United States v. Daniel Chovan

America, UNITED STATES Plaintiff-Appellee, CHOVAN,

Daniel Edward Defendant-Appellant. No. 11-50107. Appeals, States United Court of Ninth Circuit. 15, 2012. Feb. and Submitted

Argued Filed Nov. Duffy,

Laura E. Attorney, United States Castetter, Bruce R. Assistant United Attorney, Chief, Section, States Appellate Division, Criminal Caroline P. Han (briefed and argued), Assistant United n Attorney, Kyle States W. Hoffman (briefed), Assistant Attor- United States CA, ney, Diego, San Plaintiff-Appellee. Burstein, Devin Federal Defenders of Inc., CA, Diego, Diego, San San for Defen- dant-Appellant. PREGERSON, HARRY

Before: HAWKINS, DALY MICHAEL BEA, Judges. T. CARLOS Circuit OPINION

PREGERSON, Judge: Circuit

Following entry conditional of a guilty plea, appeals Daniel Chovan the dis- trict denial court’s of his motion dismiss against an him indictment for violation of § 922(g)(9). 18 U.S.C. Section prohibits persons convicted of domestic vi- misdemeanors olence fire- possessing life. arms for Chovan contends both unconstitutional on its aside”; if the it vio- or set or of- expunged him because applied and as face had right to bear “has been or has civil pardoned fender lates his Second (if alternative, argues that applicable In the he law of the rights arms. restored not to him because provides does loss of civil jurisdiction for the offense).” have restored within rights civil been his such rights under an U.S.C. meaning 921(a)(33)(B)(ii). U.S.C. exceptions These are 921(a)(33)(B)(ii). jurisdiction We pardon, expungement, if “the not met reject § 1291. We to 28 U.S.C. pursuant expressly rights pro- of civil restoration argument, “civil restored” Chovan’s person may ship, vides that trans- scrutiny applies to hold that intermediate or firearms.” possess, receive Id. port, claim, uphold and his Second 2009, purchase to a applied In Chovan scrutiny. § under intermediate Diego from a area dealer. firearm San application a form completed required He & FACTUAL PROCEDURAL question answered “no” wheth- and to BACKGROUND of a er he had ever been convicted misde- 1996, in Daniel Chovan was convicted violence. meanor crime domestic His misdemeanor state court of the California application was denied after a purchase spouse a inflicting corporal injury on background check his 1996 misde- revealed Penal of California Code violation meanor conviction of domestic violence. 273.5(a). Fix,1 victim, Cheryl The was application, time of At his Chovan with Chovan at the time.2 Chovan living under legally possess could a firearm Cali- days jail to 120 and sentenced three was passed had years fornia law because ten supervised years of release. conviction, since his 1996 but conviction, of this Chovan was Because possessing continued to bar him from possessing from firearms under prohibited firearm. Under Califor- both state federal law. The FBI information about received 12021(c)(1), at nia Penal Code which attempted purchase began Chovan’s generally, to applied time misdemeanants During their investigating Chovan. inves- owning, purchas- barred Chovan was from agents FBI videos on tigation, found receiving, having possession or in his ing, depicting Internet Chovan others control, any fire- custody under his or conducting shooting pa- rifles and “border ten-year following period arm for a his trols” near the border. U.S.-Mexico But 18 U.S.C. conviction. 922(g)(9), applies a federal statute FBI also learned that March misdemeanor only persons to convicted of Diego County deputies San Sheriff crimes, violence Chovan was domestic dispute to a responded domestic Cho- possessing any firearm for barred Fix, van’s residence. Chovan’s then-es- life. wife, told tranged the officers Chovan violent, had become hit her with cell excep- 922(g)(9) establishes two

Section hunt her long- phone, and threatened to down will no tions under which the statute if him. “if has been and shoot her ever left Fix apply: er the conviction she willfully changed any person applies to who inflicts 1. Fix married Chovan in 1997 We injury person her last to "Chovan.” refer her corporal "upon name who is his or throughout opinion cohabitant, Fix the sake of spouse, spouse, her former former separated clarity. Fix and Chovan in 2009. cohabitant, or the mother or father his or child____” her 273.5(a) Penal does not 2. California Code married, parties require that the but rather be pled guilty said that she believed Chovan’s threats Chovan to Count One of the weapons indictment, inside house. pursuant he had his to a plea conditional agreement preserved ap- his April On FBI and Bureau of peal the denial of his motion to dismiss.3 Alcohol, Tobacco, Firearms and Explosives years Chovan proba- was sentenced to five agents a search Cho- executed warrant of timely tion. appealed Chovan the denial of van’s In the course of search house. their his motion dismiss. firearms, they found and confiscated four including a .22 caliber High Standard STANDARD OF REVIEW belonged Chovan,

