United States v. Staten

• Decision Date: 05 December 2011
• Docket Number: No. 10–5318.,10–5318.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mark A. STATEN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

666 F.3d 154

UNITED STATES of America, Plaintiff–Appellee,

v.Mark A. STATEN, Defendant–Appellant.

No. 10–5318.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 23, 2011.Decided: Dec. 5, 2011.

ARGUED: Christian M. Capece, 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, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Charleston, West Virginia, Lisa G. Johnston, Assistant United States Attorney, Office of the United States Attorney, Huntington, West Virginia; Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., for Appellee.

Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge AGEE and Judge WYNN joined.

OPINION

HAMILTON, Senior Circuit Judge:

Section 922(g)(9) of Title 18 of the United States Code prohibits a person who has been convicted of a misdemeanor crime of domestic violence from possessing, shipping, or receiving a firearm in or affecting interstate commerce. 18 U.S.C. § 922(g)(9). The sole issue on appeal is whether Mark Staten's conviction on one count of violating § 922(g)(9) survives his as-applied constitutional challenge under the Second Amendment, U.S. Const. amend. II. For reasons that follow, we affirm the judgment of the district court.

I

Late in the evening on April 7, 2009, two deputy sheriff officers responded to a domestic disturbance call from Staten's wife. Upon arriving at the Statens' home, Staten's wife reported that she and her husband had been arguing for two days; that she feared for her safety due to his drinking; and that there were three rifles hanging on the wall in the living room.¹ At the request of the officers, Staten entered the living room. Staten thereafter admitted to having been convicted of misdemeanor domestic assault, which the officers were able to confirm while still on the scene. The officers then seized the three firearms and arrested Staten for being a prohibited person in possession of a firearm in violation of § 922(g)(9).

Staten was indicted on one count of knowingly possessing three firearms following a misdemeanor conviction for domestic violence, in violation of §§ 922(g)(9) and 924(a)(2). He subsequently moved to dismiss the indictment on the ground that § 922(g)(9) violated his right to bear arms in defense of his home under the Second Amendment to the United States Constitution. Staten initially brought his Second Amendment challenge as a facial challenge alleging substantial overbreadth and as an as-applied challenge. The government opposed the motion. Both sides filed multiple memorandums in support of their respective positions, with the government offering quotations and citations to scholarly social science evidence in its filings. We glean from the record that the district court did not conduct an evidentiary hearing on Staten's motion to dismiss because Staten never requested one.

After the district court denied Staten's motion to dismiss, see United States v. Staten, 2010 WL 3476110 (S.D.W.Va. Sept. 2, 2010), Staten entered a conditional plea of guilty to violation of § 922(g)(9), as alleged in the single-count indictment, pursuant to a plea agreement that reserved his right to appeal the district court's denial of his motion to dismiss. See Fed.R.Crim.P. 11(a)(2). Pursuant to Exhibit A of the plea agreement, entitled “ STIPULATION OF FACTS,” the government and Staten “stipulate[d] and agree[d],” inter alia, that: (1) prior to April 7, 2009, he had been convicted of three misdemeanor crimes of domestic violence, as defined in 18 U.S.C. § 921(a)(33); (2) his wife Angela was the victim of all three crimes; (3) his right to possess a firearm had not been restored; (4) on April 7, 2009, he told a deputy that he knew that he was not to be in possession of any firearms; and (5) he knowingly possessed ammunition which could be fired from the firearms found hanging on the wall of his living room on April 7, 2009. (J.A. 234).

The district court sentenced Staten to nine and one-half months of imprisonment, to be followed by three years of supervised release. Staten timely noted the present appeal in which he continues to press his as-applied challenge to his § 922(g)(9) conviction under the Second Amendment.²

II

We review de novo the district court's rejection of Staten's as-applied Second Amendment challenge to § 922(g)(9). See United States v. Malloy, 568 F.3d 166, 171 (4th Cir.2009) (“This court reviews a challenge to the constitutionality of a federal statute de novo.”), cert. denied, ––– U.S. ––––, 130 S.Ct. 1736, 176 L.Ed.2d 212 (2010).

