FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL EDWARD CHOVAN,

Defendant-Appellant.

No. 11-50107

D.C. No.

3:10-cr-01805-JAH-1

OPINION

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted

February 15, 2012—Pasadena, California

Filed November 18, 2013

Before: Harry Pregerson, Michael Daly Hawkins,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Pregerson;

Concurrence by Judge Bea
2 UNITED STATES V. CHOVAN

SUMMARY*

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

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. CHOVAN 3

the Second Amendment to possess firearms for defense of the

home.

COUNSEL

Devin Burstein, Federal Defenders of San Diego, Inc., San

Diego, California, for Defendant-Appellant

Caroline P. Han, Assistant United States Attorney, San

Diego, California, for Plaintiff-Appellee.

OPINION

PREGERSON, Circuit Judge:

Following the entry of a conditional guilty plea, Daniel

Chovan appeals the district court’s denial of his motion to

dismiss an indictment against him for violation of 18 U.S.C.

§ 922(g)(9). Section 922(g)(9) prohibits persons convicted of

domestic violence misdemeanors from possessing firearms

for life. Chovan contends that § 922(g)(9) is unconstitutional

both on its face and as applied to him because it violates his

Second Amendment right to bear arms. In the alternative, he

argues that § 922(g)(9) does not apply to him because his

civil rights have been restored within the meaning of

18 U.S.C. § 921(a)(33)(B)(ii). We have jurisdiction pursuant

to 28 U.S.C. § 1291. We reject Chovan’s “civil rights

restored” argument, hold that intermediate scrutiny applies to

his Second Amendment claim, and uphold § 922(g)(9) under

intermediate scrutiny.
4 UNITED STATES V. CHOVAN

FACTUAL & PROCEDURAL BACKGROUND

In 1996, Daniel Chovan was convicted in California state

court of the misdemeanor of inflicting corporal injury on a

spouse in violation of California Penal Code § 273.5(a). The

victim, Cheryl Fix,

1 was living with Chovan at the time.2

Chovan was sentenced to 120 days in jail and three years of

supervised release.

Because of this conviction, Chovan was prohibited from

possessing firearms under both state and federal law. Under

California Penal Code § 12021(c)(1), which at the time

applied to misdemeanants generally, Chovan was barred from

owning, purchasing, receiving, or having in his possession or

under his custody or control, any firearm for a ten-year period

following his conviction. But under 18 U.S.C. § 922(g)(9),

a federal statute that applies only to persons convicted of

misdemeanor domestic violence crimes, Chovan was barred

from possessing any firearm for life.

Section 922(g)(9) establishes two exceptions under which

the statute will no longer apply: (1) “if the conviction has

been expunged or set aside”; or (2) if the offender “has been

pardoned or has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil rights

under such an offense).” 18 U.S.C. § 921(a)(33)(B)(ii). 

1 Fix married Chovan in 1997 and changed her last name to “Chovan.” 

We refer to her as Fix throughout this opinion for the sake of clarity. Fix

and Chovan separated in 2009.

2 California Penal Code § 273.5(a) does not require that the parties be

married, but rather applies to any person who willfully inflicts corporal

injury “upon a person who is his or her spouse, former spouse, cohabitant,

former cohabitant, or the mother or father of his or her child . . . .”
UNITED STATES V. CHOVAN 5

These exceptions are not met if “the pardon, expungement, or

restoration of civil rights expressly provides that the person

may not ship, transport, possess, or receive firearms.” Id.

In 2009, Chovan applied to purchase a firearm from a San

Diego area gun dealer. He completed a required application

form and answered “no” to the question whether he had ever

been convicted of a misdemeanor crime of domestic violence. 

His purchase application was denied after a background

check revealed his 1996 misdemeanor conviction of domestic

violence. At the time of his application, Chovan could legally

possess a firearm under California law because ten years had

passed since his 1996 conviction, but § 922(g)(9) continued

to bar him from possessing a firearm.

The FBI received information about Chovan’s attempted

purchase and began investigating Chovan. During their

investigation, FBI agents found videos on the Internet

depicting Chovan and others shooting rifles and conducting

“border patrols” near the U.S.-Mexico border.

The FBI also learned that in March 2010, San Diego

County Sheriff deputies responded to a domestic dispute at

Chovan’s residence. Fix, Chovan’s then-estranged wife, told

the officers that Chovan had become violent, hit her with a

cell phone, and threatened to hunt her down and shoot her if

she ever left him. Fix said that she believed Chovan’s threats

because he had weapons inside his house.

