# Seventh Circuit sez: Second Amendment individual rights get intermediate scrutiny! **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 2009, 8:51pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066 "2009-11-18T20:51:24Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 19, 2009, 4:02am UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/21 "2009-11-19T04:02:44Z")
> [@](#): > > This is a victory for the Second Amendment because it locks in (in the Seventh Circuit, anyway) the standard of review. I’m not so certain. In the short run, maybe, but in the long run decisions like this may serve to illustrate just how ridiculous the Second Amendment is. Eventually, it may even get to the point where we can repeal the silly thing. ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [November 19, 2009, 7:24am UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/22 "2009-11-19T07:24:57Z")
> [@Chronos](#): > > I’m not so certain. In the short run, maybe, but in the long run decisions like this may serve to illustrate just how ridiculous the Second Amendment is. Eventually, it may even get to the point where we can repeal the silly thing. You are more than welcome to try. If there ever comes a time that you can get 67 votes in the Senate and 38 states to pass it I’ll eat my hat. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 19, 2009, 9:43am UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/23 "2009-11-19T09:43:58Z")
> [@Lumpy](#): > > 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? Are you thinking of the [Emerson case](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=5th&navby=case&no=9910331cr0), perhaps? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2009, 1:02pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/24 "2009-11-19T13:02:48Z")
> [@Chronos](#): > > I’m not so certain. In the short run, maybe, but in the long run decisions like this may serve to illustrate just how ridiculous the Second Amendment is. Eventually, it may even get to the point where we can repeal the silly thing. Not at all. I doubt very seriously that this analysis will substantially affect the particular law at issue – at most, it will force the legislature to enact some kind of review requirement instead of a blanket, lifetime ban… which I hope we would agree is more appropriate anyway. But the basic premise of a law that restricts firearm rights for some years after a misdemeanor domestic violence conviction will almost certainly stand. So i doubt that this decision will come to be seen as producing ridiculous results. And I welcome your willingness to try to get rid of the Second Amendment through the correct process – repeal – but as **AirmanD** says, I believe you’ll find your fellow citizens do not agree with you on the desirability of its removal. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2009, 1:17pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/25 "2009-11-19T13:17:34Z")
> [@Bricker](#): > > But the basic premise of a law that restricts firearm rights for some years after a misdemeanor domestic violence conviction will almost certainly stand. I guess this is where my understanding of the law fails. The 2nd has been found to be a fundamental, individual right, just like all of the other rights stated and unstated. What if Congress decided that a misdemeanor DWI conviction showed a lack of intelligence and said that if convicted, a person may not publicly speak on any issue for a period of 10 years? Too broad. What if the law said that they cannot advise any person on the use of alcohol, even in private, even their children, for a period of 10 years? Or let’s take another right that has been found to be in the constitution: abortion. Suppose a misdemeanor crime where Congress believes that a woman has shown poor judgment and cannot have an abortion for 5, 10, 20 years? I can’t imagine either of those two even beginning to pass the laugh test, yet when you look at another, enumerated right like gun possession, it seems that any restriction that is not an outright ban is legitimate. And not to downplay domestic violence, but it is my understanding that the misdemeanor level is reserved for the slapping and pushing variety. If you take a baseball bat, or a gun, or closed-fisted punch someone until they are bruised and beaten, then that rises to a felony level of aggravated battery, no? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2009, 1:23pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/26 "2009-11-19T13:23:29Z")
Missed the edit window: And it also seems like the rational for these restrictions are circular. Even Scalia stated that a ban on machine gun possession would likely pass muster because machine guns aren’t commonly owned. Well, they aren’t commonly owned because they have been banned for 75 years. When they were commonly owned in 1934, shouldn’t the Federal Firearms Act have been struck down? But since it wasn’t, is that a good enough reason to ban machine guns? Because an unconstitutional law was allowed to stand for long enough to make the subject of the law too rare to be considered common? That stuns me. Couldn’t he just as easily have said that D.C. residents don’t commonly own handguns so they aren’t a militia weapon? ---
**Author:** ![yoyodyne](https://avatars.discourse-cdn.com/v4/letter/y/a9a28c/32.png) [@yoyodyne](https://boards.straightdope.com/u/yoyodyne)\ **Post date:** [November 19, 2009, 2:08pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/27 "2009-11-19T14:08:34Z")
> [@Oakminster](#): > > 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. No law can prevent illegal access. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 19, 2009, 2:16pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/28 "2009-11-19T14:16:37Z")
