United States v. Chester , 367 F. App'x 392 ( 2010 )

Rehearing granted, December 30, 2010
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM SAMUEL CHESTER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T.
Copenhaver, Jr., District Judge. (2:08-cr-00105-1)
Argued: December 4, 2009 Decided: February 23, 2010
Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Edward Henry Weis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Elizabeth
Dorsey Collery, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Charles T. Miller, United States Attorney, Gerald M.
Titus, III, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A grand jury sitting in the Southern District of West
Virginia indicted William Samuel Chester, Jr., for possession of
a firearm after having been convicted of a misdemeanor crime of
domestic violence, in violation of 18 U.S.C. § 922(g)(9).
Chester moved to dismiss the indictment, arguing that
application of the federal statute to him violated his Second
Amendment right to keep and bear arms as explained in District
of Columbia v. Heller, 128 S. Ct. 2783 (2008). The district
court denied the motion. Thereafter, Chester pled guilty but
reserved his right to appeal the district court’s denial of his
motion to dismiss the indictment. He now reiterates his Second
Amendment challenge to § 922(g)(9).
In the proceedings below, the district court did not
address whether Heller required the Government to justify
individual laws that restrict Second Amendment rights. Instead,
it dismissed Chester's claim in reliance on Heller’s much-noted
language as to “presumptively lawful” gun regulations—notably,
the felon-dispossession laws. J.A. 60-61. Following the pattern
of other lower federal courts, it drew an analogy between felons
and domestic violence misdemeanants, concluding that the Heller
language should be read to include both because the potential
violent acts of those found guilty of domestic violence is often
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far greater than that of those who commit non-violent felonies.
J.A. 61.
We find that the district court erred when it failed to
scrutinize § 922(g)(9) apart from the language in Heller. We
agree with the Seventh Circuit decision in United States v.
Skoien, 587 F.3d 803, 808 (7th Cir. 2009), insofar as it held
that challenges to firearms regulations under the Second
Amendment must be individually analyzed because such regulations
restrict the exercise of a constitutional entitlement. In this
case, the district court neither determined the most appropriate
level of scrutiny of § 922(g)(9), nor did it substantively apply
that level of scrutiny to an analysis of § 922(g)(9), 1 and
therefore, we vacate and remand this case for further
proceedings. 2
1
The district court did conclude, without any analysis,
that § 922(g)(9) “survives Second Amendment scrutiny, whether
deemed intermediate or strict, both facially and as here
applied.” J.A. 61. That conclusory language is insufficient
particularly as it is not based on an evidentiary ground in the
record or any legal analysis for the conclusion.
2
We note that on September 30, 2009, the Supreme Court
granted certiorari in McDonald v. Chicago, a distinct but
related Second Amendment case appealed from the Seventh Circuit.
National Rifle Ass'n v. Chicago, 567 F.3d 856 (7th Cir. 2009),
cert. granted, McDonald v. Chicago, 77 U.S.L.W. 3691 (U.S. Sept.
30, 2009) (No. 08-1521). In McDonald, the issue presented is
whether the Second Amendment right to keep and bear arms is
incorporated as against the States by the Fourteenth Amendment's
Privileges or Immunities or Due Process Clauses. Oral argument
is calendared for Tuesday, March 2, 2010.
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I.
On February 4, 2005, Chester was convicted in state court
in West Virginia for the misdemeanor crime of domestic battery
and domestic assault in violation of W. Va. Code § 61-2-28(a) &
(b). J.A. 36-37. In the criminal complaint filed in Kanawha
County, West Virginia, an officer stated that he interviewed
defendant’s then 22 year-old daughter, Meghan Chester, who said
that the defendant, her father, “beat her up and assault[ed]
her” during an argument over what she had eaten for lunch that
day. J.A. 41 (brackets added). Meghan stated that her dad
slammed her on the kitchen table and punched her in the face.
