Repeater
Regular Member
Big Second Amendment Opinion from the Fourth Circuit, Related to the Ban on Gun Possession by Domestic Violence Misdemeanants
The opinion is United States v. Chester, just decided today; thanks to Prof. Doug Berman (Sentencing Law & Policy) for the pointer.
The panel opinion, as I read it, endorses a three-tier level of review, at least for substantial restrictions on gun possession such as the one here (as opposed to milder burdens on gun possession):
(1) Historically accepted exceptions to gun rights (at least ones accepted as of the Framing, and perhaps some more) are constitutional.
(2) Substantial restrictions on gun possession that fall within the core of Second Amendment protection, described by the panel as “the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense” (note the inclusion of carrying, and not just possession in the home, as some courts have said), are probably subject to strict scrutiny.
(3) Substantial restrictions on gun possession that are neither historically accepted nor applicable to “law-abiding, responsible citizen... possess[ing] and carry[ing] a weapon for self-defense” are subject to intermediate scrutiny, which calls for factual evaluation of whether the law is “substantially related” to a sufficiently “important government goal.” Since there will almost always be an important government goal to which the government could point — preventing death, injury, and violent crime — the main questions will likely be (a) what sort of factual evidence the government will have to show, and (b) to what extent will courts demand that the evidence specifically justify not just some restrictions but life-long (or very long-term) restrictions.