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Firearms Ban




by:
Tamara Bogosian
Best Best & Krieger LLP - Irvine Office

Paul A. Cappitelli
Laura L. Crane
Best Best & Krieger LLP - Ontario Office

G. Ross Trindle
Best Best & Krieger LLP - Los Angeles Office

 
November 29, 2013

Previously published on November 27, 2013

Overview: The Ninth Circuit recently upheld a federal law that bans misdemeanor domestic violence offenders from possessing firearms for life. A gun owner convicted of misdemeanor domestic violence in 1996 claimed that he was exempt from the ban because California law “restored” his “civil right” to possess firearms ten years after the conviction. He also argued that the federal law making it a felony to possess a firearm after having been convicted of a misdemeanor crime of domestic violence violated his Second Amendment rights. The court ruled that because the offender never “lost” the right to vote, serve on a jury or hold public office, he could not have these rights “restored.” Further, the court held that the federal law making it a felony to possess a firearm after having been convicted of a misdemeanor crime of domestic violence substantially burdened, but did not violate, the Second Amendment because regulating gun ownership by domestic abusers furthered the important government interest of preventing domestic gun violence. Finding the regulation “substantially related” to this objective, the court concluded that the gun ban was constitutional.

Training Points: Local law enforcement officials should be aware of the federal law which makes it a felony to possess a firearm after a subject has been convicted of a misdemeanor crime of domestic violence. Misdemeanor crime of domestic violence means an offense that is a misdemeanor under federal, state, or tribal law; and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent or guardian of the victim by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.

Summary Analysis: In U.S. v. Chovan, Daniel Chovan was indicted for illegal possession of a firearm because he had been convicted in 1996 for domestic violence. 18 U.S.C. § 922(g)(9) makes it a felony to possess a firearm after having been convicted of a misdemeanor crime of domestic violence. The federal statute prohibits domestic violence misdemeanants from possessing firearms for life. Chovan claimed that California’s “restoration” of his “civil right” to own a gun exempted him from the federal law. The court disagreed, finding that Chovan could not be restored of rights that he never lost. Chovan then challenged the constitutionality of the law. The court found that the federal statute was “substantially related” to the broader interest of preventing domestic gun violence. Based on the high rates of domestic abusers reoffending and the significantly greater likelihood of death among their victims, the court concluded that the firearms prohibition was constitutional under “intermediate” scrutiny.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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