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February 23, 2010

Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it

As both a Second Amendment believer a fed courts geek, a notable ruling today from the the Fourth Circuit today has me excited and annoyed and amused all at the same time. The ruling is in US v. Chester, No. 09-4084 (4th Cir. Feb. 23, 2010) (available here), and it begins this way:

A grand jury sitting in the Southern District of West Virginia indicted William Samuel Chester, Jr., for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).  Chester moved to dismiss the indictment, arguing that application of the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  The district court denied the motion.  Thereafter, Chester pled guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).

In the proceedings below, the district court did not address whether Heller required the Government to justify individual laws that restrict Second Amendment rights.  Instead, it dismissed Chester's claim in reliance on Heller’s much-noted language as to “presumptively lawful” gun regulations—notably, the felon-dispossession laws.  JA 60-61.  Following the pattern of other lower federal courts, it drew an analogy between felons and domestic violence misdemeanants, concluding that the Hellerlanguage should be read to include both because the potential violent acts of those found guilty of domestic violence is often far greater than that of those who commit non-violent felonies. JA 61.

We find that the district court erred when it failed to scrutinize § 922(g)(9) apart from the language in Heller.  We agree with the Seventh Circuit decision in United States v. Skoien, 587 F.3d 803, 808 (7th Cir. 2009), insofar as it held that challenges to firearms regulations under the Second Amendment must be individually analyzed because such regulations restrict the exercise of a constitutional entitlement.  In this case, the district court neither determined the most appropriate level of scrutiny of § 922(g)(9), nor did it substantively apply that level of scrutiny to an analysis of § 922(g)(9), and therefore, we vacate and remand this case for further proceedings.

This Chester ruling by the Fourth Circuit excites me because, as regular readers know, I think the criminal prohibition on gun possession by misdemeanants in § 922(g)(9) is constitutionally questionable in the wake of Heller, and I believe lower courts have been too ready and eager to dismiss Second Amendment attacks on  § 922(g)(9).

But... this Chester ruling by the Fourth Circuit annoys me because, apparently in order to try to keep this important ruling below the radar screen, the panel decided to denominate this opinion "unpublished" so that it is "not binding precedent in this circuit."  Because this Chesterruling breaks new ground and provides important guidance on a frequently arising issue, I cannot fathom a valid reason why it should be "unpublished."

And... this Chester ruling by the Fourth Circuit amuses me because, as noted above, the panel declares that it "agree[s] with the Seventh Circuit [panel] decision in United States v. Skoien, 587 F.3d 803, 808 (7th Cir. 2009)," exactly one day after the Seventh Circuit itself decided to take the Skoien case en banc (which I believe has the effect of vacating the panel decision).  Thus, the Chester panel not only intentionally gave its own opinion a shadow quality by making it "unpublished," but it also unintentionally gave its an opinion a ghostly quality by relying heavily on a now gone case.

A few related Second Amendment posts:

February 23, 2010 at 06:21 PM | Permalink


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When the court does the right thing under the law but may not agree with their own result ideologically, the decision will not be published so it cannot be used as precedent. This is a hunch based on my experience as a long time appellate practitioner in state and federal courts.

Posted by: Joe | Feb 24, 2010 7:57:27 AM

Yesterday evening I learned that the government is going to seek an extention of time to file for rehearing and rehearing in banc. (I am the attorney who is representing Chester.)

Posted by: Ed | Feb 24, 2010 8:55:29 AM

Is it possible the timing is NOT a coincidence? I.e., that the Chester opinion has been "in the bag" and was originally intended to be published, but the 4th Cir. waited until the disposition of the 7th Cir. motion for rehearing in Skoien before releasing it in case the motion was granted -- which it was, so the 4th Cir. shifted to unpublished at the last moment?

Posted by: B.J. Priester | Feb 24, 2010 9:37:35 AM

I suggest optimism and faith in Justice Scalia. Let's not forget the passion, determination & momentum that went into his HELLER opinion.
Wait for the decision in McDONALD v. CHICAGO.

