsion in Skoien

Douglas Berman, the William B. Saxbe Designated Professor of Law at Ohio State, offers another critique of the decision in United States v. Skoien on his blog Sentencing Law and Policy.

Professor Berman says the opinion reinforces his belief that "Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead" after the Heller and McDonald decisions. He then goes on to point out three areas in which the Skoien opinion by Chief Judge Easterbrook highlights this reality.

First, there is uncertainty about the standard of review. Should it be intermediate scrutiny, strict scrutiny, or what? The opinion cites Heller but then goes on say that they are not going to get into the scrutiny "quagmire."
Skoien foreshadows a "quagmire" if (and when?) Second Amendment jurisprudence has to start sorting through levels of scrutiny, and its seeks to avoid this quagmire by positing that (any and all?) gun regulations are substantially related to an important governmental objective. But given that gun regulations are always aimed at improving public safety and that the creators of such regulations surely see their restrictions as substantially related to this goal, it is unclear how much more real bite is being given to a standard of review here in Skoien.
Second, the 7th Circuit is too ready to accept the government's justification for gun control.
If preventing gun violence (i.e., "armed mayhem") is always going to qualify as an important governmental objective, and if "logic and data" of the sort set out in Skoien is adequate to justify a very broad criminal prohibition on gun possession by a large class of persons, it seem very unlikely that many (or really any) partial gun bans will be struck down.
Finally, the 7th Circuit used questionable analogies to the First Amendment and sex offender registration in their opinion.
As the dissent notes, there are no categories of persons who are subject to criminal prosecution just for seeking to exercise a freedom to speak. (There are categories of speech not subject to constitutional protection, but this is analgous to arms like bazookas and bombs that I assume are categorically excluded from coverage by the Second Amendment.) Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes "generally proper" a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights.
 Berman concludes by saying that while he found the opinion not convincing his goal was not to criticize the opinion but to point out how hard it will be for courts going forward "to sort through all the challenging constitutional issues implicated by modern gun restrictions and the new constitutional gun rights set out in Heller and McDonald."

H/T to Instapundit who notes that he and Brannon Denning are writing a post-McDonald law review article

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