On April 15, 2010, FBI and Bureau of Alcohol, Tobacco,

Firearms and Explosives agents executed a search warrant of

Chovan’s house. In the course of their search they found and

confiscated four firearms, including a High Standard .22

caliber handgun that belonged to Chovan, and 532 rounds of
6 UNITED STATES V. CHOVAN

assorted ammunition. Federal agents arrested Chovan the day

after the search. During his arrest, Chovan admitted that he

had possessed and fired the firearms several times since his

1996 domestic violence conviction. A two-count indictment

was brought against Chovan. Count One alleged that Chovan

had knowingly possessed firearms in violation of § 922(g),

and Count Two alleged that he had made a false statement in

the acquisition of a firearm in violation of 18 U.S.C.

§ 924(a)(1)(A).

Chovan moved to dismiss Count One, contending that

(1) § 922(g)(9) is an unconstitutional violation of the Second

Amendment; (2) his civil rights were “restored” within the

meaning of § 921(a)(33)(B)(ii), and therefore § 922(g)(9) did

not apply to him; and (3) § 922(g)(9)’s application to him was

a violation of equal protection. The district court denied

Chovan’s motion to dismiss, concluding that § 922(g)(9) “is

a presumptively lawful prohibition and represents an

exemption from the right to bear arms under the Second

Amendment as articulated in [District of Columbia v. Heller,

554 U.S. 570 (2008)].”

Chovan pled guilty to Count One of the indictment,

pursuant to a conditional plea agreement that preserved his

right to appeal the denial of his motion to dismiss.3 Chovan

was sentenced to five years probation. Chovan timely

appealed the denial of his motion to dismiss.

3 Count Two was dismissed as a part of the plea agreement and is not at

issue in this appeal.
UNITED STATES V. CHOVAN 7

STANDARD OF REVIEW

We review de novo the constitutionality of a statute. 

United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.

2010). We also review de novo constitutional challenges to

a district court’s denial of a motion to dismiss. Id.

DISCUSSION

Chovan argues on appeal that § 922(g)(9) violates the

Second Amendment because it is an impermissible restriction

on the individual and fundamental right to bear arms. He

alternatively argues that § 922(g)(9) does not apply to him

because his civil rights were restored when his ten-year ban

on owning firearms under California state law expired, and

thus that his conviction should be vacated. We disagree with

both arguments.

I. Civil Rights Restored

We start by addressing Chovan’s non-constitutional

argument that § 922(g)(9) does not apply to him because his

civil rights have been restored.4 Section 921(a)(33)(B)(ii)

prevents the application of § 922(g)(9) in situations where a

defendant’s “civil rights” have been restored. Chovan

contends that his civil rights were restored within the

meaning of § 921(a)(33)(B)(ii) when his right to own

4

See Dep’t of Commerce v. United States House of Representatives,

525 U.S. 316, 343–44 (1999) (citing Ashwander v. Tenn. Valley Auth.,

297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“[I]f a case can be

decided on either of two grounds, one involving a constitutional question,

the other a question ofstatutory construction or general law, the Court will

decide only the latter.”)).
8 UNITED STATES V. CHOVAN

firearms was restored under California law ten years after his

1996 conviction.

Section 921(a)(33)(B)(ii) does not define the term “civil

rights.” In United States v. Brailey, however, we addressed

how to interpret the term. 408 F.3d 609, 611–13 (9th Cir.

2005). In 1997, James David Brailey was convicted in Utah

of a misdemeanor crime of domestic violence. Id. at 610–11. 

As a result of this conviction, he was barred from possessing

firearms under then-existing Utah state law. Id. at 611. In

2000, however, Utah amended its statutes such that Brailey

and other misdemeanants were no longer prevented from

possessing firearms. Id. at 610–11. Braileywas subsequently

charged with firearm possession in violation of § 922(g)(9). 

Id. at 610. He appealed the § 922(g)(9) conviction,

maintaining that his civil rights had been restored within the

meaning of § 921(a)(33)(B)(ii) because his right to possess a

gun had been restored under Utah law. Id.

We rejected Brailey’s argument, concluding that his civil

rights had never been “lost” because his misdemeanor

conviction had not taken away his “core civil rights”: the

right to vote, to sit as a juror, or to hold public office. Id. at

613. Because Brailey’s civil rights had never been lost, we

reasoned that they could not have been restored. We noted

that most other circuits had also concluded that, “where civil

rights are not divested for misdemeanor convictions, a person

convicted of a misdemeanor crime of domestic violence

cannot benefit from the federal restoration exception.” Id. at

612 (citing United States v. Jennings, 323 F.3d 263 (4th Cir.

2003); United States v. Barnes, 295 F.3d 1354 (D.C. Cir.

2002); United States v. Smith, 171 F.3d 617 (8th Cir. 1999));

see also Logan v. United States, 552 U.S. 23, 37 (2007)

(holding that a different “civil rights restored” exception did
UNITED STATES V. CHOVAN 9

not apply to “an offender who lost no civil rights”). Thus, we

concluded that Brailey failed to meet § 922(g)(9)’s civil

rights restored exception.

