Constitutional Challenges to Federal Gun Laws

I wrote here about 18 U.S.C. § 922(g)(9), the federal statute that prohibits people who have been convicted of domestic violence misdemeanors from possessing firearms. Federal law also prohibits felons, drug addicts, “mental defective[s],” illegal aliens, and various other groups from having guns. 18 U.S.C. § 922(g). In the wake of District of Columbia v. Heller, 554 U.S. 570 (2008), which held that the Second Amendment protects an individual right to possess firearms for traditionally lawful purposes such as self-defense, some of those prohibitions have been challenged on constitutional grounds.This post is an update on that litigation.

The most frequent challenges have been to the law preventing domestic violence misdemeanants from possessing guns For example, the Seventh Circuit considered that issue in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). The court found the statute “generally proper,” though it reserved judgment on whether a defendant “who has been law abiding for an extended period must be allowed to carry guns again.” And in United States v. White, 593 F.3d 1199 (11th Cir. 2010), the Eleventh Circuit held that “although passed relatively recently,” the same statute “is a presumptively lawful ‘longstanding prohibition[ ] on the possession of firearms’.” Id. (quoting Heller, 554 U.S. at 626-27). Most recently, in United States v. Chester, __ F.3d __ (4th Cir. Dec. 2010), the Fourth Circuit considered and remanded a similar challenge. Here’s my summary of that case, since it is our own federal circuit:

In 2005, the defendant was convicted of “domestic assault and battery” after assaulting his daughter. In 2007, officers searched the defendant’s home after another domestic incident – this time involving his wife – finding two firearms. The defendant was charged with possessing a gun after having been convicted of a “misdemeanor crime of domestic violence,” in violation of 18 U.S.C. § 922(g)(9). He moved to dismiss, contending that the statute violated the Second Amendment as interpreted in Heller. The district court denied the motion, and the defendant entered a conditional guilty plea. On appeal, the Fourth Circuit established a two-step test for reviewing Second Amendment claims. First, a court must determine whether the conduct regulated by the challenged law falls within the scope of the Second Amendment at all; because Heller emphasized the historical underpinnings of the Second Amendment, this is a historical inquiry, asking “whether the conduct at issue was understood to be within the scope of the right at the time of [the Amendment’s] ratification.” If not, that is the end of the matter. But if the conduct falls within the Second Amendment, the second step of the test asks the government to justify the restriction. The level of scrutiny to be applied varies with how close the regulation comes to the core of the Second Amendment. Applying its newly-minted two-step test, the court first found that the historical evidence does not support placing domestic violence misdemeanants totally outside the scope of the Second Amendment. (It is apparently ambiguous even with respect to felons.) Then it determined that, because section 922(g)(9) involves people with a criminal record rather than law-abiding citizens, it does not burden the core of the Second Amendment. Thus, the court held, intermediate scrutiny is appropriate, and the government must show a “reasonable fit” between section 922(g)(9) and a “substantial” or “important” government interest. It remanded the case to give the government the opportunity to present evidence that satisfies that standard. The concurring judge suggested that the government should have “no difficulty” in meeting its burden.

These constitutional challenges haven’t been limited to subsection 922(g)(9). For example, in United States v. Reese, __ F.3d __ (10th Cir. Dec. 10, 2010), the Tenth Circuit rejected a challenge to subsection 922(g)(8), which prohibits gun possession by anyone who is the subject of a domestic violence restraining order. I’ll be interested to see how all of these challenges ultimately play out. But Skoien suggests that the case-by-case, individual approach endorsed by our own appellate courts may find some traction in the federal courts as well.