United States v. Chovan

The 9th Circuit has ruled that §922(g)(9), also known as the Domestic Violence Offender Gun Ban, does not violate the 2nd Amendment. Furthermore, they found that it continues to bar firearms ownership, even after all other civil rights have been restored.

The upshot is this:

  • Despite restoration of other civil rights, the lifetime ban on firearms ownership is constitutional
  • Intermediate scrutiny applies to 2nd Amendment challenges
  • The “core” right acknowledged by Heller applies to “law-abiding, responsible citizens to use arms in defense of hearth and home.”
  • Mr. Clovan’s misdemeanor conviction for domestic violence forever exempts him from that category.

Daniel Chovan was convicted of corporal injury on a spouse in 1996. In 2009, he attempted to buy a gun and was denied. Upon further investigation, the FBI found videos Mr. Chovan posted on YouTube in which he carried firearms while participating in improvised border patrols and fired guns across the border into Mexico.

So, yeah, this guy’s a winner. He’s certainly not the ideal plaintiff for such a constitutional challenge. Should that matter? No. Does it matter? Yes.

While court acknowledges the burden the ban puts on the exercise of 2nd Amendment rights, but they find this burden to be acceptable.

The burden the statute places on domestic violence misdemeanants’ rights, however, is quite substantial. Unlike the regulations in Marzzarella or Heller II, § 922(g)(9) does not merely regulate the manner in which persons may exercise their Second Amendment rights. (…) Instead, as Chovan argues, § 922(g)(9) amounts to a “total prohibition” on firearm possession for a class of individuals–in fact, a “lifetime ban.” As such, the statute is a more “serious encroachment” on the Second Amendment right. But Chovan goes too far when he argues that § 922(g)(9) is too broad because it “contains no provision limiting its applicability.” As explained above, § 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. [p. 22]

Under intermediate scrutiny, the government simply has to make a strong showing that the law has a reasonable fit with social policy.

Putting these four conclusions together, the government has demonstrated that domestic violence misdemeanants are likely to commit acts of domestic violence again and that, if they do so with a gun, the risk of death to the victim is significantly increased. We hold that the government has thereby met its burden to show that § 922(g)(9)’s prohibition on gun possession by domestic violence misdemeanants is substantially related to the important government interest of preventing domestic gun violence. [p. 27]

So, we’re right back where we started. Chovan has is currently serving probation for illegal weapons possession, and the problematic sliding scale of intermediate scrutiny still applies to the 2nd Amendment.