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:

• Can dismissed domestic violence complaint justify revoking gun permit?
• Split en banc Seventh Circuit in Skoienupholds categorical exclusion of DV misdemeanant from Second Amendment
• Notable press account of Skoein Second Amendment ruling with partisan perspectives
• Skoien and the many challenges of Second Amendment jurisprudence
• Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• Assailing the unjustified Second Amendment limits in Heller
• "The Standardless Second Amendment"

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.