handgun that and 532 rounds of assorted ammunition. Federal We review de noVo the constitu agents Chovan day arrested after the tionality of a statute. States United arrest, search. his admit- During Chovan (9th Vongxay, F.3d Cir. possessed ted that he had and fired the 2010). alsoWe review de novo constitu firearms several times since do- his 1996 challenges tional to a district court’s denial mestic violence conviction. A two-count of a motion dismiss. Id. brought against indictment was Chovan. that alleged Count One Chovan had know- DISCUSSION ingly possessed firearms in violation of argues appeal Chovan on that § 922(g), alleged Two he Count that § 922(g)(9) violates the Second Amend- had in acquisi- made false statement ment because is an impermissible re- tion of a firearm violation of 18 U.S.C. striction on the individual fundamental 924(a)(1)(A). § right alternatively to bear arms. ar- He One, Chovan to moved dismiss Count § gues 922(g)(9) apply that does not to him (1) § contending that un- 922(g)(9) is an civil rights because his were restored when constitutional violation of the Second ten-year his ban on owning firearms under (2) Amendment; his civil rights were “re- state expired, California law and thus that stored” meaning within his conviction should be vacated. We dis- 921(a)(33)(B)(ii), § therefore agree both arguments. (3) him; § 922(g)(9) apply to did § 922(g)(9)’s him a vio- application to was Rights I. Civil Restored equal protection. lation of The district by addressing start dismiss, We Chovan’s court denied motion Chovan’s to argument non-constitutional that concluding § that “is a presump- him apply does not tively prohibition and an represents lawful rights his civil exemption right from the arms been restored.4 Sec bear 921(a)(33)(B)(ii)prevents tion the applica under the Second Amendment as articulat- Heller, ed in Columbia v. 554 tion of situations where a [District of 570, 2783, rights” U.S. 171 637 defendant’s “civil have been re S.Ct. L.Ed.2d (2008)].” stored. Chovan that his civil contends 466, 3. Count part Two was dismissed as a U.S. 56 S.Ct. 80 L.Ed. 688 plea agreement J., ("[I]f (1936) (Brandéis, and is not at in this concurring) issue a case appeal. grounds, can be decided either of two one involving question, a constitutional the other Dep’t 4. See Commerce v. States United question statutory gener- construction or 316, Representatives, House 343- U.S. law, only Court al will decide the lat- S.Ct. L.Ed.2d 797 ter.”)). Auth., (citing Valley v. Ashwander Tenn. rights “civil restored” ex- meaning of that a different restored within rights were 921(a)(33)(B)(ii) “an ception to own did not offender who when his Thus, under California law we concluded rights”). restored lost no civil firearms was 922(g)(9)’s his 1996 conviction. years Brailey ten after failed to meet exception. rights civil restored 921(a)(33)(B)(ii) define does not Section v. In States rights.” “civil United the term argues Brailey’s Chovan however, we addressed how Brailey, rights excep civil reading of the restored 609, 611-13 term. 408 F.3d interpret equal narrow and an “create[s] tion is too (9th Cir.2005). David In James problem.” According to Cho protection cqnvicted in Utah of a misde- Brailey was Brailey, individ van it is unfair that under Id. at of domestic violence. meanor crime vote, who lose the serve on uals conviction, he As a result of this 610-11. of their jury, public or hold office because un- firearms possessing was barred from but later have these re convictions then-existing state law. Id. der Utah firearms, possess stored can while individ however, amended its 611. In Utah never lost these uals like Chovan who Brailey and other mis- statutes such rights cannot. longer prevented no demeanants were equal protection argument Chovan’s firearms. Id. at 610-11. possessing foreclosed our decision in United States charged with Brailey subsequently was (9th Cir.2000). Hancock, 231 F.3d 557 violation possession firearm 1995, Gary Hancock con- 1994 and was appealed He 922(g)(9). Id. at 610. victed of four Arizona state misdemeanors conviction, maintaining that his or threats of violence involving violence within the rights had been restored civil 1999, at against his wife. Id. 560. 921(a)(33)(B)(ii) his meaning §of a possessing Hancock was convicted of right possess a had been restored § 922(g)(9). firearm in violation of Id. On under law. Id. Utah argued Hancock that his appeal, indict- con- rejected Brailey’s argument, We equal ment should have been dismissed on rights that his civil had never been cluding at He ar- protection grounds. Id. 565. misdemeanor conviction “lost” because his Arizona, gued that in domestic violence away rights”: “core civil had not taken his harshly misdemeanants are treated more vote, juror, a or to right to sit as than felons because Ari- at Because public hold office. Id. 613. misdemeanants, felons, not zona unlike are lost, been Brailey’s rights had never civil deprived rights of their civil and as they that could not have been we reasoned rights can never have their civil result that most other cir- restored. We noted restored. Id. at 566. that, “where civil cuits had also concluded review, re- Applying rational basis we rights are not divested for misdemeanor jected equal protection Hancock’s claim. convictions, of a misde- person convicted First, explained that Id. 566-67. we cannot meanor crime of domestic violence 922(g)(9), Congress when enacted excep- benefit from the federal restoration discrepancies aware of the state “was v. (citing tion.” Id. at 612 United States procedures revoking restoring civil (4th Cir.2003); Jennings, [Disparate treatment of some rights.... Barnes, v. 295 F.3d 1354 United States was the inevitable result Con- Smith, offenders (D.C.Cir.2002); United States (8th to ‘look to state law Cir.1999)); gress’ decision Lo- 171 F.3d 617 see also ” (cit- States, exception.’ define the restoration Id gan v. United 552 U.S. Smith, 617, 475, (holding ing United States v. S.Ct. 169 L.Ed.2d 432 (8th Cir.1999)). Second, quiring we noted all firearms in homes to be unload rights addition to the civil restored ex- ed and disassembled or “bound trig ception, provides “several ade- ger lock or similar device.” Id. at quate legal mechanisms” for which both 635, 128 S.Ct. 2783. While the Heller misdemeanants and can qualify: felons Court declined to “undertake an exhaus “pardon, expungement, and setting aside tive historical analysis ... of the full scope of convictions.” Id. at 567. Viewing the of the Amendment,” Second it did estab exceptions together, two we found that lish that the right guaranteed individual “Congress reasonably could conclude that the amendment is “not unlimited.” Id. at felons who had been through a state’s res- 626-27, 128 S.Ct. 2783. process toration and had regained their The Heller suggested Court rights civil ... were more fit to own fire- core of the Second right is to arms than domestic-violence misdemean- allow “law-abiding, responsible citizens to ants who had not had their convictions use arms defense of hearth and home.” expunged or pardoned.” been Id. We Id. at 128 S.Ct. 2783. The Court upheld therefore rights the civil restored indicated that determining scope of the exception under rational basis review as at protections Amendment’s requires “minimally least rational.” Id. a textual analysis and historical Here, Brailey we conclude 576-605, amendment. See id. at 128 S.Ct. that Chovan’s 1996 misdemeanor domestic Finally, the Court established that violence conviction did not divest him of “weapons not'typically possessed by law- rights civil because it did not divest him of abiding citizens for lawful purposes” are vote, right to serve on a protected Amendment, the Second jury, or the public to hold office. id. at 128 S.Ct. and that certain Because Chovan never lost these “core” “longstanding prohibitions” “presump- are rights, civil he cannot qualify for the civil tively lawful regulatory measures”: exception restored 922(g)(9). Further, reject we argument Chovan’s [Njothing in our opinion should be tak- rights the civil restored exception violates en to cast doubt on longstanding prohi- Equal the Protection Clause for the same on the possession bitions of firearms reasons we articulated Hancock. at Id. ill, mentally felons and the or laws for- 566-67. bidding the carrying of firearms sen- places sitive such as schools gov- II. Challenge Second Amendment buildings, ernment or laws imposing Having concluded that Chovan not does qualifications conditions and on the qualify for the rights “civil restored” ex commercial sale of arms. ception, we turn to his Second Amendment 626-27, 2783; at Id. 128 S.Ct. see also id. § challenge 922(g)(9). to Chovan’s Second at 2783; 627 n. 128 S.Ct. McDonald v. argument predicated Amendment is on the City Chicago, U.S. -, 130 S.Ct. of Supreme holding Court’s in District Co of 3020, 3047, 177 (2010). L.Ed.2d 894 lumbia v. Heller that the Second Amend protects ment “an individual right keep to § The constitutionality 922(g)(9) of is a and bear arms.” 554 U.S. 128 question impression circuit, of first in 2783, 171 (2008). S.Ct. L.Ed.2d 637 although a of number other circuits have Heller; In Supreme upheld the the using varying Court struck statute ratio- down District of Columbia banning briefly laws nales. We summarize the different handgun possession in the approaches home and re- taken these circuits. By 2. Remanded to District Court Approaches Taken Other Cir-

A. Scrutiny: Apply Intermediate cuits Fourth Circuit “Presumptively as a Upheld 1. Lawful Prohibition”: Longstanding Chester, the Fourth consid- Circuit Eleventh Circuit argument ered Samuel Chester’s William abridged 922(g)(9) § that his conviction his considered the The Eleventh Circuit keep and bear arms § constitutionality 922(g)(9) upheld Second Amendment. longstanding lawful “presumptively it as a two-part inquiry The court held first that a White, v. United States prohibition[ ].” applies claims: to Second Amendment Cir.2010). (11th 1199, 1205 That F.3d question The first is “whether chal- felon- analogized court imposes on lenged law a burden conduct Court listed ban the Heller in-possession of the falling scope within Second restriction, not- presumptively lawful as ... If guarantee.” Amendment’s relatively re- “although passed ing regulation challenged burdens conduct thorny cently, addresses the scope that was within Second violence, a problem problem domestic understood, historically as Amendment recognized not Congress remedied step then move to we the second felon-in-possession ‘longstanding’ laws.” applying appropriate an form of means- Concluding at 1206. that “Heller does Id. scrutiny. end (9)’s 922(g) doubt” constitu- cast tionality presump- (quoting is Id. at 680 United v. Marz States (3d zarella, Cir.2010)). fur- tively prohibition, lawful and without analysis, canvassing After ther constitutional Eleventh historical evidence on Id. upheld rights Circuit the statute. of domestic finding it violence misdemeanants and “in Two other criticized circuits stated, conclusive,” the court “We must approach. In United White’s States assume, therefore, that Chester’s Second Chester, the Fourth Circuit stated that Amendment are intact and that he practical all treats purposes” “for White to some entitled measure listing presumptively “Heller’s lawful protection keep pos as a of “safe measures” sort harbor sess in his firearms home for self-defense.” measures, regulatory unlisted such as 28 Id. at 681-82. 922(g)(9)” that are “analogous U.S.C. In its discussion of the second step— specifically those measures listed Hel- challenged regulation whether the (4th Cir.2010). survives 673, ler.” 628 F.3d 679 scrutiny the appropriate of level the approach The Chester court criticized —-the noted Fourth Circuit that the Heller Court review, “approximating] rational-basis question left open the of what level of rejected by has been which Heller.” Id. scrutiny burdening to a applies law Skoien, States United Seventh conduct, Amendment-protected although sitting en declined to Circuit banc address made clear that rational Court basis 922(g)(9) is law- presumptively whether not at 682. review was sufficient. Id. The ful, stating, profitable think it “We do not Chester court went on to state: parse passages to of Heller list the[ ] [that presumptively they Although measures] lawful as if Chester asserts his to possess an to the firearm for question contained answer a in his home self-defense, § 922(g)(9) -is valid.” purpose whether we believe his (7th (en Cir.2010) banc). 640 claim is not within the core identi-

