Second Amendment Update

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In District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court held that the Second Amendment protects an individual’s right to possess firearms for lawful purposes such as self-defense. Heller unleashed a tsunami of litigation over the nature and scope of that right. Of particular interest to criminal lawyers, Heller led to constitutional challenges of many of the subsections of 18 U.S.C. § 922(g), the federal statute that prohibits the possession of firearms by, among others, illegal immigrants, drug users, and convicted felons. I spent some time last night looking at several recent Fourth Circuit cases in this area, and I thought I’d combine them into a Second Amendment update. At the end of this post, I’ll note a couple of relevant state law developments as well.

Here are the recent Fourth Circuit cases:

  • United States v. Moore, __ F.3d __ (4th Cir. Jan. 25, 2012) (Agee, J.). The Fourth Circuit rejected a defendant’s facial and as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting felons from possessing firearms.
  • United States v. Carter, __ F.3d __ (4th Cir. Jan. 23, 2012) (Niemeyer, J.). A long-time marijuana user was prosecuted under 18 U.S.C. § 922(g)(3), the federal statute prohibiting drug users from possessing firearms. He appealed on Second Amendment grounds, and the court ruled: “Although we conclude, applying the intermediate scrutiny standard, that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and might have reasonably served that objective by disarming drug users and addicts, we nonetheless find that the government failed to make the record to substantiate the fit between its objective and the means of serving that objective. Therefore, we vacate the judgment and remand” to allow the parties to litigate the provision’s tailoring before the district court.
  • United States v. Chapman, __ F.3d __ (4th Cir. Jan. 4, 2012) (Hamilton, J.). The Fourth Circuit rejected the defendant’s as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(8), the federal statue prohibiting persons subject to a DVPO from possessing a firearm. The court ruled that even assuming that the defendant retained his Second Amendment rights, the government had shown, through statistical and social science evidence, that section 922(g)(8) serves the important purpose of reducing domestic gun violence, and that the section is tailored to serve that interest. Therefore, the section passes constitutional muster under the intermediate scrutiny standard.
  • United States v. Staten, __ F.3d __ (4th Cir. Dec. 5, 2011) (Hamilton, J.). The Fourth Circuit rejected the defendant’s as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(9), the federal statue prohibiting persons previously convicted of misdemeanor domestic violence offenses from possessing a firearm. The court ruled that even assuming that the defendant retained his Second Amendment rights, the government had shown, through legislative history and common sense, that section 922(g)(9) serves the important purpose of reducing domestic gun violence, and that the section is tailored to serve that interest. Therefore, the section passes constitutional muster under the intermediate scrutiny standard.

The take-home message is that most of the federal gun prohibitions have withstood Second Amendment challenges. And, although I don’t follow the other federal circuits very closely, my sense is that the results elsewhere have been pretty much in line with the Fourth Circuit.

There have also been several interesting developments at the state level:

  • A judge ruled that North Carolina’s statutory limits on gun possession during a declared state of emergency were unconstitutional. In response, the General Assembly amended the relevant statutes, tailoring gun restrictions more narrowly. My colleague Norma Houston has covered this issue in detail on the School of Government’s local government blog; her most recent post is here.
  • The General Assembly is considering HB 111. Among other things, the bill would (1) allow concealed carry in restaurants, unless prohibited by the establishment, (2) increase the penalty for possession of a firearm by a felon if the defendant discharged the gun or injured someone with it, and (3) clarify the statute adopted last session prohibiting local governments from banning guns in parks but allowing local governments to ban guns in specified recreational facilities. (I discussed that statute here.)

This is a rapidly-evolving area, and there are probably interesting gun-related developments that I’ve missed. If you know of some, please post a comment.

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