Chovan argues that Brailey’s reading of the civil rights

restored exception is too narrow and “create[s] an equal

protection problem.” According to Chovan it is unfair that

under Brailey, individuals who lose the right to vote, serve on

a jury, or hold public office because of their convictions but

later have these rights restored can possess firearms, while

individuals like Chovan who never lost these rights cannot.

Chovan’s equal protection argument is foreclosed by our

decision in United States v. Hancock, 231 F.3d 557 (9th Cir.

2000). In 1994 and 1995, Gary Hancock was convicted of

four Arizona state misdemeanors involving violence or

threats of violence against his wife. Id. at 560. In 1999,

Hancock was convicted of possessing a firearm in violation

of § 922(g)(9). Id. On appeal, Hancock argued that his

indictment should have been dismissed on equal protection

grounds. Id. at 565. He argued that in Arizona, domestic

violence misdemeanants are treated more harshly under

§ 922(g)(9) than felons because Arizona misdemeanants,

unlike felons, are not deprived of their civil rights and as a

result can never have their civil rights restored. Id. at 566.

Applying rational basis review, we rejected Hancock’s

equal protection claim. Id. at 566–67. First, we explained

that when Congress enacted § 922(g)(9), it “was aware of the

discrepancies in state procedures for revoking and restoring

civil rights . . . . [D]isparate treatment of some offenders was

the inevitable result of Congress’ decision to ‘look to state

law to define the restoration exception.’” Id. (citing United

States v. Smith, 171 F.3d 617, 625 (8th Cir. 1999)). Second,
10 UNITED STATES V. CHOVAN

we noted that in addition to the civil rights restored exception,

§ 922(g)(9) provides “several adequate legal mechanisms” for

which both misdemeanants and felons can qualify: “pardon,

expungement, and setting aside of convictions.” Id. at 567. 

Viewing the two exceptions together, we found that

“Congress reasonably could conclude that felons who had

been through a state’s restoration process and had regained

their civil rights . . . were more fit to own firearms than

domestic-violence misdemeanants who had not had their

convictions expunged or been pardoned.” Id. We therefore

upheld the civil rights restored exception under rational basis

review as at least “minimally rational.” Id.

Here, we apply Brailey and conclude that Chovan’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. Because Chovan never lost these “core” civil rights,

he cannot qualify for the civil rights restored exception to

§ 922(g)(9). Further, we reject Chovan’s argument that the

civil rights restored exception violates the Equal Protection

Clause for the same reasons we articulated in Hancock. Id.

at 566–67.

II. Second Amendment Challenge

Having concluded that Chovan does not qualify for the

“civil rights restored” exception, we turn to his Second

Amendment challenge to § 922(g)(9). Chovan’s Second

Amendment argument is predicated on the Supreme Court’s

holding in District of Columbia v. Heller that the Second

Amendment protects “an individual right to keep and bear

arms.” 554 U.S. 570, 595 (2008).
UNITED STATES V. CHOVAN 11

In Heller, the Supreme Court struck down District of

Columbia laws banning handgun possession in the home and

requiring all firearms in homes to be unloaded and

disassembled or “bound by a trigger lock or similar device.” 

Id. at 630, 635. While the Heller Court declined to

“undertake an exhaustive historical analysis . . . of the full

scope of the Second Amendment,” it did establish that the

individual right guaranteed by the amendment is “not

unlimited.” Id. at 626–27.

The Heller Court suggested that the core of the Second

Amendment right is to allow “law-abiding, responsible

citizens to use arms in defense of hearth and home.” Id. at

635. The Court indicated that determining the scope of the

Second Amendment’s protections requires a textual and

historical analysis of the amendment. See id. at 576–605. 

Finally, the Court established that “weapons not typically

possessed by law-abiding citizens for lawful purposes” are

not protected by the Second Amendment, id. at 625, and that

certain “longstanding prohibitions” are “presumptivelylawful

regulatory measures”:

[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 626–27; see also id. at 627 n.26; McDonald v. City of

Chicago, 561 U.S. __, 130 S. Ct. 3020, 3047 (2010).
12 UNITED STATES V. CHOVAN

The constitutionality of § 922(g)(9) is a question of first

impression in this circuit, although a number of other circuits

have upheld the statute using varying rationales. We briefly

summarize the different approaches taken by these circuits.

A. Approaches Taken By Other Circuits

1. Upheld as a “Presumptively Lawful Longstanding

Prohibition”: Eleventh Circuit

The Eleventh Circuit considered the constitutionality of

§ 922(g)(9) and upheld it as a “presumptively lawful

longstanding prohibition[].” United States v. White, 593 F.3d

1199, 1205 (11th Cir. 2010). That court analogized

§ 922(g)(9) to the felon-in-possession ban the Heller Court

listed as a presumptively lawful restriction, noting that

“although passed relatively recently, § 922(g)(9) addresses

the thorny problem of domestic violence, a problem Congress

recognized as not remedied by ‘longstanding’ felon-inpossession laws.” Id. at 1206. Concluding that “Heller does

not cast doubt” on § 922(g)(9)’s constitutionality because

§ 922(g)(9) is a presumptively lawful prohibition, and

without further constitutional analysis, the Eleventh Circuit

upheld the statute. Id.

