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December 30, 2010

Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)

The Fourth Circuit has added a final bit of Second Amendment fireworks to close out 2010 through a long decision today in US v. Chester, No. 09-4084 (4th Cir. Dec. 30, 2010) (available here).  Here is how the majority opinion by Chief Judge Traxler starts and ends in Chester:

The sole issue presented in this appeal is whether William Samuel Chester’s conviction for illegal possession of a firearm under 18 U.S.C. § 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We vacate the decision below and remand for further proceedings....

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants.  The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal.  Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond.  Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.

Here is how Judge Davis starts and ends a quite lengthy concurrence:

In light of the highly persuasive decision of the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert. pending, sustaining the constitutionality of 18 U.S.C. § 922(g)(9), the district court should have no difficulty in concluding that the application of § 922(g)(9) to offenders such as Chester passes Second Amendment scrutiny, exactly as district courts have already concluded. See United States v. Smith, 2010 WL 3743842 (S.D.W. Va. Sept. 20, 2010) (applying Skoien and sustaining statute); United States v. Staten, 2010 WL 3476110 (S.D.W. Va. Sept. 2, 2010) (same)....

I can foresee no difficulty for the district court in sustaining the constitutional validity of the application of § 922(g)(9) in this case.  Nevertheless, under the circumstances of the law’s understandably slow evolutionary course of development, I am content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.

A few related Second Amendment posts:

UPDATE:  Eugene Volokh has this effective new post discussing the Chester opinion, which has prompted an interesting comment dialogue about whether and how often minor matters get turned into domestic violence misdemeanor.  And, like the thoughtful comments below, folks at Volokh are discussing whether William Samuel Chester’s makes an effective poster-child for Second Amendment rights.

December 30, 2010 at 02:17 PM | Permalink

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Comments


I am a big proponent of broad 2d amend. rights, and I believe 922(g)(9) is overly broad. However, as a proponent, I don't want this guy as the standard bearer for the argument.

If the statute is upheld, I hope the court limits its analysis to an as-applied challenge. There are many others who have domestic violence convictions long in their past that were uncontestedly minor, who are much more sympathetic to a 2d amend. argument than this guy is.

I know that, as attorneys representing a client, you can't pick and choose what arguments to make based on the best manner in which the law should develop. But, as a legal strategist hoping to obtain a warranted change in the law, Mr. Chester is not the ideal defendant to be blazing this trail.

Posted by: DEJ | Dec 30, 2010 3:34:37 PM

I think the 2nd speaks plainly and loudly.
The RIGHT to bear arms SHALL NOT be ABRIDGED.

Just what part of that do the courts not understand?

The only provision the Constitution gives for recension
of our rights is in cases of infamous crimes.

Screaming at your wife doesn't quite attain to that
stature me thinks.......


Raven
American Citizen Extraordinaire

Posted by: Raven Weese | Dec 30, 2010 4:25:37 PM

Ernesto Miranda was no paragon of virtue or otherwise a sympathetic standard bearer. It seems to be the rule that ugly facts and unsympathetic defendants are required for the advancement of everyone's civil rights. Has there been a criminal case that changed police practices or revolutionized criminal prosecution more than Miranda v. Arizona? We lawyers have a duty to vigorously represent our clients. The lawyer(s) has done so here. Thanks to Heller, there is a revolution in progress. Give thanks for that revolution while knowing we cannot always choose our representatives in the fight.
JJ

Posted by: Jim Murray | Dec 30, 2010 4:50:57 PM

Alan Gura smiles, while Frank Lautenberg scowls.

Posted by: AD | Dec 30, 2010 5:30:27 PM

"It seems to be the rule that ugly facts and unsympathetic defendants are required for the advancement of everyone's civil rights."

You contradict your own statement when you say "Thanks to Heller, there is a revolution in progress." Heller was quite sympathetic and had no ugly facts, yet he set off this "advancement of everyone's civil rights." In the area of the 2d amdend. you cannot deny that it helps to have good facts. When, by the very nature of the issue, a deadly weapon is involved, it is ideal to have a good vehicle in any attempt at continuing to expand the newly interpreted individual right.

"We lawyers have a duty to vigorously represent our clients. The lawyer(s) has done so here."

I absolutely agree. No complaint whatsoever on the attorney's job or his/her decision to raise the issue. In fact, I praise the job well-done!.

Posted by: DEJ | Dec 30, 2010 5:35:45 PM

"Screaming at your wife doesn't quite attain to that stature"

Mr. Chester did much, much worse than scream at his wife. Read the opinion.

Further, the statue requires "the use of physical force" to be an element of the domestic violence offense. And assuming the Court's holding in Johnson applies to the definition of misd. crime of domestic violence (which I believe it should (although Scalia had doubts without really analyzing the issue)), then the physical force must involve "strength, power, and violence."

I have no doubt that there have been individuals who were convicted of misdemeanor domestic violence based on a shouting match and exaggerated claims about what transpired. I have no doubt that there are many, many individuals who have a prior misd. crime of domestic violence who do not deserve to have their 2d amend. right take away. I just am not sure if Mr. Chester is the ideal person to raise the argument.

Posted by: DEJ | Dec 30, 2010 5:52:40 PM

hmm cute DEJ

"I have no doubt that there have been individuals who were convicted of misdemeanor domestic violence based on a shouting match and exaggerated claims about what transpired. I have no doubt that there are many, many individuals who have a prior misd. crime of domestic violence who do not deserve to have their 2d amend. right take away. I just am not sure if Mr. Chester is the ideal person to raise the argument.

Posted by: DEJ | Dec 30, 2010 5:52:40 PM"

I HAVE NO DOUBT that up till 50-60 years ago when ex-cons were let out of jails and prisons ANY weapons they had INCLUDING guns that were not stolen property were RETURNED TO THEM.....as REQUIRED by the 2nd Amendment!

Posted by: rodsmith | Dec 30, 2010 7:59:26 PM

It's interesting to think about because on one hand if you allow citizens to have guns they can protect themselves on the other hand though. They could harm other citizens. When you allow people to carry guns legally they are in a way acting as a person of authority. As you hear in the Spider Man comics with great power comes great responsibility. What if you are trained as a citizen to carry a gun but you accidentally hurt another citizen when trying to protect yourself. I dunno if citizens should ever legally be able to carry guns because there's so much danger to it.

Posted by: Mike | Oct 3, 2012 3:05:17 PM

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