United States v. Staten

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-5318
MARK A. STATEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(2:09-cr-00235-1)

Argued: September 23, 2011

Decided: December 5, 2011

Before AGEE and WYNN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Hamilton wrote
the opinion, in which Judge Agee and Judge Wynn joined.

COUNSEL

ARGUED: Christian M. Capece, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Elizabeth Dorsey Collery, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
2 UNITED STATES v. STATEN
lee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appel-
lant. R. Booth Goodwin II, United States Attorney, Charles-
ton, West Virginia, Lisa G. Johnston, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Huntington, West Virginia; Lanny A. Breuer, Assistant Attor-
ney General, Greg D. Andres, Acting Deputy Assistant Attor-
ney General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.

OPINION

HAMILTON, Senior Circuit Judge:

Section 922(g)(9) of Title 18 of the United States Code pro-
hibits a person who has been convicted of a misdemeanor
crime of domestic violence from possessing, shipping, or
receiving a firearm in or affecting interstate commerce. 18
U.S.C. § 922(g)(9). The sole issue on appeal is whether Mark
Staten’s conviction on one count of violating § 922(g)(9) sur-
vives his as-applied constitutional challenge under the Second
Amendment, U.S. Const. amend. II. For reasons that follow,
we affirm the judgment of the district court.

I

Late in the evening on April 7, 2009, two deputy sheriff
officers responded to a domestic disturbance call from Stat-
en’s wife. Upon arriving at the Statens’ home, Staten’s wife
reported that she and her husband had been arguing for two
days; that she feared for her safety due to his drinking; and
that there were three rifles hanging on the wall in the living
room.1 At the request of the officers, Staten entered the living
1
Actually, there were two rifles and one shotgun.
 UNITED STATES v. STATEN 3
room. Staten thereafter admitted to having been convicted of
misdemeanor domestic assault, which the officers were able
to confirm while still on the scene. The officers then seized
the three firearms and arrested Staten for being a prohibited
person in possession of a firearm in violation of § 922(g)(9).

Staten was indicted on one count of knowingly possessing
three firearms following a misdemeanor conviction for
domestic violence, in violation of §§ 922(g)(9) and 924(a)(2).
He subsequently moved to dismiss the indictment on the
ground that § 922(g)(9) violated his right to bear arms in
defense of his home under the Second Amendment to the
United States Constitution. Staten initially brought his Second
Amendment challenge as a facial challenge alleging substan-
tial overbreadth and as an as-applied challenge. The govern-
ment opposed the motion. Both sides filed multiple
memorandums in support of their respective positions, with
the government offering quotations and citations to scholarly
social science evidence in its filings. We glean from the
record that the district court did not conduct an evidentiary
hearing on Staten’s motion to dismiss because Staten never
requested one.

After the district court denied Staten’s motion to dismiss,
see United States v. Staten, 2010 WL 3476110 (S.D. W.Va.
Sept. 2, 2010), Staten entered a conditional plea of guilty to
violation of § 922(g)(9), as alleged in the single-count indict-
ment, pursuant to a plea agreement that reserved his right to
appeal the district court’s denial of his motion to dismiss. See
Fed. R. Crim. P. 11(a)(2). Pursuant to Exhibit A of the plea
agreement, entitled "STIPULATION OF FACTS," the govern-
ment and Staten "stipulate[d] and agree[d]," inter alia, that:
(1) prior to April 7, 2009, he had been convicted of three mis-
demeanor crimes of domestic violence, as defined in 18
U.S.C. § 921(a)(33); (2) his wife Angela was the victim of all
three crimes; (3) his right to possess a firearm had not been
restored; (4) on April 7, 2009, he told a deputy that he knew
that he was not to be in possession of any firearms; and (5)
4 UNITED STATES v. STATEN
he knowingly possessed ammunition which could be fired
from the firearms found hanging on the wall of his living
room on April 7, 2009. (J.A. 234).

The district court sentenced Staten to nine and one-half
months of imprisonment, to be followed by three years of
supervised release. Staten timely noted the present appeal in
which he continues to press his as-applied challenge to his
§ 922(g)(9) conviction under the Second Amendment.2

II

We review de novo the district court’s rejection of Staten’s
as-applied Second Amendment challenge to § 922(g)(9). See
United States v. Malloy, 568 F.3d 166, 171 (4th Cir. 2009)
("This court reviews a challenge to the constitutionality of a
federal statute de novo."), cert. denied, 130 S. Ct. 1736
(2010).

