Eugene Volokh • December 30, 2010 2:33 pm
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.
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 ( 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:
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 [i]law-abiding, responsible