Two other circuits have criticized White’s approach. In

United States v. Chester, the Fourth Circuit stated that “for all

practical purposes” White treats “Heller’s listing of

presumptively lawful measures” as a sort of “safe harbor for

unlisted regulatory measures, such as 28 U.S.C. § 922(g)(9)”

that are “analogous to those measures specifically listed in

Heller.” 628 F.3d 673, 679 (4th Cir. 2010). The Chester

court criticized the approach as “approximat[ing] rationalbasis review, which has been rejected by Heller.” Id. In
UNITED STATES V. CHOVAN 13

United States v. Skoien, the Seventh Circuit sitting en banc

declined to address whether § 922(g)(9) is presumptively

lawful, stating, “We do not think it profitable to parse the[]

passages of Heller [that list presumptively lawful measures]

as if they contained an answer to the question whether

§ 922(g)(9) is valid.” 614 F.3d 638, 640 (7th Cir. 2010) (en

banc).

2. Remanded to District Court to Apply Intermediate

Scrutiny: Fourth Circuit

In Chester, the Fourth Circuit considered William Samuel

Chester’s argument that his § 922(g)(9) conviction abridged

his right to keep and bear arms under the Second

Amendment. 628 F.3d at 674. The court held first that a

two-part inquiry applies to Second Amendment claims:

The first question is “whether the challenged

law imposes a burden on conduct falling

within the scope of the Second Amendment’s

guarantee.” . . . If the challenged regulation

burdens conduct that was within the scope of

the Second Amendment as historically

understood, then we move to the second step

of applying an appropriate form of means-end

scrutiny.

Id. at 680 (quoting United States v. Marzzarella, 614 F.3d 85,

89 (3d Cir. 2010)). After canvassing the historical evidence

on the Second Amendment rights of domestic violence

misdemeanants and finding it “inconclusive,” the court stated,

“We must assume, therefore, that Chester’s Second

Amendment rights are intact and that he is entitled to some
14 UNITED STATES V. CHOVAN

measure of Second Amendment protection to keep and

possess firearms in his home for self-defense.” Id. at 681–82.

In its discussion of the second step—whether the

challenged regulation survives the appropriate level of

scrutiny—the Fourth Circuit noted that the Heller Court left

open the question of what level of scrutiny applies to a law

burdening Second Amendment-protected conduct, although

the Court made clear that rational basis review was not

sufficient. Id. at 682. The Chester court went on to state:

Although Chester asserts his right to possess

a firearm in his home for the purpose of

self-defense, we believe his claim is not

within the core right identified in Heller—the

right of a law-abiding, responsible citizen to

possess and carry a weapon for selfdefense—by virtue of Chester’s criminal

history as a domestic violence misdemeanant. 

Heller, [554 U.S. at 635]. Accordingly, we

conclude that intermediate scrutiny is more

appropriate than strict scrutiny for Chester

and similarly situated persons.

Id. at 682–83. The Chester court found that the government

had not “carried its burden of establishing a reasonable fit

between the important object of reducing domestic gun

violence and § 922(g)(9)’s permanent disarmament of all

domestic-violence misdemeanants,” and it therefore

remanded the case to afford the parties the opportunity to

present evidence on this question in the first instance. Id. at

683.
UNITED STATES V. CHOVAN 15

3. Upheld After Application of Intermediate or

Heightened Scrutiny: First, Fourth, and Seventh

Circuits

In United States v. Skoien, the Seventh Circuit sitting en

banc upheld § 922(g)(9) after assuming that intermediate

scrutiny or its equivalent applied, and therefore that an

“important governmental objective” and “substantially

related” means were necessary to uphold the statute. 

614 F.3d at 641–42. The Seventh Circuit examined a number

of studies supporting the relationship between § 922(g)(9)

and the important government interest of preventing gun

violence. Id. at 642–44. The court noted, for example, that

it is established that “firearms cause injury or death in

domestic situations,” and that “[d]omestic assaults with

firearms are approximately twelve times more likely to end

in the victim’s death than are assaults by knives or fists.” Id.

at 643 (citing Linda E. Saltzman, James A. Mercy, Patrick W.

O’Carroll, Mark L. Rosenberg & Philip H. Rhodes, Weapon

Involvement and Injury Outcomes in Family and Intimate

Assaults, 267 J. Am. Med. Ass’n 3043 (1992)). The court

also noted that “[t]he presence of a gun in the home of a

convicted domestic abuser is ‘strongly and independently

associated with an increased risk of homicide.’” Id. (quoting

Arthur L. Kellermann, et al., Gun Ownership as a Risk Factor

for Homicide in the Home, 329 New England J. Med. 1084,

1087 (1993)). In light of “[b]oth logic and data,” the Seventh

Circuit held that keeping guns from domestic violence

misdemeanants is substantially related to the government

interest of preventing gun violence. Id. at 642.