1135 right of a The court also that presence “[t]he fled in Heller —the law-abid- noted to ing, responsible possess gun citizen and of a a the home of convicted domes- carry by vir- weapon for tic abuser and ‘strongly independently is self-defense — history tue of criminal as a Chester’s associated with an increased risk of homi- ” domestic violence misdemeanant. Hel- cide.’ (quoting Kellermann, Id. Arthur L. ler, 128 2783]. U.S. at S.Ct. [554 al.; et as a Ownership Gun Risk Factor for Accordingly, we conclude that intermedi- Home, Homicide in the England New scrutiny appropriate ate than more (1993)). J. Med. In light of similarly strict for Chester and data,” logic “[b]oth the Seventh Cir- persons. situated guns cuit held keeping that from domestic at court 682-83. The Chester found Id. violence is substantially misdemeanants re- government had not “carried its that government lated interest of pre- fit establishing a reasonable be- burden venting gun Id. at 642. violence. object important reducing tween The Skoien court also held that 922(g)(9)’s domestic violence § 922(g)(9) applied was constitutional as of all disarmament domestic- permanent Id. at 645. Skoien Skoien. contended misdemeanants,” and it violence therefore not substantially was re- afford parties remanded the case to important government lated to an objec- opportunity to evidence on present tive because it “perpetually]” disqualifies Id. at question the first instance. 683. persons violence, all of domestic convicted Upheld Application Interme- even people who had not been in legal After First, or Heightened Scrutiny: diate many years. trouble for Id. at 644. The Fourth, and Seventh Circuits rejected argument, eoürt empha- Skoien’s sizing exceptions the statute’s Skoien, which In United States v. the Seventh may domestic violence upheld en misdemeanants re- sitting Circuit banc gain their assuming possess after that intermediate firearms. The equivalent its applied, noted, or therefore court also “important objec that an governmental poorly Skoien is situated contend “substantially related” tive” means the statute creates lifetime ban for necessary to the statute. uphold were pose any someone who does risk of at F.3d 641-42. The Circuit ex Seventh further offenses Skoien is him- [because] supporting amined a number studies recidivist, having self a been convicted relationship between and the battery.... person twice of domestic A important government prevent interest of applies can’t properly whom statute . ing gun at violence. Id 642-44. arguments obtain relief based that a noted, example, court that it is estab differently person might pres- situated injury lished “firearms cause death ent. situations,” in domestic and that “[domes Salerno, (citing Id. United States v. approximate tic assaults with firearms are 481 U.S. S.Ct. likely ly twelve times more to end in the (1987)). L.Ed.2d 697 by death victim’s than are assaults knives similarly upheld The First Circuit (citing or fists.” Id. at 643 Linda E. Saltz- § 922(g)(9) equivalent the applying after of man, Mercy, James A. Patrick W. O’Car scrutiny. United intermediate States roll, Rosenberg Mark Philip L. & H. (1st Cir.2011). Booker, 12, 25 Rhodes, 644 F.3d Weapon and Injury Involvement - The Booker court found while Family in and Intimate As Outcomes saults, (1992)). 922(g)(9) § 267 Am. Ass’n consistent “appears J. Med. with Hel- a fit be- establishing den of reasonable presumptively to certain

lev’s reference objec- measures,” government tween the substantial any “categor- regulatory lawful reducing gun violence and tive of domestic ownership by a class of gun ical ban on of the hands of keeping [do- firearms out by supported must be some individuals Id. misdemeanants]”. mestic violence ‘strong showing,’ necessitating form of the re- relationship substantial between B. Amendment Chovan’s Second important governmental and an striction Challenge upheld The court objective.” Id. at 25. taken considering approaches After the. concluding § after that social sci- 922(g)(9) by other circuits that considered the con- finding of “a supported ence research stitutionality 922(g)(9), of hold as fol- we relationship between substantial adopt two-step the Second lows. We disqualification of domestic 922(g)(9)’s undertaken the inquiry Amendment gun owner- violence misdemeanants Marzzarella, in at Third Circuit 614 F.3d in ship governmental pre- and the interest Chester, 89, and the Fourth Circuit in in venting gun violence the home.” Id. 680, among Apply- F.3d at other circuits. in Finally, the Fourth Circuit United inquiry, 922(g)(9) hold that ing that we States v. Staten considered the constitu falling scope burdens conduct within of tionality §of a full record guarantee Amendment’s Second in in after its decision Chester. Unlike scrutiny applies that intermediate to Cho- Chester, where the court remanded challenge. van’s Fi- of intermediate to the application First, Fourth, nally, like the and Seventh district court because the record was in Circuits, scrutiny to apply we intermediate upheld in the court complete, Staten .hold that is constitution- scrutiny. intermediate applied al on its face and as to Chovan. (4th Cir.2011). The 666 F.3d govern court held that Two-Step Inquiry Staten first 1. The establishing ment had carried its burden two-step The reducing is a domestic violence inquiry adopt (1). we asks whether objective. government substantial Id. conduct challenged protected law burdens 161. The court then examined the social (2) so, by the Second Amendment and if government science studies cited appropriate directs courts to an level government and found that the had estab Chester, 680; scrutiny. 628 F.3d at see that: lished Marzzarella, also 614 F.3d at 89. (1) prob- domestic violence is serious two-step inquiry We believe this reflects (2) States; in lem the United the rate of Supreme holding Court’s in Heller among recidivism domestic violence mis- that, pro while the Second Amendment (3) substantial; demeanants is the use of keep tects an individual and bear vi- firearms connection with domestic arms, scope of that not unlimit (4) common; all olence is too use 626-27, ed. 554 U.S. at 128 S.Ct. 2783. firearms connection with domestic vi- two-step inquiry is also consistent injury olence increases the risk of approach with the taken other circuits during homicide a domestic violence inci- considering firearms restrictions various dent; the use of firearms See, post-Heller. e.g., Heller v. District connection with domestic violence often Columbia, 1251-58 injury leads to or homicide. (D.C.Cir.2011) (“Heller II”); City Ezell v. (7th at 167. The that the 701-04 Cir. Chicago, Id. court concluded Reese, 2011); government had therefore “carried its bur- United States (10th Cir.2010). 792, join 800-05 kill, We intent rob; to commit rape, or assault Third, Fourth, Seventh, Tenth, and D.C. with a dangerous weapon, or assault with holding Circuits in that two-step intent to any commit punishable offense framework outlined applies imprisonment above to Sec- for more than one year.” (internal challenges. ond Amendment Id. at 699 quotation marks omit- ted). Domestic violence misdemeanants— Applying 2. the Two-Step Inquiry: Sec- Chovan, like who was convicted of simple 922(g)(9) tion Second Amend- Affects. misdemeanor assault under California Pe- Rights ment and Intermediate Scruti- 273.5(a) nal Code not be re- —would ny Applies stricted from possessing firearms under the Federal fact,

At the Firearms Act. In step inquiry, first domes- we tic violence conclude that prohibiting misdemeanants were not domestic vio re- stricted from possessing lence possessing misdemeanants from firearms until fire arms, § with the passage of rights protected Lautenberg burdens Amendment to the the Second Gun Amendment. Control Act of 104-208, Pub.L. No. Section is not mentioned (1996). Stat. 3009, 3009-371 government Heller. The argues that § 922(g)(9) Because of “the lack presumptively is of historical regu- lawful' evi- dence in latory us, measure the record and does not burden before we are rights certainly not historically say able to that protected by understood to be the Second Amendment, understood, as historically Second Amendment. According to the did not government, apply persons 922(g)(9) part of a convicted of do- “long mestic violence prohibitions line of misdemeanors. and restrictions on We must assume, [Chovanj’s therefore, possess by people firearms per- Amendment dangerous ceived as are intact or violent.” and that he is entitled to some measure of Second First, We do not agree. it is not clear protection Amendment keep pos- prohibitions such are so longstanding. sess firearms in his home for self-defense.” The first federal firearm restrictions re- Chester, 628 F.3d at 681-82. garding violent passed offenders were not part until of the Federal Firearms We now reach the second step of Marshall, Act. See Kevin Why C. Can’t the Second inquiry. Amendment In Hel Gun?, Martha Stewart Have 32 Harv. ler, Supreme specify Court did not Pol’y J.L. & Pub. what of scrutiny level courts must (noting that good “one can with a degree challenged statute the Second say confidence that bans on convicts Amendment. The did, Heller Court howev possessing firearms were unknown before er, indicate that rational basis review is I”). Second, World War impor- and more Heller, not appropriate. See 554 U.S. at tantly, government proved has not (“If 628 n. 128 S.Ct. 2783 all that was domestic violence par- misdemeanants required to overcome the right keep ticular have historically been restricted basis, bear arms was a rational the Second from bearing arms. The Federal Fire- Amendment would be redundant with the only arms Act of 1938 restricted firearm separate prohibitions constitutional on ir possession for those laws, effect.”). individuals convicted rational and would have no violence,” of a “crime of Having defined as “mur- concluded that burdens der, manslaughter, rape, mayhem, kidnap- Second rights, reject we ra ping, burglary, housebreaking, and certain tional basis review and conclude that some aggravated forms of assault —assault heightened scrutiny sort of apply. must to full solicitude rights are entitled level of ment appropriate determining the In ”). under Heller have looked circuit courts other scrutiny, See, guide. as a Amendment to the First on domes- places the statute The burden 682; Chester, Marzzarel- F.3d at e.g., howev- rights, tic violence misdemeanants’ Ezell, 96-97; la, n. F.3d at 89 regula- er, Unlike quite substantial. II, agree with these or Heller at 707. We in Marzzarella F.3d tions that, in the just merely regulate § does not 922(g)(9) determination courts’ context, may exercise persons the level of in which manner Amendment First rights. Amendment context their Second Amendment scrutiny in the Second Cf. Marzzarella, (concluding at 97 614 F.3d the con- “the nature of on depend should regulation numbers serial obliterated degree to and the being regulated duct severely possession limit the “does not challenged law burdens which free person leaves a “[i]t firearms” because Chester, 682; at see 628 F.3d See right.” he lawful firearm possess any to otherwise Marzzarella, at 96-97. 614 F.3d also II, chooses”); at 1258 Heller the level specifically, More that the District Columbia’s (reasoning (1) “how close the law on depend should were not a registration requirements Amend- the core of the Second comes to they “pre- do not burden because severe severity “the right,” ment a fire- possessing an individual from vent[ ] Ezell, 651 right.” on the law’s burden elsewhere”). Instead, arm in his home or at 703. F.3d 922(g)(9) § amounts to argues, as Chovan the core of the Sec tells us that Heller possession firearm prohibition” a “total of law-abid right is “the ond Amendment fact, a “life- for a class of individuals—in to use arms citizens ing, responsible such, the statute is a more ban.” As time at and home.” 554 U.S. of hearth defense on the Second “serious encroachment” 635, 128 922(g)(9) does 2783. Section S.Ct. Ezell, at right. Amendment See core Second Amendment implicate not too far when he goes But Chovan regulates posses it firearm right because § is too broad be- argues 922(g)(9) with criminal convic sion for individuals limiting its provision it “contains no cause his “Although asserts [Chovan] tions. above, explained applicability.” As home for a firearm his right possess expunged, 922(g)(9) exempts those self-defense, his we believe purpose convictions, or those or set-aside pardoned, the core identified claim is not within civil restored. who have had their law-abiding, Therefore, re recognize Heller —the while we substantially burdens Second carry possess citizen to sponsible lightened rights, the burden is Amendment by virtue of weapon self-defense — exceptions. these history criminal as a domestic [Chovan]’s Chester, 628 violence misdemeanant.” sum, implicate does Ezell, 682-83; 651 F.3d at 708 F.3d right, Amendment but the core Second cf. implicat challenged that a statute (finding on the a substantial burden place does right be core Amendment in- ed the conclude that right. Accordingly, we ‘law-abiding, scrutiny is plaintiffs are the rather than strict cause “the termediate apply.5 proper Amend- standard citizens’ whose Second responsible Booker, 25; Chester, See, e.g., 644 F.3d at have also found that intermedi- 5. Most courts 682-83; Marzzarella, 614 F.3d at 97 proper equivalent F.3d at or its is the ate scrutiny to Second (applying intermediate standard 922(k), challenge of 18 U.S.C. challenges statutes. similar

