Seventh Circuit to Rehear U.S. vs. Skoien

[Bartholomew Roberts]

The Volokh Conspiracy is reporting that the Seventh Circuit will rehear the U. S. vs. Skoien case en banc.

This is the case where a three judge panel of the Seventh Circuit unanimously voted to vacate a conviction of firearms possession by someone convicted of misdemeanor domestic violence on Second Amendment gorunds and remanded the case for hearings on whether the blanket ban on misdemeanor domestic violence firearms possession met the proposed standard of scrutiny.

This decision now means that the entire panel of the Seventh Circuit will rehear the case, rather than just a three-judge panel.

 

[Tom Servo]

This comes the week before orals in McDonald. I doubt that's a coincidence. Echoes of the 9th Circuit and Nordyke perhaps.

They're waiting to see which way the wind blows.

 

[Standing Wolf]

From the comments:

OrenWithAnE says:
If this sticks, I wonder if State legislatures will reclassify domestic violence as a felony (leaving in place the same penalties). Certainly there is no legal bar to doing so, which would have the same effect (albeit only prospectively) as §922(g)(9).

[shock, profound] Do we really think legislatures would do such a thing? [/shock]

 

[Bartholomew Roberts]

Interestingly enough, it seems that the day after the Seventh Circuit agreed to rehear this case, the Fourth Circuit adopted the reasoning from Skoien in an unpublished opinion by a 3-judge panel (unpublished means the opinion is not binding precedent in the Fourth Circuit).

I'm not sure why the Fourth Circuit thought this opinion should be unpublished. My first impression is that it is a bit cowardly; but perhaps there are reasons for it that I do not understand.

 

[Tom Servo]

As did the Seventh Circuit in Skoien, we must remand this case for the creation of a record, one that includes argument and judicial analysis, which we, as an appellate court, can meaningfully review. p. 3

(…) as in Skoien, if we assume possession of a firearm by a misdemeanant falls within the scope of the Second Amendment right, there is no record, argument or analysis in the district court as to why § 922(g)(9) meets “whatever level of means end scrutiny is held to apply.” We have no record as to the particular basis Chester uses to ground his claim to the Second Amendment, much less an analysis from the district court as to how or why that claim merits a particular level of constitutional scrutiny. Without such a basic underpinning in the record, we are left with the prospect of issuing an advisory opinion which is not within our province to do. p.13

It looks to me like they really want to take up the issue, but that they don't yet have the framework in which to do so.