ON REHEARING
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4084
WILLIAM SAMUEL CHESTER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(2:08-cr-00105-1)
Argued: December 4, 2009
Decided: December 30, 2010
Before TRAXLER, Chief Judge, and AGEE and DAVIS,
Circuit Judges.
Vacated and remanded by published opinion. Chief Judge
Traxler wrote the majority opinion, in which Judge Agee
joined. Judge Davis wrote a separate opinion concurring in
the judgment.
COUNSEL
ARGUED: Edward Henry Weis, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Charleston, West Virginia, for
2 UNITED STATES v. CHESTER
Appellant. Elizabeth Dorsey Collery, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
lee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Gerald M. Titus, III, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
COUNSEL
TRAXLER, Chief Judge:
The sole issue presented in this appeal is whether William
Samuel Chester’s conviction for illegal possession of a fire-
arm under 18 U.S.C. § 922(g)(9) abridges his right to keep
and bear arms under the Second Amendment in light of Dis-
trict of Columbia v. Heller, 128 S. Ct. 2783 (2008). We vacate
the decision below and remand for further proceedings.
I.
The Second Amendment provides: "A well regulated Mili-
tia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed."
U.S. Const. amend. II. Heller resolved a decades-long debate
between those who interpreted the text to guarantee a private,
individual right to bear arms and those who generally read it
to secure a collective right to bear arms in connection with
service in the state militia.1 See Heller, 128 S. Ct. at 2789. See
1
There are two basic manifestations of the collective-right view of the
Second Amendment. The first model understands the Second Amendment
simply to "empower state governments to arm militias," while the second
model "argues that individuals have a right to own and possess firearms
under the Second Amendment, but only insofar as it is connected with
state militia service." See Kenneth A. Klukowski, Armed By Right: The
Emerging Jurisprudence of the Second Amendment, 18 Geo. Mason U.
Civ. Rts. L.J. 167, 175-76 (2008).
UNITED STATES v. CHESTER 3
generally Parker v. District of Columbia, 478 F.3d 370, 379
(D.C. Cir. 2007) (explaining the collective right and individ-
ual right positions in the Second Amendment debate); United
States v. Emerson, 270 F.3d 203, 218-20 (5th Cir. 2001)
(same). Interpreting the text in light of how it would have
been understood by "ordinary citizens in the founding genera-
tion," Heller, 128 S. Ct. at 2788, the Supreme Court sided
with proponents of the individual right view and held that the
Second Amendment guaranteed protection of an individual
right to possess and carry arms without regard to militia ser-
vice. See id. at 2799.
The Court began its textual analysis by explaining that the
function of the Second Amendment’s prefatory clause ("A
well regulated Militia, being necessary to the security of a
free State") is merely to announce a purpose for the command
given by the operative clause ("the right of the people to keep
and bear Arms, shall not be infringed")—"apart from that
clarifying function, [the] prefatory clause does not limit or
expand the scope of the operative clause." Id. at 2789.2 The
operative clause, Heller concluded, "guarantee[s] the individ-
ual right to possess and carry weapons in case of confronta-
tion," a meaning that "is strongly confirmed by the historical
background of the Second Amendment." Id. at 2797. Consid-
eration of the historical sources was important because, as
Heller explained, "the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right." Id.
Finally, the Court explained why the prefatory clause was
consistent with an individual right interpretation of the opera-
tive clause:
2
The collective versus individual right debate turned largely on the rela-
tionship between the two clauses. "[I]ndividual right theorists say that the
operative clause’s effect is unmodified by the civic purpose announced in
the prefatory clause, . . . while collective right theorists claim that the pref-
atory clause limits the scope of the Amendment . . . [to] the perpetuation
of the militia system." See Klukowski, Armed by Right, supra, at 180-81.
4 UNITED STATES v. CHESTER
The debate with respect to the right to keep and
bear arms, as with other guarantees in the Bill of
Rights, was not over whether it was desirable (all
agreed that it was) but over whether it needed to be
codified in the Constitution. . . . It was understood
across the political spectrum that the right helped to
secure the ideal of a citizen militia, which might be
necessary to oppose an oppressive military force if
the constitutional order broke down.
It is therefore entirely sensible that the Second
Amendment’s prefatory clause announces the pur-
pose for which the right was codified: to prevent
elimination of the militia. The prefatory clause does
not suggest that preserving the militia was the only
reason Americans valued the ancient right; most
undoubtedly thought it even more important for self-
defense and hunting. But the threat that the new Fed-
eral Government would destroy the citizens’ militia
by taking away their arms was the reason that right-
unlike some other English rights-was codified in a
written Constitution.
Id. at 2801.
Significantly, Heller recognized that the right to keep and
bear arms, like other Constitutional rights, is limited in scope
and subject to some regulation: "[W]e do not read the Second
Amendment to protect the right of citizens to carry arms for
any sort of confrontation, just as we do not read the First
Amendment to protect the right of citizens to speak for any
purpose." Id. at 2799; see id. at 2816 ("From Blackstone
through the 19th-century cases, commentators and courts rou-
tinely explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever and
for whatever purpose."). One specific limitation recognized in
Heller concerned the types of weapons protected by the Sec-
ond Amendment. In accordance "with the historical under-
UNITED STATES v. CHESTER 5
standing of the scope of the right," the Second Amendment
protected only weapons "typically possessed by law-abiding
citizens for lawful purposes." Id. at 2816; see id. at 2817
(explaining that the Second Amendment protected "the right
to keep and carry arms . . . in common use at the time") (inter-
nal quotation marks omitted).
The other type of limitation identified in Heller involved
what the Supreme Court termed "presumptively lawful regu-
latory measures," id. at 2817, n.26, although Heller did not
explain why the listed regulations are presumptively lawful:
[N]othing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms.
Id. at 2816-17.3 Although the Court expressly declined to "un-
dertake an exhaustive historical analysis . . . of the full scope
of the Second Amendment," id. at 2816, it clearly staked out
the core of the Second Amendment. Indeed, Heller explained
that "whatever else [the Second Amendment] leaves to future
evaluation, it surely elevates above all other interests the right
of law-abiding, responsible citizens to use arms in defense of
hearth and home." Id. at 2821.
In light of these principles, the Supreme Court invalidated
two District of Columbia statutes at issue in Heller. First,
Heller invalidated the District’s total ban on the possession of
handguns, concluding that such a complete ban—which
extended "to the home, where the need for defense of self,
3
The Supreme Court reiterated, without further explanation, these pre-
sumptively valid limitations in McDonald v. City of Chicago, 130 S. Ct.
3020, 3047 (2010).
6 UNITED STATES v. CHESTER
family, and property is most acute[,]"—was incompatible
with the Second Amendment "[u]nder any of the standards of
scrutiny that we have applied to enumerated constitutional
rights." Id. at 2817-18. Although the Court acknowledged that
rational-basis scrutiny would be inappropriate, see id. at 2817,
n.27, it declined to choose the proper level of scrutiny for
Second Amendment challenges. Second, Heller concluded
that the District’s requirement that citizens keep their firearms
in an inoperable condition "[made] it impossible for citizens
to use [firearms] for the core lawful purpose of self-defense."
Id. at 2818.
II.
In October 2007, officers from the Kanawha County, West
Virginia, Sheriff’s Department responded to a 911 call report-
ing a domestic disturbance at Chester’s residence. Chester’s
wife reported to the officers that Chester grabbed her throat
and threatened to kill her after she caught him receiving the
services of a prostitute on their property. In a subsequent
search of the home, officers recovered a 12-gauge shotgun in
the kitchen pantry and a 9mm handgun in the bedroom. Ches-
ter admitted both firearms belonged to him.
