US v Chester: 4th Circuit Scrutiny Case (Includes Carry Reference)

Patrick · Dec 31, 2010

Mark/Krucam was on to something yesterday in his feeling the 4th is more open to our arguments than not.

This case has huge implications. (Volokh)

Chester is about a misdemeanor convict for domestic abuse looking to have a gun at home. WV says he cannot. It made its way up to the Appellate level )Circuit) in Richmod, and they are sending it back for more finding and determination.

BUT...they set some rules for anlaysis of Chester's claim. These rules are quite the bonanza for us. Here's how Volokh reads it (and so far I agree with him):

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 ... 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.

Volokh picks the following passage from the 4th's opinion as seminal:

Some courts have treated Heller’s listing of “presumptively lawful regulatory measures,” for all practical purposes, as a kind of “safe harbor” for unlisted regulatory measures, such as 18 U.S.C. § 922(g)(9), which they deem to be analogous to those measures specifically listed in Heller. See, e.g., United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010) (“We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt.”). This approach, however, approximates rational-basis review, which has been rejected by Heller. In fact, the phrase “presumptively lawful regulatory measures” suggests the possibility that one or more of these “longstanding” regulations “could be unconstitutional in the face of an as-applied challenge.” United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010).

In view of the fact that Heller ultimately found the District’s gun regulations invalid “under any standard of scrutiny,” it appears to us that the Court would apply some form of heightened constitutional scrutiny if a historical evaluation did not end the matter. The government bears the burden of justifying its regulation in the context of heightened scrutiny review; using Heller’s list of “presumptively lawful regulatory measures” to find § 922(g)(9) constitutional by analogy would relieve the government of its burden.

Thus, a two-part approach to Second Amendment claims seems appropriate under Heller, as explained by the Third Circuit Court of Appeals, and Judge Sykes in the now-vacated Skoien panel opinion. The first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid.

If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law....

[W]e are certainly not able to say that the Second Amendment, as historically understood, did not apply to persons convicted of domestic violence misdemeanors. We must assume, therefore, that Chester’s Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense. The question then becomes whether the government can justify, under the appropriate level of scrutiny, the burden imposed on Chester’s Second Amendment rights by § 922(g)(9)....

Given Heller’s focus on “core” Second Amendment conduct and the Court’s frequent references to First Amendment doctrine, we agree with those who advocate looking to the First Amendment as a guide in developing a standard of review for the Second Amendment. In the analogous First Amendment context, the level of scrutiny we apply depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right. For example, a “content-based speech restriction” on noncommercial speech is permissible “only if it satisfies strict scrutiny.” But, courts review content-neutral time, place, and manner regulations using an intermediate level of scrutiny. Likewise, a law regulating commercial speech is subject to a more lenient intermediate standard of scrutiny in light of “its subordinate position in the scale of First Amendment values.” As Judge Sykes observed in the now-vacated Skoien panel opinion: “The Second Amendment is no more susceptible to a one-size-fits-all standard of review than any other constitutional right....”

Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense — by virtue of Chester’s criminal history as a domestic violence misdemeanant. Accordingly, we conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons. Accordingly, the government must demonstrate under the intermediate scrutiny standard that there is a “reasonable fit” between the challenged regulation and a “substantial” government objective. Significantly, intermediate scrutiny places the burden of establishing the required fit squarely upon the government.

Click to expand...

Interesting stuff here. This reasoning comes from a three judge panel (1 dissenting) in our Fourth Circuit. It's value extends far beyond the misdemeanant's case - those rules are going to be applied to other 2A cases. This means our own Woollard.

Gansler should have fought early and fought hard. This decision from the 4th is going to be real hard for him to get around. It all but says carry for law-abiding people requires strict scrutiny. Gansler's delaying tactics were probably a gambit that time would provide him a stronger defense...that may well have backfired big time.

In caveat...I have not read this full opinion in depth. I bring this to you from Volokh and hope he has it right. He's usually pretty good at the high-level stuff.

randyho · Dec 31, 2010

More greatly-appreciated analysis. Thanks, Patrick.

krucam · Dec 31, 2010

That is very, very promising for our presumed run to the 4th. The opinion closely followed the Heller decision's direction.

