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The Skoien Opinion

Josh Blackman looks at the 7th Circuit’s ruling in the Lautenberg Amendment (strips Second Amendment rights from domestic violence misdemeanants) case in a thorough manner, and notes:

Don’t expect SCOTUS to resolve this question. There is no way the Court grants cert on an issue as muddy as giving guns to people who commit domestic crimes. Additionally, there is no Circuit split here.

This challenge could arise in other misdemeanor contexts–mainly white collar crimes. Should someone who is found guilty of tax evasion or medicare fraud be disarmed forever? That, will likely be the next challenge.

I agree. I don’t see the Court wanting to go there right now. If the Heller majority wasn’t strong enough to say something about standards of review, but to merely hint, I’m worried about whether it would hold together under this kind of stress, despite the fact that there are more stories out there like this guy’s than there are cases of legitimate wife beaters.

I guess the question would hinge on whether the Court avoided setting a standard of review because the majority isn’t agreed on the strength of the standard, or because someone doesn’t like the idea of setting a standard this soon. To me the Court pretty strongly hinted that the standard of review ought to be quite strict. That doesn’t mean lower courts aren’t going to ignore it.

We may not find very favorable outcomes in the 7th Circuit. Recall the even two Republican appointees, Posner and Easterbrook, are both vociferously opposed preserving the Second Amendment and wish to destroy it as in individual right., and only one judge, nominated by G.W. Bush, was willing to dissent.

6 Responses to “The Skoien Opinion”

  1. Ken says:

    The only difference between “conservatives” like Posner and Easterbrook–as opposed to the conservatives on the Heller/MacDonald majority–and “liberals” like Breyer and Ginsburg is the group for whom they want to shred the constitution. Posner and Easterbrook want to gut the Bill of Rights for the benefit of cops, DA’s, and big business; the Heller/MacDonald minority want to gut the Bill of Rights and the rest of the Constitution for the benefit of criminals and left-wing groups (OK, I’m being redundant).

    Posner has said that he favors a “pragmatic” interpretation of the Constitution. What this means is that he wants to ignore the Constitution, like Earl Warren, except without Earl Warren’s concern for defendant’s rights. I suspect that he really doesn’t want some of the poor and working-class victims of his unconstitutional decisions packing heat.

  2. Sigivald says:

    I don’t have any numbers, so this counts as pure speculation, but…

    It sure seems likely that real serious domestic abusers are going to be more likely to be violent elsewhere, and thus end up with real violent misdemeanors or felonies anyway.

    Not all of them, no. But I’d be shocked if the rate wasn’t significantly higher than the general population.

  3. Arnie says:

    I always believed that the government could never take away a fundamental right without due process, i. e., being charged with a crime, tried, convicted by a jury of one’s peers, and sentenced according to established legislation. That hasn’t occurred here. IMHO, this is tyranny!

    Arnie

  4. WOW says:

    “I’m worried about whether it would hold together under this kind of stress, despite the fact that there are more stories out there like this guy’s than there are cases of legitimate wife beaters.”

    So what are you saying he is not a legitimate wife beater? I beg to differ. People seem to always just assume based on what they hear. There is a lot that people don’t seem to know about the whole situation. I could go on with a list of missing information about this guy that people claim is not a legitimate wife beater. I don’t even know where to begin. It is so crazy reading the information on the internet and the comments on how Skoien was wronged. What if he had already threatened a person harm with a firearm? What if a loaded firearm was aimed at the abused? Or is there a difference with threats that someone does not follow through with? I am not saying that threats make someone a abuser. I am also not saying any of this because I am against gun rights, because I am not. I think people should have the right to own firearms, I just think if people knew all the information about this situation they would have a different opinion of him and this case. I also do believe that there are many people men and women who are wrongfully accused of being a batterer. I think there are many situations when people are wrongfully accused out of anger from what ever situation is happening and it is wrong, but this situation is not one.

  5. Sebastian says:

    Did you follow the link in that sentence? It wasn’t about Skoien himself. I know little of the details of his case to determine whether or not he was a wife beater. All I know is he was convicted of misdemeanor domestic assault, which can be serious, or can be as little as any bodily contact. Hell, misdemeanor assault can be as much as throwing a drink in someone’s face.

  6. Sebastian says:

    What if he had already threatened a person harm with a firearm? What if a loaded firearm was aimed at the abused?

    That is a felony, and he should be convicted for a felony, in which case he’d be prohibited from owning firearms. We don’t argue violent felons can’t have their Second Amendment right stripped. What we do argue is that misdemeanor convictions can, and often do involve very minor contact that might rise to the level of rash, but aren’t necessarily indicative of someone who’s habitually violent enough they should lose a fundamental Constitutional right.

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