Thursday, January 04, 2018

Court rebuffs a Second Amendment challenge to 18 U.S.C. § 922(g)(9)

Mr. Stimmel went to Walmart to buy a firearm.  But Wally World put on the brakes - Stimmel had an Ohio misdemeanor conviction for domestic violence, which prevented him by federal law from owning a firearm.  Stimmel then filed suit, arguing that 18 U.S.C. 922(g)(9) violated his Second Amendment right to bear arms.

"The gravamen of Stimmel’s appeal to this court is a question of first impression in our circuit: whether the firearm restriction, 18 U.S.C. § 922(g)(9), unconstitutionally burdens his Second Amendment rights. We hold that it does not."  The Court held that the Government had failed to prove that historically, those that committed domestic violence were prohibited from the possession of firearms.  However, the Court found that " it is reasonable to conclude that domestic abusers have high recidivism rates, pose a continued risk to their families, as well as law enforcement, are more likely to kill their victims when armed, and should therefore be disarmed. In accord with the unanimous view of those circuits that have addressed the question, we conclude the fit here is, at least, reasonable. Section § 922(g)(9) survives intermediate scrutiny."

Judge Boggs dissented, finding that the Government had failed to meet its burden of proof as to the continued risk of persons such as Stimmel so as to justify a lifetime ban.  " Because the government has offered, at best, minimal evidence that a non-recidivist domestic violence
misdemeanant presents a heightened risk of reoffending decades after his or her conviction, it has yet to justify what is, effectively, a lifetime ban on a fundamental constitutional right."

The opinion can be found here

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