The brief/opinion is here: http://pacer.ca4.uscourts.gov/opinion.pdf/094084.P.pdf

This Chester guy will never make father of the year. Prior DV conviction. He's got a hooker on his property doing the deed, gets caught by his wife who gets upset (surprise), neck around a throat, cops called, guns in the house, yada, yada, yada.

It is important that they're looking at Misdomeanor as disqualifiers (§ 922(g)(9), even if DV types are scumbags.

What is more (as you mentioned) important is that the 4th Ckt is advising their subordinate District Courts (MD Included) HOW to establish the framework for deciding 2A cases!!:
Pg 9

...§ 922(g)(9) on the basis that "logic and data" demonstrate "a
substantial relation between § 922(g)(9) and [an important
governmental] objective." 614 F.3d at 642. We now grant
panel rehearing, vacate our initial opinion and reissue our
decision to provide district courts in this Circuit guidance on
the framework for deciding Second Amendment challenges.

What you bolded from Volokh is from Pg17 of the Opinion, when they're determining the level of scrutiny for a DV Misdemeanant:

Accordingly, we conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons.

Intermediate for an "iffy" background leaves Strict for those "otherwise qualified".

The Supreme Court went into great lengths in Heller to explain the 2A. The 4th here is going into great lengths to determine what Heller means, and telling the Districts their interpretation...Blueprint for Change... :party29:

I can't wait for Judge Motz (Woollard) to get the memo.

I might have to get some Champagne and put it on ice after work....probably won't last long, but just sayin'...

Patrick · Dec 31, 2010

Mark...right on the money. I just sent 9 visiting family members out for day trips (without me, bless them), so I had some time to go through this in detail. My cursory look this morning suggested this was pretty interesting. Glad you gave a more thorough view.

A framework for evaluation of 2A cases is what every court around the nation has complained they are lacking. But then they avoid taking a stab at creating one...wimps.

Looks like our Fourth Circuit said to hell with it and jumped in with almost two feet - on an ugly plaintiff, as you note. I don't think people reading this should be focusing on the misdemeanor issues...those will be dealt with in time. Right now the court didn't make a determination for this guy. But in my view he not only should be prevented from owning a gun, he should be locked up in jail for a long time to come. Serious dirtbag.

The thing we should be focusing on is the immediate assistance this provides us in the Woollard suit. The Fourth (Chief Judge, at that) stated the key holding of Heller to be the right to possess and carry arms for self defense. They then described the decision in Heller to be an as-applied ruling against the DC ban on owning guns in the home. In other words, they did not claim Heller protected keep and bear 'in the home'. They agreed that Heller defined 'possess and carry for self defense', and then noted that the DC regulations against home ownership fell under that larger umbrella.

It's a subtle distinction, but a big one.

They created a class of strict protection for lawful people by exclusion...meaning they did not outright say "lawful people deserve strict protections for possession and carry of firearms". Instead, they said 'the federal law preventing unlawful people from possession of firearms for self defense does not require the strict protections afforded lawful people'. Then they told Uncle Sam to go back and do some homework to really, really justify prohibitions of non-felon violent people from owning guns, using evidence.

On a personal note, I hope the government does a good job and prevails. That would be a perfect two-fer for me: seriously dangerous assholes get locked up if found with guns; and the US Government helps to define a level of scrutiny which forwards 2A rights for the rest of us. Awesome.

How This Applies to You

Simply put, the Fourth Circuit rules over Maryland federal courts. Their word is law in this state. And what they just (pretty much) said was that lawful people have a right to possess and carry arms for self defense. Period.

This is directly applicable - immediately - to Woollard. Gura is going to be able to point to this opinion and framework and say that the Fourth claims carry of arms in public is protected by strict scrutiny. Gansler's job just got more difficult. Seriously more difficult.

Is this the 'death blow' we have been looking for? Absolutely not. Any lawyer worth his retainer could carve a slalom path through this to temporarily avoid the inevitable. But at some point, this goes to the Fourth and the Chief Judge there has gone mostly pro-2A on us. Does Gansler (recipient of nepotistic love) have the salt?

Mark is right. The Fourth may buck the trend and go our way. I may owe him some McNuggets in 2011.

ezliving · Dec 31, 2010

Happy New Year!

jpk1md · Dec 31, 2010

Patrick said:
How This Applies to You

Simply put, the Fourth Circuit rules over Maryland federal courts. Their word is law in this state. And what they just (pretty much) said was that lawful people have a right to possess and carry arms for self defense. Period.