A

We begin our consideration of Staten’s as-applied chal-
lenge to his § 922(g)(9) conviction under the Second Amend-
ment by setting forth the legal principles relevant to our
analysis. The Second Amendment provides: "A well regulated
Militia, 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. In District of Columbia v.
2
Staten does not press his facial challenge to § 922(g)(9) under the Sec-
ond Amendment in his opening brief. Accordingly, he has abandoned such
challenge for purposes of the present appeal. See Fed. R. App. P.
28(a)(9)(A) ("appellant’s brief must contain . . . appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies . . ."); United States v. Al–Hamdi, 356
F.3d 564, 571 n.8 (4th Cir. 2004) ("It is a well settled rule that contentions
not raised in the argument section of the opening brief are abandoned.");
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (failure to raise issue in
opening appellate brief results in abandonment of that issue on appeal).
 UNITED STATES v. STATEN 5
Heller, 554 U.S. 570 (2008), the Supreme Court held for the
first time that the right to keep and bear arms, as provided in
the Second Amendment, is an individual right without regard
to militia service. Id. at 595. According to the Court, the core
right of the Second Amendment is "the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home." Id. at 635. Based upon this holding, the Court invali-
dated District of Columbia laws banning the possession of
handguns and requiring citizens to keep firearms in inoperable
condition. Id. The Court was careful to note, however, that the
right to keep and bear arms under the Second Amendment is
not unlimited, and that its holding did not invalidate "pre-
sumptively lawful regulatory measures," id. at 627 n.26, such
as "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 626-27.

Post Heller, we first considered the constitutionality of
§ 922(g)(9) under the Second Amendment in an unpublished
opinion in United States v. Chester (Chester I), 367 F. App’x.
392 (4th Cir. 2010) (per curiam). In Chester I, we vacated
William Chester’s § 922(g)(9) conviction and remanded his
"appeal for clarification of the precise contours of his Second
Amendment claim—a necessary step in determining the
appropriate standard of constitutional scrutiny to apply—and
for development of the record under the appropriate means-
end framework." United States v. Chester (Chester II), 628
F.3d 673, 678 (4th Cir. 2010). Notably, we did not identify
the appropriate level of scrutiny in Chester I, "leaving that
task to the district court on remand." Id. at 678. Moreover,
agreeing with the Seventh Circuit’s panel decision in United
States v. Skoien (Skoien I), 587 F.3d 803 (7th Cir. 2009),
vacated, 614 F.3d 638 (7th Cir. 2010) (en banc), we expressly
rejected the government’s argument that § 922(g)(9) was
valid by analogy based on Heller’s "‘presumptively lawful’"
language. Chester I, 367 F. App’x. at 393.
6 UNITED STATES v. STATEN
After we issued Chester I, the government petitioned for
panel rehearing in light of the fact that the Skoien I panel deci-
sion had been vacated by the Seventh Circuit sitting en banc.
Chester II, 628 F.3d at 678. Thereafter, the Seventh Circuit
issued its en banc decision in Skoien, see United States v.
Skoien (Skoien II), 614 F.3d 638 (7th Cir. 2010) (en banc),
rejecting a Second Amendment challenge to § 922(g)(9) on
the basis that logic and data demonstrate a substantial rela-
tionship between § 922(g)(9) and an important governmental
objective. See Skoien II, 614 F.3d at 642.

Subsequently, in a published opinion we refer to in the
present opinion as Chester II, we granted the government’s
petition for panel rehearing, vacated Chester I, and reissued
our decision in order to provide district courts in the Fourth
Circuit with guidance on the proper framework for deciding
as-applied Second Amendment challenges. Chester II, 628
F.3d at 678. In this regard, we specifically announced a two-
part approach. Id. at 680. The first part asks "whether the
challenged law imposes a burden on conduct falling within
the scope of the Second Amendment’s guarantee." Id. (inter-
nal quotation marks omitted). Putting meat on the bones of
this question, we explained that it is a "historical inquiry" that
"seeks to determine whether the conduct at issue was under-
stood to be within the scope of the right at the time of ratifica-
tion." Id. If the challenged law does not impose a burden on
conduct falling within the scope of the Second Amendment’s
guarantee as historically understood, that is the end of the
matter. Id. However, if the challenged law does impose a bur-
den on conduct falling within the scope of the Second
Amendment’s guarantee as historically understood, then the
second part of the two-part approach comes into play. Id.