In May 2008, as a result of this incident, Chester was
indicted for possessing firearms after having been convicted
"of a misdemeanor crime of domestic violence" in violation
of 18 U.S.C. § 922(g)(9). The indictment charged that in Feb-
ruary 2005, Chester had been convicted in Kanawha County
Magistrate Court of domestic assault and battery, a misde-
meanor offense under West Virginia law. See W. Va. Code
§ 61-2-28(a) and (b). Chester conceded that the 2005 domes-
tic assault and battery offense qualified as a predicate "misde-
meanor crime of domestic violence" under § 922(g)(9).4
4
For purposes of 18 U.S.C. § 922(g)(9), a "misdemeanor crime of
domestic violence" is defined as an offense that "is a misdemeanor under
Federal, State, or Tribal law" and "has, as an element, the use or attempted
use of physical force, or the threatened use of a deadly weapon, committed
by a current or former spouse . . . of the victim." 18 U.S.C.
§ 921(a)(33)(a).
UNITED STATES v. CHESTER 7
Chester moved to dismiss the indictment, arguing that
§ 922(g)(9), both on its face and as applied to him in this
instance, violated his Second Amendment right to keep and
bear arms under Heller. Seizing upon Heller’s list of "pre-
sumptively lawful regulatory measures" including "longstand-
ing prohibitions on the possession of firearms by felons and
the mentally ill," 128 S. Ct. at 2817 & n.26, the district court
reasoned by analogy that "the prohibition by Congress as
embodied in § 922(g)(9) of the possession of a firearm by a
misdemeanant who has committed a crime of domestic vio-
lence is a lawful exercise by the government of its regulatory
authority notwithstanding the Second Amendment." United
States v. Chester, No. 2:08-00105, 2008 WL 4534210, at *2
(S.D.W.Va. Oct. 7, 2008). The district court concluded that,
like the felon dispossession provision set forth in § 922(g)(1),
the prohibition of firearm possession by domestic violence
misdemeanants is a danger-reducing regulation designed "to
protect family members and society in general from potential
[violence]." Id. In fact, the district court believed that, if any-
thing, "the need to bar possession of firearms by domestic
violence misdemeanants" is "often far greater than that of the
similar prohibition of § 922(g)(1) on those who commit non-
violent felonies." Id. Thus, the district court denied the motion
to dismiss the indictment, and Chester entered a conditional
guilty plea, reserving his right to raise on appeal the applica-
tion of the Second Amendment.
Chester then filed this appeal. In February 2010, we
vacated the judgment and remanded in an unpublished opin-
ion. See United States v. Chester, No. 09-4084, 367 Fed.
Appx. 392, 2010 WL 675261 (4th Cir. Feb. 23, 2010) (per
curiam). We declined to find § 922(g)(9) valid by analogy
based on Heller’s "presumptively lawful" language, and we
remanded for the district court to conduct an analysis of
whether § 922(g)(9) could be "‘independently justified’" in
light of Heller. Id. at 398. Our approach followed that taken
in United States v. Skoien, 587 F.3d 803 (7th Cir. 2009),
vacated, 614 F.3d 638 (7th Cir. 2010) (en banc), a panel deci-
8 UNITED STATES v. CHESTER
sion that was vacated by the Seventh Circuit for en banc
review at about the same time that we released our opinion in
Chester. In Skoien, the defendant was convicted under 18
U.S.C. § 922(g)(9) for illegally possessing a shotgun that he
claimed to have kept for hunting purposes. The Skoien panel
reasoned that because "the core right of self-defense identified
in Heller [was] not implicated," intermediate scrutiny was the
appropriate standard to apply to the defendant’s Second
Amendment challenge to § 922(g)(9). Id. at 805. The panel
voted to remand the case to give the government an opportu-
nity to carry its burden imposed by the intermediate constitu-
tional framework:
Under intermediate scrutiny, the government need
not establish a close fit between the statute’s means
and its end, but it must at least establish a reasonable
fit. The government has done almost nothing to dis-
charge this burden. Instead, it has premised its argu-
ment almost entirely on Heller’s reference to the
presumptive validity of felon-dispossession laws and
reasoned by analogy that § 922(g)(9) therefore
passes constitutional muster. That’s not enough.
Id. at 805-06. Similarly, we remanded Chester’s appeal for
clarification of the precise contours of his Second Amend-
ment claim—a necessary step in determining the appropriate
standard of constitutional scrutiny to apply—and for develop-
ment of the record under the appropriate means-end frame-
work. See Chester, 2010 WL 675261, at *6. We stopped
short, however, of identifying the proper level of scrutiny,
leaving that task to the district court on remand.
After we issued the unpublished Chester opinion, the gov-
ernment filed a petition for panel rehearing in light of the fact
that the Skoien panel decision had been vacated by the Sev-
enth Circuit en banc. While Chester’s petition for rehearing
was pending, the Seventh Circuit issued its en banc decision
in Skoien, rejecting the Second Amendment challenge to
UNITED STATES v. CHESTER 9
§ 922(g)(9) on the basis that "logic and data" demonstrate "a
substantial relation between § 922(g)(9) and [an important
governmental] objective." 614 F.3d at 642. We now grant
panel rehearing, vacate our initial opinion and reissue our
decision to provide district courts in this Circuit guidance on
the framework for deciding Second Amendment challenges.
III.
We turn first to the question of how to evaluate Chester’s
Second Amendment challenge to § 922(g)(9). To the extent
Heller provides an answer to this question, it would be found
in the Court’s truncated discussion of the limitations on the
right to bear arms preserved by the Second Amendment. As
noted previously, Heller recognized that the pre-existing right
guaranteed by the Second Amendment "was not unlimited,
just as the First Amendment’s right of free speech was not."
Heller, 128 S. Ct. at 2799; see id. at 2816. And because "it
has always been widely understood that the Second Amend-
ment, like the First and Fourth Amendments, codified a pre-
existing right," id. at 2797, determining the limits on the scope
of the right is necessarily a matter of historical inquiry. Heller
declined to "undertake an exhaustive historical analysis . . . of
the full scope of the Second Amendment," id. at 2816, but did
identify one specific historical limitation as to which arms a
citizen had the right to bear. In accordance "with the historical
understanding of the scope of the right," the Second Amend-
ment protected only weapons "typically possessed by law-
abiding citizens for lawful purposes." Id. at 2816; see id. at
2817 (explaining that the Second Amendment protected "the
right to keep and carry arms . . in common use at the time")
(internal quotation marks omitted). The Court found support
for this limitation in "‘the historical tradition of prohibiting
the carrying of dangerous and unusual weapons.’" Id. at 2817.
Thus, a citizen’s right to carry or keep sawed-off shotguns, for
instance, would not come within the ambit of the Second
Amendment. See id. at 2816.