This is really the PROBLEM.

I don't mean to derail the discussion but the 2A is clear....Shall Not Be Infringed.....there is no room for Federal OR State intervention on this issue and THAT is the goal we need to be pushing towards.

That you are conceding that the Federal Gov (Courts) rule here on this issue is very very troubling and one of the biggest problems with the Heller decision.....what has happened in Heller is that the Fed Courts have asserted their authority to decide what is legal and what is not over State law (State is Subordinate)...there is nothing in the Constitution that granted Congress or any other branch of Gov the power or authority to infringe upon 2A.

This is fine and dandy so long as the Fed Courts are smacking down bans and obvious infringements but we all know that is only PART what has happened....SCOTUS ALSO asserted that Shall not be infringed really doesn't mean what it says and that there is room for yet to be determined Infringement....and that it will be up to the Fed Courts to determine whether a State Law is an infringement or not.

THIS sets up conditions for clear 10th A violations imho.

The bottom line is that if you want to be Free then you need to accept the good and the bad that accompanies Freedom....and sometimes that means not being Safe.

Patrick · Dec 31, 2010

I agree. Heller creates classes of those who are protected and those who are not. Chester falls into the category of 'not', and as such, can be regulated more than the whole.

This does open the door to a complex set of restrictions permitted on those who are 'not' eligible. Who gets to decide eligibility?

My problem with Chester is it could open the door to misdemeanor ineligibility. But the Lautenburg Amendment states that the reason these count as exclusionary is due to the otherwise felonious nature of the crimes - the fact that they are considered misdemeanors only because the two parties were related. Sounds like a sentencing problem to me.

That is the next fight. After this one.

After they lose, the anti-rights groups are going to try to disqualify large swaths of the people on the basis of minor crimes (this guy did not commit minor crimes). Bloomberg has already said parking tickets were enough to disqualify you.

yellowfin · Dec 31, 2010

Bloomberg needs to stop getting what he wants.

zoostation · Dec 31, 2010

Patrick said:
After they lose, the anti-rights groups are going to try to disqualify large swaths of the people on the basis of minor crimes (this guy did not commit minor crimes). Bloomberg has already said parking tickets were enough to disqualify you.

This is exactly what they are going to do, I agree. And it isn't going to stop at just criminal records, either. They are already working hard to open the floodgates to health records, New Jersey style, in the hopes that even many law-abiding citizens will simply find the process too invasive and humiliating to follow through with making a purchase. Heck, they've even mentioned using credit reports in NYC.

I can hear Kommissar Bloomberg now; "Well you wouldn't want someone who was 90 days late on a car payment to be in charge of a gun would you? :omg:

If they can't pay their bills, they aren't responsible enough to own guns."

yellowfin · Dec 31, 2010

Then NYC will just get dragged into court over and over again, each time we get more strong rulings and precedent built in our favor to beat them over the head with.

krucam · Dec 31, 2010

zoostation said:
This is exactly what they are going to do, I agree. And it isn't going to stop at just criminal records, either. They are already working hard to open the floodgates to health records, New Jersey style, in the hopes that even many law-abiding citizens will simply find the process too invasive and humiliating to follow through with making a purchase. Heck, they've even mentioned using credit reports in NYC.

I can hear Kommissar Bloomberg now; "Well you wouldn't want someone who was 90 days late on a car payment to be in charge of a gun would you? If they can't pay their bills, they aren't responsible enough to own guns."

Did you read Ckt Judge Traxer's interpretation of Heller in the Chester Opinion? http://pacer.ca4.uscourts.gov/opinion.pdf/094084.P.pdf

90 days late on a car payment won't cut it in OUR future. Unpaid parking tickets, nope.

A DV accusation but not convicted, Akmed who spends a lot of time at the mosque praying and is on a "List" but not a threat...well, 9mm, .40 or .45 sir?

Hell maybe even someone with multiple DUI's, a Martha Stewart non-violent felon and scumbag/dirtbag Mr. Chester misdomeanor may not be prohibited...would you like a Red Dot with that?

I'm a realist and yet an optimist. I only have to look at Judge Traxler's words to realize that the words of Heller & McDonald WILL be understood and interpretted properly by the people that count, and the next 1-2 cases to hit SCOTUS to seal the deal will put over due library books and LCAV out of business.