1139 White, (11th Applying Scrutiny, 1199, Cir.2010). S. Intermediate 593 F.3d 1205 Uphold We and Its Through § 922(g)(9), Congress sought to Application to Chovan dangerous “close this loophole” and “estab- lish!;] policy of zero tolerance when it Although courts have used various guns comes to and domestic violence.” terminology to describe the intermediate Booker, 644 (quoting F.3d at 16 142 Cong. standard, scrutiny all forms of the stan (1) 25, 1996) Rec. (daily S8831 ed. July require government’s dard stated (statement (internal objective substantial, significant, to be of Sen. Lautenberg) or (2) important; omitted) quotation reasonable fit be marks (emphasis add- ed)). tween the challenged regulation and the Thus, legislative history of objective. Chester, asserted 628 F.3d at § 922(g)(9) shows that Congress did not below, explain 683. As we 922(g)(9), enact the statute for the purpose “pre- of Chovan, both on applied its face and as violence,” venting gun as Chovan argues. survives scrutiny. intermediate Instead, Congress passed 922(g)(9) to prevent gun domestic violence. Important a. Government Interest We and other circuits have previously § 922(g)(9) Chovan concedes that was defined government interest behind important government motivated § 922(g)(9) way. in this In United States “keeping interest of away firearms from Belless, we noted that purpose likely those most “pre- to misuse them” or § 922(g)(9) keep is “to firearms out of the venting gun agree violence.” We people hands of past whose violence in § 922(g)(9) important advances an govern- domestic relationships makes them un objective, ment objective but define the trustworthy deadly custodians of force.” slightly narrowly, more preventing as do- (9th Cir.2003). 1063, 1067 gun mestic violence. Booker, the First similarly Circuit defined _ government That interest behind interest behind “keeping as § 922(g)(9) was prevent domestic gun guns away people from who have been apparent violence is from the face of the proven engage in violence with those statute legislative history. and its As the with whom they domestically share a inti government explains, the 1996 passage of relationship, mate familial or who live § 922(g)(9) was motivated the concern with them or the like.” 644 F.3d at 25. guns being kept were not away from Staten, in Finally, the Fourth Circuit de domestic abusers felon-in-possession fined the interest behind laws because “many people engage who “reducing gun domestic violence.” 666 spousal serious or child abuse ultimately added). (emphasis F.3d at 161 charged are not with or convicted of felo- It is self-evident government Skoien, nies.” 614 F.3d at (quoting 643 preventing interest of (1996) (statement domestic vio- 142 Cong. Rec. 22985 Booker, (internal lence important. is See Sen. Lautenberg) quotation omitted)); at 25 (“[K]eeping guns away people marks from see also United States v. 415, Hayes, 555 proven U.S. who have been engage S.Ct. [do- (2009); 172 L.Ed.2d 816 United States v. ... undeniably impor- mestic] violence possession a ban on subject protection firearms with obliterat- arms those to domestic Reese, numbers); ed serial orders); II, 627 F.3d at 802 (applying Heller 670 F.3d at 1257 (applying intermediate to Second intermediate to District of Colum- challenge 18 U.S.C. registration requirements). bia’s firearm § 922(g)(8), possession which of fire- bans Brown, Sampson, Understanding ert Desistance Carey v. U.S. J. (citing taut.” Crime, L.Ed.2d 263 & S.Ct. 28 Crime Just. (1980) (“The protecting interest State’s only (estimating that 48% domestic privacy of well-being, tranquility, and “suspended” their abusive conduct abusers certainly highest of the order the home is conviction)). years within three n society.”))). in a We hold free civilized Third, agree government we with the that has met its burden to government guns. The that domestic abusers use gun violence reducing show that domestic government explains “Congress that ac- objective. government is an important in in- knowledged guns that the use of cidents of domestic violence was Substantially b. Related to concern,” compelling and cites to the Interest Government Congressional in which Record Con- guns from domestic violence Keeping 150,- that gress “annually, found over substantially related to misdemeanants is in- 000 incidents of domestic violence preventing interest of domes- the broader gun.” volve a See United States v. gun tic violence for four related reasons. Smith, F.Supp.2d 742 867 First, agree government that we (S.D.W.Va.2010) 22,- (citing Cong. Rec. legislative history 'the indicates that Con- 986). government The further relies it gress enacted Booker, fact, on the articulated in that sought people to reach the who had dem- 52,000 “nearly individuals were mur- violence, kept were not from onstrated but dered a domestic intimate between by § possessing 922(g)(1)because firearms 1976 and and the perpetrator domestic abusers are not often convicted Hayes, of felonies. 129 at roughly See S.Ct. 1087. used a firearm in 65% Booker, murders.” 644 at F.3d 26. Second, agree government we with the high that “a rate of domestic violence re Finally, agree government we with the government cidivism exists.” The relies guns by that the use of domestic abusers is Skoien, on in which the Seventh Circuit likely more to result in the victim’s death. pointed estimating to a number of studies government study The cites re- medical a rate of domestic violence recidivism be upon proposition lied in Skoien for the that Skoien, tween See 35% 80%. involving incidents of domestic violence at Estimates of full recidi “[t]he 643-44. likely are firearms twelve times more rate,” vism which “includes violence that end in the victim’s death than incidents arrest,” “range does not lead to an a perpetrator where is either unarmed or 40% to 80% ’when victims are followed Skoien, armed with a knife alone. See ” longitudinally directly.’ and interviewed Saltzman, (citing at 643 E. F.3d Linda Stover, at (citing Carla Smith O’Carroll, Mercy, A. Patrick James W. Res., Interperson Domestic Violence 20 J. Rhodes, Rosenberg Philip Mark L. & H. (2005)). al Violence Skoien Weapon Injury Involvement and Out- court also cited two other studies Assaults, Family comes in and Intimate full estimated the recidivism rate to be (1992)). 267 J. Am. Medical Ass’n 3043 52%, respectively. (citing 35% and Id. Ju Putting together, these four conclusions Babcock, ah, lia C. et Does Batterers’ government has demonstrated that A Metar-Analytic Treatment Work? Re domestic violence misdemeanants are like- Treatment, view Domestic Violence ly to commit acts of domestic violence Psychol. Clinical Rev. that, if again they gun, do so with a (estimating recidivism rate on 35% based signifi- partners’ reports); John H. Laub & Rob- the risk of death to the victim is cantly gov- comparatively increased. hold lower We recidivism rates thereby met its burden to ernment has than individuals in other categories. § 922(g)(9)’sprohibition gun show Measuring Moreover, Recidivism possession by domestic violence misde- none of Chovan’s statistics has to do with substantially meanants is related to the individuals convicted of domestic violence important government prevent- interest of specifically. crimes The National Institute ing domestic violence. Because study for Justice only burglary, mentions § 922(g)(9) supported by important an robbery, assault; aggravated it does government substantially interest and re- violence, not mention domestic rior does interest, to that passes lated statute make conclusions about individuals convict- constitutional muster under intermediate ed generally. of crimes ‘Redemption’ at scrutiny. Meanwhile, government has re- ferred to domestic violence studies men- c. As-Applied Challenge Chovan’s tioned the Skoien court showing that argues Chovan is the recidivism rates for individuals convict- unconstitutional as him applied to because ed of significant domestic violence is —be- his 1996 domestic violence conviction oc Skoien, percent. tween 35 and 80 See years curred fifteen before his 922(g)(9) F.3d at 643-44. conviction, recidivate, unlikely he is argues Chovan also that he has not been he has in fact been for law-abiding those arrested for domestic violence since the years. fifteen 1996 conviction and has otherwise been Chovan cites several in support statistics law-abiding. argues He that March 2010 argument his that he is at low risk of domestic violence call made his es- recidivism. Sentencing He cites the Com- tranged wife and victim of the act of do- mission’s Measuring study, Recidivism underlying mestic violence the 1996 convic- which establishes those with stable tion, Cheryl Fix, should not be held employment likely are less to recidivate against “ him because it not did result ‘[rjecidivism and that comparatively is charge or even arrest and amounts to “un- (less low for the lowest sentences than six allegations.” substantiated Di- When San probation).”’ months or Measuring See ego County deputies Sheriff responded to Recidivism: The History Criminal Com- call, Fix told them that Chovan had putation Sentencing Federal Guide- her, become violent with struck her with a lines at 14. He also cites a National phone, cell to hunt her threatened study Institute for proposi- Justice for the down and shoot her if she ever left him. people tion that who remain offense free (and for long as Mr. Chovan indeed Although Chovan was not arrested for much periods) pose shorter a recidivism violence, domestic we nonetheless consider equal risk to that of the general popula- the March 2010 domestic abuse call and Nakamura, tion. See Blumstein & K. ‘Re- part Fix’s statements. The call is demption’ in an Era Widespread Crim- considered, espe- record. And should be Checks, Journal, Background inal NIJ cially in light underlying of one of the June at 10. § 922(g)(9): rationales of acts of domestic under-reported violence are and often do

