[DV_listserv] 9th Circuit rejects challenges to 922(g)(9)--Misdo Crime of DV!

[Domestic Violence issues]

United States v. Daniel Edward Chovan, SDCalif (Pregerson, Hawkins, Bea (concurring)):  Criminal Law/Second Amendment.

Rejecting both statutory and constitutional challenges, the Court affirmed the denial of the defendant's motion to dismiss an indictment for possessing a firearm after being convicted of a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9).

The Court first rejected the defendant's statutory arguments that § 922(g)(9) did not apply to him because his civil rights had been restored.  Reaffirming United States v. Brailey, 408 F.3d 609, 611-13 (9th Cir. 2005), the Court explained that no restoration could have occurred because defendant's "core" civil rights (to vote, to sit as a juror, or to hold public office) had never been taken away.  Moving to the Second Amendment challenges, the Court held that § 922(g)(9) was constitutional on its face and as applied to the defendant.  Adopting the Third and Fourth Circuit's approach, the Court determined that the statute "burdens conduct falling within the scope of the Second Amendment guarantee," but not "within the core right identified" in District of Columbia v. Heller, 554 US 570 (2008).  It therefore applied intermediate scrutiny.  The statute survived that scrutiny because it was substantially related to the important governmental interests of preventing gun violence and domestic violence.

          In his concurrence, Judge Bea explained that he would apply strict scrutiny because the statute does burden a core right identified in Heller:  the right to "self-defense in the home."  The statute would, however, survive strict scrutiny, Judge Brea concluded.  Thus, he concurred in the result.


http://cdn.ca9.uscourts.gov/datastore/opinions/2013/11/18/11-50107.pdf






*****CONFIDENTIALITY  NOTICE*****

This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. 

************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20131125/4f4ea957/attachment.html>