Sebastian the Ibis
Member
Since, McDonald is going back to the 7th Circuit. It is worth a minute to take another look at U.S. v. Skoien, 587 F.3d 803 (7th cir. 2009), which was unfortunately vacated and set for rehearing en banc. 2010 WL 1267262. The unanimous Skoien panel (Buer, Sykes & Tinder), ruled that intermediate scrutiny applied to the facts of that case but only because Mr. Skoien alleged that the Lautenberg Amending infringed his right to go hunting, which did not directly infringe upon the core right of self defense described in Heller. Had Mr. Skoien alleged that he had his shotgun for self-defense of his home, the Skoien panel suggests that strict scrutiny, or at least something higher than intermediate scrutiny would apply.
I personally don’t have a problem with bow or black powder only seasons, restrictions prohibiting hunting with rifles in certain areas, or a tube capacity restriction in a duck-gun – while hunting. These rules allow us to safely harvest game, while leaving enough for the next person. However, the point the Skoien panel recognized is that these restrictions have to be scrutinized much more strictly when someone is selecting a weapon for self-defense, so capacity and effectiveness restrictions will usually fail. I think the Skoien panel’s decision regarding scrutiny was entirely sensible and I wish it were the rule in the 7th Circuit. Unfortunately, the full 7th Circuit vacated the opinion and will rehear arguments en banc (the whole court).
Off the top of my head, I don’t know what the 7th Circuits requirements are to vacate an opinion and rehear it en banc. However, I would presume a substantial number of 7th circuit judges – who were not on the panel, disagree with the panel’s decision. On May 20, 2010 the case was re-heard and taken under advisement by a panel of: Frank H. Easterbrook, Chief Judge; William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge; Michael S. Kanne, Circuit Judge; Ilana Diamond Rovner, Circuit Judge; Diane P. Wood, Circuit Judge; Ann Claire Williams, Circuit Judge; Diane S. Sykes, Circuit Judge; John Daniel Tinder, Circuit Judge and David F. Hamilton. We know we have 3 of 11 votes, the three from the original panel, we need another 3 of 8 and we will do well.
I assume that the 11 judge panel has been holding off on issuing their opinion to wait for McDonald. Now that the Supreme Court has ruled, we could be getting a decision any day in Skoien II. Since the full 7th Circuit has been considering the Second Amendment scrutiny issue since May, and since what ever three judge panel is selected to decide McDonald, on remand will have to follow Skoien II. McDonald will follow Skoien II, at least at the 7th Circuit.
The Original Skoien decision is here:
http://www.ca7.uscourts.gov/tmp/YY16TDEY.pdf
I personally don’t have a problem with bow or black powder only seasons, restrictions prohibiting hunting with rifles in certain areas, or a tube capacity restriction in a duck-gun – while hunting. These rules allow us to safely harvest game, while leaving enough for the next person. However, the point the Skoien panel recognized is that these restrictions have to be scrutinized much more strictly when someone is selecting a weapon for self-defense, so capacity and effectiveness restrictions will usually fail. I think the Skoien panel’s decision regarding scrutiny was entirely sensible and I wish it were the rule in the 7th Circuit. Unfortunately, the full 7th Circuit vacated the opinion and will rehear arguments en banc (the whole court).
Off the top of my head, I don’t know what the 7th Circuits requirements are to vacate an opinion and rehear it en banc. However, I would presume a substantial number of 7th circuit judges – who were not on the panel, disagree with the panel’s decision. On May 20, 2010 the case was re-heard and taken under advisement by a panel of: Frank H. Easterbrook, Chief Judge; William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge; Michael S. Kanne, Circuit Judge; Ilana Diamond Rovner, Circuit Judge; Diane P. Wood, Circuit Judge; Ann Claire Williams, Circuit Judge; Diane S. Sykes, Circuit Judge; John Daniel Tinder, Circuit Judge and David F. Hamilton. We know we have 3 of 11 votes, the three from the original panel, we need another 3 of 8 and we will do well.
I assume that the 11 judge panel has been holding off on issuing their opinion to wait for McDonald. Now that the Supreme Court has ruled, we could be getting a decision any day in Skoien II. Since the full 7th Circuit has been considering the Second Amendment scrutiny issue since May, and since what ever three judge panel is selected to decide McDonald, on remand will have to follow Skoien II. McDonald will follow Skoien II, at least at the 7th Circuit.
The Original Skoien decision is here:
http://www.ca7.uscourts.gov/tmp/YY16TDEY.pdf
