A unanimous panel of the United States Court of Appeals for the Fourth Circuit today issued a decision rejecting an as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(8), which prohibits a person subject to a certain type of domestic violence protective order from possessing a firearm. Senior Judge Hamilton wrote the published opinion in United States v. Chapman, in which Judge Niemeyer and Judge Diaz joined.
The decision applies intermediate scrutiny and largely tracks the Fourth Circuit’s opinion in United States v. Staten, also authored by Senior Judge Hamilton. In Staten, the Fourth Circuit upheld 18 U.S.C. § 922(g)(9) against an as-applied Second Amendment challenge. That statutory provision prohibits the possession of a firearm by one convicted of a misdemeanor crime of domestic violence.
Some key language from today’s opinion:
Chapman having cast no doubt on the government’s proffered social science evidence and after reviewing it ourselves, we again hold “the government has established that: (1) domestic violence is a serious problem in the United States; (2) the rate of recidivism among domestic violence misdemeanants is substantial; (3) the use of firearms in connection with domestic violence is all too common; (4) the use of firearms in connection with domestic violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide.” Staten, 2011 WL 6016976, at *11. Given these established facts, along with logic and common sense, we are constrained to hold that the government has carried its burden of establishing a reasonable fit between the substantial governmental objective of reducing domestic gun violence and keeping firearms out of the hands of persons who are currently subject to a court order which: (1) issued after a hearing satisfying the fundamental requirements of procedural due process; (2) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (3) by its terms, explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. See United States v. Reese, 627 F.3d 792, 803-04 (10th Cir. 2010) (applying intermediate scrutiny and rejecting Second Amendment challenge to defendant’s conviction under § 922(g)(8)(A)-(B), and (C)(ii)).