Id. She then fell to the ground, where her father began kicking
her and dumped buckets of water over her head. Id. Meghan
escaped and locked herself in the bathroom and her mother
eventually took her to the hospital. Id. Megan told police that
she thought her father was intoxicated during the argument. Id.Over two years later, on October 10, 2007, the Kanawha
police again responded to a domestic abuse situation at the
Chester family home. This time, Mrs. Linda Guerrant-Chester,
defendant’s then-wife, called. J.A. 48. When the officers
arrived, Mrs. Chester told them that she awoke at 5:00 a.m. and
discovered defendant outside receiving oral sex from a
prostitute. Id. Mrs. Chester said that defendant stated, “[s]o
you fucking caught me” and dragged her inside the house.
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Chester then grabbed his wife’s face and throat, strangling her,
and repeatedly shouted “I’m going to kill you!” Id. While the
couple’s daughter, Samantha Chester, attempted to calm down the
defendant, Mrs. Chester called the police. Id. Samantha Chester
told the officers that she heard defendant repeatedly threaten
to kill Mrs. Chester. Id. During a search of the home, officers
located a loaded 12-gauge shotgun in the kitchen pantry and a
9mm pistol in the defendant’s bedroom. J.A. 49, 76, 119. Both
firearms belonged to the defendant. J.A. 76, 119.
II.
On May 6, 2008, a federal grand jury returned a one-count
indictment which charged Chester with violating 18 U.S.C. § 922(g)(9) by knowingly possessing two firearms, in and affecting
interstate commerce, after having been convicted of a
misdemeanor crime of domestic violence. J.A. 6-7. Chester moved
to dismiss the indictment. J.A. 8-14. The district court
directed the parties to submit briefing in light of the Supreme
Court opinion in Heller. J.A. 3. After receiving the briefs, the
district court denied Chester’s motion. J.A. 58-62.
The district court issued a brief written opinion on
October 7, 2008. The court cited Heller’s observation that
“nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by
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felons and the mentally ill . . . .” J.A. 60 (citing Heller, 128
S. Ct. at 2816-17). The court then drew an analogy between non-
violent felons and domestic violence misdemeanants, finding that
the Heller language could, and in this case, should, be read to
include both. The court analyzed the issue as follows:
The thrust of the majority opinion in Heller leaves
ample room for the government to control the
possession of firearms by misdemeanants found guilty
of domestic violence. Indeed, the need to bar
possession of firearms by domestic violence
misdemeanants in order to protect family members and
society in general from potential violent acts of such
individuals is quite often far greater than that of
the similar prohibition of § 922(g)(1) on those who
commit nonviolent felonies.
J.A. 61.
Chester then entered a conditional guilty plea, preserving
his right to appeal the district court’s denial of his motion to
dismiss. J.A. 115-116, 120-123. The district court imposed a
sentence of five months in prison, followed by a three-year term
of supervised release. 3 J.A. 125-26. Chester appealed on the
grounds that 18 U.S.C. § 922(g)(9) violates the Second
Amendment. J.A. 131. This court has jurisdiction of Chester’s
claim pursuant to 28 U.S.C. § 1291.
3
On February 26, 2009, Chester filed a motion asking the
district court to set a date for him to self report and he began
serving his term of incarceration. J.A. 5.
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III.
This case challenges the constitutionality under the Second
Amendment of 18 U.S.C. § 922(g)(9), a statute that bans gun
possession for individuals previously convicted of a misdemeanor
crime of domestic violence. 4 Chester’s challenge rests on the
Supreme Court’s recent decision in District of Columbia v.
Heller, where it held unconstitutional two statutes in the
District of Columbia that banned the possession of handguns and
required that all firearms in the home be kept inoperable. 128
S. Ct. at 2821-22. The issue is therefore whether Heller renders
unconstitutional a statutory gun prohibition imposed on a
domestic violent misdemeanant convicted for inflicting physical
abuse on his daughter.
4
This statute was enacted in 1996 along with 18 U.S.C. §
922(g)(8) as part of the so-called Lautenberg Amendment to the
Gun Control Act. See generally United States v. Barnes, 295 F.3d
1354, 1364 (D.C. Cir. 2002); U.S. v. Luedtke, 589 F. Supp. 2d
1018 (E.D. Wis. 2008). The statute states:
(g) It shall be unlawful for any person—
. . . .
