Fourth Circuit remand in U.S. v. Chester
Jon Roland
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:
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