Tuesday, February 07, 2012

922(g)(8) Conviction Survives Scrutiny, But Only One At a Time

US v. Mahin: Mahin was arrested and convicted of assault and battery against a family member, his wife. As part of the plea agreement, a protective order was entered against Mahin for two years during which, he was informed, both state and federal law prohibited him from possessing a firearm. Nonetheless, an hour after the court order was issued, Mahin went to a local gun range, rented a gun and purchased ammunition, shot at the range, then returned the gun. His wife called the police when she found Mahin's membership card for the gun range inside her apartment. He was charged and convicted (after a bench trial) with being in possession of a firearm and ammunition while under a domestic violence protective order. He was sentenced to time served and supervised release.
On appeal, Mahin raised two arguments. First, he argued that the convictions violated his rights under the Second Amendment. The Fourth Circuit rejected that argument, holding both that no court had yet held that citizens had any Second Amendment right outside the home and that, even if Mahin's conduct fell within Second Amendment protections, the statute survives intermediate scrutiny when applied to him (relying largely on its recent decision in Chapman). The specific facts of Mahin's possession did not change that result. Second, Mahin argued that the district court erred by sentencing him on two counts for the simultaneous possession of a firearm and ammunition. The court agreed and, applying plain error review, vacated the ammunition possession count, and remanded to the district court for further proceedings.

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