(9) who has been convicted in any court of a
misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922(g)(9).
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A.
In Heller, the Court based its holding on a reading of the
Second Amendment's main clause, the “operative clause.” Id. at
2789 (“The Second Amendment is naturally divided into two parts:
its prefatory clause and its operative clause. The former does
not limit the latter grammatically but rather announces a
purpose.”). The Court read the operative clause to “guarantee
the individual right to possess and carry weapons in case of
confrontation.” Id. at 2797. Although not codified in the
amendment, the Court found that this right included a right to
“self-defense,” which it described as “the central component of
the right itself.” Id. at 2801. It held that the District of
Columbia statutes were unconstitutional because they prohibited
a class of arms that Americans utilize for the lawful purpose of
self-defense, thus prohibiting citizens from using firearms for
“the core lawful purpose of self-defense.” Id. at 2818.
The Supreme Court carefully circumscribed Second Amendment
rights, however, and defined them as “not unlimited.” Id. at
2816. It explained that “longstanding prohibitions” derived from
various historical restrictions were “presumptively lawful
regulatory measures.” Id. at 2816-17 & n.26; id. at 2816 (“From
Blackstone through the 19th-century cases, commentators and
courts routinely explained that the right was not a right to
keep and carry any weapon whatsoever in any manner whatsoever
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and for whatever purpose.”). The Court provided a non-exclusive
illustrative list of such presumptively lawful exceptions,
including but not limited to “longstanding prohibitions on the
possession of firearms by felons and the mentally ill[.]” Id. at
2816-17. Thus, Heller explicitly left some gun restrictions
intact.
Although Heller disclaimed any constitutional defect in
some gun regulations, it refrained from identifying the proper
standard of scrutiny for analyzing whether a statute infringes
on Second Amendment rights. Id. at 2821. The Court concluded
that the D.C. statute would fail under any “of the standards of
scrutiny that we have applied to enumerated constitutional
rights.” Id. at 2817-18. Notwithstanding this silence, the Court
did provide some guidance. It rejected rational basis review,
id. at 2817 n.27, and rejected the standard proposed by Justice
Breyer in his dissent, an “interest-balancing inquiry.” 5 Id. at
2821. The Court also distinguished between different types of
5
Justice Breyer’s interest-balancing test inquires “whether
the statute burdens a protected interest in a way or to an
extent that is out of proportion to the statute's salutary
effects upon other important governmental interests.” Heller,
128 S. Ct. at 2852 (Breyer, J., dissenting). The majority
rejected Justice Breyer’s suggestion on the basis that the
Second Amendment, like the First Amendment, is the very product
“of an interest-balancing by the people[,]” id. at 2821(majority opinion), and that the Amendment itself “elevates
above all other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Id.-9-
Second Amendment rights. It identified the most important “core
right” of the Second Amendment as the right of “law-abiding,
responsible citizens to use arms in defense of hearth and home.”
Id.B.
In the wake of Heller, lower federal courts have employed
two distinct tacks when faced with constitutional challenges to
gun regulations under 18 U.S.C. § 922(g). Many courts have
upheld provisions of § 922(g) under the “presumptively lawful
regulations” or the “longstanding prohibition” language in
Heller. These courts say a particular § 922(g) provision passes
muster constitutionally either because Heller specifically
stated the particular regulations were constitutional, as
regarding felons and the mentally ill, § 922(g)(1) and (4), or
via analogy to the so called “presumptively lawful regulations.” 6
6
We have upheld the felony possession provision and the
mentally ill possession provision under the Heller language in
unpublished cases. U.S. v. Brunson, No. 07-4962, 292 Fed. Appx.
