Thursday, March 19, 2026
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Ninth Circuit:
Gun Ban for Domestic Abuse Misdemeanants Passes Muster
Opinion Says Statute Criminalizing Possession of Firearm by Defendants Who Have Previously Been Convicted of Misdemeanor Crime of Violence Involving Intimate Partner Survives Second Amendment Challenge
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals has upheld the conviction of a California man accused of violating a federal law barring the possession of firearms by anyone who has previously suffered a conviction of a misdemeanor crime of domestic abuse, declaring that the statute passes scrutiny under the Second Amendment framework announced by the 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association Inc. v. Bruen.
At issue is 18 U.S.C. §922(g)(9), which provides that “it shall be unlawful for any person,” who “has been convicted in any court of a misdemeanor crime of domestic violence,” to “possess…any firearm.” If an individual has only one prior and the underlying crime involves a dating relationship that does not include a child, the ban lasts for five years from the conviction or the completion of the sentence; otherwise, the prohibition is for life.
A predicate prior conviction qualifies if the offense “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” and it was “committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child…, by a person who…has cohabited with the victim…, or by a person who has a current or recent former dating relationship with the victim.”
Senior Circuit Judge William A. Fletcher authored yesterday’s opinion, saying:
“Before the Supreme Court decided Bruen, we held that § 922(g)(9) was consistent with the Second Amendment….Now,…we join every circuit that has applied Bruen and upheld § 922(g)(9) against Second Amendment challenges….[W]e hold that § 922(g)(9) is facially constitutional and constitutional as applied….”
Circuit Judge Ana de Alba and District Court Judge Robert Pitman of the Western District of Texas, sitting by designation, joined in the opinion
Challenging the constitutionality of the statute was David Paul Martinez, who was convicted in May 2012 of a misdemeanor violation of California Penal Code §243(e)(1) relating to an incident in which he pushed his girlfriend into a door during an argument….On Jan. 23, 2017, he was stopped by San Benito County Deputy Sheriff Matthew Creager for purported traffic violations.
Inside the center console, Creager found a loaded semiautomatic handgun, and a subsequent search of Martinez’s home revealed several other weapons, including an AR-15 rifle. Following a 2018 bench trial, he was found guilty of two counts of violating §922(g)(9) based on the 2012 California conviction.
That December, District Court Judge Beth Labson Freeman of the Northern District of California sentenced him to more than three years in prison, and the Ninth Circuit upheld the judgment in April 2020, rejecting the defendant’s Fourth Amendment challenges.
In 2021, the U.S. Supreme Court denied a petition for review. After the high court issued its decision in Bruen, while the parties were litigating post-remand issues, Martinez moved to dismiss the charges against him, arguing:
“In light of Bruen, the Court should dismiss the indictment because § 922(g)(9) is unconstitutional….”
District Court Judge Vince Chhabria denied the request in February 2023, and an amended judgment was entered. Martinez’s appeal was consolidated with that of two other convicts, Joel Michael Ryno and Alex Leon Padgett, who challenged the constitutionality of the federal ban precluding them from possessing firearms based on convictions for domestic abuse under Alaska Penal Code provisions.
Bruen Framework
Fletcher explained that “Bruen established a two-step historical framework to determine whether a firearm regulation violates the Second Amendment.” At step one, the Constitution will be deemed to “presumptively protect” any conduct that falls under the “plain text” of the provision, and the government can overcome the presumption at step two by demonstrating that the law is consistent with the historical tradition of firearm regulation.
Acknowledging that “[a]ppellants’ status as domestic violence misdemeanants does not remove them from the ambit of the Second Amendment’s text,” he turned to the question of whether §922(g)(9)’s bar is consistent with the nation’s historical firearm regulations.
The jurist pointed to surety and so-called “going armed” laws, the latter of which prohibited “riding” while carrying dangerous weapons, in place at the time of the adoption of the Second and Fourteenth Amendments. Those regulations targeted individuals suspected of future misbehavior, sometimes based on past menacing actions.
Finding those laws to be analogous to §922(g)(9), he remarked:
“[G]oing armed laws punished those whose past conduct—menacing others with firearms—demonstrated a ‘threat of physical violence.’…In much the same way, §922(g)(9) disarms domestic violence misdemeanants whose past conduct resulting in a conviction demonstrates the same threat. [Sec. 922(g)(9)] prevents further violence by domestic violence misdemeanants, much like the surety laws prevented violence, including spousal abuse.”
Noting that the historical regulations “involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon,” he opined:
‘Like those laws, §922(g)(9) targets people deemed dangerous to the physical safety of others. [Sec. 992(g)(9)] offers procedural protections, providing that, absent waiver, a defendant must have been represented by counsel and tried by a jury for his state conviction to be disqualifying.”
No Individualized Findings
Saying that the court’s interpretation is supported by the 2023 Supreme Court in U.S. v. Rahimi, which upheld §922(g)(8)—a section prohibiting individuals subject to a domestic violence protective order from possessing a firearm if found to be a credible safety threat—against a Second Amendment challenge, Fletcher rejected the appellants’ assertion that the requirement of an individualized determination of future harm distinguished the two provisions.
He wrote:
“These distinctions are unconvincing. The burden on the presumptive Second Amendment right imposed by §922(g)(9) is roughly comparable to that of §922(g)(8), and to the degree §922(g)(9)’s burden is greater, that burden is justified by the past behavior of the defendant.”
Noting that “Congress enacted § 922(g)(9) in 1996 to fill a lacuna in federal gun control laws,” Fletcher remarked:
“Although federal law had long prohibited felons from possessing firearms, those prohibitions did not apply to domestic abusers convicted only of misdemeanors, despite the dangerousness evidenced by their abuse.”
Adding that “[a] history of domestic violence is highly predictive of future violence,” he continued:
“Section 922(g)(9) filled a dangerous gap in gun control laws….Domestic violence rarely results in a felony conviction….Indeed, felony prosecutions are rarely pursued….It is often difficult to obtain even a misdemeanor conviction….Victims often do not report domestic violence because of fear, a desire to restore the relationship, embarrassment, or a belief that reporting is unhelpful.”
Declaring that “[a]ppellants’ facial challenge to §922(g)(9)…fails,” he reasoned:
“We similarly hold here that § 922(g)(9) categorically disarms individuals convicted of a misdemeanor crime of domestic violence. [Sec. 922(g)(9)] reflects Congress’s determination that members of a class of convicted criminals are dangerous. Therefore, we hold that we need not engage in a misdemeanor-by-misdemeanor inquiry….”
The case is U.S. v. Martinez, 23-432.
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