I suspect that Justice Scalia's philosophy as to keeping and bearing arms (KABA) is that Rome was not built in a day. HELLER was only the first beginning, the cornerstone.

We are beginning with the Saints & Angels Doctrine (i.e., the foolishness that the Founders wrote the 2nd Amendment ONLY for the benefit of the Saints & Angels). The right to KABA will EVOLVE as have other rights, case by case, seriatim,
as people demand to apply the "EQUAL PROTECTION OF THE LAWS" clauses; for instance, if Martha Stewart wants to take her gun when she goes to get a gallon of milk.

David William Bowden

Posted by: David William Bowden | Feb 25, 2010 6:11:19 PM

I guess this is important, as it shows that the issue is a live one, but won't the real important ruling come after the remand, when the 4th Cir. reaches the merits of the Second Amendment challenge? It would have been nice to publish this one, but won't the later opinion be the real precedent-setter?

Posted by: Anon | Mar 2, 2010 11:37:05 AM

I was charged with a DV back in 1999 for grabbing my ex-girlfriends arm and telling her to pull over because she was driving very erratic. Since my convection I have really excelled in everything that I do. For example, I have maintained the same job with excellent job performance, I went back to college and graduated with a BS in management. Furthermore, I went through the hiring process for major law enforcement agency and passed everything. The testing process includes backgrounds, QAP, Psychological testing, and a lie detector test; and I owned up and explained my past entirely. I expunged my record per 1203.4 as well as 12021 (c) thinking that it would grant my gun rights back, I was wrong. I have done everything that I could possibly do to prove that I am a productive citizen (job for 10 years, BS degree, married with a baby girl, and a new home owner). I would be even willing to join military branch and fight for my country in order to prove my patriotism and worth as a United States citizen. When I was charged with the DV I was under the assumption that I would be able to own a gun after a 10 year ban, I was never told that I would lose my rights forever. My ex-girlfriend even wrote a character letter where she expressed her confidence in me obtaining my Second Amendment right back. My last court appearance was to try and petition for a Corum Nobis and that failed; and I had the backing of my ex girlfriend and my background officer from the agency that I applied with come in my support. I am the type of person that will never give up because I know that I am worthy of a second chance at a dream. In conclusion, I take responsibility for my past wrongs and I do believe in punishing people that commit DV but there should not be a life sentence on a fundamental right, especially if a person shows that he/she has learned and has grown from the mistake's that he/she committed in the past. Thanks, Chris

Posted by: Chris | Mar 7, 2010 10:54:20 AM

this case is a little strange because i thought some broke-in my house, because i had problems before. it turn out my so had my gun. i later learn that boys had been thrithing my son. that why he got my forprotection without my knowlegde, i told him when i bought the gun not to miss with it,iam who have liesence to carrie permit, now he charge with a felony, because he took, an when he arived back to house , he had my gun in his pocket, clear had not been fired,with bullet 3 of them,an clip cear of bullets

Posted by: rachel mae allen young | Apr 26, 2010 1:29:55 PM

I am so tired of this whole issue. Even in my line of work I am affected by events that occurred over 20 years ago. If I had know then the impact on my life those incidents could present I would have picked a different way (legally) to handle it. But since those laws were not in affect how could I? Because of a dv conviction over twenty years ago I can't even wear protective armor ie bullet proof vest. As a paramedic that works in a 911 service I find that rather disturbing not to mention the fact that my family is concerned that I can't even protect myself when the opportunity is available. I could go on for hours about this and all points are sound and reasonable. Growing up in a local community where rowdiness was part of the accepted behavior made it hard to fully develop into a truly acceptable member of a regular society. I made the necessary changes and have never repeated those behaviors however several years later some laws were changed that affected me for the rest of my life. I was never afforded the full benefit of being able to weigh all the consequences therefore I was not given my full right to fully defend myself. I can' t help the fact that I feel as if I've been stabbed in the back and my assaulter was not man enough to even face me first.

Posted by: paul berio | Jun 11, 2010 5:07:51 PM

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