I wish everyone a Happy New Year, but I'm sorry, I don't "get" the negativity on this. BGOS perhaps?

Intermediate scrutiny for "colorful" individuals and Strict for the rest. Parking tickets wouldn't pass even Intermediate...

This is OUR future.

One more Yeungling before dinner is ready, a bottle of Korbel Brut awaits afterwards...

Peace Out....

Oreo · Dec 31, 2010

Any chance that because of this framework the judge currently presiding over Woolard will necessarily have to rule in favor of the plaintiffs and as such we are restored the right to carry as a result of that ruling sooner rather then after a long appeals process?

krucam · Dec 31, 2010

This is mine and Patrick's read and hope...I mean for crying out loud, take this from the Opinion....

Pg14 of the Opinion

The government has not contended that § 922(g)(9) is valid because Chester, having been convicted of a domestic violence misdemeanor, is wholly unprotected by the Second Amendment.

Based on this and the lack of historical evidence in the record before us, we are certainly not able to say that the Second Amendment, as historically understood, did not apply to persons convicted of domestic violence misdemeanors.
We must assume, therefore, that Chester’s Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense.6

This dirtbag wife-beating, whoring, daughter slapping scum bag gets his Fundamental Rights. Probably at least at an Intermediate Scrutiny level.

I would love to see what is sent to the District Courts, including MD when he referenced:

...§ 922(g)(9) on the basis that "logic and data" demonstrate "a
substantial relation between § 922(g)(9) and [an important
governmental] objective." 614 F.3d at 642. We now grant
panel rehearing, vacate our initial opinion and reissue our
decision to provide district courts in this Circuit guidance on
the framework for deciding Second Amendment challenges.

What is this guidance/framework? Is it to be read in this Opinion or will it originate in another form within the Courts that we won't see...I'd love to be a fly on the wall when Judge Motz receives this "guidance".

Woollard will wait for Plaintiff Amended Complaint, we will then wait for Defendant response....yada, yada, yada. When the preliminaries are over and Judge Motz has to make some real decision outside the mundane is when we'll truly know the effects that US v. Chester provided.

I would think that MD/Gansler would realize an appeal to the 4th would be futile given the 4th Ckt's words in Chester. There IS a potential for sooner rather than later IMHO.

I'm optimistic...

Al Norris · Dec 31, 2010

So then, the wife/husband that pushed her/his wife/husband out of the way, in order to exit the house, during an argument, gets charged and convicted of a DVM, and therefore looses her/his RKBA forever.

Is this really the type of "violence" that warrants a lifetime disability? Where is the "criminal history" assuming this is a first time event?

Real domestic violence is abhorrent. But the way the DV laws are enforced today, is a sham.

It doesn't stop there, though. Consider what happened, once 30 years ago. A man pleads to a misdemeanor simple assault. It has never been repeated. But because it involved his wife, he is today a prohibited person. See U.S. v Hayes: SCOTUS overturns a 4th Circuit decision.

Remember, the courts do not consider the forfeiture of your RKBA to be a punishment (and this, even after Heller), hence there is no ex-post facto situation, as regards Lautenberg.

More to the point I'm making: This case is the 4th Circuit trying to get around the Hayes decision. Even if only a little. They recognize that stripping someone of their RKBA is a punishment (albeit unsaid).

zoostation · Dec 31, 2010

krucam said:
Did you read Ckt Judge Traxer's interpretation of Heller in the Chester Opinion? http://pacer.ca4.uscourts.gov/opinion.pdf/094084.P.pdf

90 days late on a car payment won't cut it in OUR future. Unpaid parking tickets, nope.

A DV accusation but not convicted, Akmed who spends a lot of time at the mosque praying and is on a "List" but not a threat...well, 9mm, .40 or .45 sir?

Hell maybe even someone with multiple DUI's, a Martha Stewart non-violent felon and scumbag/dirtbag Mr. Chester misdomeanor may not be prohibited...would you like a Red Dot with that?

I'm a realist and yet an optimist. I only have to look at Judge Traxler's words to realize that the words of Heller & McDonald WILL be understood and interpretted properly by the people that count, and the next 1-2 cases to hit SCOTUS to seal the deal will put over due library books and LCAV out of business.

I wish everyone a Happy New Year, but I'm sorry, I don't "get" the negativity on this. BGOS perhaps?