A

We begin our consideration of Staten's as-applied challenge to his § 922(g)(9) conviction under the Second Amendment by setting forth the legal principles relevant to our analysis. 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. In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held for the first time that the right to keep and bear arms, as provided in the Second Amendment, is an individual right without regard to militia service. Id. at 595, 128 S.Ct. 2783. According to the Court, the core right of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635, 128 S.Ct. 2783. Based upon this holding, the Court invalidated District of Columbia laws banning the possession of handguns and requiring citizens to keep firearms in inoperable condition. Id. The Court was careful to note, however, that the right to keep and bear arms under the Second Amendment is not unlimited, and that its holding did not invalidate “presumptively lawful regulatory measures,” id. at 627 n. 26, 128 S.Ct. 2783, such as “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 626–27, 128 S.Ct. 2783.

Post Heller, we first considered the constitutionality of § 922(g)(9) under the Second Amendment in an unpublished opinion in United States v. Chester (Chester I), 367 Fed.Appx. 392 (4th Cir.2010) ( per curiam). In Chester I, we vacated William Chester's § 922(g)(9) conviction and remanded his “appeal for clarification of the precise contours of his Second Amendment claim—a necessary step in determining the appropriate standard of constitutional scrutiny to apply—and for development of the record under the appropriate means-end framework.” United States v. Chester (Chester II), 628 F.3d 673, 678 (4th Cir.2010). Notably, we did not identify the appropriate level of scrutiny in Chester I, “leaving that task to the district court on remand.” Id. at 678. Moreover, agreeing with the Seventh Circuit's panel decision in United States v. Skoien (Skoien I), 587 F.3d 803 (7th Cir.2009), vacated, 614 F.3d 638 (7th Cir.2010) ( en banc), we expressly rejected the government's argument that § 922(g)(9) was valid by analogy based on Heller's “ ‘presumptively lawful’ ” language. Chester I, 367 Fed.Appx. at 393.

After we issued Chester I, the government petitioned for panel rehearing in light of the fact that the Skoien I panel decision had been vacated by the Seventh Circuit sitting en banc. Chester II, 628 F.3d at 678. Thereafter, the Seventh Circuit issued its en banc decision in Skoien, see United States v. Skoien (Skoien II), 614 F.3d 638 (7th Cir.2010) ( en banc), rejecting a Second Amendment challenge to § 922(g)(9) on the basis that logic and data demonstrate a substantial relationship between § 922(g)(9) and an important governmental objective. See Skoien II, 614 F.3d at 642.

Subsequently, in a published opinion we refer to in the present opinion as Chester II, we granted the government's petition for panel rehearing, vacated Chester I, and reissued our decision in order to provide district courts in the Fourth Circuit with guidance on the proper framework for deciding as-applied Second Amendment challenges. Chester II, 628 F.3d at 678. In this regard, we specifically announced a two-part approach. Id. at 680. The first part asks “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee.” Id. (internal quotation marks omitted). Putting meat on the bones of this question, we explained that it is a “historical inquiry” that “seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” Id. If the challenged law does not impose a burden on conduct falling within the scope of the Second Amendment's guarantee as historically understood, that is the end of the matter. Id. However, if the challenged law does impose a burden on conduct falling within the scope of the Second Amendment's guarantee as historically understood, then the second part of the two-part approach comes into play. Id.

The second part of the two-part approach involves application of the appropriate form of means-end scrutiny. Id. In Chester II, we held that intermediate scrutiny is the appropriate standard to analyze a challenge to § 922(g)(9) under the Second Amendment.³ Chester II, 628 F.3d at 683. Under the formulation of intermediate scrutiny that we adopted in Chester II, the government bears the burden of showing “a reasonable fit between the challenged...