> [@yoyodyne](#): > > No law can prevent illegal access. What does this mean? Because someone can obtain an item illegally laws banning that item are foolish or worthless? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2009, 2:26pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/29 "2009-11-19T14:26:15Z")
> [@jtgain](#): > > I guess this is where my understanding of the law fails. The 2nd has been found to be a fundamental, individual right, just like all of the other rights stated and unstated. Yes, but: > [@SCOTUS in Heller v. DC](#): > > There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. \_\_\_ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. > . > . > . > From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. > > ``` > We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." > > ``` ---
**Author:** ![yoyodyne](https://avatars.discourse-cdn.com/v4/letter/y/a9a28c/32.png) [@yoyodyne](https://boards.straightdope.com/u/yoyodyne)\ **Post date:** [November 19, 2009, 3:14pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/30 "2009-11-19T15:14:33Z")
> [@Whack-a-Mole](#): > > What does this mean? Because someone can obtain an item illegally laws banning that item are foolish or worthless? No, it was meant as a reality check for **Oakminster** , who seems to think the law is a talisman that will prevent harm to his client. With a legally or illegally obtained gun, a knife, or a baseball bat, it’s already against the law to murder your spouse. That won’t prevent it from happening unless the potential offender is jailed for a potential crime. ---
**Author:** ![Scumpup](https://avatars.discourse-cdn.com/v4/letter/s/ce73a5/32.png) [@Scumpup](https://boards.straightdope.com/u/Scumpup)\ **Post date:** [November 19, 2009, 3:30pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/31 "2009-11-19T15:30:28Z")
> [@Whack-a-Mole](#): > > What does this mean? Because someone can obtain an item illegally laws banning that item are foolish or worthless? No, it means the law doesn’t physically protect your client. All it can do is punish the mook after the fact. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [November 19, 2009, 4:21pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/32 "2009-11-19T16:21:35Z")
> [@yoyodyne](#): > > No, it was meant as a reality check for **Oakminster** , who seems to think the law is a talisman that will prevent harm to his client. With a legally or illegally obtained gun, a knife, or a baseball bat, it’s already against the law to murder your spouse. That won’t prevent it from happening unless the potential offender is jailed for a potential crime. Um, no. I’ve handled domestic violence cases for years. I know, and advise all of my clients, that an Order of Protection won’t stop a bullet. What the law does do is prevent the abuser from legally having a gun. If he gets caught with one, he goes to jail. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [November 19, 2009, 4:25pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/33 "2009-11-19T16:25:00Z")
> [@Miller](#): > > And now we release the tigers! You’re way to humane; a tiger would make a relatively quick kill of it. I like army ants. :rolleyes: I’m suddenly channeling evil-overlord **Skald.** ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 19, 2009, 4:49pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/34 "2009-11-19T16:49:31Z")
> [@yoyodyne](#): > > No, it was meant as a reality check for **Oakminster** , who seems to think the law is a talisman that will prevent harm to his client. With a legally or illegally obtained gun, a knife, or a baseball bat, it’s already against the law to murder your spouse. That won’t prevent it from happening unless the potential offender is jailed for a potential crime. Of course it is not a talisman. It does however make it somewhat more difficult for the would be attacker. It is one thing to just be able to plop $100 down in a store and walk out with a gun. It is another if that person needs to find someone willing to sell them a gun illegally. You have placed a hurdle in the way of the potential attacker that they must overcome. Yes the would-be attacker could opt for a kitchen knife or frying pan or their bare hands. However, I think a gun makes killing easier for the attacker so is a preferred method if available (all other types/methods of homicide combined do not even add up to half those done with a gun…clearly a gun is a preferred method). Making the gun less available reduces the risk to the potential victim (which could possibly include people like the attorney or judge as well). The risk is not zero but less risk is still better. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [November 19, 2009, 5:39pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/35 "2009-11-19T17:39:58Z")
> [@Airman\_Doors\_USAF](#): > > So what effect will this have on the [Lautenberg Amendment](http://en.wikipedia.org/wiki/Lautenberg_Amendment)? Looking at what you posted and taking it at face value, this decision seems to be in conflict with it. FWFW, the reasoning and standard adopted by the Seventh provide one possible answer to questions I was asking you in this [thread](http://boards.straightdope.com/sdmb/showthread.php?t=539332) ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [November 19, 2009, 5:46pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/36 "2009-11-19T17:46:10Z")