The Skoien court also held that § 922(g)(9) was

constitutional as applied to Skoien. Id. at 645. Skoien

contended that § 922(g)(9) was not substantially related to an
16 UNITED STATES V. CHOVAN

important government objective because it “perpetual[ly]”

disqualifies all persons convicted of domestic violence, even

people who had not been in legal trouble for many years. Id.

at 644. The court rejected Skoien’s argument, emphasizing

the statute’s exceptions under which domestic violence

misdemeanants may regain their rights to possess firearms. 

The court also noted,

Skoien is poorly situated to contend that the

statute creates a lifetime ban for someone who

does not pose any risk of further offenses

[because] Skoien is himself a recidivist,

having been convicted twice of domestic

battery. . . . A person to whom a statute

properly applies can’t obtain relief based on

arguments that a differently situated person

might present.

Id. at 645 (citing United States v. Salerno, 481 U.S. 739, 745

(1987)).

The First Circuit similarly upheld § 922(g)(9) after

applying the equivalent of intermediate scrutiny. United

States v. Booker, 644 F.3d 12, 25 (1st Cir. 2011). The Booker

court found that while § 922(g)(9) “appears consistent with

Heller’s reference to certain presumptively lawful regulatory

measures,” any “categorical ban on gun ownership by a class

of individuals must be supported by some form of ‘strong

showing,’ necessitating a substantial relationship between the

restriction and an important governmental objective.” Id. at

25. The court upheld § 922(g)(9) after concluding that social

science research supported a finding of “a substantial

relationship between § 922(g)(9)’s disqualification of

domestic violence misdemeanants from gun ownership and
UNITED STATES V. CHOVAN 17

the governmental interest in preventing gun violence in the

home.” Id.

Finally, the Fourth Circuit in United States v. Staten

considered the constitutionality of § 922(g)(9) on a full record

after its decision in Chester. Unlike in Chester, where the

court remanded the application of intermediate scrutiny to the

district court because the record was incomplete, in Staten the

court upheld § 922(g)(9) under intermediate scrutiny. 

666 F.3d 154, 167 (4th Cir. 2011). The Staten court first held

that the government had carried its burden of establishing that

reducing domestic gun violence is a substantial government

objective. Id. at 161. The court then examined the social

science studies cited by the government and found that the

government had established that:

(1) domestic violence is a serious problem in

the United States; (2) the rate of recidivism

among domestic violence misdemeanants is

substantial; (3) the use of firearms in

connection with domestic violence is all too

common; (4) the use of firearms in connection

with domestic violence increases the risk of

injury or homicide during a domestic violence

incident; and (5) the use of firearms in

connection with domestic violence often leads

to injury or homicide.

Id. at 167. The court concluded that the government had

therefore “carried its burden of establishing a reasonable fit

between the substantial government objective of reducing

domestic gun violence and keeping firearms out of the hands

of [domestic violence misdemeanants]”. Id.
18 UNITED STATES V. CHOVAN

B. Chovan’s Second Amendment Challenge

After considering the approaches taken by other circuits

that considered the constitutionality of § 922(g)(9), we hold

as follows. We adopt the two-step Second Amendment

inquiry undertaken by the Third Circuit in Marzzarella,

614 F.3d at 89, and the Fourth Circuit in Chester, 628 F.3d at

680, among other circuits. Applying that inquiry, we hold

that § 922(g)(9) burdens conduct falling within the scope of

the Second Amendment’s guarantee and that intermediate

scrutiny applies to Chovan’s Second Amendment challenge. 

Finally, like the First, Fourth, and Seventh Circuits, we apply

intermediate scrutiny to § 922(g)(9) and hold that it is

constitutional on its face and as applied to Chovan.

1. The Two-Step Inquiry

The two-step Second Amendment inquiry we adopt

(1) asks whether the challenged law burdens conduct

protected by the Second Amendment and (2) if so, directs

courts to apply an appropriate level of scrutiny. Chester,

628 F.3d at 680; see also Marzzarella, 614 F.3d at 89.

We believe this two-step inquiry reflects the Supreme

Court’s holding in Hellerthat, while the Second Amendment

protects an individual right to keep and bear arms, the scope

of that right is not unlimited. 554 U.S. at 626–27. The twostep inquiry is also consistent with the approach taken by

other circuits considering various firearms restrictions postHeller. See, e.g., Heller v. District of Columbia, 670 F.3d

1244, 1251–58 (D.C. Cir. 2011) (“Heller II”); Ezell v. City of

Chicago, 651 F.3d 684, 701–04 (7th Cir. 2011); United States

v. Reese, 627 F.3d 792, 800–05 (10th Cir. 2010). We join the

Third, Fourth, Seventh, Tenth, and D.C. Circuits in holding
UNITED STATES V. CHOVAN 19

that the two-step framework outlined above applies to Second

Amendment challenges.