10 UNITED STATES v. CHESTER
Having acknowledged that the scope of the Second Amend-
ment is subject to historical limitations, the Court cautioned
that Heller should not be read "to cast doubt on longstanding
prohibitions" such as "the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of fire-
arms in sensitive places such as schools and government
buildings." Id. at 2816-17. Heller described its exemplary list
of "longstanding prohibitions" as "presumptively lawful regu-
latory measures," id. at 2817, n.26, without alluding to any
historical evidence that the right to keep and bear arms did not
extend to felons, the mentally ill or the conduct prohibited by
any of the listed gun regulations. It is unclear to us whether
Heller was suggesting that "longstanding prohibitions" such
as these were historically understood to be valid limitations
on the right to bear arms or did not violate the Second
Amendment for some other reason. See United States v. Rene
E., 583 F.3d 8, 12 (1st Cir. 2009) (concluding that Heller
"identified limits deriving from various historical restrictions
on possessing and carrying weapons," including the felon dis-
possession provision, that "were left intact by the Second
Amendment"). Federal felon dispossession laws, for example,
were not on the books until the twentieth century, and the his-
torical evidence and scholarly writing on whether felons were
protected by the Second Amendment at the time of its ratifica-
tion is inconclusive. But even if the listed regulations were
not historical limitations on the scope of the Second Amend-
ment, the Court could still have viewed the regulatory mea-
sures as "presumptively lawful" if it believed they were valid
on their face under any level of means-end scrutiny applied.5
5
Other courts have found Heller’s list of "presumptively lawful" firearm
regulations susceptible to two meanings. See United States v. Marzzarella,
614 F.3d 85, 91 (3rd Cir. 2010) ("We recognize the phrase ‘presumptively
lawful’ could have different meanings under newly enunciated Second
Amendment doctrine. On the one hand, this language could be read to sug-
gest the identified restrictions are presumptively lawful because they regu-
late conduct outside the scope of the Second Amendment. On the other
hand, it may suggest the restrictions are presumptively lawful because
UNITED STATES v. CHESTER 11
Some courts have treated Heller’s listing of "presumptively
lawful regulatory measures," for all practical purposes, as a
kind of "safe harbor" for unlisted regulatory measures, such
as 18 U.S.C. § 922(g)(9), which they deem to be analogous to
those measures specifically listed in Heller. See, e.g., United
States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010) ("We
see no reason to exclude § 922(g)(9) from the list of long-
standing prohibitions on which Heller does not cast doubt.").
This approach, however, approximates rational-basis review,
which has been rejected by Heller. See Heller, 128 S. Ct. at
2817, n.27. In fact, the phrase "presumptively lawful regula-
tory measures" suggests the possibility that one or more of
these "longstanding" regulations "could be unconstitutional in
the face of an as-applied challenge." United States v. Wil-
liams, 616 F.3d 685, 692 (7th Cir. 2010).
In view of the fact that Heller ultimately found the Dis-
trict’s gun regulations invalid "under any standard of scru-
tiny," it appears to us that the Court would apply some form
of heightened constitutional scrutiny if a historical evaluation
did not end the matter. The government bears the burden of
justifying its regulation in the context of heightened scrutiny
review; using Heller’s list of "presumptively lawful regula-
tory measures" to find § 922(g)(9) constitutional by analogy
would relieve the government of its burden.
Thus, a two-part approach to Second Amendment claims
seems appropriate under Heller, as explained by the Third
Circuit Court of Appeals, see Marzzarella, 614 F.3d at 89,
and Judge Sykes in the now-vacated Skoien panel opinion, see
they pass muster under any standard of scrutiny."); Skoien, 587 F.3d at
808 ("[I]t is not entirely clear whether this language should be taken to
suggest that the listed firearms regulations are presumed to fall outside the
scope of the Second Amendment right as it was understood at the time of
the framing or that they are presumptively lawful under even the highest
standard of scrutiny applicable to laws that encumber constitutional
rights.").
12 UNITED STATES v. CHESTER
587 F.3d at 808-09. The first question is "whether the chal-
lenged law imposes a burden on conduct falling within the
scope of the Second Amendment’s guarantee." Id. This histor-
ical inquiry seeks to determine whether the conduct at issue
was understood to be within the scope of the right at the time
of ratification. See Heller, 128 S. Ct. at 2816. If it was not,
then the challenged law is valid. See Marzzarella, 614 F.3d at
89. If the challenged regulation burdens conduct that was
within the scope of the Second Amendment as historically
understood, then we move to the second step of applying an
appropriate form of means-end scrutiny. See id. Heller left
open the issue of the standard of review, rejecting only
rational-basis review. Accordingly, unless the conduct at issue
is not protected by the Second Amendment at all, the Govern-
ment bears the burden of justifying the constitutional validity
of the law.
A.
Under this approach, the first question is whether
§ 922(g)(9) burdens or regulates conduct that comes within
the scope of the Second Amendment—i.e., whether the pos-
session of a firearm in the home by a domestic violence mis-
demeanant is protected by the Second Amendment. Cf.
Marzzarella, 615 F.3d at 89 ("Our threshold inquiry, then, is
whether [the challenged law] regulates conduct that falls
within the scope of the Second Amendment. In other words,
we must determine whether the possession of an unmarked
firearm in the home is protected by the right to bear arms.").
Section 922(g)(9), like the felon-dispossession provision set
forth in § 922(g)(1), permanently disarms an entire category
of persons. Thus, we are seeking to determine whether a per-
son, rather than the person’s conduct, is unprotected by the
Second Amendment. See Skoien, 614 F.3d at 649 (Sykes, J.,
dissenting) (framing the threshold question as "whether per-
sons convicted of a domestic-violence misdemeanor are com-
pletely ‘outside the reach’ of the Second Amendment as a
UNITED STATES v. CHESTER 13
matter of founding-era history and background legal tradi-
tion").
In this case, the government has not taken the position that
persons convicted of misdemeanors involving domestic vio-
lence were altogether excluded from the Second Amendment
as it was understood by the founding generation. Moreover,
it appears to us that the historical data is not conclusive on the
question of whether the founding era understanding was that
the Second Amendment did not apply to felons. See Williams,
616 F.3d at 692 (noting that "[t]he academic writing on the
subject of whether felons were excluded from firearm posses-
sion at the time of the founding is inconclusive at best" (inter-
nal quotation marks omitted)); Skoien, 614 F.3d at 650-51
(Sykes, J., dissenting) ("[S]cholars disagree about the extent
to which felons-let alone misdemeanants-were considered
excluded from the right to bear arms during the founding era.
. . . We simply cannot say with any certainty that persons con-
victed of a domestic-violence misdemeanor are wholly
excluded from the Second Amendment right as originally
understood."); United States v. McCane, 573 F.3d 1037, 1048
(10th Cir. 2009) (Tymkovich, J., concurring) ("[T]he felon
dispossession dictum may lack the ‘longstanding’ historical
basis that Heller ascribes to it. Indeed, the scope of what
Heller describes as ‘longstanding prohibitions on the posses-
sion of firearms by felons’ . . . is far from clear.").
