As-applied challenge to Sect. 922(g)(8) shot down, too

US v. Chapman:  Similar to the Fourth Circuit's recent holding in United States v. Staten (see blog post  here), it upheld another portion of this statute against an as-applied challenge that it violates the Second Amendment right to bear arms in self-defense of the home. 

Chapman, subject to a domestic violence protective order, pleaded guilty to possessing several firearms in violation of that DVPO, following an incident with his ex-wife that began with his threats to commit suicide on December 28, 2009. Chapman’s DVPO was to last 180 days, not a lifelong prohibition. Prior to his guilty plea, Chapman filed a motion to dismiss the indictment on grounds that as-applied, the statute violated his Second Amendment rights to bear arms in defense of his home, which the district court rejected. Chapman reserved the right to appeal with respect to his Second Amendment challenge.

On appeal, the Fourth Circuit recognized the "core" of an individual’s Second Amendment right to be "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," from District of Columbia v. Heller, 554 U.S. 570 (2008), and employed a two-part approach to analyze Chapman’s as-applied challenge. In the first part, the court must inquire whether the law imposes a burden on conduct falling within the "historically understood" scope of the Second Amendment’s guarantee. If yes, then the court moves to part two; if no, the analysis ends. Here, the Fourth Circuit determined that even if Chapman’s Second Amendment rights were intact and that he was entitled to some protection to keep his guns for defense of his home, intermediate scrutiny will apply and his challenge will fail.

Relying on its 2010 opinion in United States v. Chester, the Fourth Circuit holds that intermediate scrutiny is the appropriate standard to analyze the defendant’s statutory challenge here, and decides that Chapman’s claim does not fall within the core right identified in Heller because he is neither responsible nor law-abiding: he likely committed domestic abuse (judicial determination); he engaged in behavior which caused him to be judicially prohibited for 180 days from causing or threatening to cause bodily injury to his partner; his suicidal thoughts and actions; and his discharge of the firearms in his ex-wife’s direction.

Under intermediate scrutiny, the government must establish a "reasonable fit" between the challenged statute and a substantial governmental objective. The government identified reducing domestic gun violence as the substantial objective behind this statute. Also, the statutory language, the Fourth Circuit explained, keeps the prohibitory sweep of people affected by the statute exceedingly narrow.