Heller’s ongoing legacy – are the felon in possession statutes constitutional

In U.S. v. Chester, decided December 30, 2010, the 4th Circuit Court of Appeals vacated a federal conviction for possession of a firearm by a person convicted of criminal domestic violence under 922(g). The opinion does not reverse the lower court and it does not declare 922(g) unconstitutional, but it contains some pretty provocative language which indicates that the 4th Circuit may find that the “dispossession statutes,” which prohibit felons or persons with domestic violence convictions from owning guns, are unconstitutional under the U.S. Supreme Court’s decision in Heller.
Scalia’s opinion in Heller was premised on an analysis of what the Second Amendment was meant to protect at the time that it was enacted – but, Heller also says that:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Despite this, the 4th Circuit in Chester goes on to point out that, at the time of the enactment of the Second Amendment, there was no prohibition on the possession of handguns by felons or the mentally ill, nor on the possession of handguns by those convicted of criminal domestic violence. A good point, if we are to continue with Scalia’s analysis of the Amendment in light of what was understood at the time of its enactment.

In this case, the government has not taken the position that persons convicted of misdemeanors involving domestic violence were altogether excluded from the Second Amendment as it was understood by the founding generation. Moreover, it appears to us that the historical data is not conclusive on the question of whether the founding era understanding was that the Second Amendment did not apply to felons. See Williams, 616 F.3d at 692 (noting that “[t]he academic writing on the subject of whether felons were excluded from firearm possession at the time of the founding is inconclusive at best” (internal quotation marks omitted)); Skoien, 614 F.3d at 650-51 (Sykes, J., dissenting) (“[S]cholars disagree about the extent to which felons-let alone misdemeanants-were considered excluded from the right to bear arms during the founding era․ We simply cannot say with any certainty that persons convicted of a domestic-violence misdemeanor are wholly excluded from the Second Amendment right as originally understood.”); United States v. McCane, 573 F.3d 1037, 1048 (10th Cir.2009) (Tymkovich, J., concurring) (“[T]he felon dispossession dictum may lack the ‘longstanding’ historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as ‘longstanding prohibitions on the possession of firearms by felons’ ․ is far from clear.”).
Of course, we are dealing in this appeal not with felons but people who have been convicted of domestic-violence misdemeanors. If the historical evidence on whether felons enjoyed the right to possess and carry arms is inconclusive, it would likely be even more so with respect to domestic-violence misdemeanants. The federal provision disarming domestic-violence misdemeanants is of recent vintage, having been enacted in 1996 as part of the Lautenberg Amendment to the Gun Control Act of 1968. See Pub.L. No. 104-208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996). By contrast, the federal felon dispossession provision has existed in some form or another since the 1930s, and thus there is a much larger body of scholarly work considering the question of whether felons were originally excluded from the protection afforded by the Second Amendment.

The 4th Circuit decides that intermediate scrutiny is appropriate in this case, as opposed to rational basis or strict scrutiny, because Chester did have a conviction for a domestic violence – otherwise strict scrutiny may have been appropriate. The Court holds that the burden to establish the constitutionality of the statute falls on the government and not on the defendant. “The government must demonstrate under the intermediate scrutiny standard that there is a ‘reasonable fit’ between the challenged regulation and a ‘substantial’ government objective.”
The 4th Circuit then remands the case, with instructions to the district court to hold a hearing and give the government an opportunity to present additional evidence in light of their holding:

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.

I expect that the district court will find that there is a sufficient relationship between 922(g) and the government’s goal of keeping firearms out of the hands of domestic abusers, and that it will be appealed to the 4th Circuit yet again and it will then be affirmed. But the language that the Court uses, and the discussion of the lack of prohibitions at the time of the enactment of the Second Amendment, in light of Heller, does make one wonder.

One Response to “Heller’s ongoing legacy – are the felon in possession statutes constitutional

  • Alan Depetro
    7 years ago

    The second amendment to the U.S. Constitution guarantees every American the right to bear arms. Has any law ever been so ambiguous? What are arms? What does it mean to bear them? At least with the first amendment we know exactly where we stand: Freedom of speech. It couldn’t be any clearer. But, the right to bear arms leaves the second amendment open to different interpretations. We need gun permits to carry a concealed weapon. Do we need knife permits? No. Yet both can, and often do, cause death. We can own a gun, or a rifle, or a sub-machine gun, or a machete, and dozens of other tools to kill, even our own bare hands. So, gun control is a debate in our country that makes no sense unless you broaden the ban or acceptance to include all instruments of death.`,

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