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Skoien and the many challenges of Second Amendment jurisprudence

By Douglas A. Berman

The Seventh Circuit's Skoien en banc ruling yesterday, which via this opinion by Chief Judge Easterbrook, rejects a Second Amendment challenge to the federal law criminalizing gun possession by anyone previously convicted of a domestic violence misdemeanor, reinforces my sense that Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead.  Here are just some of the ways the Skoien majority opinion highlights these realities: 1.  Uncertainty about the standard of review:  The Skoien opinion properly cites Heller to reject a "rational-basis test" for the Second Amendment, but then avoids giving any more content to the proper standard of review through this passage: The United States concedes that some form of strong showing (?intermediate scrutiny,? many opinions say) is essential, and that § 922(g)(9) is valid only if substantially related to an important governmental objective...continue to full post

Full post as published by Sentencing Law and Policy on July 14, 2010 (boomark / email).