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January 11, 2010

Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession

The Eleventh Circuit today in US v. White, No. 08-16010 (11th Cir. Jan. 11, 2010) (available here), rejects a defendant's claim that Heller creates constitutional problems for the federal crime of gun possession by a domestic violence misdemeanant.  Here is part of the legal fancy footwork used by the Eleventh Circuit to get to its desired outcome:

We are called upon to decide whether the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence, § 922(g)(9), warrants inclusion on Heller’s list of presumptively lawful longstanding prohibitions.  As the Supreme Court recently noted, § 922(g)(9) was passed in 1996 in response to Congress’s concern that “existing felon-in-possession laws were not keeping firearms out of the hands of domestic abusers, because ‘many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.’” Hayes, 129 S. Ct. at 1087 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)).  Section 922(g)(9) was designed to “‘close this dangerous loophole.’” Id. By way of example, the federal ban on felons-in-possession in § 922(g)(1) — a statute characterized in the Heller dictum as a presumptively lawful longstanding prohibition — does not distinguish between the violent and non-violent offender.  Thus, both an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1). In contrast, a person convicted under § 922(g)(9) must have first acted violently toward a family member or domestic partner, a predicate demonstrated by his conviction for a misdemeanor crime of violence.  Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by “longstanding” felon-in-possession laws.  We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt....

We now explicitly hold that § 922(g)(9) is a presumptively lawful “longstanding prohibition[] on the possession of firearms.”  Heller, 128 S. Ct. at 2816-17.  Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White’s conviction.

Law students and the revisers of legal dictionaries should be sure to take note that, at least in the Eleventh Circuit, even a gun possession ban that was "passed relatively recently" apparently can and does come within the definition of a "longstanding prohibition."

A few related Second Amendment posts:

UPDATE:  Eugene Volokh questions the Eleventh Circuit's efforts in White in this new post at The Volokh Conspiracy.

January 11, 2010 at 05:02 PM | Permalink

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Comments

"In contrast, a person convicted under § 922(g)(9) must have first acted violently toward a family member or domestic partner, a predicate demonstrated by his conviction for a misdemeanor crime of violence."

That is just simply not true, especially under current 11th Cir. precedent.

The validity of that statement depends on the meaning of "physical force" in 18 USC 921(a)(33). If the "physical force" requirement can be satisfied by a mere "unwanted" or "rude" touch (as the 11th Cir. has interpreted the phrase "physical force" to mean in the ACCA context), then there is no requirement for violent conduct.

(Note, SCOTUS will soon tell us the meaning of "physical force" in the ACCA context, which is likely to have implications for how the same phrase should be interpreted in 921(a). In both situations, "physical force" is used to define other concepts (e.g. to define either "violent felony" or "crime of domestic violence") and accordingly is arguably meant to be a term of art.)

Posted by: DEJ | Jan 11, 2010 5:38:22 PM

The 5th Cir. pre-Heller decided a gun case that sounds somewhat like this and found against the domestic violence defendant. Is that result still good law?

The "longstanding prohibition" is a reference from Heller that in context does not appear to refer to the date a specific law was enacted, but of certain types of regulations. As noted by the excerpt, if non-violent felons can be banned from owning firearms, it is totally rational to argue that violent misdemeanors might.

The "longstanding prohibition" is preventing violent criminals from having guns. Does it really take "fancy footwork" to get there?

Posted by: Joe | Jan 12, 2010 10:14:39 AM

The right to bear arms is an enumerated right under the Second Amdt and an unmerated right protected by the Ninth Amdt. When General Grant pardoned Lee's troops on April 9, 1865 he respected the right of the Rebels to return home, pardoned as Rebels, with their sidearms. This action preceded the passage of the 14th Amdt which one can argue has extended Constitutional and natural rights of persons against State intrusions.

If we elected Judges to the federal bench we would not have any of these folks on the bench ruling against the right to bear arms-- or to arm bears. The later would be my preference.

Posted by: mpb | Jan 13, 2010 10:21:41 AM

I can see this case going up the the U.S. Supreme Court on Certiorari. I think we are all entitled to a final answer to the question here presented.

Posted by: Jim Gormley | Jan 13, 2010 4:42:36 PM

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