> [@Whack-a-Mole](#): > > Hmm… > > Well, would I be wrong in saying then that the level of scrutiny applied outside of EP must always be intermediate scrutiny? Yep. [Commerce Clause](http://en.wikipedia.org/wiki/Commerce_Clause). ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [November 19, 2009, 5:50pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/37 "2009-11-19T17:50:58Z")
> [@Whack-a-Mole](#): > > 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). The test for strict scrutiny doesn’t mention classes or groups of individuals. It’s often applied in discrimination cases, so it’s been come to be known like that, but nothing in the doctrine requires immutable groups. [From Wikipedia](http://en.wikipedia.org/wiki/Strict_scrutiny) > [@](#): > > To pass strict scrutiny, the law or policy must satisfy three prongs: > > ``` > First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. > > Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. > > Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong. > > ``` Restrictions on violent, convicted, felons owning guns would almost certainly pass strict scrutiny. What kinds of restrictions on firearm ownership are you thinking of which you believe could not pass? [Also from Wikipedia](http://en.wikipedia.org/wiki/Strict_scrutiny) > [@](#): > > Legal scholars, including judges and professors, often say that strict scrutiny is “strict in theory, fatal in fact,” because popular perception is that most laws subject to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts, by Adam Winkler, found that laws survive strict scrutiny over thirty percent of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly sixty percent of applications. I don’t have a particular opinion as to the wisdom of having 2nd amendment rights or not having 2nd amendment rights, but pretty much all the constitutionally enumerated rights require strict scrutiny, so why not the right to bear arms? If we, as a society, have decided that specifically enumerated rights in the constitution deserve strict scrutiny, then so be it. Having a mishmash of scrutiny levels when all the rights are enumerated at the same level, in the same document, doesn’t make sense. Enjoy, Steven ---
**Author:** ![yoyodyne](https://avatars.discourse-cdn.com/v4/letter/y/a9a28c/32.png) [@yoyodyne](https://boards.straightdope.com/u/yoyodyne)\ **Post date:** [November 19, 2009, 6:13pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/38 "2009-11-19T18:13:32Z")
> [@Whack-a-Mole](#): > > The risk is not zero but less risk is still better. There would also be much less risk if he were indefinitely ‘detained’. Is that ok too? ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [November 19, 2009, 6:21pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/39 "2009-11-19T18:21:47Z")
**Whack-a-Mole** , I believe a more direct answer to your question is that your discussion of strict scrutiny only covered one of the possible reasons that standard would be applied. It has nothing to do with the requirements to meet the standard. When you referenced: > [@](#): > > 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. you were quoting from Justice Stone’s footnote in _[US v. Carolene Products](http://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.#Footnote_Four)_, which was a proposal for a new standard of scrutiny, which eventually became strict scrutiny. In the footnote, there are three situations proposed when strict scrutiny would apply: > [@](#): > > There may be narrower scope for operation of the presumption of constitutionality (1) when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth… > > It is unnecessary to consider now whether legislation (2) which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. > > Nor need we inquire whether similar considerations enter into the review of statutes (3) directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. The numbering is mine. My #3 is the discrete & insular minorities bit, which you referenced already, but #1 covers specifically enumerated constitutional rights. And that’s why strict scrutiny applies when a fundamental right is affected, wholly separately from the consideration of whether a protected class is being discriminated against. Personally, I think the whole dance of choosing a standard is a bit of a shell game, since history has demonstrated that there are ways to frame the question such that one can pick the standard that leads to the “appropriate result;” if you want to knock a statute down, find a way to subject it to strict scrutiny, and if you want it to survive, find a way not to. But that’s a bit off topic. ---
**Author:** ![yoyodyne](https://avatars.discourse-cdn.com/v4/letter/y/a9a28c/32.png) [@yoyodyne](https://boards.straightdope.com/u/yoyodyne)\ **Post date:** [November 19, 2009, 6:27pm UTC](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066/40 "2009-11-19T18:27:07Z")
> [@Oakminster](#): > > I’m seeking to permanently disarm him under the cited law. > > …never allowing them to have guns again. > > I don’t want this guy having access to a firearm in the event the jury finds him not guilty. I took these statements at face value. [Previous page](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066.md?page=1) [Next page](https://boards.straightdope.com/t/seventh-circuit-sez-second-amendment-individual-rights-get-intermediate-scrutiny/518066.md?page=3)