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A Fourth Circuit panel ruled unanimously today that the government must prove a reasonable fit between the ban on firearm possession by an unlawful user of a controlled substance and the objective of reducing gun violence. Judge Niemeyer wrote the opinion in United States v. Carter, which was joined in by Judge Diaz and Senior Judge Hamilton.

According to the opinion, every other circuit to address the issue has held that the ban in 18 U.S.C. § 922(g)(3) satisfies intermediate scrutiny. But the Fourth Circuit could not go along with this because the government had not borne its “burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence”:

Without pointing to any study, empirical data, or legislative findings, [the government] merely argued to the district court that the fit was a matter of common sense. In view of our decisions in Chester and Staten [which require “tangible evidence” rather than “unsupported intuitions”], we therefore remand this issue to the district court to allow the government to develop a record sufficient to justify its argument that drug users and addicts possessing firearms are sufficiently dangerous to require disarming them.

The opinion goes on to note that “[t]his burden should not be difficult to satisfy in this case, as the government has already asserted in argument several risks of danger from mixing drugs and guns.”

Another feature worth noting about the decision is that it assumes, without deciding, that unlawful drug users have the same Second Amendment rights as law-abiding citizens. The following paragraphs of the opinion set forth the current state of the law on this issue in the Fourth Circuit:

We first applied Heller in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), where we adopted—as had been adopted by two other circuits, United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), rev’d 614 F.3d 638 (7th Cir. 2010) (en banc)—a two-step approach for evaluating a statute under the Second Amendment. First, we inquire whether the statute in question “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.” 628 F.3d at 680. And second, if the statute burdens such protected conduct, we apply “an appropriate form of means-end scrutiny.” Id. Following this approach, we now proceed to evaluate Carter’s constitutional challenge to § 922(g)(3).

Under the first step, we have three times deferred reaching any conclusion about the scope of the Second Amendment’s protection. In Chester, the government did not attempt to argue that domestic violence misdemeanants, who were prohibited by § 922(g)(9) from possessing a firearm, categorically fell outside the historical scope of the Second Amendment. Accordingly, we assumed, without deciding, that the misdemeanants there were entitled to some measure of constitutional protection and proceeded to the second step of applying an appropriate form of means-end scrutiny. See Chester, 628 F.3d at 680-82. In Masciandaro, the government did argue that possession of firearms in a national park should receive no Second Amendment protection whatsoever. See Masciandaro, 638 F.3d at 471. Nonetheless, we again did not decide the question because even if the defendant there had rights protected by the Second Amendment, the government would prevail under the intermediate scrutiny test that we applied. See id. at 473. And most recently in United States v. Staten, ___ F.3d ___, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), we assumed but did not decide that the defendant had rights under the Second Amendment and rejected his constitutional challenge under the second step, applying intermediate scrutiny. Id. at *5.

In this case, as in Masciandaro, the government contends that dangerous and non-law-abiding citizens are categorically excluded from the historical scope of the Anglo-American right to bear arms. But again we will assume that Carter’s circumstances implicate the Second Amendment because all courts that have addressed the constitutionality of § 922(g)(3) have upheld the statute, see, e.g., United States v. Dugan, 657 F.3d 998 (9th Cir. 2011); United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919 (8th Cir. 2010); United States v. Patterson, 431 F.3d 832 (5th Cir. 2005); United States v. Richard, 350 F. App’x 252 (10th Cir. 2009), and our remand in this case is to afford the government the opportunity to substantiate the record and Carter the opportunity to respond. If we ultimately conclude that step two cannot be satisfied, we will need to address the government’s argument under step one.

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