The second part of the two-part approach involves applica-
tion of the appropriate form of means-end scrutiny. Id. In
Chester II, we held that intermediate scrutiny is the appropri-
ate standard to analyze a challenge to § 922(g)(9) under the
 UNITED STATES v. STATEN 7
Second Amendment.3 Chester II, 628 F.3d at 683. Under the
formulation of intermediate scrutiny that we adopted in Ches-
ter II, the government bears the burden of showing "a reason-
able fit between the challenged regulation and a substantial
government objective." Id. at 683 (internal quotation marks
omitted); see also id. ("[I]ntermediate scrutiny places the bur-
den of establishing the required fit squarely upon the govern-
ment."). In meeting its burden under intermediate scrutiny, the
government is not required to show the regulation is "the least
intrusive means of achieving the relevant government objec-
tive, or that there be no burden whatsoever on the individual
right in question." United States v. Masciandaro, 638 F.3d
458, 474 (4th Cir. 2011).

Applying this two-part approach in Chester II, we first
asked whether the possession of a firearm in the home by a
domestic violence misdemeanant is protected by the Second
Amendment as historically understood. Chester II, 628 F.3d
at 680. Notably, the government did not take the position in
Chester II, as they do in the present appeal, that persons con-
victed of misdemeanors involving domestic violence were
altogether excluded from the Second Amendment as it was
understood by the founding generation. Id. at 680-81. Based
upon this and the lack of historical evidence on the issue in
the appellate record, we were unable to say in Chester II that
the Second Amendment, as historically understood, did not
apply to persons convicted of domestic violence misdemea-
nors. Id. at 681. Under such circumstance, we held that "[w]e
must assume . . . that Chester’s Second Amendment rights are
intact and that he is entitled to some measure of Second
Amendment protection to keep and possess firearms in his
home for self-defense." Id. at 681-82.
3
We held that strict scrutiny did not apply because Chester’s criminal
history as a domestic violence misdemeanant took him outside the core
right of the Second Amendment identified in Heller, which is the right of
a law-abiding responsible citizen to possess and carry a weapon for self-
defense. Chester II, 628 F.3d at 682.
8 UNITED STATES v. STATEN
Accordingly, we proceeded to apply intermediate scrutiny.
We were quickly stopped in our tracks, however, by the
understandably undeveloped record. On this point, we
explained:

We cannot conclude on this record that the gov-
ernment has carried its burden of establishing a rea-
sonable fit between the important object of reducing
domestic gun violence and § 922(g)(9)’s permanent
disarmament of all domestic-violence misdemean-
ants. The government has offered numerous plausi-
ble reasons why the disarmament of domestic
violence misdemeanants is substantially related to an
important government goal; however, it has not
attempted to offer sufficient 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 oppor-
tunity to shoulder its burden and Chester an opportu-
nity to respond. Both sides should have an
opportunity to present their evidence and their argu-
ments to the district court in the first instance.

Chester II, 628 F.3d at 683. As we file the present opinion,
Chester remains pending in the district court for the Southern
District of West Virginia on remand.

B

Having set forth the relevant legal principles, we now turn
to analyze Staten’s as-applied challenge under the Second
Amendment to his § 922(g)(9) conviction. We first note that
although Staten expressly concedes in his opening appellate
brief that, under Chester II, intermediate scrutiny is the appro-
priate standard for analyzing his as-applied challenge under
the Second Amendment to his § 922(g)(9) conviction, he
nonetheless devotes a large portion of his brief to his argu-
 UNITED STATES v. STATEN 9
ment that strict scrutiny is the appropriate standard in order to
preserve such argument for further appellate review. Because
we are bound by Chester II, we do not address this argument
further. See Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.
1996) (panel may not overrule decision of prior panel in same
circuit; only en banc court may overrule prior panel decision).

On appeal, the government first defends Staten’s
§ 922(g)(9) conviction on the basis that § 922(g)(9) is pre-
sumptively lawful under Heller. The government promptly
acknowledges, however, that we rejected this exact argument
in Chester II, 628 F.3d at 679, but explains that it nonetheless
presented it in the event of further appellate review. Again,
we are bound by Chester II, and thus reject the government’s
argument that § 922(g)(9) is presumptively lawful under
Heller. Jones, 94 F.3d at 905.

Next, in contrast to the government’s litigation position in
Chester II, the government here seeks to defend the constitu-
tionality of Staten’s § 922(g)(9) conviction on the basis that,
according to the government, persons convicted of domestic
violence misdemeanors were altogether excluded from the
Second Amendment as it was understood by the founding
generation. The government cites laws from England and the
colonies prior to the American Revolution in support of this
proposition. Staten, for his part, opposes this argument on the
merits and, alternatively, contends the government is now pre-
cluded from raising such argument by failing to raise it in
Chester II.