Intermediate scrutiny for "colorful" individuals and Strict for the rest. Parking tickets wouldn't pass even Intermediate...

This is OUR future.

One more Yeungling before dinner is ready, a bottle of Korbel Brut awaits afterwards...

Peace Out....

I hope you are right. However I think no matter what we will always be in a perpetual legal and political battle to defend our right to bear arms. Because the balance of power has swung to us in recent years does not mean it will stay that way indefinitely. It is simply the nature of people that some will always seek to control others by disarming them. Been going on since one of our ancestors up in the trees figured out that he could be more in charge if he and his buddies were the only ones in the forest allowed to carry the big sticks.

krucam · Dec 31, 2010

zoostation said:
I hope you are right. However I think no matter what we will always be in a perpetual legal and political battle to defend our right to bear arms. Because the balance of power has swung to us in recent years does not mean it will stay that way indefinitely. It is simply the nature of people that some will always seek to control others by disarming them. Been going on since one of our ancestors up in the trees figured out that he could be more in charge if he and his buddies were the only ones in the forest allowed to carry the big sticks.

The "Balance of Power" the Anti's had for the last 70+ years has been Legislative.

Judicial Power and jurisprudence will be far more lasting...we are righting a wrong right now.

yellowfin · Dec 31, 2010

They had the judiciary locked up from 1879 to 2008.

Patrick · Jan 1, 2011

The inclusion of misdemeanor DV as a possible restriction on RKBA looks to be a hard(er) sell than for felonies. The majority judges were concerned that the language in Heller about "presumptively lawful" bans on felons was ambiguous. Because Heller provided no reason as to why such bans were presumptively lawful, they had nothing to use in their analysis of this case.

They do seem to be leaning the way of preventing Chester from owning arms, if only because the acts in misdemeanor DV would be considered felony assault had they been perpetrated against an unknown/unrelated victim. What Chester did would have qualified as a serious felony if done to a stranger, but the oddities of domestic violence laws means here he was charged with a misdemeanor. They appear to not let the charge get in the way of the act: it is serious either way.

This is good for the 2A fight all around. First, the judges are reticent to ban RKBA for a dirtbag like this without some stronger showing on the part of the government than simple literary flourishes about the evil of domestic violence. They are drawing an analytic line even though they will almost surely prevent Chester from owning guns in the future.

In their words, Heller's language on presumptively lawful exceptions to the rule are not a "safe harbor" for the whims of government actors. They still require real proof that the restriction meets a compelling need. To "presume" without proof is equivalent to rational basis, which they note is not allowed.

Secondly, the analysis line they are drawing demonstrates that the government better have a damn good reason to limit RKBA. Parking tickets won't cut it. Even in Chester's case, they expect the government to present real proof that DV convictions rise to the level of rights denial. Bloomberg is going to be disappointed, as this cuts directly to his recent modifications of NY permitting.

Thirdly (and hardly last), Chester strongly implies that government has an even tougher fight if they want to restrict RKBA for lawful citizens. And by "lawful", we mean those not prohibited by serious crime. And in the opening of their opinion they defined Heller's core holding as the "right to possess and carry arms for self defense".

They did not slam-dunk Woollard, but they set a tone that is going to be hard to fight.

hvymax · Jan 1, 2011

Oreo said:
Preaching to the choir there jpk1md. We all get it, I think. What you say is absolutely true. It's just that it ain't gonna go down like that right now no matter how hard we fight for it. Only way you're gonna get what you're asking for is a literal armed revolution, IMO. What's that saying about too late to work within the system and too soon to shoot them? For now, just take solace that we're moving in the right direction in great leaps and bounds even if not the full distance we'd really like to see and brothers aren't being sent to kill one another in the process. Maybe, just maybe one day decades in the future even our nations most liberal progressive citizens will have become desensitized to guns in the hands of good people and we will be able to focus our energy on other important things like fiscal responsibility.

Unfurtunately progressive liberals do not see a society populated with decent responsible citizens. They see a mass of incompetent helpless imbeciles in desperate need of their benevolent leadership.

rambling_one · Jan 1, 2011

jpk1md said:
The ONLY solution is to force Gov to stick to its Constitutional Powers.

This is precisely the crux of the matter; by whom and how?

If a "more perfect" Constitution were written, the question of enforcement would still remain.

US v Chester: 4th Circuit Scrutiny Case (Includes Carry Reference)

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