But the Sentencing Commission statis- lead to arrest or conviction. See tics do not reveal the actual rate of recidi- Skoien, (explaining 614 F.3d at 643 that in vism for those with employment stable sentences; enacting 922(g)(9) Congress only recognized short the statistics estab- lish that individuals in categories felon-in-possession those two ban did not Skoien, at 641 stored. See abusers away from domestic

keep guns (“[S]ome are categorical disqualifications are never many domestic abusers (quot- of felonies or convicted not limited to charged Congress with is permissible: (state- 22,985 ing Cong. Rec. who case-by-case persons exclusions The March Lautenberg))). ment of Sen. untrustworthy to be have been shown the con- supports call 2010 domestic abuse limits be estab- weapons, nor need these at risk of recidi- that Chovan is clusions court.”). presented lished evidence violence and-that Cho- for domestic vism the narrow- of the statute and The breadth commit future gun might van use Congress’s reflect exceptions ness of these light of domestic domestic violence. a “zero toler- express intent to establish call, § to Cho- 922(g)(9)’sapplication abuse and domestic guns towards policy” ance goal of substantially related to the van is violence. reducing domestic violence. application of Because the aside the if were to set But even we substantially gov- to the related Chovan as- domestic abuse call and March 2010 preventing interest of important ernment’s history had no of that Chovan has sume violence, gun as-applied domestic Chovan’s has since Chovan domestic violence challenge fails. directly to contra- presented not evidence that the government’s the evidence dict CONCLUSION violence recidivism is rate of domestic directly that if a high. proved reasons, reject Nor has he foregoing we For the has not committed domes- claim, domestic abuser rights restored” hold Chovan’s “civil years, that abuser is tic violence for fifteen proper that intermediate is the In unlikely again. to do so highly apply to to his Second Amend- standard evidence, conclude that absence of such we claim, uphold 922(g)(9) ment and and its to application of Chovan intermediate application to Chovan under government’s substantially related to the scrutiny. AFFIRMED. preventing of domestic

important interest gun violence. BEA, concurring: Judge, Circuit Finally, note that if as- we Chovan’s case. I I concur in the result of this succeeds, challenge significant applied express my disagree- to separately write emerge. If exception to would majority’s ment default determi- with apply Congress had wanted of domestic persons nation that convicted recent domestic only to individuals with thereby are dis- violence misdemeanors convictions, easily it could have violence of the Second qualified from the core than a limited duration rather life- created for de- possess Amendment firearms good it could created a time ban. Or however, First, let me of the home. fense individuals behavior clause under which majority which points detail the on arrests or without new domestic violence I agree. years a certain number of charges within automatically regain of conviction would I. But Con- rights possess their firearms. authority of our weight Based on the of permissibly

gress Congress did not do so. circuits, majority opinion decides sister only excepts that created a broad statute case this expunged, pardoned, with those individuals “scrutiny” tests that have be- the familiar individu- or set aside convictions and those analysis challenged rights re- come the method als have had their civil who lenged protected by Amendment. law burdens conduct legislation under the First argue so, not appellant Because does if the Second Amendment and ... it, accepts Blue Br. at point but see apply the appropriate scrutiny.” level apply), that should (arguing strict Maj. Op. at 1136. point accept I treat the as waived and will agree I with majority’s applica- also scrutiny anal- application of the tiers of of step correctly tion one. It holds that

ysis jurispru- to the Second there is insufficient evidence to conclude But see Heller v. Dist. Colum- dence. the prohibition on misdemeanants (D.C.Cir.2011) bia, owning “longstanding.” firearms is There- (“Are J., dissenting) gun bans (Kavanaugh, fore, Chovan’s “Second Amendment analyzed to be on regulations based Maj. are intact.” Op. (quoting at 1137 text, history, Amendment’s Chester, United States v. tradition[,] may judges ... re-cali- [o]r (4th Cir.2010)). 681-82 scope brate the of the Second Amendment I further agree majority opin- judicial based assessment when, two, ion sufficiently step “recognize[s] whether the law advances a compelling important government inter- 922(g)(9) substantially 18 U.S.C. bur- ... right? est to override the individual rights.”1 Maj. dens Second Amendment view, my Heller and McDonald leave Op. at 1138. little doubt courts are to assess Finally, agree majority I with the that if text, regulations bans and based on histo- applies scrutiny, one intermediate tradition, ry, a balancing test § 922(g)(9) satisfy would this level of scru- scrutiny.”); such as strict or intermediate tiny. governmental The in pre- interest Volokh, Eugene Implementing Right the venting possible a from recidivist commit- Keep To and Bear Arms for Self-Defense: ting through more violence use serious the Analytical An Framework and a Research governmental of a is a “substantial Agenda, 56 L.Rev. UCLA interest,” § 922(g)(9) constitutes a (2009) (“[Ujnitary 1461-73 tests such as legislation “reasonable fit” the between scrutiny,’ scrutiny,’ ‘strict ‘intermediate Maj. Op. goal. and its at 1138^41. burden,’ ‘undue and the like don’t make sense here” in the Second Amendment II. language context because the of Heller scrutiny analysis). seems to foreclose my disagreement The sole basis of with majority opinion the “default” effect that, I if agree majority with the we are is. I of the misdemeanor conviction. call it scrutiny” the “tiers of to our because, explanation,2 “default” without jurisprudence, majority held Chovan’s domestic vio- way inqui- two-step correct to do so is the circuits, him deprives lence misdemeanor conviction ry adopted by several other “(1) whereby right gun possession we whether the chal- of his core for self- ask[ ] relevant, not, however, 1. I the burden "is Removal of the convictions is do think however, lightened” degree exceptions narrow-tailoring requirement to some to the par- infra, whose convictions have been those of the strict test. See at 49-51. doned, set-aside, expunged, for those dixit, say ipse except I some other Maj. 2. would who have their civil restored. had See, Chester, e.g., Op. longer courts dixenmt’d first. at If no the convictions are So, extant, argu- of an F.3d at 682-83. this is more there is no burden whatsoever. If remains, non-binding authority ment of our conviction the full burden obtains. opinions. “light” circuits’ There no burden. sister is insane); a felon or which, being home, Supreme fecation]” in the defense Heller, (“Assuming Amend- 128 S.Ct. 2783 the Second id. held Court citi- responsible from the exer- “law-abiding, disqualified a gives ment Heller is case opinion in our majority rights, the Dis- zen.” The Amendment cise Second “claim constitutional that Chovan’s his hand- permit register states him to trict must identified the core is not within carry him issue a license gun and must law-abiding, respon- right of added). Heller —the home.”) (emphasis it in the carry weapon possess sible citizen pre- felons to be as Heller found Just criminal [his] virtue of for self-defense— protection disqualified from the sumptively violence misdemean- a domestic history as Amendment, majority so the of the Second (quoting Ches- Maj. at 1134-35 Op. ant.” domestic violence misde- have found a 682-83). Therefore, ter, 628 F.3d at Chovan, meanant, dis- presumptively to be burden, concludes, 922(g)(9)’s protection the “core” qualified from total, ],” is not inter- although “substantial! conclusion Amendment. This standard. scrutiny is the correct mediate similarity a perceived to stem from seems sum,” majority opin- “In at 1138. Id. and domestic violence mis- between felons “ concludes, impli- does not ion however, conclusion, demeanants. This Amendment cate core Second history, felons Throughout mistaken. right....” Id. at 1138. subject and dis- been to forfeiture Why? misdemeanants, in direct but qualification, felons, contrast to have not. a. law, a fundamen- At common there was that Chovan majority opinion holds and misde- tal difference between felons core Second forfeited his particular, felonies resulted meanants. misdemeanor. convicted of a