Of course, we are dealing in this appeal not with felons but
people who have been convicted of domestic-violence misde-
meanors. If the historical evidence on whether felons enjoyed
the right to possess and carry arms is inconclusive, it would
likely be even more so with respect to domestic-violence mis-
demeanants. The federal provision disarming domestic-
violence misdemeanants is of recent vintage, having been
enacted in 1996 as part of the Lautenberg Amendment to the
Gun Control Act of 1968. See Pub. L. No. 104-208, § 658,
110 Stat. 3009, 3009-371 to -372 (1996). By contrast, the fed-
eral felon dispossession provision has existed in some form or
14 UNITED STATES v. CHESTER
another since the 1930s, and thus there is a much larger body
of scholarly work considering the question of whether felons
were originally excluded from the protection afforded by the
Second Amendment. Commentators are nonetheless divided
on the question of the categorical exclusion of felons from
Second Amendment protection. Compare C. Kevin Marshall,
Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. &
Pub. Pol’y 695, 714 (2009) (reviewing founding-era prece-
dents and explaining that, "much like the American authori-
ties for a century and a half after the Second Amendment’s
adoption, the actual English antecedents point against lifetime
total disarmament of all ‘felons,’ but do support lesser limita-
tions"), and Carlton F.W. Larson, Four Exceptions in Search
of a Theory: District of Columbia v. Heller and Judicial Ipse
Dixit, 60 Hastings L.J. 1371, 1376 (2009) (explaining that
because state and federal "felon disarmament laws signifi-
cantly postdate both the Second Amendment and the Four-
teenth Amendment[,] [a]n originalist argument that sought to
identify 1791 or 1868 analogues to felon disarmament laws
would be quite difficult to make"), with Don B. Kates & Clay-
ton E. Cramer, Second Amendment Limitations & Crimino-
logical Considerations, 60 Hastings L.J. 1339, 1360 (2009)
("[T]here is every reason to believe that the Founding Fathers
would have deemed persons convicted of any of the common
law felonies not to be among ‘the [virtuous] people’ to whom
they were guaranteeing the right to arms."), and Glenn Harlan
Reynolds, A Critical Guide to the Second Amendment, 62
Tenn. L. Rev. 461, 480 (1995) (opining that "felons, children,
and the insane were excluded from the right to arms precisely
as (and for the same reasons) they were excluded from the
franchise").
The government has not contended that § 922(g)(9) is valid
because Chester, having been convicted of a domestic vio-
lence misdemeanor, is wholly unprotected by the Second
Amendment. Based on this and the lack of historical evidence
in the record before us, we are certainly not able to say that
the Second Amendment, as historically understood, did not
UNITED STATES v. CHESTER 15
apply to persons convicted of domestic violence misdemea-
nors. We must assume, therefore, that Chester’s Second
Amendment rights are intact and that he is entitled to some
measure of Second Amendment protection to keep and pos-
sess firearms in his home for self-defense.6 The question then
becomes whether the government can justify, under the
appropriate level of scrutiny, the burden imposed on Chester’s
Second Amendment rights by § 922(g)(9). Cf. Marzzarella,
614 F.3d at 95 (applying intermediate scrutiny after finding
insufficient evidence to establish with certainty "that the pos-
session of unmarked firearms in the home is excluded from
the right to bear arms").
B.
Heller left open the level of scrutiny applicable to review
a law that burdens conduct protected under the Second
Amendment, other than to indicate that rational-basis review
would not apply in this context. See Heller, 128 S. Ct. at
2817, n.27 ("If all that was required to overcome the right to
keep and bear arms was a rational basis, the Second Amend-
ment would be redundant with the separate constitutional pro-
hibitions on irrational laws, and would have no effect."). Our
task, therefore, is to select between strict scrutiny and inter-
mediate scrutiny. Given Heller’s focus on "core" Second
Amendment conduct and the Court’s frequent references to
First Amendment doctrine, we agree with those who advocate
looking to the First Amendment as a guide in developing a
standard of review for the Second Amendment. See Marzza-
rella, 614 F.3d at 89 n.4; Skoien, 587 F.3d at 813-14.
Chester urges us to adopt a strict scrutiny standard because
§ 922(g)(9) severely burdens an enumerated, fundamental
right. This argument is too broad. We do not apply strict scru-
6
We do not address any issue with respect to possession of firearms for
lawful hunting purposes under the Second Amendment as neither party
has raised that as an issue in this case.
16 UNITED STATES v. CHESTER
tiny whenever a law impinges upon a right specifically enu-
merated in the Bill of Rights. In the analogous First
Amendment context, the level of scrutiny we apply depends
on the nature of the conduct being regulated and the degree
to which the challenged law burdens the right. For example,
a "content-based speech restriction" on noncommercial
speech is permissible "only if it satisfies strict scrutiny."
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813
(2000). But, courts review content-neutral time, place, and
manner regulations using an intermediate level of scrutiny.
See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Likewise, a law regulating commercial speech is subject to a
more lenient intermediate standard of scrutiny in light of "its
subordinate position in the scale of First Amendment values."
Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477
(1989) (internal quotation marks omitted). As Judge Sykes
observed in the now-vacated Skoien panel opinion:
The Second Amendment is no more susceptible to a
one-size-fits-all standard of review than any other
constitutional right. Gun-control regulations impose
varying degrees of burden on Second Amendment
rights, and individual assertions of the right will
come in many forms. A severe burden on the core
Second Amendment right of armed self-defense
should require strong justification. But less severe
burdens on the right, laws that merely regulate rather
than restrict, and laws that do not implicate the cen-
tral self-defense concern of the Second Amendment,
may be more easily justified.
Skoien, 587 F.3d at 813-14.
Although Chester asserts his right to possess a firearm in
his home for the purpose of self-defense, we believe his claim
is not within the core right identified in Heller—the right of
a law-abiding, responsible citizen to possess and carry a
weapon for self-defense—by virtue of Chester’s criminal his-
UNITED STATES v. CHESTER 17
tory as a domestic violence misdemeanant. Heller, 128 S. Ct.
at 2821. Accordingly, we conclude that intermediate scrutiny
is more appropriate than strict scrutiny for Chester and simi-
larly situated persons. See Marzzarella, 614 F.3d at 97; cf.
Skoien, 614 F.3d at 641 (en banc) ("The United States con-
cedes that some form of strong showing (‘intermediate scru-
tiny,’ many opinions say) is essential, and that § 922(g)(9) is
valid only if substantially related to an important governmen-
tal objective. . . . The concession is prudent, and we need not
get more deeply into the ‘levels of scrutiny’ quagmire . . .").
Accordingly, the government must demonstrate under the
intermediate scrutiny standard that there is a "reasonable fit"
between the challenged regulation and a "substantial" govern-
ment objective. Fox, 492 U.S. at 480; see Marzzarella, 614
F.3d at 98 ("Although [the various forms of intermediate scru-
tiny] differ in precise terminology, they essentially share the
same substantive requirements. They all require the asserted
governmental end to be more than just legitimate, either ‘sig-
nificant,’ ‘substantial,’ or ‘important’ . . . [and] require the fit
between the challenged regulation and the asserted objective
be reasonable, not perfect."). Significantly, intermediate scru-
tiny places the burden of establishing the required fit squarely
upon the government. See Fox, 492 U.S. at 480-81.
We cannot conclude on this record that the government has
carried its burden of establishing a reasonable fit between the
important object of reducing domestic gun violence and
§ 922(g)(9)’s permanent disarmament of all domestic-
violence misdemeanants. The government has offered numer-
ous plausible reasons why the disarmament of domestic vio-
lence misdemeanants is substantially related to an important
government goal; however, it has not attempted to offer suffi-
cient evidence to establish a substantial relationship between
§ 922(g)(9) and an important governmental goal. Having
established the appropriate standard of review, we think it
best to remand this case to afford the government an opportu-
nity to shoulder its burden and Chester an opportunity to
respond. Both sides should have an opportunity to present
18 UNITED STATES v. CHESTER
their evidence and their arguments to the district court in the
first instance.
IV.
For the foregoing reasons, we vacate the order of the dis-
trict court and remand for further proceedings consistent with
this opinion.
VACATED AND REMANDED
DAVIS, Circuit Judge, concurring in the judgment:
I concur in the judgment.
In light of the highly persuasive decision of the Seventh
Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir.