We conclude that delving into any of this multi-level
debate under the first part of the Chester II approach is unnec-
essary. This is so because, assuming arguendo that Staten’s
Second Amendment rights are intact and that he is entitled to
some measure of Second Amendment protection to keep and
possess firearms in his home for self-defense, our following
analysis leads us to conclude that the government has carried
its burden under intermediate scrutiny pursuant to the second
10 UNITED STATES v. STATEN
part of the Chester II approach. See Masciandaro, 638 F.3d
at 473-76 (upholding regulatory prohibition on carrying or
possessing loaded handgun in motor vehicle within national
park area against Second Amendment challenge by assuming
arguendo existence of Second Amendment right to possess a
loaded handgun for self-defense outside the home, but apply-
ing intermediate scrutiny and holding challenged regulation
survived it).

The net effect of our winnowing of the various opposing
arguments just outlined is that this case picks up where Ches-
ter II left off; we must consider whether the government has
carried its burden of establishing that § 922(g)(9) survives
intermediate scrutiny. Under the intermediate scrutiny stan-
dard, the government bears the burden of establishing a rea-
sonable fit between § 922(g)(9) and a substantial
governmental objective. Chester II, 628 F.3d at 683. We note
that although our published opinion in Chester II had not yet
issued at the time the district court denied Staten’s motion to
dismiss his indictment based upon the Second Amendment,
the district court applied intermediate scrutiny in essentially
the same formulation as we subsequently adopted in Chester
II in rejecting Staten’s as-applied Second Amendment chal-
lenge.4 See United States v. Staten, 2010 WL 3476110 at *4-
5.

The government identifies reducing domestic gun violence
as the substantial governmental objective of § 922(g)(9). Sec-
tion 922(g)(9)’s legislative history directly supports this posi-
4
In response to our decision in Chester I, the district court in this case
ordered the parties to respond to the issues raised in that opinion. The gov-
ernment’s filings pursuant to that order placed before the district court the
scholarly studies and related items it also references on appeal. Staten did
not object to the government’s method of placing this information before
the district court, provided no rebuttal evidence, and did not request a
hearing. In reaching its decision, the district court relied on much of the
scholarly studies referenced by the government which are discussed
herein.
 UNITED STATES v. STATEN 11
tion. See United States v. Hayes, 555 U.S. 415, 426 (2009)
(noting that legislative history of § 922(g)(9) indicates that it
was passed in response to Congress’ concern that existing
felon-in-possession laws were not keeping firearms out of the
hands of domestic abusers because many people who engage
in serious spousal or child abuse ultimately were not charged
with or convicted of felonies and that the statute was designed
to close this dangerous loophole). Moreover, common sense
and case law fully support the government’s position, which
position Staten does not contest. As the First Circuit recently
held, "keeping guns away from people who have been proven
to engage in violence with those whom they share a domesti-
cally intimate or familial relationship . . . is undeniably impor-
tant." United States v. Booker, 644 F.3d 12, 25 (1st Cir.
2011); see also Hayes, 555 U.S. at 426-27 ("Construing
§ 922(g)(9) to exclude the domestic abuser convicted under a
generic use-of-force statute (one that does not designate a
domestic relationship as an element of the offense) would
frustrate Congress’ manifest purpose. Firearms and domestic
strife are a potentially deadly combination nationwide.");
Skoien II, 614 F.3d at 642 ("no one doubts that the goal of
§ 922(g)(9), preventing armed mayhem, is an important gov-
ernmental objective"). Based upon § 922(g)(9)’s legislative
history, the relevant case law, and common sense, we hold
that the government has carried its burden of establishing that
reducing domestic gun violence is a substantial government
objective.

Moving on to the "reasonable fit" portion of intermediate
scrutiny, we note that in establishing a reasonable fit between
§ 922(g)(9) and the substantial government objective of
reducing domestic gun violence, the government is not
required to prove that § 922(g)(9) is the least intrusive means
of reducing domestic gun violence or that there be no burden
whatsoever on Staten’s assumed arguendo right under the
Second Amendment to keep and bear arms in his home for
self-defense. See Masciandaro, 638 F.3d at 474
("intermediate scrutiny does not require that a regulation be
12 UNITED STATES v. STATEN
the least intrusive means of achieving the relevant govern-
ment objective, or that there be no burden whatsoever on the
individual right in question"). In other words, the fit needs to
be reasonable; a perfect fit is not required. See Chester II, 628
F.3d at 683 (citing with approval United States v. Marzza-
rella, 614 F.3d 85, 98 (3d Cir. 2010), for proposition that
intermediate scrutiny requires "fit between the challenged reg-
ulation and the asserted objective be reasonable, not perfect").

