United States v. Chovan, No. 11-50107 (9th Cir. 2013)
Annotate this CaseDefendant appealed the district court's denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. 922(g)(9), which prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life. Applying United States v. Brailey, the court concluded that defendant's domestic violence conviction did not divest him of "core" civil rights and he could not qualify for the civil rights restored exception to section 922(g)(9). The court rejected defendant's argument that the civil rights restored exception violated the Equal Protection Clause for the same reasons the court articulated in United States v. Hancock. Like the First, Fourth, and Seventh Circuits, the court applied intermediate scrutiny to section 922(g)(9) and held that it was constitutional on its face and as applied to defendant. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal Law/Second Amendment. The panel affirmed the district court’s denial of a motion to dismiss an indictment in a case in which the defendant contended that 18 U.S.C. § 922(g)(9), which prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life, violates his Second Amendment right to bear arms and does not apply to him because his civil rights have been restored. The panel held that the defendant’s 1996 misdemeanor domestic violence conviction did not divest him of civil rights because it did not divest him of the right to vote, the right to serve on a jury, or the right to hold public office, and that he therefore cannot qualify for the “civil rights restored” exception to § 922(g)(9). The panel also rejected the defendant’s argument that the civil rights restored exception violates the Equal Protection Clause. The panel held that intermediate scrutiny applies to the Second Amendment claim, and that § 922(g)(9) is constitutional on its face and as applied to the defendant. Concurring in the result, Judge Bea wrote separately to express his disagreement with the majority’s default determination that persons convicted of domestic violence misdemeanors are thereby disqualified from the core right of the Second Amendment to possess firearms for defense of the home.
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