2010) (en banc), pet. for cert. pending, sustaining the consti-
tutionality of 18 U.S.C. § 922(g)(9), the district court should
have no difficulty in concluding that the application of
§ 922(g)(9) to offenders such as Chester passes Second
Amendment scrutiny, exactly as district courts have already
concluded. See United States v. Smith, 2010 WL 3743842
(S.D.W. Va. Sept. 20, 2010) (applying Skoien and sustaining
statute); United States v. Staten, 2010 WL 3476110 (S.D.W.
Va. Sept. 2, 2010) (same).
I.
On April 26, 2004, Chester savagely attacked his 22-year-
old daughter, Meghan Chester ("Meghan"). Apparently, their
dispute arose over what Meghan had eaten for lunch that day.
In this attack, Chester slammed his daughter on the kitchen
table. Meghan attempted to leave but Chester followed her,
threatened her, and punched her in the face. Meghan fell to
the floor in pain, but Chester continued to attack her. He
began kicking her as she lay on the ground, and also dumped
buckets of water over his daughter’s head. After her father
UNITED STATES v. CHESTER 19
"beat her up and assault[ed] her" for some time, J.A. 41, Meg-
han escaped from her father and locked herself in the bath-
room. Eventually, Chester left the residence and Meghan’s
mother took Meghan to the hospital. Meghan had a swollen
nose and a knot on her forehead. Based on his physical abuse
of his daughter, on February 4, 2005, Chester was convicted
in state court in Kanawha County, West Virginia for the mis-
demeanor crime of domestic battery and domestic assault in
violation of W. Va. Code § 61-2-28(a) & (b).
On October 10, 2007, the Kanawha County police returned
to the Chester family home in response to a second domestic
violence call. This time, the call was placed by Mrs. Linda
Guerrant-Chester ("Guerrant-Chester"), Chester’s then-wife.
When the officers arrived, Guerrant-Chester told them that
she awoke at 5:00 a.m. and discovered her husband outside
the house, receiving oral sex from a prostitute. When Chester
realized that Guerrant-Chester had seen him, he yelled, "[s]o
you fucking caught me" and proceeded to drag Guerrant-
Chester inside the house. Once inside, Chester grabbed
Guerrant-Chester’s face and throat and strangled her while
repeatedly shouting "I’m going to kill you!" Chester’s daugh-
ter, Samantha Chester, heard Chester repeatedly threaten to
kill Guerrant-Chester and came to the kitchen. She attempted
to calm Chester down, and while she distracted him,
Guerrant-Chester called the police. When the police arrived,
they located a loaded 12-gauge shotgun in the kitchen pantry
and a 9mm pistol in the defendant’s bedroom. Both firearms
belonged to Chester.
II.
On May 6, 2008, a federal grand jury indicted Chester for
violating 18 U.S.C. § 922 (g)(9). Chester moved to dismiss
the indictment, and after considering the parties’ arguments in
light of the Supreme Court’s opinion in Heller v. District of
Columbia, 128 S. Ct. 2783 (2008), the district court denied
Chester’s motion. In the district court’s brief written opinion,
20 UNITED STATES v. CHESTER
it cited Heller’s observation that "nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally ill
. . . ." J.A. 60 (citing Heller, 128 S. Ct. at 2816-17). The court
then drew an analogy between non-violent felons and domes-
tic violence misdemeanants, finding that the Heller language
could, and in this case, should, be read to include both. The
court analyzed the issue as follows:
The thrust of the majority opinion in Heller leaves
ample room for the government to control the pos-
session of firearms by misdemeanants found guilty
of domestic violence. Indeed, the need to bar posses-
sion of firearms by domestic violence misdemean-
ants in order to protect family members and society
in general from potential violent acts of such individ-
uals is quite often far greater than that of the similar
prohibition of § 922(g)(1) on those who commit non-
violent felonies.
J.A. 61.
Chester then entered a conditional guilty plea, preserving
his right to appeal the district court’s denial of his motion to
dismiss. He was sentenced to five months in prison, followed
by a three-year term of supervised release. J.A. 5. Chester
timely appealed; we have jurisdiction pursuant to 28 U.S.C.
§1291.
III.
A.
The majority holds that, "[a]lthough Chester asserts his
right to possess a firearm in his home for the purpose of self-
defense, we believe his claim is not within the core right iden-
tified in Heller—the right of a law-abiding, responsible citi-
zen to possess and carry a weapon for self-defense." Maj. Op.
UNITED STATES v. CHESTER 21
at 16. I agree. The majority further notes, however, "We can-
not conclude on this record that the government has carried its
burden of establishing a reasonable fit between the important
object of reducing domestic gun violence and § 922(g)(9)’s
permanent disarmament of domestic-violence misdemean-
ants." Id. at 17. I do not agree that the issue presented is
whether § 922(g)(9), on its face, properly regulates
"domestic-violence misdemeanants" as a group. This case is
only about a congressional prohibition imposed on Appellant
William Samuel Chester, Jr. More generally, I have concerns
about the majority’s invitation to import First Amendment
doctrines into Second Amendment jurisprudence. But in any
event, I am confident that the district court will have no diffi-
culty satisfying the majority’s mandate.
B.
Section 922(g)(9) was enacted in 1996 along with 18
U.S.C. § 922(g)(8) as part of the so-called Lautenberg
Amendment to the Gun Control Act. It states, in pertinent
part:
(g) It shall be unlawful for any person—
....
(9) who has been convicted in any court of a misde-
meanor crime of domestic violence, to ship or trans-
port in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign
commerce.
18 U.S.C. § 922(g)(9). The term "misdemeanor crime of
domestic violence" is defined as follows:
22 UNITED STATES v. CHESTER
(A) Except as provided in subparagraph (C), the
term "misdemeanor crime of domestic violence"
means an offense that-
(i) is a misdemeanor under Federal, State, or Tribal
law; and
(ii) has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse,
parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a per-
son who is cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, or by a per-
son similarly situated to a spouse, parent, or guardian
of the victim.
(B)(i) A person shall not be considered to have been
convicted of such an offense for purposes of this
chapter, unless-
(I) the person was represented by counsel in the case,
or knowingly and intelligently waived the right to
counsel in the case; and
(II) in the case of a prosecution for an offense
described in this paragraph for which a person was
entitled to a jury trial in the jurisdiction in which the
case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived
the right to have the case tried by a jury, by guilty
plea or otherwise.
(ii) A person shall not be considered to have been
convicted of such an offense for purposes of this
UNITED STATES v. CHESTER 23
chapter if the conviction has been expunged or set
aside, or is an offense for which the person has been
pardoned or has had civil rights restored (if the law
of the applicable jurisdiction provides for the loss of
civil rights under such an offense) unless the pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, pos-
sess, or receive firearms.
18 U.S.C. § 921(a)(33) (emphasis added). Thus, a defendant
must use or attempt to use force before he is convicted of "a
misdemeanor crime of domestic violence" under 18 U.S.C.
§ 922(g)(9).
C.
As has been amply discussed, in Heller, the Supreme Court
invalidated a gun ban in the District of Columbia, holding that
the Second Amendment guarantees to law-abiding citizens the
right to possess handguns for the purposes of self-defense.
The Court identified the right to self-defense as "the central
component of the right itself," Heller, 128 S. Ct. at 2802, and
it declared that the "core right" preserved by the Second
Amendment was the right for "law-abiding, responsible citi-
zens to use arms in defense of hearth and home." Id. at 2821.
Heller failed, however, to identify the proper standard of scru-
tiny for analyzing whether a statute that regulates gun posses-
sion infringes on Second Amendment rights, instead finding
that the D.C.’s outright ban on possession would fail to sur-
vive under any "of the standards of scrutiny that we have
applied to enumerated constitutional rights." Id. at 2817.