We begin our reasonable fit inquiry by considering the pre-
cise contours of § 922(g)(9). Pursuant to § 922(g)(9),

[i]t shall be unlawful for any person— . . . who has
been convicted in any court of a misdemeanor crime
of domestic violence, to ship or transport in inter-
state commerce, or possess in or affecting com-
merce, 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). For purposes of § 922(g)(9), the term
"misdemeanor crime of domestic violence" is defined as fol-
lows:

(A) [T]he term "misdemeanor crime of domestic vio-
lence" 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 person who
is cohabitating with or has cohabitated with
the victim as a spouse, parent, or guardian,
 UNITED STATES v. STATEN 13
or by a person similarly situated to a
spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A) (emphasis added). In United States
v. White, 606 F.3d 144 (4th Cir. 2010), we held that the term
"physical force," as used in § 921(a)(33)(A)(ii), means "force
capable of causing physical pain or injury to another person."
White, 606 F.3d at 153 (internal quotation marks omitted).
Therefore, a "misdemeanor crime of domestic violence," for
purposes of a § 922(g)(9) offense, is one in which the use or
attempted use of force capable of causing physical pain or
injury to another or the threatened use of a deadly weapon is
an element of the offense.

Accordingly, the question we must resolve under the rea-
sonable fit inquiry is whether the government has carried its
burden of establishing a reasonable fit between the substantial
governmental objective of reducing domestic gun violence
and the keeping of firearms out of the hands of: (1) persons
who have been convicted of a crime in which the person used
or attempted to use force capable of causing physical pain or
injury to another against a spouse, former spouse, or other
person with whom such person had a domestic relationship
specified in § 921(a)(33)(A)(ii); and (2) persons who threat-
ened use of a deadly weapon against such persons. In resolv-
ing this question, we first observe that § 921(a)(33)(A)’s
definition of the term "misdemeanor crime of domestic vio-
lence," as construed in White, 606 F.3d at 155, keeps
§ 922(g)(9)’s prohibitory sweep narrow. For example,
§ 922(g)(9) does not apply to persons convicted of a misde-
meanor for using or attempting to use force against a spouse
which is incapable of causing physical pain or injury to
another, such as an offensive touching in a common law bat-
tery. See White, 606 F.3d at 153. For a second example,
§ 922(g)(9) does not apply to persons convicted of a misde-
meanor for threatening the use of a non-deadly weapon
against a spouse. See § 921(a)(33)(A)(ii). We also observe
that § 921(a)(33)(B) imposes important safeguards on the
14 UNITED STATES v. STATEN
application of § 922(g)(9), such as the safeguard that a person
shall not be considered to have been convicted of a domestic
violence misdemeanor "unless . . . the person was represented
by counsel in the case, or knowingly and intelligently waived
the right to counsel in the case . . . ." § 921(a)(33)(B)(i)(I).
Finally, we observe that § 922(g)(9)’s prohibitory sweep is
further narrowed by the fact that, for purposes of § 922(g)(9),
a person shall not be considered to have been convicted of a
domestic violence misdemeanor

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)(B)(ii).

With the narrowness of § 922(g)(9)’s prohibitory sweep in
mind, we turn to evaluate the evidence offered by the govern-
ment in support of its reasonable fit burden. Specifically, the
government bears the burden of establishing a reasonable fit
between the substantial government objective of reducing
domestic gun violence and keeping firearms out of the hands
of persons (1) who have been convicted of a crime in which
the person used or attempted to use force capable of causing
physical pain or injury to another against a spouse, former
spouse, or other person with whom such person had a domes-
tic relationship specified in § 921(a)(33)(A)(ii) or (2) who
have threatened the use of a deadly weapon against such a
person. To carry its burden, the government primarily relies
upon empirical evidence garnered from social science studies,
the results of which and conclusions drawn therefrom appear
in scholarly social science reports (also commonly referred to
as articles).
 UNITED STATES v. STATEN 15
The government starts its reasonable fit analysis with iden-
tifying the scope of the problem to indicate its magnitude.
Specifically, the government starts with what it characterizes
as the well-settled proposition that domestic violence is a seri-
ous problem in the United States. In support, the government
cites findings from a July 2000 social science research report
cosponsored by the National Institute of Justice5 and the Cen-
ters for Disease Control. See U.S. Dept. of Justice, National
Institute of Justice, Patricia Tjaden and Nancy Thoennes,
Extent, Nature, and Consequences of Intimate Partner Vio-
lence: Findings From the National Violence Against Women
Survey iii, NCJ 181867 (July 2000), available at https://
www.ncjrs.gov/pdffiles1/nij/181867.pdf. The report presented
findings from the National Violence Against Women Survey
on the extent, nature, and consequences of intimate partner
violence in the United States. Id. at iii. The survey consisted
of telephone interviews with a nationally representative sam-
ple of 8,000 women and 8,000 men. Id. Of particular rele-
vance here, the report stated that nearly 25% of the 8,000
women surveyed and 7.6% of the 8,000 men surveyed "said
they were raped and/or physically assaulted by a current or
former spouse, cohabitating partner, or date at some time in
their lifetime." Id. The report further stated that "1.5 percent
of surveyed women and 0.9 percent of surveyed men said
they were raped and/or physically assaulted by a partner in the
previous 12 months." Id. Based upon these survey results, the
report concluded that

