Tuesday, November 19, 2013
Ninth U.S. Circuit Affirms Lifetime Firearm Ban for Spouse-Beater
By MICHAEL PEIL, Staff Writer
A statute prohibiting persons convicted of domestic violence misdemeanors from possessing firearms for life does not violate the Second Amendment, the Ninth U.S. Circuit Court of Appeals affirmed yesterday.
In an opinion by Judge Harry Pregerson, the court rejected defendant Daniel E. Chovan’s claim that 118 U.S.C. §922(g)(9) violated his individual and fundamental right to bear arms. The court also disagreed with Chovan’s argument that he fell under a statutory exception to §922, which states that the lifetime ban on firearm possession will not apply to an offender who has been pardoned or has had civil rights restored.
In 1996, a year before his marriage to her, Chovan was convicted of a misdemeanor for inflicting corporal injury on Cheryl Fix. He was sentenced to 120 days in jail and three years of supervised release.
Under California law, Chovan was to be barred from possessing a firearm for a ten-year period. Under federal statute, however, persons convicted of misdemeanor domestic violence crimes were barred from possessing a firearm for life.
In 2009, three years after California’s moratorium had lifted, Chovan applied to purchase a firearm. On his application, he denied ever having been convicted of a misdemeanor crime. A subsequent background check revealed his 1996 conviction, and his application was denied.
On April 15, 2010, federal agents executed a search warrant, finding and confiscating a .22 caliber handgun and 532 rounds of ammunition.
Two indictments were brought against Chovan, one alleging that he had knowingly possessed firearms in violations of §922.
At trial, he moved to dismiss the count, arguing it to be unconstitutional and also to be inapplicable because of the “civil rights restored” exception. The trial court denied his motion to dismiss and sentenced him to five years probation.
On appeal, Chovan contended that his civil rights were restored, removing his case from §922’s application, since more than ten years had passed since his conviction, lifting California’s ban on firearm possession.
Pregerson rejected this claim, writing that the exception to §922 did not apply: “[Chovan’s]civil rights had never been ‘lost’ because his misdemeanor conviction had not taken away his ‘core civil rights:’ the right to vote, to sit as a juror, or to hold public office.” And since no civil rights had been lost, no such rights could be restored, as required the exception to apply.
Chovan’s also challenged the constitutionality of §922, a question of first impression in the Ninth Circuit. The court adopted a two-step inquiry, first deciding whether the challenged law burdened protected conduct, and if so, determining which level of scrutiny applies and if the law passes.
Chovan’s Second Amendment rights, the government argued, were not entitled to protection because a lifetime firearm ban was a part of a long history of restrictions on violent people’s right to bear arms. The court disagreed, pointing out that it was not until 1996, under the Lautenberg Amendment to the Gun Control Act, that domestic violence misdemeanors were to carry firearm restrictions, thus entitling defendants to some constitutional protection.
Pregerson also decided that intermediate scrutiny was the appropriate standard to apply:
“§922(g)(9) exempts those with expunged, pardoned, or set-aside convictions, or those who have had their civil rights restored. Therefore, while we recognize that §922(g)(9) substantially burdens Second Amendment rights, the burden is lightened by these exceptions. In sum, §922(g)(9) does not implicate the core Second
Amendment right, but it does place a substantial burden on the right. Accordingly, we conclude that intermediate rather than strict scrutiny is the proper standard to apply.”
Pregerson went on to say that it is self-evident that the government has an important interest in preventing domestic gun violence. The government’s evidence of a high rate of domestic violence recidivism, the likelihood that domestic abusers use guns, and such use resulting in a higher likelihood of death, meet the burden of proof in showing how §922 substantially relates to this important interest.
The case is USA v. Chovan, No. 11-50107
Copyright 2013, Metropolitan News Company