628 F.3d 673 (4th Cir. 2010), 09-4084, United States v. Chester

Docket Nº:09-4084.
Citation:628 F.3d 673
Opinion Judge:TRAXLER, Chief Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William Samuel CHESTER, Jr., Defendant-Appellant.
Attorney: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. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Office of the Feder...
Judge Panel:Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges. Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Judge AGEE joined. Judge DAVIS wrote a separate opinion concurring in the judgment. DAVIS, Circuit Judge, concurring in the judgment:
Case Date:December 30, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 673

628 F.3d 673 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

William Samuel CHESTER, Jr., Defendant-Appellant.

No. 09-4084.

United States Court of Appeals, Fourth Circuit.

December 30, 2010

Argued: Dec. 4, 2009.

Page 674

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.

Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Judge AGEE joined. Judge DAVIS wrote a separate opinion concurring in the judgment.

ON REHEARING

TRAXLER, Chief Judge:

The sole issue presented in this appeal is whether William Samuel Chester's conviction for illegal possession of a firearm under 18 U.S. C. § 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). We vacate the decision below and remand for further proceedings.

I.

The Second Amendment provides: " A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Heller resolved a decades-long debate between those who interpreted the text to guarantee a private, individual right to bear arms and those who generally read it to secure a collective right to bear arms in

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connection with service in the state militia.1 See Heller, 128 S.Ct. at 2789. See generally Parker v. District of Columbia, 478 F.3d 370, 379 (D.C.Cir.2007) (explaining the collective right and individual right positions in the Second Amendment debate); United States v. Emerson, 270 F.3d 203, 218-20 (5th Cir.2001) (same). Interpreting the text in light of how it would have been understood by " ordinary citizens in the founding generation," Heller, 128 S.Ct. at 2788, the Supreme Court sided with proponents of the individual right view and held that the Second Amendment guaranteed protection of an individual right to possess and carry arms without regard to militia service. See id. at 2799.

The Court began its textual analysis by explaining that the function of the Second Amendment's prefatory clause (" A well regulated Militia, being necessary to the security of a free State" ) is merely to announce a purpose for the command given by the operative clause (" the right of the people to keep and bear Arms, shall not be infringed" )-" apart from that clarifying function, [the] prefatory clause does not limit or expand the scope of the operative clause." Id. at 2789.2 The operative clause, Heller concluded, " guarantee[s] the individual right to possess and carry weapons in case of confrontation," a meaning that " is strongly confirmed by the historical background of the Second Amendment." Id. at 2797. Consideration of the historical sources was important because, as Heller explained, " the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right." Id. Finally, the Court explained why the prefatory clause was consistent with an individual right interpretation of the operative clause:

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution.... It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right-unlike some other English

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rights-was codified in a written Constitution.

Id. at 2801. Significantly, Heller recognized that the right to keep and bear arms, like other Constitutional rights, is limited in scope and subject to some regulation: " [W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. " Id. at 2799; see 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 and for whatever purpose." ). One specific limitation recognized in Heller concerned the types of weapons protected by the Second Amendment. In accordance " with the historical understanding of the scope of the right," the Second Amendment protected only weapons " typically possessed by law-abiding citizens for lawful purposes." Id. at 2816; see id. at 2817 (explaining that the Second Amendment protected " the right to keep and carry arms ... in common use at the time" ) (internal quotation marks omitted).

The other type of limitation identified in Heller involved what the Supreme Court termed " presumptively lawful regulatory measures," id. at 2817, n. 26, although Heller did not explain why the listed regulations are presumptively lawful:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 2816-17.3 Although the Court expressly declined to " undertake an exhaustive historical analysis ... of the full scope of the Second Amendment," id. at 2816, it clearly staked out the core of the Second Amendment. Indeed, Heller explained that " whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 2821.

In light of these principles, the Supreme Court invalidated two District of Columbia statutes at issue in Heller. First, Heller invalidated the District's total ban on the possession of handguns, concluding that such a complete ban-which extended " to the home, where the need for defense of self, family, and property is most acute[,]" -was incompatible with the Second Amendment " [u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." Id. at 2817-18. Although the Court acknowledged that rational-basis scrutiny would be inappropriate, see id. at 2817, n. 27, it declined to choose the proper level of scrutiny for Second Amendment challenges. Second, Heller concluded that the District's requirement that citizens keep their firearms in an inoperable condition " [made] it impossible for citizens to use [firearms] for the core lawful purpose of self-defense." Id. at 2818.

II.

In October 2007, officers from the Kanawha County, West Virginia, Sheriff's Department responded to a 911 call reporting

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a domestic disturbance at Chester's residence. Chester's wife reported to the officers that Chester grabbed her throat and threatened to kill her after she caught him receiving the services of a prostitute on their property. In a subsequent search of the home, officers recovered a 12-gauge shotgun in the kitchen pantry and a 9mm handgun in the bedroom. Chester admitted both firearms belonged to him.

In May 2008, as a result of this incident, Chester was indicted for possessing firearms after having been convicted " of a misdemeanor crime of domestic violence" in violation of 18 U.S. C. § 922(g)(9). The indictment charged that in February 2005, Chester had been convicted in Kanawha County Magistrate Court of domestic assault and battery, a misdemeanor offense under West Virginia law. See W.Va.Code § 61-2-28(a) and (b). Chester conceded that the 2005 domestic assault and battery offense qualified as a predicate " misdemeanor crime of domestic violence" under § 922(g)(9).4

Chester moved to dismiss the indictment, arguing that § 922(g)(9), both on its face and as applied to him in this instance, violated his Second Amendment right to keep and bear arms under Heller. Seizing upon Heller 's list of " presumptively lawful regulatory measures" including " longstanding prohibitions on the possession of firearms by felons and the mentally ill," 128 S.Ct. at 2817 & n. 26, the district court reasoned by analogy that " the prohibition by Congress as embodied in § 922(g)(9) of the possession of a firearm by a misdemeanant who has committed a crime of domestic violence is a lawful exercise by the government of its regulatory authority notwithstanding the Second Amendment." United States v. Chester, No. 2:08-00105, 2008 WL 4534210, at *2 (S.D.W.Va. Oct.7, 2008). The district...

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