Dennis Henigan of Brady Campaign Agrees with me on US v. Skoien at HuffPo

July 16th, 2010

I previously blogged about the en banc opinion from United States v. Skoien, noting that it illustrates the failure of the Heller and McDonald Court to provide the lower courts with any guidance as to what kinds of gun control laws are constitutional.

Unsurprisingly, Dennis Henigan of the Brady Campaign agrees with me.

He writes at the Huffington Post:

It is easy to understand why libertarian bloggers like Josh Blackman are upset about the Skoienruling, which he cites as evidence of the “epic failure” of both Heller and McDonald to truly establish a constitutional basis for the gutting of America’s gun laws. Blackman frets that Judge Easterbrook’s opinion in Skoien sets forth “a framework that will likely be relied upon by most courts.” If he’s right, and I think he is, strong gun control laws have little to fear from the Second Amendment.

While I think Dennis gets the thrust of Skoien about right, I think his conclusion is not necessarily correct.

Dennis writes:

Significantly, Judge Easterbrook’s opinion reads the Heller language not as created a “comprehensive code” of permissible regulations, but rather as standing for the broader proposition that it remains proper to bar gun possession by some categories of persons, “leaving it to the people’s elected representatives the filling in of details.”

I agree this is how Easterbrook characterized Heller. Unfortunately, I think this reading is irreconcilable with the nature of the right described in Heller. Easterbrook fashions a balancing test to consider gun control laws that only requires a “substantial relation”–a burden the Court, and not the government, proves by producing ample empirical research. This stands in direct contrast with McDonald’s holding that balancing tests are inappropriate for this fundamental right.  The plurality opinion in McDonald categorically rejected any balancing test.

Municipal respondents assert that, although most stateconstitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicialinterest balancing,

Although the Supreme Court took major strides towards providing meaningful protection of the right to keep and bear arms, it will be up to the lower courts, and soon enough the Supreme Court, to vindicate this fundamental right in the future.