approximately 1.5 million women and 834,732 men
are raped and/or physically assaulted by an intimate
partner annually in the United States. Because many
victims are victimized more than once, the number
of intimate partner victimizations exceeds the num-
ber of intimate partner victims annually. Thus,
approximately 4.8 million intimate partner rapes and
5
The National Institute of Justice is a component of the United States
Department of Justice’s Office of Justice Programs.
16 UNITED STATES v. STATEN
physical assaults are perpetrated against U.S. women
annually, and approximately 2.9 million intimate
partner physical assaults are committed against U.S.
men annually. These findings suggest that intimate
partner violence is a serious criminal justice and
public health concern.

Id. (emphasis added).

We recognize that this scholarly social science report is one
among many which have reached the same conclusion, i.e,
that domestic violence presents a serious problem in the
United States. Indeed, the Supreme Court has cited such
reports in support of its express recognition in 2006 that
domestic abuse is a serious problem in the United States. See
Georgia v. Randolph, 547 U.S. 103, 117 (2006) (recognizing
"that domestic abuse is a serious problem in the United
States" in reliance on, inter alia, U.S. Dept. of Justice,
National Institute of Justice, Patricia Tjaden and Nancy
Thoennes, Full Report of the Prevalence, Incidence, and Con-
sequences of Violence Against Women 25-26 (2000)). Staten
wisely does not dispute the unfortunately indisputable propo-
sition that domestic violence is a serious problem in the
United States. We hold the government has so established.

Moving on, the government asserts that empirical evidence
regarding a significant rate of recidivism among domestic vio-
lence misdemeanants establishes a substantial relationship
between keeping guns out of the hands of domestic violence
misdemeanants and reducing domestic gun violence. Again,
the government relies upon the findings and conclusions of
scholarly social science reports. For example, the government
cites a federally funded grant report finding that out of a sam-
ple of 3,662 suspects arrested for misdemeanor domestic vio-
lence in Cincinnati, Ohio between August 1993 and May
1996, 17% were re-arrested for domestic violence during the
three-year study period. See U.S. Dept. of Justice, National
Institute of Justice, John Wooldredge and Amy Thistlethw-
 UNITED STATES v. STATEN 17
aite, Reconsidering Domestic Violence Recidivism: Individual
and Contextual Effects of Court Dispositions and Stake in
Conformity 6, NCJ 188509 (October 1999), available at http://
www.ncjrs.gov/pdffiles1/nij/grants/188509.pdf. The govern-
ment further points out that although this data accounts for
repeat incidents resulting in re-arrest, it does not account for
the many repeat domestic violence acts that are never reported
to the police. In support, the government cites a social science
report estimating that, based upon survey results, the recidi-
vism rate ranges between 40% and 80% "when victims are
followed longitudinally and interviewed directly." Carla
Smith Stover, Domestic Violence Research, 20 J. Interper-
sonal Violence 448, 450 (2005), available at http://
www.pineforge.com/isw6/articles/ch2stover.pdf. See also
Julia C. Babcock, Charles Green, and Chet Robie, Does bat-
terers’ treatment work? A meta-analytic review of domestic
violence treatment, 23 Clinical Psychology Review 1023,
1039 (2004), available at http://www.vrfca.org/dvrp/docs/
Babcock_2004.pdf (estimating 35% recidivism rate based
upon partner reports). Finally, the government relies upon a
social science report appearing in the New England Journal of
Medicine finding that "[o]ur data strongly suggest that the risk
of homicide is markedly increased in homes where a person
has previously been hit or hurt in a family fight." Arthur L.
Kellermann, M.D., Gun Ownership as a Risk Factor for
Homicide in the Home, 329 New England Journal of Medi-
cine 1084, 1090 (1993), available at http://www.nejm.org/doi/
pdf/10.1056/NEJM199310073291506.

