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Ruling on right to arms and DV cases

United States v. Chester, handed down by the Fourth Circuit today. Defendant had been convicted of firearm possession after a misdemeanor DV conviction, and appealed. The Fourth Circuit initially vacated the conviction in an unpublished opinion that rejected the argument that the prohibition was justified under Heller's reference to "long standing" forms of gun regulation, and remanded, instructing the trial court to determine if there was any other justification. The Circuit then granted rehearing and entered this published decision.

The court initially deals with Heller's "long standing" regulations that are "presumptively lawful." It concludes that the first inquiry is whether the practice regulated lay outside the right to arms as originally understood. If it did not, then determine standard of review. The Court notes that scholarship is divided even as whether felons were outside the original right to arms, and there is no reason to believe misdemeanants were.

As to standard of review, the court notes that First Amendment restrictions are sometimes assessed under strict scrutiny and sometimes under intermediate review. Here, it rules, as one convicted of a violent misdemeanor, the Defendant is not within the core right which pertains to the law abiding, and the bar should be assessed under intermediate scrutiny.

But the court takes that seriously:

"Although [the various forms of intermediate scrutiny] differ in precise terminology, they essentially share the same substantive requirements. They all require the asserted governmental end to be more than just legitimate, either ‘significant,’ ‘substantial,’ or ‘important’ . . . [and] require the fit between the challenged regulation and the asserted objective be reasonable, not perfect."). Significantly, intermediate scrutiny places the burden of establishing the required fit squarely upon the government."

"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."

Judge Day concurs, but argues that the relevant standard should not be whether DV misdemeanants in general can be barred arms, but whether this particular defendant .... who was quite violent, and went beyond the bare "offensive touching" minimum of battery ... can be barred.

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