2. Applying the Two-Step Inquiry: Section 922(g)(9)

Affects Second Amendment Rights and

Intermediate Scrutiny Applies

At the first step of the inquiry, we conclude that by

prohibiting domestic violence misdemeanants from

possessing firearms, § 922(g)(9) burdens rights protected by

the Second Amendment.

Section 922(g)(9) is not mentioned in Heller. The

government argues that § 922(g)(9) is a presumptively lawful

regulatory measure and does not burden rights historically

understood to be protected by the Second Amendment. 

According to the government, § 922(g)(9) is part of a “long

line of prohibitions and restrictions on the right to possess

firearms by people perceived as dangerous or violent.”

We do not agree. First, it is not clear that such

prohibitions are so longstanding. The first federal firearm

restrictions regarding violent offenders were not passed until

1938, as part of the Federal Firearms Act. See C. Kevin

Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv.

J.L. & Pub. Pol’y 695, 698, 708 (2009) (noting that “one can

with a good degree of confidence say that bans on convicts

possessing firearms were unknown before World War I”). 

Second, and more importantly, the government has not

proved that domestic violence misdemeanants in particular

have historically been restricted from bearing arms. The

Federal Firearms Act of 1938 only restricted firearm

possession for those individuals convicted of a “crime of

violence,” defined as “murder, manslaughter, rape, mayhem,
20 UNITED STATES V. CHOVAN

kidnapping, burglary, housebreaking, and certain forms of

aggravated assault—assault with intent to kill, commit rape,

or rob; assault with a dangerous weapon, or assault with

intent to commit any offense punishable by imprisonment for

more than one year.” Id. at 699 (internal quotation marks

omitted). Domestic violence misdemeanants—like Chovan,

who was convicted of simple misdemeanor assault under

California Penal Code § 273.5(a)—would not be restricted

from possessing firearms under the Federal Firearms Act. In

fact, domestic violence misdemeanants were not restricted

from possessing firearms until 1996, with the passage of the

Lautenberg Amendment to the Gun Control Act of 1968. 

Pub. L. No. 104-208, § 658, 110 Stat. 3009, 3009-371 (1996).

Because of “the lack of historical evidence in the record

before us, we are certainly not able to say that the Second

Amendment, as historically understood, did not apply to

persons convicted of domestic violence misdemeanors. We

must assume, therefore, that [Chovan]’s Second Amendment

rights are intact and that he is entitled to some measure of

Second Amendment protection to keep and possess firearms

in his home for self-defense.” Chester, 628 F.3d at 681–82.

We now reach the second step of the Second Amendment

inquiry. In Heller, the Supreme Court did not specify what

level of scrutiny courts must apply to a statute challenged

under the Second Amendment. The Heller Court did,

however, indicate that rational basisreview is not appropriate. 

See Heller, 554 U.S. at 628 n.27 (“If all that was required to

overcome the right to keep and bear arms was a rational basis,

the Second Amendment would be redundant with the separate

constitutional prohibitions on irrational laws, and would have

no effect.”). Having concluded that § 922(g)(9) burdens

Second Amendment rights, we reject rational basis review
UNITED STATES V. CHOVAN 21

and conclude that some sort of heightened scrutiny must

apply.

In determining the appropriate level of scrutiny, other

circuit courts have looked to the First Amendment as a guide. 

See, e.g., Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at

89 n.4, 96–97; Ezell, 651 F.3d at 703, 707. We agree with

these courts’ determination that, just as in the First

Amendment context, the level of scrutiny in the Second

Amendment context should depend on “the nature of the

conduct being regulated and the degree to which the

challenged law burdens the right.” See Chester, 628 F.3d at

682; see also Marzzarella, 614 F.3d at 96–97. More

specifically, the level of scrutiny should depend on (1) “how

close the law comes to the core of the Second Amendment

right,” and (2) “the severity of the law’s burden on the right.” 

Ezell, 651 F.3d at 703.

Heller tells us that the core of the Second Amendment is

“the right of law-abiding, responsible citizens to use arms in

defense of hearth and home.” 554 U.S. at 635. Section

922(g)(9) does not implicate this core Second Amendment

right because it regulates firearm possession for individuals

with criminal convictions. “Although [Chovan] asserts his

right to possess a firearm in his home for the purpose of selfdefense, we believe his claim is not within the core right

identified in Heller—the right of a law-abiding, responsible

citizen to possess and carry a weapon for self-defense—by

virtue of [Chovan]’s criminal history as a domestic violence

misdemeanant.” Chester, 628 F.3d at 682–83; cf. Ezell,

651 F.3d at 708 (finding that a challenged statute implicated

the core Second Amendment right because “the plaintiffs are

the ‘law-abiding, responsible citizens’ whose Second
22 UNITED STATES V. CHOVAN

Amendmentrights are entitled to fullsolicitude underHeller”).

