780 F. Supp. 2d 473
W.D. Va.2011Background
- Elkins is charged with possessing firearms while subject to a Virginia domestic protective order under 18 U.S.C. § 922(g)(8).
- Protective orders were issued against Elkins in 2010 after alleged family abuse and threats involving Heather Vanover.
- Vanover obtained preliminary orders in April and June 2010, and a regular order was entered after a hearing in July 2010, lasting until July 2012.
- In November 2010, an incident involving Elkins included threats and firing rounds from AK-47 rifles; police arrested him and later recovered firearms at his residence.
- The Indictment alleges the protective order contained terms meeting § 922(g)(8)(C)(ii); Elkins challenges the statute as violating the Second Amendment after an evidentiary hearing.
- The court applies the Fourth Circuit’s Chester framework to assess the Second Amendment challenge to § 922(g)(8).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(8) burden falls within the Second Amendment scope | Elkins argues the statute restricts protected possession rights | Government contends the restriction targets a dangerous class and falls outside core Second Amendment | Yes, conduct falls within Second Amendment scope |
| What level of scrutiny applies to § 922(g)(8) under the Chester two-part test | N/A | N/A | Intermediate scrutiny applies |
| Whether § 922(g)(8) passes intermediate scrutiny | N/A | Stricter or equivalent scrutiny not necessary given impact | Statute passes intermediate scrutiny due to reasonable fit and temporary nature of restriction |
| Whether the Virginia order and limitations provide a reasonable fit to the government’s interest | N/A | Restrictions tailored to protect victims and limit contact with a specific petitioner | Yes, limitations ensure only current threats are restricted and are temporally bounded |
Key Cases Cited
- United States v. Chester, 628 F.3d 673 (4th Cir.2010) (two-part approach; burden on conduct within Second Amendment; intermediate scrutiny)
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (individual right to bear arms; not unlimited; preserves presumptively lawful regulations)
- United States v. Masciandaro, 638 F.3d 468 (4th Cir.2011) (discusses levels of scrutiny under Second Amendment framework)
- United States v. Emerson, 270 F.3d 203 (5th Cir.2001) (applies scrutiny based on the nature of the interest and burden)
- United States v. Reese, 627 F.3d 792 (10th Cir.2010) (illustrates intermediate vs strict scrutiny application)
- United States v. Miles, 238 F.Supp.2d 297 (D.Me.2002) (discusses reasonable fit in protective-order context)