The Court acknowledged the existence of limits on the
scope of the individual right protected by the Second Amend-
ment, and explained that certain so-called "longstanding pro-
hibitions" were "presumptively lawful regulatory measures."
Id. at 2816-17 & n.26; id. at 2816 ("From Blackstone through
the 19th-century cases, commentators and courts routinely
24 UNITED STATES v. CHESTER
explained that the right was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for what-
ever purpose."). The Court provided a non-exclusive, illustra-
tive list of such "presumptively lawful" exceptions, including
but not limited to "longstanding prohibitions on the posses-
sion of firearms by felons and the mentally ill," id. at 2816-
17, but did not explain how lower courts were to identify
other such "presumptively lawful" exceptions. More recently,
the Court restated its belief in the existence of "presumptively
lawful" regulations but again declined to provide any guid-
ance to lower courts in our efforts to identify them. McDonald
v. Chicago, 130 S. Ct. 3020, 2047 (2010) (holding that the
Second Amendment constrains state and local laws through
its incorporation under the Fourteenth Amendment Due Pro-
cess Clause).1 Post-Heller, and now, post-McDonald, lower
federal courts have theorized about the meanings of a "long-
standing prohibition[ ]" and a "presumptively lawful regula-
tory measure[ ]", but, as the majority candidly concedes, no
consensus has emerged.
D.
The majority, on the basis of "the [Heller] Court’s frequent
references to First Amendment doctrine, . . . look[s] to the
First Amendment as a guide" in its analysis. Maj. Op. at 15.
To be sure, Heller does refer to the First Amendment, but
only for several quite limited purposes: (1) to compare its lan-
guage, along with that of other amendments in the Bill of
1
The Court stated:
We made it clear in Heller that our holding did not cast doubt on
such longstanding regulatory measures as "prohibitions on the
possession of firearms by felons and the mentally ill," "laws for-
bidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms." We repeat
those assurances here.
McDonald, 130 S. Ct. at 3047 (internal citations omitted).
UNITED STATES v. CHESTER 25
Rights, to the language of the Second Amendment, see, e.g.,
Heller, 128 S. Ct. at 2790; (2) to establish that constitutional
rights are not limited to the use of equipment available at the
time of ratification, but extend to modern analogues, see id.
at 2791 (citing to First Amendment’s protection of "modern
forms of communication"); (3) to make the simple point that
unqualified constitutional language does not imply an "unlim-
ited" right, id. at 2799; (4) to note that initial recognition of
a right sometimes comes long after ratification, see id. at
2816; and finally, (5) to remind its audience that our constitu-
tional rights are "the very product of an interest-balancing by
the people" and thus that balancing them away in the manner
ascribed to Justice Breyer would be inappropriate, id. at 2821.
Certainly the First Amendment, as a fount of rights the dis-
senting Justices have frequently championed, was a useful
source for the Heller majority. But these limited references
are hardly an invitation to import the First Amendment’s idio-
syncratic doctrines wholesale into a Second Amendment con-
text, where, without a link to expressive conduct, they will
often appear unjustified. To the extent some commentators
and courts, frustrated with Heller’s lack of guidance, have
clung to these references and attempted to force unwieldy
First Amendment analogies, they muddle, rather than clarify,
analysis.
1.
Most problematic is the majority’s suggestion that the gov-
ernment must show "a reasonable fit between the important
object of reducing domestic gun violence and § 922(g)(9)’s
permanent disarmament of domestic-violence misdemean-
ants" as a class. Maj. Op. at 17. Chester can plainly challenge
the statute as applied to him. And insofar as any legislative
enactment may be attacked on its face on the grounds "that no
set of circumstances exists under which the Act would be
valid," United States v. Salerno, 481 U.S. 739, 746 (1987);
see also Greenville Women’s Clinic v. Bryant, 222 F.3d 157,
164 (4th Cir. 2000) (quoting Salerno and applying this rule in
26 UNITED STATES v. CHESTER
the abortion-regulation context), Chester may raise that claim
as well. But Chester cannot simply complain that, while the
statute is permissible as applied to him, there may be different
sets of facts under which its application would be invalid.
This "second type of facial challenge," United States v. Ste-
vens, 130 S. Ct. 1577, 1587 (2010), which presumes "a spe-
cies of third party (jus tertii) standing," City of Chicago v.
Morales, 527 U.S. 41, 55 n.22 (1999) (Stevens, J., concur-
ring), has not been permitted outside of the First Amendment
context, see Salerno, 481 U.S., at 745 ("The fact that [a stat-
ute] might operate unconstitutionally under some conceivable
set of circumstances is insufficient to render it wholly invalid,
since we have not recognized an ‘overbreadth’ doctrine out-
side the limited context of the First Amendment."). As the
Supreme Court taught in Broadrick v. Oklahoma, 413 U.S.
601 (1973),
Embedded in the traditional rules governing consti-
tutional adjudication is the principle that a person to
whom a statute may constitutionally be applied will
not be heard to challenge that statute on the ground
that it may conceivably be applied unconstitutionally
to others, in other situations not before the Court. . . .
[These principles] rest on more than the fussiness of
judges. They reflect the conviction that under our
constitutional system courts are not roving commis-
sions assigned to pass judgment on the validity of
the Nation’s laws.
Id. at 610-11.
One of the only exceptions to this rule is the First Amend-
ment’s overbreadth doctrine, which is justified on grounds
unique to the regulation of expressive conduct. Concerned
about the chilling effect of overly broad regulations—the fear
that a "statute’s very existence may cause others not before
the court to refrain from constitutionally protected speech or
UNITED STATES v. CHESTER 27
expression," id. at 612—the Supreme Court has "long . . . rec-
ognized that the First Amendment needs breathing space," id.
at 611; and the overbreadth doctrine is the Court’s solution to
this speech-specific problem, id. at 611-12. With free expres-
sion, the classes of protected speech that are unduly burdened
may be quite particularized—e.g., unpopular expression that
has "serious literary, artistic, politics, or scientific value," Mil-
ler v. California, 413 U.S. 15, 24 (1973). And as expression
is, by its very nature, so mutable, overbroad regulations can
easily encourage speakers to modify their speech, shifting it
away from controversy. No analogous arguments obtain in the
Second Amendment context. As there can be little doubt that
advocates of a robust individual right to bear arms will con-
tinue to challenge all firearm regulations, importing the over-
breadth doctrine, an "extraordinary" exception to prudential
standing requirements, Ward v. Rock Against Racism, 491
U.S. 781, 794 (1989), into the Second Amendment context
would be inappropriate.
2.
As for the majority’s observation that here "we are seeking
to determine whether a person, rather than the person’s con-
duct, is unprotected by the Second Amendment," Maj. Op. at
12, I am dubitante. This seems to invite a comparison to the
First Amendment’s application to expressive conduct and to
suggest that, because here we would exclude a "person, rather
than the person’s conduct," from constitutional immunity, the
government should bear a heavier burden in establishing that
Chester’s claim is outside the purview of the Second Amend-
ment. Again, however, the First Amendment analogy breaks
down. The law has long believed that "no danger flowing
from speech can be deemed clear and present, unless the inci-
dence of the evil apprehended is so imminent that it may
befall before there is opportunity for full discussion," and that
"the remedy to be applied is more speech, not enforced
silence." Whitney v. California, 274 U.S. 357, 377 (1927)
(Brandeis, J., concurring). This principle has no application to
28 UNITED STATES v. CHESTER
gun violence, and prohibiting violent criminals from owning
guns cannot fairly be compared to permanently silencing
some class of persons.