The burden the statute places on domestic violence

misdemeanants’ rights, however, is quite substantial. Unlike

the regulations in Marzzarella or Heller II, § 922(g)(9) does

not merely regulate the manner in which persons may

exercise their Second Amendment rights. Cf. Marzzarella,

614 F.3d at 97 (concluding that obliterated serial numbers

regulation “does not severely limit the possession of

firearms” because “[i]t leaves a person free to possess any

otherwise lawful firearm he chooses”); Heller II, 670 F.3d at

1258 (reasoning that the District of Columbia’s gun

registration requirements were not a severe burden because

they do not “prevent[] an individual from possessing a

firearm in his home or elsewhere”). Instead, as Chovan

argues, § 922(g)(9) amounts to a “total prohibition” on

firearm possession for a class of individuals—in fact, a

“lifetime ban.” As such, the statute is a more “serious

encroachment” on the Second Amendment right. See Ezell,

651 F.3d at 708. But Chovan goes too far when he argues

that § 922(g)(9) is too broad because it “contains no provision

limiting its applicability.” As explained above, § 922(g)(9)

exempts those with expunged, pardoned, or set-aside

convictions, or those who have had their civil rights restored. 

Therefore, while we recognize that § 922(g)(9) substantially

burdens Second Amendment rights, the burden is lightened

by these exceptions.

In sum, § 922(g)(9) does not implicate the core Second

Amendment right, but it does place a substantial burden on
UNITED STATES V. CHOVAN 23

the right. Accordingly, we conclude that intermediate rather

than strict scrutiny is the proper standard to apply.

5

3. Applying Intermediate Scrutiny, We Uphold

§ 922(g)(9) and Its Application to Chovan

Although courts have used various terminology to

describe the intermediate scrutiny standard, all forms of the

standard require (1) the government’s stated objective to be

significant, substantial, or important; and (2) a reasonable fit

between the challenged regulation and the asserted objective. 

Chester, 628 F.3d at 683. As we explain below, § 922(g)(9),

both on its face and as applied to Chovan, survives

intermediate scrutiny.

a. Important Government Interest

Chovan concedes that § 922(g)(9) was motivated by the

important government interest of “keeping firearms away

from those most likely to misuse them” or “preventing gun

violence.” We agree that § 922(g)(9) advances an important

government objective, but define the objective slightly more

narrowly, as preventing domestic gun violence.

5 Most courts have also found that intermediate scrutiny or its equivalent

is the proper standard to apply to Second Amendment challenges to

§ 922(g)(9) and similar statutes. See, e.g., Booker, 644 F.3d at 25;

Chester, 628 F.3d at 682–83; Marzzarella, 614 F.3d at 97 (applying

intermediate scrutiny to Second Amendment challenge of 18 U.S.C.

§ 922(k), a ban on possession offirearms with obliterated serial numbers);

Reese, 627 F.3d at 802 (applying intermediate scrutiny to Second

Amendment challenge of 18 U.S.C. § 922(g)(8), which bans the

possession of firearms by those subject to domestic protection orders);

Heller II, 670 F.3d at 1257 (applying intermediate scrutiny to District of

Columbia’s firearm registration requirements).
24 UNITED STATES V. CHOVAN

That the government interest behind § 922(g)(9) was to

prevent domestic gun violence is apparent from the face of

the statute and its legislative history. As the government

explains, the 1996 passage of § 922(g)(9) was motivated by

the concern that guns were not being kept away from

domestic abusers under felon-in-possession laws because

“many people who engage in serious spousal or child abuse

ultimately are not charged with or convicted of felonies.” 

Skoien, 614 F.3d at 643 (quoting 142 Cong. Rec. 22985

(1996) (statement of Sen. Lautenberg) (internal quotation

marks omitted)); see also United States v. Hayes, 555 U.S.

415, 426 (2009); United States v. White, 593 F.3d 1199, 1205

(11th Cir. 2010). Through § 922(g)(9), Congress sought to

“close this dangerous loophole” and “establish[] a policy of

zero tolerance when it comes to guns and domestic violence.” 

Booker, 644 F.3d at 16 (quoting 142 Cong. Rec. S8831 (daily

ed. July 25, 1996) (statement of Sen. Lautenberg) (internal

quotation marks omitted) (emphasis added)). Thus, the

legislative history of § 922(g)(9) shows that Congress did not

enact the statute for the purpose of “preventing gun violence,”

as Chovan argues. Instead, Congress passed § 922(g)(9) to

prevent domestic gun violence.