when he was rights. property in forfeiture of can no (stating that Chovan Id. at 1138 Blackstone, *96-97 William Commentaries re- “law-abiding, longer be considered the historical (discussing forfeiture as ... virtue of sponsible [his] citizen (describ- felony); id. at *377 foundation of violence history as a domestic criminal punishments of serious ing possible misdemeanant”). this, majority In are “confiscation, by forfei- including crime as has made a not alone. The Fourth Circuit both, lands, moveables, or or of ture of or Chester, 628 F.3d similar conclusion. See for life: others induce profits of lands at 682-83. disability, holding employ- of offices or of misde- disqualification This default ments, heirs, executors, and the being of right “core” meanants from the like”); Marshall, Why see Kevin Can’t C. the Su Amendment resembles Second Gun?, Have a 32 Harv. Martha Stewart language preme “disqualification” Court’s (2009) 695, Pol’y (recogniz- 715 J.L. & Pub. in Heller. The Court regarding felons felony that at common law a could ing of a equate the status Heller seemed death,” “civil in attainder result mentally presump ill with a felon or of one longer “per- no whereby the felon could disqualification from the Second tive functions, being a legal such as form!] right. See Dist. Columbia Amendment of Misdemeanors, on the suing”). or Heller, 631, 128 2783, witness 570, v. S.Ct. 554 U.S. not; hand, Theo- (2008) as the historian “disquali- other did (linking 171 L.Ed.2d 637 (a shotgun, a of the home Winchester guns Chovan fense It be noted that should rifle, home, handgun, and a (1) .22 caliber .22 caliber possess were at his was found to shotgun). Company antique traditionally Baldwin & used for de- of the kind

1145 it, put rights, dore Plucknett “most of the charac- then felon poor bans would offer a teristics of criminal did not proceedings analogy possession by for bans on misde- Thus, they attach to misdemeanours. (even meanants violent misdemean- subject not to ... forfeiture....”. were ants) ”). .... Plucknett, Frank A Theodore Thomas History Concise the Common b. Law.456 (1956). today, Even felons can nu- suffer only Not does the analogy status-based merous on their constitutional restrictions felons misdemeanants not make McCane, rights. See States v. United sense; selecting intermediate scrutiny as (10th Cir.2009) (Tymko- F.3d the correct level at which to review a (“[T]he J.,

vich, concurring) application of categorical, disqualification status-based § 922(g) ap- to a violent felon ... would right from the core of the Second Amend- pear appropriate any ment also does not make sense. all, reading. Amendment After felons lose Many circuits have chosen intermediate voting out on fundamental such as analyze statutes that undeni serving juries, and face discrimina- ably burden only rights. tion that need rational survive basis review.”). Indeed, held, as this court has They have often done so based on an categorically “felons are different from the analogy right between the speech to free individuals who have fundamental keep and the and bear arms. to bear arms.” Vongxay, United States v. Indeed, recog as the Circuit Seventh has (9th Cir.2010); see nized, Heller and sug “[b]oth McDonald Canton, Miss., McLaughlin City v. gest that First analogues are (S.D.Miss.1995) F.Supp. (finding ... appropriate.” City Chicago, Ezell that “The historical distinction between (7th Cir.2011). felonies and misdemeanors is more than Seventh Circuit went on to summarize the Traditionally, semantic. dire sanctions tiers of work the realm of felony have attached to which convictions the First Amendment: attached to misdemeanor convic- cases, free-speech ... content-básed Many tions. these sanctions are regulations invalid, presumptively are was, today. force Disenfranchisement get scrutiny. and thus strict On the remains, one such sanction. Another such hand, time, place, reg- other and manner sanction is that which prohibits felons from speech only ulations on need be reason- owning possessing firearms” and con- justified able and without reference to cluding that disenfranchising laws misde- regulated speech.... the content of the subject meanants scrutiny). are to strict [Regulations .public in a traditional or Thus, although disqualification felon designated public get forum strict scruti- from the scope of the Second Amendment ny, regulations nonpublic while in a fo- perspec- makes sense from an historical rum must not discriminate on the basis tive, the same cannot be said for misde- viewpoint of and must be reasonable disqualification meanants. Felon from the light purpose. of the forum’s scope entire of the Second Amendment (internal quotations Id. at 708 marks and justify does not misdemeanant disqualifica- omitted). citations As the Tenth Circuit tion from the core of the Second Amend- stated, keep has and bear Volokh, (“If supra, ment. See at 1498 qualified by might arms “is what one call upheld felon bans are on grounds ‘who,’ ‘what,’ historically felons been seen as out- ‘where/ ‘when/ ” Huitron-Guizar, -scope side the of ‘why.’ various constitutional United States Cir.2012). (10th opinion’s with the conclusion greed 1165-66 F.3d are qualifications scrutiny was the correct The “when” and “where” intermediate jurisprudence 922(b)(1) as free-speech known §§ standard The time, manner restrictions. place, and (c)(1), federally licensed prohibit which are con- “why” qualifications “what” and handguns to selling firearms dealers restrictions. tent-based twenty-one. age under of persons “who,” it remains a That leaves Am., v. Bureau Ass’n Inc. Nat’l Rifle Categorical restrictions sticking point. Alcohol, Tobacco, Firearms, Explo- & on an individu- rights based constitutional Cir.2012). (5th sives, The 700 F.3d 185 free-speech fit ill with al’s or status class majority in that chose intermediate case Circuit has The Seventh jurisprudence. handgun on scrutiny because “the ban limits on the Sec- categorical argued that analogous 21 is sales to minors under analogous to the cate- ond are lawful bans longstanding, presumptively context, free-speech limits in the gorical mentally by felons and the possession on obscenity or defamation. United such as argued that Judge ill.” Id. at 206. Jones (7th Skoien, States v. F.3d not be categorical exclusions should such Cir.2010) (“Categorical pos- limits on the analyzed scrutiny. intermediate under not be a consti- session of firearms would panel’s level of is based on Think anomaly. First tutional young adults and analogy an between Amendment, long categori- had which has ill, if mentally any as felons and the defamation, obscenity, incite- cal limits: possession limitation on the class-based others.”). crime, ment to These cate- other, justifies any long so of firearms however, are gorical speech, limits on free legislature suspect finds the “dis- said, saying not who is it. based on what “dangerous” or “irre- crete” class to be Skoien, J., (Sykes, at 649-51 Cf. reasoning, a sponsible.” On such low dissenting) (“Adapting First Amendment to the Second Amendment con- if a applied doctrine level of could be text is sensible some cases----But groups e.g. legislature found that other — analogy particular First Amendment aliens, military or veterans PTSD— here.”). constitutional doesn’t work Our “irresponsible.” “dangerous” were analyze jurisprudence does not status- NRA, (Jones, J., dissent- F.3d speech on based restrictions free ing). Judge Categorical Jones is correct. scrutiny. A street-corner ha- intermediate curtailment of constitutional based rangue on the beauties of revolution can requires on an individual’s status more prohibited grounds be perhaps rigorous analysis than intermediate scruti- presents present danger a clear and ny. violence; solely prohibited but it cannot be speaker has a misdemeanor c. record. Moreover, hold that majority when Judge recog of the Fifth Circuit Jones misdemeanant ex- Chovan’s status as incompatability between inter nized this him protection cludes from the core scrutiny and status-based dis mediate Amendment, it construes Heller as Second qualifications in her recent dissent from a prevent- erecting not one but two barriers rehearing en Nat'l denial of banc. Rifle asserting right their ing persons from Ass’n, Alcohol, Tobacco, Inc. v. Bureau of arms. keep and bear Firearms, 714 F.3d 334 Explosives, & passages from (5th Cir.2013) majority The two (Jones, J., quote dissenting from banc). ascertaining pertinent Cho- rehearing en She disa- Heller as denial of