In response to this social science evidence regarding the
recidivism rate among domestic violence misdemeanants,
Staten primarily argues on appeal that although the govern-
ment offered quotations from and specific citations to the
social science reports upon which it relies, the government
should be considered to have proffered no evidence because
the government did not offer paper copies of such reports as
part of the record. The crux of the government’s response is
that the social science reports upon which it relies with
18 UNITED STATES v. STATEN
respect to all issues under intermediate scrutiny were and con-
tinue to be readily available for examination on the Internet
and at no time below did Staten or the district court inform the
government of any difficulty in accessing the reports.

We believe the far better practice is for the government to
offer copies of whatever reports/articles upon which it seeks
to rely in attempting to carry its burden under intermediate
scrutiny for inclusion in the record at the district court level.
However, with respect to the reports upon which the govern-
ment relies in the present case, because Staten has never dis-
puted the accuracy of either the government’s representations
as to their ready availability via the Internet or the accuracy
of the government’s representations as to their content, we
reject Staten’s argument that the government cannot rely upon
the reports to meet its burden under intermediate scrutiny in
this case. We also note that, with one exception which we will
address later in this opinion, we had no trouble viewing such
reports via the Internet using the websites included in the
addendum to the government’s appellate brief.

Staten also attacks the government’s social science evi-
dence regarding recidivism on the basis that the district court
did not comment on the fact that, from report to report, recidi-
vism rates vary from one in five to four in five. According to
Staten, such variations suggest that none of the reports are
particularly reliable. Finally, he criticizes the government’s
evidence on the ground that it does not compare the recidi-
vism rates of domestic violence misdemeanants to other
offenders such as violent felons. Notably, Staten has offered
no evidence in the form of social science reports or otherwise
to undermine the validity of the conclusions drawn in the
social science reports relied upon by the government.

We reject Staten’s arguments as just set forth. While Staten
is correct that the recidivism rates provided in the social sci-
ence reports relied upon by the government vary more than a
trivial amount, a conservative conclusion to be drawn from
 UNITED STATES v. STATEN 19
such reports is that the actual recidivism rate among domestic
violence misdemeanants (including re-arrests and unreported
incidents) is at least 33.3%. This is a substantial rate of recidi-
vism. Moreover, having reviewed the scholarly social science
evidence relied upon by the government ourselves, we find no
reason to discount the validity of such evidence, and Staten
has offered us none. The fact that both the Seventh Circuit sit-
ting en banc and the First Circuit have relied upon this same
social science evidence to conclude that the recidivism rate
among domestic violence misdemeanants is high, Booker, 644
F.3d at 26; Skoien II, 614 F.3d at 644, is added reassurance
that our reliance is justified. As the Seventh Circuit put it:
"No matter how you slice these numbers, people convicted of
domestic violence remain dangerous to their spouses and part-
ners." Skoien II, 614 F.3d. at 644.

Moreover, the fact that the government does not offer evi-
dence comparing the recidivist rates of domestic violence
misdemeanants to other offenders such as violent felons is of
no moment. Felons are already prohibited from possessing
firearms, see 18 U.S.C. § 922(g)(1), and Congress is obvi-
ously entitled to address one societal problem at a time.