E.
Heller has left in its wake a morass of conflicting lower
court opinions regarding the proper analysis to apply to chal-
lenged firearms regulations. Many courts have upheld provi-
sions of § 922(g) under the "presumptively lawful regulatory
measure[ ]" or the "longstanding prohibition[ ]" language in
Heller. These courts generally affirm a particular provision of
§ 922(g) either because Heller specifically stated the particu-
lar regulations were constitutional, as regarding felons and the
mentally ill, §§ 922(g)(1) & (4), or, as did the district court
here, via analogy to the so-called "presumptively lawful regu-
latory measures."2 Other federal courts have individually ana-
2
We have upheld the statutory prohibitions on possession by felons and
the mentally ill after Heller in unpublished, non-precedential, cases.
United States v. Brunson, No. 07-4962, 292 Fed. Appx. 259, *261 (4th
Cir. Sept. 11, 2008) (upholding § 922(g)(1)); United States v. McRobie,
No. 08-4632, 2009 WL 82715, *1 (4th Cir. Jan. 14, 2009) (upholding
§ 922(g)(4)). Other circuits concluded similarly. See, e.g., United States v.
Anderson, 559 F.3d 348, 352 (5th Cir. 2009) (upholding § 922(g)(1));
United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009) (same);
United States v. Stuckey, No. 08-0291, 317 Fed. Appx. 48, 50 (2d Cir.
March 18, 2009) (same).
We have also previously analogized between perpetrators of domestic
violence and felons. United States v. Bostic, 168 F.3d 718, 722 (4th Cir.
1999). There, Bostic challenged the constitutionality of his conviction
under § 922(g)(8). We upheld the statute, explaining:
We disagree, however, with Bostic’s premise that he remained an
"ordinary citizen" after the [final protection] Order was entered
against him. By engaging in abusive conduct toward Kelly and
Ryan which led to the entry of the Order, Bostic removed himself
from the class of ordinary citizens we discussed in Langley. Like
a felon, a person in Bostic’s position cannot reasonably expect
to be free from regulation when possessing a firearm.
UNITED STATES v. CHESTER 29
lyzed the specific statutory provision at issue, determined the
appropriate level of constitutional scrutiny, and then analyzed
the statute in light of the factual circumstances before the court.3
Recognizing that an attempt to operationalize the Heller
Court’s "longstanding" language would lead to "weird" results
unconnected even to any court’s divination of the ratifiers’
original intent, the Seventh Circuit simply read this language
to acknowledge that "exclusions [from Heller’s qualified right
to bear arms] need not mirror limits that were on the books
in 1791." Id. at 641. I, too, find this the most persuasive inter-
pretation of that passage in Heller.
The Skoien court then conducted a further analysis to deter-
mine whether the statute was constitutional. The court did not
explicitly adopt a level of constitutional scrutiny, however.
Instead, the court embraced the government’s concession that
"some form of strong showing (‘intermediate scrutiny,’ many
opinions say) is essential, and that § 922(g)(9) is valid only if
substantially related to an important governmental objective."
Skoien, 614 F.3d at 641. Then, after disavowing involvement
in the "‘levels of scrutiny’ quagmire," the court concluded
that § 922(g)(9) satisfied the appropriate test, a test that
appears to any discerning eye identical to intermediate scru-
Id. at 722 (emphasis added).
Other federal courts have upheld § 922(g)(9) based on analogies
between domestic violence misdemeanants and felons. E.g., United States
v. White, 593 F.3d 1199, 1205 (11th Cir. 2010); United States v. Booker,
570 F. Supp. 2d 161, 163-64 (D. Me. 2008) ("if anything, as a predictor
of firearm misuse, the definitional net cast by 922(g)(9) is tighter than the
net cast by 922(g)(1). . . . [and] the manifest need to protect the victims
of domestic violence and to keep guns from the hands of the people who
perpetuate such acts is well-documented and requires no further elabora-
tion.").
3
See, e.g., United States v. Miller, 604 F. Supp. 2d 1162, 1171 (W.D.
Tenn. 2009); United States v. Engstrum, 609 F. Supp. 2d 1227, 1231-34
(D. Utah 2009).
30 UNITED STATES v. CHESTER
tiny. Id. at 641-42 ("[F]or no one doubts that the goal of
§ 922(g)(9), preventing armed mayhem, is an important gov-
ernment objective. Both logic and data establish a substantial
relation between § 922(g)(9) and this objective."). The court
went on to explain why the statute satisfied intermediate scru-
tiny, identifying three distinct justifications for the constitu-
tionality of § 922(g)(9): domestic abusers often commit acts
that would be charged as felonies if the victim were a
stranger, but that are charged as misdemeanors because the
victim is a relative; (2) firearms are deadly in domestic strife;
and (3) persons convicted of domestic violence are likely to
offend again. Id. at 643-44. Distilled to its essence, Skoien
holds that § 922(g)(9) passes muster under the Second
Amendment as applied to recidivist violent offenders.
IV.
Despite its hesitation to do so explicitly (in contrast to the
majority in this case), the Seventh Circuit correctly applied
intermediate scrutiny in Skoien and correctly sustained
§ 922(g)(9) against constitutional attack.
A.
Intermediate scrutiny is the proper level of scrutiny for
§ 922(g)(9). Heller eliminated rational basis scrutiny and Jus-
tice Breyer’s proposed balancing test as possibilities. Heller,
128 S. Ct. at 2817 n.27; id. at 2821. The Court also made it
clear that strict scrutiny is unwarranted in Second Amendment
analysis. See id. at 2851 (Breyer, J., dissenting). Moreover, it
is clear here that § 922(g)(9) does not even burden the core
right of the Second Amendment as established by the
Supreme Court in Heller, namely, the right for "law-abiding,
responsible citizens to use arms in defense of hearth and
home." Id. at 2821. Undisputedly, those convicted for having
committed violent assaults against cohabitants and family
members in general, and Chester in particular, are not law-
abiding, responsible citizens. Chester had been convicted of
UNITED STATES v. CHESTER 31
a serious crime in which violence is an element, 18 U.S.C.
§ 922(g)(9); W. Va. Code § 61-2-28(a) & (b), and in which
the facts indicate that he acted particularly violently: he
lashed out at his daughter, kicking and punching her, at times
while she was on the ground. Further, our own precedent dic-
tates that an individual who assaulted a family member
thereby "‘removed himself from the class of ordinary citizens’
to the point where he could not ‘reasonably expect to be free
from regulation when possessing a firearm,’" United States v.
Mitchell, 209 F.3d 319, 323 (4th Cir. 2000) (quoting United
States v. Bostic, 168 F.3d 718, 722 (4th Cir. 1999)), separately
suggesting that strict scrutiny is inapplicable to Chester
because of his previous criminal activity. For all these rea-
sons, intermediate scrutiny is the proper approach for the dis-
trict court’s analysis.