1147 rights. The arms in defense of hearth and home.” Id. van’s Second 635, 128 presumptive S.Ct. 2783. passage Heller discusses first scope from the of the Sec- disqualifications majority The construe the Heller Court ond Amendment. passages recognizing these two to be undertake an ex-

Although we do not separating two different hurdles citizens analysis today of the haustive historical right from the core of the Second Amend- Amendment, scope full of the Second The ment. first hurdle determines wheth- nothing opinion in our should be taken so, mentally er someone is a felon or ill. If longstanding prohibi- to cast doubt person presumptively disqualified this is possession tions on the of firearms protection. the Second Amendment’s ill, mentally felons and the or laws for- I agree interpretation'of with this the first carrying of firearms in sen- bidding the passage. places gov- such as sitive schools majority construe pas- the second buildings, imposing ernment or laws however, sage, recognizing a further on the qualifications conditions and over leap hurdle which individuals must commercial sale of arms. right their core to keep assert and bear

Heller, 626-27, 554 U.S. at 128 S.Ct. 2788. Although arms defense of the home. footnote, In a the held that these Court individuals have to a access non-core Sec- lawful,”4 “presumptively restrictions were if right they ond Amendment are not fel- that “list not purport the does to be ill, conclude, mentally majority ons 26, exhaustive.” Id. at 627 n. 128 S.Ct. only “law-abiding” those deemed and “re- 2783. sponsible” lay can claim to the “core” passage, according

A second Heller to right possess of the Second Amendment to majority, right pro- defines the “core” firearms for self-defense the home. reason, tected the Second Amendment: “And articulating majority Without “law-abiding” [the whatever else the terms and “re- Amendment] construe evaluation, surely recognizing leaves to future it ele- sponsible” as a second stan- ' dard, vates above all other the “presumptively interests stricter than law-abiding, responsible disqualification citizens to use lawful” of felons and the rebuttable, moreover, Although If it the court in Heller said laws buttable. disqualify possessing felons from firearms Again, opinion what it rebutted? can be lawful,” "presumptively were it did not ex reading Perhaps the this is silent. best phrase. plain this See United States v. Marz presumption footnote is that the is irrebutta- zarella, (3d Cir.2010) (stating 614 F.3d "requires ble. Just as structural error auto phrase 'presumptively that "the lawful' could reversal,” Recuenco, Washington matic meanings.... have different could be [It] L.Ed.2d U.S. 126 S.Ct. suggest read to the identified restrictions are (2006), being the status of a felon so presumptively they regulate lawful because automatically establishes that those individu scope conduct outside of the Second constitutional als do not hand, may sug Amendment. On other possess Vongx firearms. United States v. See gest presumptively the restrictions are lawful (9th Cir.2010) ay, (up they pass any muster under standard holding 922(g)(l)’s restriction on firearm scrutiny,” preferring reading); but the first felons, possession noting for that "to date Williams, United States v. " court that has examined Heller has found no (7th Cir.2010) (stating 'presumptively constitutionally suspect” 922(g) 18 U.S.C. by implication[ lawful’ ... means that there ] (internal omitted)). quotation marks The lan possibility must exist the that the ban could are, guage suggests felons in Heller as-ap unconstitutional in the face of an be least, conclusively scope now at outside say plied challenge”). Heller does not wheth "presumption” rebuttable or fire- the Second Amendment. er was standard,

mentally disqualify ill. That second all individuals from the core Sec- conclude, majority again explana- Note, without right? ond Amendment 922(g) tion, excludes domestic violence misde- stop does not with convictions. Section Maj. Op. meanants. at 1134-35. 922(g)(8), instance, even curtails Sec- rights ond Amendment based on restrain- I passage construe the second different- orders, all, ing with trial at no but rather ly. passage The terms of the second cor- only hearing with of which the defendant respond precisely to the terms of the first opportunity notice and the to par- received passage. They are two sides the same ticipate.5 Compare United States v. “Law-abiding” coin. in the second pas- Reese, (10th Cir.2010) sage corresponds to “felon” in the first (finding scrutiny intermediate to be the passage. “Responsible” pas- in the second correct level of under which to sage corresponds “mentally ill” analyze targets because it Thus, passage. first I read Heller’s sec- who, “narrow of persons class[ ] based on passage restating passage. ond the first behavior, past their likely are more Heller does not cast on “prohibitions doubt engage violence,” in domestic and uphold- possession by of firearms felons and ing the ground), law on that ill,” United mentally which way is another Knight, States v. 574 F.Supp.2d saying that the Second Amendment estab- (D.Me.2008) (finding § 922(g)(8) satis- possess lishes firearms for de- fies strict because “reducing fense of the home in do- “law-abiding, respon- mestic compelling government sible violence is a citizens.” prohibition interest” and the “tempo- If, as majority’s under the reading, the rary” tailored”). “narrowly therefore “law-abiding” “responsible” terms are Why accept every should we not congres- ill,” not tied “mentally to “felons” and how sional determination for who is or is not are the lower to recognize courts the limits “law-abiding” “responsible” for Second of the “law-abiding, responsible citizen” Amendment purposes? Why standard? should stop we with do- mestic violence defining misdemeanors in Why not? Because Heller was a consti- categorical disqualifications from the core tutional recognized decision. It scope right of the Why Second Amendment? passage of a of the Constitution. The not all Why misdemeanors? not minor boundaries of this are defined infractions? Congress Could find someone They Constitution. are not defined disorderly once cited for NRA, conduct to Congress. be See 714 F.3d at 345 law-abiding” (“In “not (Jones, J., and therefore to event, dissenting) any it is forfeited his core Second Amendment reasoning circular to adopt a level of scru- right? Why should not legal tiny determina- based on assumption tions that were any level.”). made without trial at legislature’s classification fits that 5. The statute 18 U.S.C. states: bodily injury ner in reasonable fear of to the child; (C)(1) partner or includes a find- any person] [It shall be unlawful for who is ing person represents that such (A) credible subject to a court order was is- that — physical safety threat to the of such inti- hearing sued person after a of which such (ii) child; notice, partner mate or or its received terms actual and at which such use, use, person explicitly prohibits attempted opportunity participate; had an (B) physical person harassing, against restrains or threatened use of such force stalking, threatening partner partner or such an intimate intimate or child that would person of such reasonably expected or child of such bodily inju- intimate be to cause partner person, commerce, engaging ry, or possess affecting in other [to in or place part- conduct that would an any intimate firearm or ammunition.]

1149 (2006). 793, seen, Moreover, Founding peri- in the L.Rev. 862-63 fed- As we have od, in historically disqual- resulted felonies Congressional eral- uphold courts statutes rights, from certain but misde- ification scrutiny under strict about half the time. infractions, not, nor did nor did meanors Id. at 818. orders. I therefore conclude restraining There are several regarding theories are