Having established that domestic violence is a serious prob-
lem in the United States and that the rate of recidivism among
domestic violence misdemeanants is substantial, the govern-
ment next seeks to establish that the use of firearms in con-
nection with domestic violence is all too common, increases
the risk of injury or homicide during domestic violence, and
often leads to injury or homicide. In support of this proposi-
tion, the government first relies upon a report published by
the Bureau of Justice Statistics, an arm of the United States
Department of Justice, which reports that, for example, in
2005, 678 women and 147 men were fatally shot by their
respective intimate partners in the United States. See U. S.
Dept. of Justice, National Institute of Justice, Bureau of Jus-
tice Statistics, James Alan Fox and Marianne Zawitz, Homi-
cide Trends in the United States at 101 (2007), available at
20 UNITED STATES v. STATEN
http://bjs.ojp.usdoj.gov/content/pub/pdf/htius.pdf. For the
same year, 504 women and 182 men were killed by their
respective intimate partners by a method other than being shot
with a gun. Id. Thus, in 2005, 57% of women and 43% of
men killed by an intimate partner in the United States were
killed by a gun.6 Id. Second, the government relies upon a
social science report stating that among all female homicides
nationwide approximately 40% to 50% were committed by
intimate partners. Jacquelyn C. Campbell, et al., Risk Factors
for Femicide in Abusive Relationships: Results From a Multi-
state Case Control Study, 93 Amer. J. of Public Health 1089
(2003), available at http://ajph.aphapublications.org/cgi/
reprint/93/7/1089. Third, the government relies upon a social
science report following a study of family and intimate
assaults in Atlanta, Georgia, which report concludes that
domestic violence incidents involving firearms are twelve
times more likely to result in the death of the victim than
assaults by knives or fists. See Linda E. Saltzman, et al.,
Weapon Involvement and Injury Outcomes in Family and Inti-
mate Assaults, 267 J. Am. Medical Ass’n No. 22, pp. 3043-47
(1992), abstract available at http://jama.ama-assn.org/content/
267/22/3043.abstract.7 Fourth and finally, the government
relies upon Dr. Kellermann’s social science report finding
6
These percentages were 53% and 45% respectively for 2004 and 57%
and 47% respectively for 2003. Homicide Trends in the United States,
supra, at 101.
7
The online citation provided by the government for the full-text version
of this report requires a paid subscription to the Journal of the American
Medical Association. Fortunately for the government, we were able to
confirm the accuracy of the government’s citation to our full satisfaction
by viewing an abstract of the report on the Internet website for the Journal
of the American Medical Association and by observing that the Seventh
Circuit, sitting en banc, cited the same report for the same statistic in
Skoien II, 614 F.3d at 643. Nonetheless, we are hereby putting the govern-
ment on notice that, while it caught a break under the circumstances this
time, if a social science report, article, or raw data upon which it relies is
not readily available free of charge on the Internet, the government must
offer a paper copy in the district court for the record in order for it to be
considered.
 UNITED STATES v. STATEN 21
that, after controlling for numerous other factors, keeping a
gun in the home is "strongly and independently associated
with an increased risk of homicide." Kellermann, supra, at
1084. Having reviewed these scholarly reports ourselves, we
have no trouble concluding that the government has indeed
established that the use of firearms in connection with domes-
tic violence is all too common, increases the risk of injury or
homicide during domestic violence, and often leads to injury
or homicide.

To summarize, the government has established that: (1)
domestic violence is a serious problem in the United States;
(2) the rate of recidivism among domestic violence misde-
meanants is substantial; (3) the use of firearms in connection
with domestic violence is all too common; (4) the use of fire-
arms 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 vio-
lence often leads to injury or homicide. These established
facts along with logic and common sense compel us to hold
that the government has carried its burden of establishing a
reasonable fit between the substantial government objective
of reducing domestic gun violence and keeping firearms out
of the hands of: (1) persons who have been convicted of a
crime in which the person used or attempted to use force
capable of causing physical pain or injury to another against
a spouse, former spouse, or other person with whom such per-
son had a domestic relationship specified in § 921(a)(33)(A);
and (2) persons who have threatened the use of a deadly
weapon against such a person. In so holding, we consider
important the fact that Congress substantially tailored the
reach of § 922(g)(9) by limiting its application to those per-
sons who have used or attempted to use force capable of caus-
ing physical pain or injury in a domestic disturbance or those
persons who have threatened the use of a deadly weapon in
a domestic disturbance. We recognize that the net cast by
§ 922(g)(9) may be somewhat over-inclusive given that every
domestic violence misdemeanant would not necessarily mis-
22 UNITED STATES v. STATEN
use a firearm against a spouse, former spouse, or other person
with whom such person had a domestic relationship specified
in § 921(a)(33)(A), if permitted to possess one. However, this
observation merely suggests that the fit is not perfect. Inter-
mediate scrutiny does not require a perfect fit; rather only a
reasonable one. Masciandaro, 638 F.3d at 474; Chester II,
628 F.3d at 683. In accord with the unanimous view of our
sister circuits who have addressed the issue, we have no trou-
ble concluding the fit here is, at least, reasonable. See Booker,
644 F.3d at 26 (upholding § 922(g)(9) against an as-applied
Second Amendment challenge based upon conclusion that
§ 922(g)(9) substantially promotes important government
objective of preventing domestic gun violence); Skoien II, 614
F.3d at 642 ("logic and data" establish a "substantial relation"
between dispossessing domestic violence misdemeanants and
important governmental goal of "preventing armed may-
hem").

Accordingly, we hold that, on Staten’s as-applied challenge
under the Second Amendment, § 922(g)(9) satisfies the inter-
mediate scrutiny standard. We, therefore, affirm the judgment
of the district court.

AFFIRMED