259, *261 (4th Cir. Sept. 11, 2008) (upholding §922(g)(1)); U.S.
v. McRobie, No. 08-4632, 2009 WL 82715, *1 (4th Cir. Jan. 14,
2009) (upholding § 922(g)(4)). Many other appellate courts have
concluded similarly. E.g., U.S. v. Anderson, 559 F.3d 348, 352
(5th Cir. 2009) (upholding §922(g)(1)); U.S. v. McCane, 573 F.3d
1037, 1047 (10th Cir. 2009) (same); U.S. v. Stuckey, No. 08-
0291, 317 Fed. Appx. 48, 50 (2nd Cir. March 18, 2009) (same).
Other federal courts have also upheld § 922(g)(9) via
analogy to the Heller exceptions for felons and the mentally
ill. E.g., United States v. White, -- F.3d --, 2010 WL 59127 at
*5 (11th Cir. Jan. 11, 2010), United States v. Booker, 570 F.
Supp. 2d 161, 163-64 (D. Me. 2008); U.S. v. Luedtke, 589 F.
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Other federal courts have individually analyzed the specific
statutory provision at issue, determined the appropriate level
of constitutional scrutiny, and then scrutinized the statute in
light of the factual circumstances before the court. 7
The Seventh Circuit, in a case involving the
constitutionality of § 922(g)(9), recently confronted the
tension between a court’s obligation to scrutinize statutes that
infringe on constitutional rights and the presumptively lawful
regulations language in Heller. Skoien, 587 F.3d at 808. The
court noted “for starters[,]” that the Supreme Court language
about presumptively lawful regulatory measures was dicta, and
although it did not ignore it, it concluded that “it would be a
mistake to uphold this or other gun laws simply by invoking the
Court's reference to these ‘presumptively lawful regulatory
measures,’ without more.” Id. Additionally, the Seventh Circuit
noted that the term “presumptively lawful regulatory measures”
lacked clarity. It could include regulations presumed “to fall
outside the scope of the Second Amendment right as it was
understood at the time of the framing” or it could mean that
some regulations “are presumptively lawful under even the
Supp. 2d 1018, 1022-23 (E.D. Wis. 2008); United States v. White,
No. 07-00361, 2008 WL 3211298 at *1 (S.D. Ala. Aug. 6, 2008).
7
E.g., United States v. Miller, 604 F. Supp. 2d 1162, 1171
(W.D. Tenn. 2009); United States v. Engstrum, 609 F. Supp. 2d
1227, 1231-34 (D. Utah 2009).
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highest standard of scrutiny applicable to laws that encumber
constitutional rights.” Id. Lastly, the Seventh Circuit
explained that in Heller, the Supreme Court left ambiguous the
contours of the historically justified exceptions, suggesting
that some restrictions on firearms will require a case-by-case
analysis. Id. (citing Heller, 128 S. Ct. at 2821). For all of
these reasons, the Seventh Circuit found that “gun laws-other
than those like the categorically invalid one in Heller itself
[e.g., total ban on handguns]-must be independently justified.”
Id.We agree in part with the Seventh Circuit’s approach to
this unchartered realm of Second Amendment jurisprudence. Of
course, Supreme Court dicta controls when it is on point and it
is the only available authority. United States v. Fareed, 296
F.3d 243, 247 (4th Cir. 2002) (applying dicta and stating that
the circuit court can be bound by Supreme Court dicta,
particularly when the dicta is recent and not enfeebled by later
statements). Further, this circuit has applied the Heller dicta
to uphold statutes that prohibit gun possession by felons and
the mentally ill in unpublished opinions. See supra note 6. But
the Heller dicta does not reference the regulation at issue in
this case, § 922(g)(9). Cf. United States v. White, -- F.3d --,
2010 WL 59127 at *5 (11th Cir. Jan. 11, 2010). Even read
broadly, the dicta from Heller cannot and should not be
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interpreted to control every challenge to every gun regulation.
Instead, it seems clear that cases that fall outside the
specific exceptions in Heller warrant independent constitutional
scrutiny.