that violence misdemeanants domestic is, purpose scrutiny what the of strict and protection, from the core of disqualified of governmental what sorts acts can Amendment, satis- that Second . fy theory rigorous requirements. should be ana- its One 922(g)(9) accordingly scrutiny, intermediate but lyzed, not under scrutiny upholding defines strict laws scrutiny. States v. under strict See United undeniably burden constitutional 1227, 1231 Engstrum, F.Supp.2d 609 only rights government “when the can (D.Utah 2009) scrutiny (finding strict infringements demonstrate that are neces- rigor analysis correct is the serious, sary highly to avoid even cata- because, first, described Heller Fallon, Jr., strophic H. harms.” Richard arms as “funda- keep and bear Scrutiny, Strict Judicial 54 UCLA L.Rev. 593, mental,” 2783, 128 554 U.S. S.Ct. (2007) 1267, (describing 1302 several com- second, Heller classified peting scrutiny analysis); theories of strict right alongside the Co., City see Richmond v. J.A. Croson and Fourth Amendments which are First 706, 488 U.S. 109 S.Ct. 102 traditionally analyzed under strict scruti- (1989) (Scalia, J., concurring) L.Ed.2d 854 ny, under upholding but still statute (arguing that “At least where state or local analysis). strict issue, only emergency action is at a social rising danger to the level of imminent III. justify ... can an exception life and limb sure, rigorous To be strict is a to” constitutional under strict scruti- Supreme standard. The Court has called “ ny analysis); Washington, Lee v. 390 U.S. theory usually ‘strict’ in but ‘fatal’ in 334, 994, 333, 19 L.Ed.2d 1212 88 S.Ct. Fainter, 216, fact.” Bernal v. 467 U.S. (1968) (Black, J., concurring) (1984) (stating 6, 2312, n. 104 S.Ct. 81 L.Ed.2d 175 “maintaining se- (“Only rarely governmental goals are statutes sustained in the scrutiny.”) (citing face of strict Gerald in curity, discipline, good order” Court, Gunther, Supreme scrutiny analysis). prison satisfy can strict Evolving Term—Foreword: In Search of another argued, As Justice Thomas has A Changing Doctrine oñ a Court: Model in way say “compelling governmental Protection, Equal a Newer 86 Harv. public necessity.” “pressing terest” (1972)). 1, L.Rev. But see Adarand — Austin, Fisher v. Univ. Texas at Constructors, Pena, Inc. v. 515 U.S. -, 2423 n. U.S. 133 S.Ct. (1995) 2097, 132 L.Ed.2d S.Ct. J., (Thomas, concur L.Ed.2d 474 (“[W]e dispel wish to the notion that strict -necessity” ring). “pressing public This theory, fatal in scrutiny is strict in but (internal omitted). fact.”) quotation “only marks consists those measures [of] provide a bulwark State must take to Scholarly analysis shows that federal against anarchy, prevent or to violence.” thirty uphold percent courts around 306, 353, 123 Bollinger, 539 U.S. Grutter they analyze scrutiny. strict laws (2003) (Thom 2325, 156 L.Ed.2d 304 S.Ct. Winkler, Theory Adam Fatal in Strict as, J., dissenting concurring part and Empirical Analysis in Fact: An Strict Courts, Scrutiny part). 59 Vand. the Federal (6th Cir.1999) (find already 739, 749, I suggested have that free 180 F.3d speech applied doctrines should hot be to ing scrutiny analysis under strict that mu that are restrictions nicipal plaintiffs’ officials did not violate based on the status of the individual. See freedom of association with their supra, analogous Part Il.b. More to status- plan during rally crowd control KKK right keep based restrictions on the to and plan because the necessary “constituted a bear arms would be restrictions on the narrowly constraint fashioned to further a freedom of association. Freedom of asso- compelling governmental in public interest cases governmental ciation often involve safety and order” to prevent “disorderly action restricts association on based- conduct, peace, breaches of the serious individuals, status conduct of the injuries persons to property”). just § restricts the case, too, our based on the data the keep particular persons and bear arms for majority detail, discuss in govern based on their status and con- previous public ment’s interest in safety pre cases, moreover, duct. In both gov- venting gun violence sufficiently compel ernmental action is often directed towards ling narrowly satisfy tailored to those preventing preserving public violence and prongs scrutiny analysis. of strict See safety. 1138-41; Maj. Op. at United States v. cf. Federal scrutiny courts strict (1st Cir.2013) Armstrong, 706 F.3d freedom association cases. v. Roberts (finding constitu satisfies Jaycees, States United U.S. standard”). scrutiny tional any “under (1984) (“In 104 S.Ct. 82 L.Ed.2d 462 fringements may [the associate] Section frames governmen- justified by regulations be adopted to tal prevent interest: life-threatening compelling serve state interests ... predictable victims, harm to a group of i.e. cannot be through signifi achieved means violence, those who have suffered domestic cantly less restrictive of associational free predictably from a violent set of convicted doms.”). Despite applying scrutiny, strict criminals, i.e. those who have been convict- however, federal uphold courts still often ed of a domestic violence misdemeanor. association; affecting statutes freedom of note, majority As the there is a sufficient in particular, federal uphold courts free body penalogical knowledge regarding regulations dom association under a recidivism in domestic violence cases to scrutiny strict analysis “when the asserted satisfy compelling interest element re- justification for the public safety laws was quired in strict analysis. Maj. Winkler, or effective law enforcement.” 1139-40; Skoien, Op. at see also 868; see, supra, at e.g., Chertoff, Tabbaa v. (discussing 642-44 these studies in de- (2d Cir.2007) (finding un tail). Moreover, as the Supreme Court der strict analysis that customs stated, § has 922(g)(9) targeted a particu- officials plaintiffs’ did not violate freedom deficiency lar felon-in-possession rights by of association detaining and statute. searching plaintiffs at the border when laws, Existing felon-in-possession Con- they returned from an Islamic conference gress recognized, keeping were not fire- in Canada “given intelligence because arms out of the hands of domestic abus- received, inspection poli [the officials] ers, “many people engage who cy narrowly was tailored to achieve spousal serious or child abuse ulti- compelling governmental pre interest venting potential mately charged are not entering terrorists from or convict- States”); Abramson, the United Grider ed of felonies.” 142 Cong. Rec. 22985 (1996) (statement ing fifteen Lautenberg). attorneys days of Sen. from the filing firearm extending prohi- petition the federal with the By dismissal 1203.4a(f). persons object. convicted “misde- court to Id. at This bition violence,” participation crime[s] meanor of domestic of the attorneys district sought §of to proponents process the allows California to maintain dangerous loophole.” “close this M[] integrity expunge some adversarial in the at 22986. attorney ment as the proceedings, district oppose can the motion if the convict’s reha Hayes, v. 555 U.S. United States system places bilitation is doubtful. This (2009). 1079, 172 L.Ed.2d 816 129 S.Ct. the evaluation convict’s rehabilita tailoring,” “narrow the As to second ele- tion, non, Indeed, vel in the state. Califor test, it is impor- ment of the strict 1203.4a(a) interpreted § nia have to courts § 922(g)(9) applies only to note that to tant expungement mandate when misdemean- convicts those domestic violence who re- See, complied ants with terms. have its main convicted. hold in Misdemeanants Chandler, e.g., People Cal.App.3d v. hands to the power their own the remove (1988) (“[A] Cal.Rptr. rejoin protected the taint of conviction and moving defendant under Penal Code sec who may possess of those firearms. class tion as a 1203.4a is entitled matter of pardon, They expungement, can seek set- benefits, upon showing to its a that he has conviction, aside of their or restoration of probation fulfilled conditions of for the the 921(a)(21)(B).6 § rights. civil U.S.C. period probation. appar entire of It was frequency expungements, of such ently that when has intended a defendant moreover, in many seem to have risen probation, satisfied of the trial the terms the of 922(g)(9). states since enactment court should have no but to discretion Mikos, Enforcing See Robert A. State Law carry the part bargain out its Shadow, Congress’s 90 Cornell L.Rev. (citations defendant.”) quotation (2005). 1411,1463-64 & nn. 187-88 omitted). marks as-applied In answer to Chovan’s chal- part is in Section 922 federalism-based California, lenge, where Chovan was con- law, to passing statute. It looks state victed, expungement makes misdemean- restrictions on certain convicts based 1203.4a(a) a right. or convictions Under legislatures decisions state made Code, all of the California misde- Penal if courts. 922 also Section ceases can meanants have their convictions ex- proce- convicts have satisfied the state completion after their punged sentences expungement. helps dures for This charged if have not they with or been satisfy tailoring prong the narrow statute of a crime and further have convicted no scrutiny. of strict It those who upright an honest allows “lived life.” More- longer pose society to demon- over, threat defendants must be informed of this their orally strate their rehabilitation and reclaim expungement “either or in rights. at the or she It is not writing, time he is sen- 1203.4a(c)(l). Rather, only targets Id. at blunt tenced.” Prosecut- instrument. 921(a)(21)(B) provides applicable jurisdiction for 6. The statute U.S.C. states: offense) rights an loss of civil such person A shall considered not be pardon, expungement, pur- an or resto- been convicted of such offense for unless the poses chapter expressly provides if conviction has rights ration of civil aside, expunged an been or set or is offense person may ship, transport, possess, not person pardoned which the been has or firearms. receive (if has had civil restored law of deem those whom the states continue to MURILLO-PRADO, narrowly Jose Luis It therefore rehabilitated. preventing only Petitioner, goal

tailored poten- pose greatest those who risk to pos- tial domestic violence victims from HOLDER, Jr., Attorney Eric H. guns.

sessing General, Respondent. theWith aforementioned considerations mind, I ad- conclude No. 09-72034. interest, a compelling governmental vances United States Court of Appeals, narrowly and does so tailored manner. Ninth Circuit. Therefore, the scru- statute satisfies strict analysis. tiny Submitted Nov. 2013.* Filed Nov.

IV. opinion provide The Heller did not lower guidance with explicit courts on how to analyze challenges to statutes under the If

Second Amendment. we are to scrutiny the familiar tiers analysis cases, instead of a textual, historical, pure and structural however, analysis, history and precedent stringent still dictate a more examination issues the majority these than allow. scrutiny Strict has an integral become as- pect of much of our jurispru- constitutional Fallon, supra, (ranking

dence. See at 1268 strict “among important most law”). doctrinal elements in constitutional After applying strict I 922(g)(9), come to the same conclusion majority, uphold

as do the the law. The close look scrutiny, afforded strict however, truly ensures that law narrowly tailored further compelling interest,

governmental ensures the Second Amendment’s contours are Constitution,

drawn Congress. * panel 34(a)(2). unanimously R.App. concludes case is See Fed. P. argument. suitable for decision without oral

Case Details

Case Name: United States v. Daniel Chovan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 18, 2013

Citation: 735 F.3d 1127

Docket Number: 08-1275

Court Abbreviation: 9th Cir.