The day after the Seventh Circuit agrees to rehear en banc a panel’s earlier decision in U.S. v. Skoien on this subject, the Fourth Circuit has decided to follow Skoien, in U.S. v. Chester (4th Cir. Feb. 23, 2010) (surprisingly unpublished):
We agree in part with the Seventh Circuit’s approach to this unchartered realm of Second Amendment jurisprudence. Of course, Supreme Court dicta controls when it is on point and it is the only available authority. Further, this circuit has applied the Heller dicta to uphold statutes that prohibit gun possession by felons and the mentally ill in unpublished opinions. But the Heller dicta does not reference the regulation at issue in this case, § 922(g)(9). Even read broadly, the dicta from Heller cannot and should not be interpreted to control every challenge to every gun regulation. Instead, it seems clear that cases that fall outside the specific exceptions in Heller warrant independent constitutional scrutiny.
In Skoien, the Seventh Circuit proceeded to expound on what it thought to be the proper method of inquiry, fashioning a two-part test. The test started with historical analysis, determining that “some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified. If the government can establish this, then the analysis need go no further.” For laws without the proper historical pedigree, however, the “law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply[.]”
Turning to the facts of its case, the court in Skoien noted that there was neither a record developed, nor argument made, by the Government as to “whether a person convicted of a domestic-violence misdemeanor is categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions.” Further, if it were assumed the Government could not show that firearm possession by domestic violence misdemeanants fell “outside the scope of the Second Amendment right as it was understood at the time of the framing,” there was neither record nor argument on the issue of what rationale justified § 922(g)(9). Accordingly, the Seventh Circuit remanded the case to the district court for further proceedings.
We find ourselves similarly situated in the case at bar. The district court did not provide an analysis which reflected the historical undertones of Heller and did not specifically address whether and why § 922(g)(9) might qualify as a “presumptively lawful regulation.” And further, 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.
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. In that regard, upon remand, the district court must conduct an analysis of the constitutional validity of § 922(g)(9) which is “independently justified.” The district court should consider and interpret the historical analysis from Heller, although it is not bound by the threshold test articulated in Skoien. It should also identify, justify, and apply an appropriate level of constitutional scrutiny.
In Skoien, the Seventh Circuit observed “[l]aws that restrict the right to bear arms are subject to meaningful review, but unless they severely burden the core Second Amendment right of armed defense, strict scrutiny is unwarranted.” There, the court selected intermediate scrutiny because the core right was reserved as a right for “law-abiding, responsible citizens” to use arms for their “natural right of armed defense.” Under the facts of Skoien, the defendant’s claim was “several steps removed from the core constitutional right” because he was not “law-abiding,” and he used his gun for hunting, not for self-defense.
In the case at bar, it is clear that Chester was not “law-abiding,” and is therefore at least one step “removed from the core constitutional right.” But his reason for possessing his gun, and therefore, which right or rights specifically applied to him, were not clarified in the record. Chester identified in his trial pleadings at least three bases upon which he contends the Second Amendment may override a statute like § 922(g)(9), militia service, self-defense, and hunting, but failed to identify which ground, if any, he claims applies to him. These aspects of Second Amendment activity were simply not addressed by the Government or the district court, much less by evidence of record. Without a more ample record, we are left to speculate. On remand, Chester must identify the basis of his claim to Second Amendment protection and make a record to support it; to which the Government may respond. Then the district court can rule based on a full and complete record as to what level of scrutiny applies, thereby creating a sufficient record to permit appellate review….
Thanks to Prof. Doug Berman (Sentencing Law & Policy) for the pointer. He comments further on the case, among other things pointing out that “Because this Chester ruling breaks new ground [in the Fourth Circuit] and provides important guidance on a frequently arising issue, I cannot fathom a valid reason why it should be ‘unpublished.'” I too have a hard time seeing why this decision of first impression in the Fourth Circuit should be unpublished; even though it doesn’t decide on whether the statute is unconstitutional, or even what sort of approach is to be used in so deciding, it does make clear what approach shouldn’t be used. That, it seems to me, is a legal decision that deserves the same intra-circuit precedential effect that any other legal decision on a matter of first impression deserves.