I will point out that this opinion is also in direct conflict with the Fifth
Circuit’s opinion in US v Emerson, in which after determining the Second to
protect an individual constitutional right, the court essentially applied a
rational basis test (despite surface language to the contrary), holding
922(g)(9) constitutional ...
From: Jon Roland
Sent: Thursday, December 30, 2010 3:59 PM
To: [email protected]
Subject: Fourth Circuit remand in U.S. v. Chester
Big Second Amendment Opinion from the Fourth Circuit, Related to the Ban on Gun
Possession by Domestic Violence Misdemeanants
Eugene Volokh • December 30, 2010 2:33 pm
The opinion is United States v. Chester, just decided today; thanks to Prof.
Doug Berman (Sentencing Law & Policy) for the pointer. I’ll blog more after I
read it, but here’s the conclusion from the two-judge majority:
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.
One judge concurred in the judgment, concluding that “[i]t is ... quite clear
that § 922(g)(9) is substantially related to the government’s important
interests, as the statute directly prohibits the possession of firearms by
those with a demonstrated history of actual or attempted violence,” but
agreeing with the remand because he was “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.”
Note that, as with the Seventh Circuit Skoien case — in which a panel initially
reached a similar result to that just reached by the Fourth Circuit panel —
there’s a good chance that the Fourth Circuit will rehear the case en banc.
UPDATE: If the Fourth Circuit doesn’t rehear the case en banc, I doubt that the
Supreme Court will agree to consider the matter at this point. Rather, I
suspect that the Justices will wait until the district court considers the
matter on remand, and the Fourth Circuit considers the inevitable appeal from
that decision. Then, if the Fourth Circuit ultimately concludes that §
922(g)(9) is constitutional, there’ll be no circuit split, and the Justices
will likely not take the case. But if the Fourth Circuit concludes — again,
following the district court decision on remand — that § 922(g)(9) is
unconstitutional, the Justices likely will take the case, because there’ll be a
split among the circuits as well as the invalidation of a federal statute, two
factors that generally cut in favor of the Supreme Court’s reviewing the matter.
The panel opinion, as I read it, endorses a three-tier level of review, at
least for substantial restrictions on gun possession such as the one here (as
opposed to milder burdens on gun possession):
(1) Historically accepted exceptions to gun rights (at least ones accepted as
of the Framing, and perhaps some more) are constitutional.
(2) Substantial restrictions on gun possession that fall within the core of
Second Amendment protection, described by the panel as “the right of a
law-abiding, responsible citizen to possess and carry a weapon for
self-defense” (note the inclusion of carrying, and not just possession in the
home, as some courts have said), are probably subject to strict scrutiny.
(3) Substantial restrictions on gun possession that are neither historically
accepted nor applicable to “law-abiding, responsible citizen[s] ...
possess[ing] and carry[ing] a weapon for self-defense” are subject to
intermediate scrutiny, which calls for factual evaluation of whether the law is
“substantially related” to a sufficiently “important government goal.” Since
there will almost always be an important government goal to which the
government could point — preventing death, injury, and violent crime — the main
questions will likely be (a) what sort of factual evidence the government will
have to show, and (b) to what extent will courts demand that the evidence
specifically justify not just some restrictions but life-long (or very
long-term) restrictions.
Here is what struck me as the heart of the court’s reasoning:
Continue reading ‘Big Second Amendment Opinion from the Fourth Circuit, Related
to the Ban on Gun Possession by Domestic Violence Misdemeanants’ »
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