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:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller
• What if no lower court judges participate in a "Second Amendment Revolution"?
• Has there been a single pro-gun-rights rulings in lower courts since Heller?

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