Seventh Circuit sez: Second Amendment individual rights get intermediate scrutiny!

From the wise and venerable Seventh Circuit panel of William Bauer, John Tinder, and Diane Sykes, this lovely little nugget of Second Amendment jurisprudence!

Steven Skoien was accused of possessing a shotgun after having been convicted of misdemeanor domestic violence.

He appealed his conviction, arguing that the Second Amendment gives him the right to possess firearms, and a law that imposes a lifetime ban against the exercise of a constitutional right isn’t proportional.

The Seventh Circuit agreed, holding that this law burdening the right o possess firearms should be analyzed under the intermediate scrutiny standard:

Seems very reasonable to me.

So what effect will this have on the Lautenberg Amendment? Looking at what you posted and taking it at face value, this decision seems to be in conflict with it.

This may make it clearer:

They’re not sayiing this law is unconstitutional. They’re saying that the government must defend this law under the intermediate scrutiny standard, which they didn’t do. So they kicked the case back to the district court to let the government justify the law under that standard.

This is a victory for the Second Amendment because it locks in (in the Seventh Circuit, anyway) the standard of review. It may be that the law is unconstituional, because “…[t]he 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.”

On the other hand, says the court, “…the statutory definition of ‘misdemeanor crime of domestic violence’ limits the applicability of § 922(g)(9)’s firearms disability to those who actually used or attempted to use physical force or threatened the use of a deadly weapon in a domestic disturbance. . . . The statute thus targets a specific class of violent offender; only those who have already used or attempted to use force or have threatened the use of a deadly weapon against a domestic victim are banned from possessing firearms.”

So the law itself may survive. The establishment of the standard of review is what rocks.

I have mixed feelings about this one. I’m known to be a staunch Second Amendment supporter. At the same time, I’ve handled quite a few domestic violence cases, and have one in court now where the guy already shot my client once. I’m seeking to permanently disarm him under the cited law.

The Second Amendment side of me would prefer the court apply strict scrutiny. The domestic violence attorney would prefer I get to bounce assholes off the nearest wall before, during, and after court in addition to never allowing them to have guns again.

I detest intermediate scrutiny. All that is is an invitation to judges to wiffle waffle. It allows for an indeterminate situation: there is little predictability from case to case because the things that are important to one judge in one case won’t necessarily be important to another judge in another case.

Why not strict scrutiny? Strict scrutiny applies to speech, religion, due process, etc. Pretty much all the bill of rights protected stuff. Why not strict scrutiny for the 2nd amendment?

What can we do with intermediate scrutiny that we can’t do with strict, and why is this good?


Strict Scrutiny is often the kiss of death for statutes. Very few can pass that test. With intermediate scrutiny, it could go either way, depending on the Judge(s) involved.

The good part of this decision is that the 7th Circuit has recognized an individual right to bear arms. On remand, the lower court may well uphold the law after the parties file briefs arguing how to apply the intermediate level scrutiny.

To be a realist about it, there are obvious real, immediate, and pervasive dangers that gun possession implicates which simply do not exist with the exercise of other rights. (And even with speech, the most sacrosanct right, when speech does rise to level of being immediately dangerous, it’s not protected.) But a (loaded) gun, even possessed legally, is always immediately dangerous. So if they established a strict scrutiny test, they’d vitiate essentially all gun control laws, and nobody who is in the business of maintaining social order thinks that’s a good idea – especially this week. Moreover, the Heller dicta at least suggests that there could well be constitutional restrictions on gun ownership. A strict scrutiny test isn’t really consistent with that idea.


Wow-- this thread is like fly paper for lawyers. :wink:


The Heller court pretty clearly signalled that rational basis wasn’t the way to go, and they scuttled strict scrutiny by giving the list of restrictions that could survive. So the circuits must either invent yet another level of scrutiny, or park the car under intermediate scrutiny and see how SCOTUS responds.

Err…Strict Scrutiny applies to the Second Amendment as well I would think.

I thought Strict Scrutiny looks at a class of people. So, if you are restricting a right based on race or religion then strict scrutiny applies. I would presume if a law was passed that said black people cannot posses a gun then Strict Scrutiny would be applied.

As such I think strict scrutiny would be way overboard for this. There would be essentially no way to restrict gun ownership from anyone and I think we would all agree there are some people who should never be allowed to have one.

That’s true, but it would be equally true if you replaced the word “gun” in that sentence with “banana”, or “tuba”, suggesting that the 2nd Amendment doesn’t have a lot to do with it.

Shouldn’t that rise to a felony type of aggravated assault? (Which would be a gun rights disqualifier anyways) The problem with the misdemeanor level type of gun ban is that it affects husbands and wives who have a few too many drinks and get pushy or slappy.

While that type of behavior is wrong, IMO, it certainly doesn’t rise to the level of forfeiture of a basic right.

And now we release the tigers!

Wasn’t there already a case somewhat like this several years ago? Someone who had been ordered to surrender their guns as part of a protection order argued that it was unconstitutional to ban someone from owning guns based on a judicial order without criminal charge and conviction, but they lost?

We’ll see. The grand jury won’t be releasing the indictment, if any, until mid-December. I expect he will be indicted, but the trial isn’t gonna happen anytime soon. Prolly next summer. I’m not a prosecutor, so I don’t get any input there.

I intend to finalize the divorce in early January, and I don’t want this guy having access to a firearm in the event the jury finds him not guilty.


My point was Mtgman seemed to want Strict Scrutiny for the 2nd Amendment but it does not work that way. A given law or amendment is not bestowed a level of scrutiny that applies to it. The scrutiny is based entirely on what class (or group if you prefer) is being restricted. The courts have come to the opinion that a law that discriminates based on race or religion can never have merit (I suppose the door is still open but it is one hell of a mountain to climb to make the case for discrimination on that basis).

Guys who beat their wife are not a protected class. Especially since I believe strict scrutiny holds that a class that gets it must be:

  1. a “discrete” or “insular” minority[1] who
  2. possess an immutable trait,
  3. share a history of discrimination, and
  4. are powerless to protect themselves via the political process. (cite)

I think guys who beat their wife fail on a few of those (#2 for sure anyway).

So, saying the 2nd Amendment should have strict scrutiny applied to it does not make sense.

Actually I am curious about this and hope a legal eagle can answer.

As I just wrote I thought intermediate and strict scrutiny applied to a class/group of people who can be clearly defined. By sex, race, religion (ok, that one seems a bit gray but is there).

Have courts applied a scrutiny test to a law in the past? That is to say it matters not what group you belong to, just any law whatsoever that seeks to circumscribe a right must get over the scrutiny bar the court deems appropriate? (Seems intermediate scrutiny would be the only applicable one though since the rational basis one is stupidly low and strict scrutiny is impossibly high for most things.)

You’re thinking of Equal Protection analysis, but the courts have also applied these levels of scrutiny when a law burdens an enumerated constitutional right.


Well, would I be wrong in saying then that the level of scrutiny applied outside of EP must always be intermediate scrutiny? As I just noted rational basis is so low as to barely be called a hurdle and strict scrutiny is impossibly high and reserved for a very, very few things (appropriately in my view).

That leaves intermediate scrutiny. So, why can’t we say enumerated rights all get intermediate scrutiny? Seems a default position with no other real choice in the matter.