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From Sentencing Blog:

The Seventh Circuit handed down today another intriguing Second Amendment opinion in which it finds unavailing an as-applied challenge to 18 U.S.C. § 922(g)(1), the federal felon-in-possession criminal prohibition.  There are lots of interesting aspects of the panel’s ruling in US v. Williams, No. 09-3174 (7th Cir. Aug. 5, 2010) (available here) — including the fact that retired Justice Sandra Day O’Connor was one of the members of the Seventh Circuit panel (though she was not the author of the unaninous panel opinion).

It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).

From the opinion:

And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams.  Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him.  See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”).  Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

When one considers the 7th Circuit’s En Banc opinion in Skoien–which considered a domestic violence misdemeanor–it seems the 7th Circuit is really open to revisiting the ban on guns for those convicted of non-violent felonies.

Update: I address Dennis Henigan’s Huffington Post blog post, which cites this post, here.

I previously lamented the failure of McDonald to clarify the nature of permissible gun regulations. Without setting any tier of scrutiny, or noting which party bears the burden of proving a constitutional violation, the lower courts would be left uncertain. This is the epic failure of Heller and McDonald.

The Court merely reaffirmed the holding in Heller that “longstanding prohibitions” and bans in “sensitive places” are still permisisble. Unfortunately, we learn nothing new about the types of gun control regulations that are constitutional.

The majority opinion categorically rejected any balancing test. But this standard would not last long.Judge Easterbrook’s en banc opinion yesterday in United States v. Skoien proves my point.

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,

Inevitably, all judicial review requires some form of balancing tests. The Court has never accepted Justice Black’s admonition that the First Amendment demands that Congress shall make no law–that is any law whatsoever–abridging the freedom of speech. The failure to provide any contours to the right not only invites, but practically demands that lower courts do so.

Easterbrook quickly discounts the dicta in Heller, and notes that it the courts should grant wide deference to the “people’s elected representatives” in order to fill in the details. The rather anti-majoritarian holding of Heller–where the Court rebuffed the laws of the popularly elected representatives of DC–becomes an ode to the majority, as the same bodies that routinely infringe second amendment rights now get to “fill[] in . . . [the] details” on the proper types of categorical limits.

More after the jump.

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