Intermediate scrutiny queries whether a statute is substan-
tially related to an important governmental interest. See Craig
v. Boren, 429 U.S. 190, 197 (1976) ("To withstand constitu-
tional challenge, previous cases establish that classifications
by gender must serve important governmental objectives and
must be substantially related to achievement of those objec-
tives."); see also Lehr v. Robertson, 463 U.S. 248, 265-66
(1983) ("The sovereign may not draw distinctions between
individuals based solely on differences that are irrelevant to
a legitimate governmental objective. . . . when there is no sub-
stantial relation between the disparity and an important state
purpose") (internal citations omitted); Adkins v. Rumsfeld, 464
F.3d 456, 468 (4th Cir. 2006) (for facially neutral gender-
based classifications we demand "at least that the challenged
classification serves important governmental objectives and
that the discriminatory means employed are substantially
related to the achievement of those objectives."); cf. Skoien,
614 F.3d at 642.
The government contends that the governmental interests at
stake here, and, indeed, the very purpose of § 922(g)(9),
include, inter alia, to "keep[ ] firearms away from presump-
32 UNITED STATES v. CHESTER
tively risky persons." Appellee’s Br. at 9. I readily agree.
Mitchell, 209 F.3d at 321 ("Congress determined that the pos-
session of a gun by one convicted of domestic violence put
the possessor’s partner at undue risk."). In enacting legislation
which prohibits certain classes of persons from possessing
firearms, "Congress sought to rule broadly to keep guns out
of the hands of those who have demonstrated that ‘they may
not be trusted to possess a firearm without becoming a threat
to society.’" Scarborough v. United States, 431 U.S. 563, 572
(1977) (quoting 114 Cong. Rec. 14773 (1968)).
More specifically, the government argues that the purpose
of § 922(g)(9) is to keep firearms away from presumptively
risky individuals with a demonstrated history of actual or
attempted violence. Appellee’s Br. at 10-13. Again, the gov-
ernment’s argument is persuasive. In 1996, Congress recog-
nized that existing felon-in-possession prohibitions were not
keeping firearms out of the hands of domestic abusers,
because such individuals, although dangerous, were often
charged with misdemeanors instead of felonies. 142 Cong.
Rec. S2646-02 (1996) (statement of Sen. Lautenberg)
(explaining that "many people who engage in serious spousal
or child abuse ultimately are not charged with convicted of
felonies. . . and these people are still free under Federal law
to possess firearms"). Thus, Congress enacted § 922(g)(9) to
deny these violent offenders the right to possess guns. Hayes,
129 S. Ct. at 1087 (finding that "[f]irearms and domestic strife
are a potentially deadly combination nationwide."); 142 Cong.
Rec. at S2646-02 (explaining that adding domestic violence
misdemeanants to the Gun Control Act of 1968 in 1996 was
intended to "close this loophole, and will help keep guns out
of the hands of people who have proven themselves to be vio-
lent and a threat to those closest to them."); see also United
States v. Beavers, 206 F.3d 706, 710 (6th Cir. 2000) ("[I]t
should not surprise anyone that the government has enacted
legislation in an attempt to limit the means by which persons
who have a history of domestic violence might cause harm in
the future").
UNITED STATES v. CHESTER 33
Under intermediate scrutiny, the governmental purpose
must be important. But who could possibly dispute the impor-
tance of the governmental interest in keeping firearms away
from individuals with a demonstrated history of actual or
attempted assaultive violence? The need to protect victims of
assaultive domestic violence from further, more lethal harm
from gun violence is unquestionable; its unfortunate and hor-
rifying effects are well-documented. As the government
argues:
Domestic violence misdemeanants, even more so
than most convicted felons, have demonstrated a
specific propensity for violence and thus pose and
unacceptable risk of firearm misuse. Such persons
have demonstrated an unwillingness or inability to
resolve domestic disputes without threats of physical
violence. Just because a domestic abuser does not
employ a firearm in this first instance does not mean
he will refrain from using a firearm the next time.
Further, because victims of domestic violence often
seek assistance from law enforcement agencies,
domestic violence misdemeanants are likely to
encounter law enforcement officers. The United
States interest includes eliminating firearm posses-
sion by domestic violence misdemeanants during
adverse encounters with law enforcement officers.
Appellee’s Br. at 12. And sound research of unquestionable
reliability (much of it empirical) indicates that the presence of
firearms greatly increases the risk of death for women suffer-
ing from domestic abuse. For example, in 2006, 1,905 women
were murdered with guns and 4,772 women were treated in
emergency rooms for gunshot wounds stemming from an
assault.4 On average, more than three women in the United
4
CDC, Nat’l Ctr. for Injury Prevention & Control, Injury Mortality
Reports, http://webappa.cdc.gov/sasweb/ncipc/mortrate10_sy.html (query
for "Homicide" and "Firearm" and "Females" and "2006"); Id., Nonfatal
Injury Reports, http://webappa.cdc.gov/sasweb/ncipc/ nfirates2001.html
(query for "Assault-All" and "Firearm" and "Females" and "2006").
34 UNITED STATES v. CHESTER
States are murdered by their husbands or boyfriends every day.5
Abused women living in homes with firearms are six times
more likely to be killed than other abused women.6 Women
are more than twice as likely to be shot to death by their male
partner as killed in any way by a stranger.7 And women living
in homes with guns are more than three times as likely to be
victims of homicide.8 Although it is the government’s role to
provide these data, courts have long taken judicial notice of
dispositive facts in constitutional cases; judicial notice of the
data underlying the government’s interests is entirely appro-
priate.
It is also quite clear that § 922(g)(9) is substantially related
to the government’s important interests, as the statute directly
prohibits the possession of firearms by those with a demon-
strated history of actual or attempted violence. See American
Life League, Inc. v. Reno, 47 F.3d 642, 651-52 (4th Cir.
1995). Section 922(g)(9) is not merely intended to accomplish
5
U.S. Dep’t of Justice, Bureau of Justice Statistics Crime Data Brief,
Intimate Partner Violence, 1976-2001 (Feb. 2003), available at
http://www.endabuse.org/userfiles/file/Children_and_Families/Children.
pdf.
6
Jacquelyn C. Campbell et al., Assessing Risk Factors for Intimate Part-
ner Homicide, Nat’l Inst. Just. J., Nov. 2003, at 15, 16, available at
http://www.ncjrs.gov/pdffiles1/jr000250e.pdf. In another study, it was
found that access to firearms increases the risk of intimate-partner homi-
cide more than five-fold. Arthur L. Kellerman et al., Gun Ownership as
a Risk Factor for Homicide in the Home, 329 New Eng. J. Med. 1084-91
(1993).
7
Arthur L. Kellerman & James A. Mercy, Men, Women, and Murder:
Gender-Specific Differences in Rates of Fatal Violence and Victimization,
33 J. Trauma 1, 1 (1992).
8
James E. Bailey et al., Risk Factors for Violent Death of Women in the
Home, 157 Archives of Internal Med. 777, 777 (1997).
UNITED STATES v. CHESTER 35
bureaucratic shortcuts or administrative convenience. Craig v.
Boren, 429 U.S. 190, 198-99 (1976), reh’g denied, 429 U.S.
1124 (1977); Reed v. Reed, 404 U.S. 71, 76 (1971), mandate
conformed to, 493 P.2d 701 (1972). This statute, simply
stated, is substantially related to the goal proffered by the
government: to keep firearms from individuals with a demon-
strated history of violence. This statute was intended to pre-
vent individuals like William Samuel Chester, Jr., a violent
man who has attacked and assaulted his own daughter and
wife, from purchasing or possessing guns. Thus, based on
readily available data of undoubted reliability, § 922(g)(9)
satisfies intermediate scrutiny and is therefore constitutional.
V.
I can foresee no difficulty for the district court in sustaining
the constitutional validity of the application of § 922(g)(9) in
this case. Nevertheless, under the circumstances of the law’s
understandably slow evolutionary course of development, I
am content to give Appellant Chester a full opportunity to
offer evidence and argument showing the district court how
and why he escapes the law’s bite.