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When a misdemeanor conviction makes home firearm possession a crime

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Image from the Government Printing Office’s website.

District of Columbia v. Heller applies the Second Amendment to the individual right to possess firearms for home protection. Heller, 128 S. Ct. 2783 (2008).

What happens when a person possesses a firearm at home in contravention of a criminal statute prohibiting possession of firearms by people previously convicted of certain misdemeanors? On December 30, 2010, a Fourth Circuit panel, 2-1, adopted the following approach that has been applied in the Third Circuit:

The [1] first question is "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee." Id. 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. See Heller, 128 S. Ct. at 2816. If it was not, then the challenged law is valid. See Marzzarella, 614 F.3d at 89. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the [2] second step of applying an appropriate form of means-end scrutiny. See id. 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.

U.S. v. Chester, ___ F.3d ___  (4th Cir, Dec. 30, 2010).

Chester entered a guilty plea to possessing a firearm at home in violation of a law prohibiting such possession for his previous domestic violence misdemeanor conviction. He entered his plea on the condition that he was not waiving his right to challenge the statute’s application to his case. The Fourth Circuit remanded the case back to the trial court, apparently to apply the above-quoted two-step test.

Chester’s concurring judge urges the application of intermediate scrutiny, instead: 

Intermediate scrutiny is the proper level of scrutiny for § 922(g)(9). Heller eliminated rational basis scrutiny and Justice Breyer’s proposed balancing test as possibilities. Heller, 128 S. Ct. at 2817 n.27; id. at 2821. The Court also made it clear that strict scrutiny is unwarranted in Second Amendment analysis. See id. at 2851 (Breyer, J., dissenting). Moreover, it is clear here that § 922(g)(9) does not even burden the core right of the Second Amendment as established by the Supreme Court in Heller, namely, the right for "law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 2821. Undisputedly, those convicted for having committed violent assaults against cohabitants and family members in general, and Chester in particular, are not law abiding, responsible citizens.

Chester (Davis, J., concurring).

As an aside, especially in the concurring opinion, Chester comes across as a particularly diabolical and violent person. Of course, such a depiction is not automatically reality, but the description highlights how essential it is for criminal defense lawyers always to humanize their clients as best they can. Who else will do so?