In Skoien, the Seventh Circuit proceeded to expound on what
it thought to be the proper method of inquiry, fashioning a two-
part test. Skoien, 587 F.3d at 808-09. The test started with
historical analysis, determining that “some gun laws will be
valid because they regulate conduct that falls outside the terms
of the right as publicly understood when the Bill of Rights was
ratified. If the government can establish this, then the
analysis need go no further.” Id. For laws without the proper
historical pedigree, however, the “law will be valid (or not)
depending on the government's ability to satisfy whatever level
of means-end scrutiny is held to apply[.]” Id. at 809.
Turning to the facts of its case, the court in Skoien noted
that there was neither a record developed, nor argument made, by
the Government as to “whether a person convicted of a domestic-
violence misdemeanor is categorically excluded from exercising
the Second Amendment right as a matter of founding-era history
and background legal assumptions.” Id. at 810. Further, if it
were assumed the Government could not show that firearm
possession by domestic violence misdemeanants fell “outside the
scope of the Second Amendment right as it was understood at the
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time of the framing,” id. at 808, there was neither record nor
argument on the issue of what rationale justified § 922(g)(9).
Accordingly, the Seventh Circuit remanded the case to the
district court for further proceedings. Id. at 816.
We find ourselves similarly situated in the case at bar.
The district court did not provide an analysis which reflected
the historical undertones of Heller and did not specifically
address whether and why § 922(g)(9) might qualify as a
“presumptively lawful regulation.” Heller, 128 S. Ct. at 2817
n.26. And further, as in Skoien, if we assume possession of a
firearm by a misdemeanant falls within the scope of the Second
Amendment right, there is no record, argument or analysis in the
district court as to why § 922(g)(9) meets “whatever level of
means end scrutiny is held to apply.” Skoien, 587 F.3d at 809.
We have no record as to the particular basis Chester uses to
ground his claim to the Second Amendment, much less an analysis
from the district court as to how or why that claim merits a
particular level of constitutional scrutiny. Without such a
basic underpinning in the record, we are left with the prospect
of issuing an advisory opinion which is not within our province
to do. See Michael v. Cockerell, 161 F.2d 163, 164 (4th Cir.
1947).
As did the Seventh Circuit in Skoien, we must remand this
case for the creation of a record, one that includes argument
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and judicial analysis, which we, as an appellate court, can
meaningfully review. In that regard, upon remand, the district
court must conduct an analysis of the constitutional validity of
§ 922(g)(9) which is “independently justified.” The district
court should consider and interpret the historical analysis from
Heller, although it is not bound by the threshold test
articulated in Skoien. It should also identify, justify, and
apply an appropriate level of constitutional scrutiny.
In Skoien, the Seventh Circuit observed “[l]aws that
restrict the right to bear arms are subject to meaningful
review, but unless they severely burden the core Second
Amendment right of armed defense, strict scrutiny is
unwarranted.” Id. at 812. There, the court selected
intermediate scrutiny because the core right was reserved as a
right for “law-abiding, responsible citizens” to use arms for
their “natural right of armed defense.” Id. at 812. Under the
facts of Skoien, the defendant’s claim was “several steps
removed from the core constitutional right” because he was not
“law-abiding,” and he used his gun for hunting, not for self-
defense. Id.
In the case at bar, it is clear that Chester was not “law-
abiding,” and is therefore at least one step “removed from the
core constitutional right.” See id. But his reason for
possessing his gun, and therefore, which right or rights
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specifically applied to him, were not clarified in the record.
Chester identified in his trial pleadings at least three bases
upon which he contends the Second Amendment may override a
statute like § 922(g)(9), militia service, self-defense, and
hunting, but failed to identify which ground, if any, he claims
applies to him. These aspects of Second Amendment activity were
simply not addressed by the Government or the district court,
much less by evidence of record. Without a more ample record,
we are left to speculate. On remand, Chester must identify the
basis of his claim to Second Amendment protection and make a
record to support it; to which the Government may respond. Then
the district court can rule based on a full and complete record
as to what level of scrutiny applies, thereby creating a
sufficient record to permit appellate review.
IV.
For the reasons stated, the judgment is vacated and the
case is remanded for further proceedings not inconsistent with
this opinion.
VACATED AND REMANDED
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