Fourth Circuit (unpublished!?)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:

• Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• 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