We and other circuits have previously defined the

government interest behind § 922(g)(9) in this way. In

United States v. Belless, we noted that the purpose of

§ 922(g)(9) is “to keep firearms out of the hands of people

whose past violence in domestic relationships makes them

untrustworthy custodians of deadly force.” 338 F.3d 1063,

1067 (9th Cir. 2003). In Booker, the First Circuit similarly

defined the interest behind § 922(g)(9) as “keeping guns

away from people who have been proven to engage in

violence with those with whom they share a domestically

intimate or familial relationship, or who live with them or the
UNITED STATES V. CHOVAN 25

like.” 644 F.3d at 25. Finally, in Staten, the Fourth Circuit

defined the interest behind § 922(g)(9) as “reducing domestic

gun violence.” 666 F.3d at 161 (emphasis added).

It is self-evident that the government interest of

preventing domestic gun violence is important. See Booker,

644 F.3d at 25 (“[K]eeping guns away from people who have

been proven to engage in [domestic] violence . . . is

undeniablyimportant.” (citingCarey v. Brown, 447 U.S. 455,

471 (1980) (“The State’s interest in protecting the well-being,

tranquility, and privacy of the home is certainly of the highest

order in a free and civilized society.”))). We hold that the

government has met its burden to show that reducing

domestic gun violence is an important government objective.

b. Substantially Related to Government Interest

Keeping guns from domestic violence misdemeanants is

substantially related to the broader interest of preventing

domestic gun violence for four related reasons. First, we

agree with the government that the legislative history

indicates that Congress enacted § 922(g)(9) because it sought

to reach the people who had demonstrated violence, but were

not kept from possessing firearms by § 922(g)(1) because

domestic abusers are not often convicted of felonies. See

Hayes, 129 S. Ct. at 1087.

Second, we agree with the government that “a high rate of

domestic violence recidivism exists.” The government relies

on Skoien, in which the Seventh Circuit pointed to a number

of studies estimating a rate of domestic violence recidivism

between 35% and 80%. See Skoien, 614 F.3d at 643–44. 

Estimates of “[t]he full recidivism rate,” which “includes

violence that does not lead to an arrest,” “range from 40% to
26 UNITED STATES V. CHOVAN

80% ‘when victims are followed longitudinally and

interviewed directly.’” 614 F.3d at 644 (citing Carla Smith

Stover, Domestic Violence Res., 20 J. Interpersonal Violence

448, 450 (2005)). The Skoien court also cited two other

studies that estimated the full recidivism rate to be 35% and

52%, respectively. Id. (citing Julia C. Babcock, et al., Does

Batterers’ Treatment Work? A Meta-Analytic Review of

Domestic Violence Treatment, 23 Clinical Psychol. Rev.

1023, 1039 (2004) (estimating a 35% recidvism rate based on

partners’ reports); John H. Laub & Robert J. Sampson,

Understanding Desistance from Crime, 28 Crime & Just. 1,

31 (2001) (estimating that only 48% of domestic abusers

“suspended” their abusive conduct within three years of

conviction)).

Third, we agree with the government that domestic

abusers use guns. The government explains that “Congress

acknowledged that the use of guns in incidents of domestic

violence was a compelling concern,” and cites to the

Congressional Record in which Congress found that

“annually, over 150,000 incidents of domestic violence

involve a gun.” See United States v. Smith, 742 F. Supp. 2d

855, 867 (S.D.W.Va. 2010) (citing Cong. Rec. 22,986)). The

government further relies on the fact, articulated in Booker,

that “nearly 52,000 individuals were murdered by a domestic

intimate between 1976 and 1996, and the perpetrator used a

firearm in roughly 65% of the murders.” Booker, 644 F.3d at

26.

Finally, we agree with the government that the use of

guns by domestic abusers is more likely to result in the

victim’s death. The government cites a medical study relied

upon in Skoien for the proposition that incidents of domestic

violence involving firearms are twelve times more likely to
UNITED STATES V. CHOVAN 27

end in the victim’s death than incidents where a perpetrator

is either unarmed or armed with a knife alone. See Skoien,

614 F.3d at 643 (citing Linda E. Saltzman, James A. Mercy,

Patrick W. O’Carroll, Mark L. Rosenberg & Philip H.

Rhodes, Weapon Involvement and Injury Outcomes in Family

and Intimate Assaults, 267 J. Am. Medical Ass’n 3043

(1992)).

Putting these four conclusions together, the government

has demonstrated that domestic violence misdemeanants are

likely to commit acts of domestic violence again and that, if

they do so with a gun, the risk of death to the victim is

significantly increased. We hold that the government has

thereby met its burden to show that § 922(g)(9)’s prohibition

on gun possession by domestic violence misdemeanants is

substantially related to the important government interest of

preventing domestic gun violence. Because § 922(g)(9) is

supported by an important government interest and

substantially related to that interest, the statute passes

constitutional muster under intermediate scrutiny.

c. Chovan’s As-Applied Challenge

Chovan argues that § 922(g)(9) is unconstitutional as

applied to him because his 1996 domestic violence conviction

occurred fifteen years before his § 922(g)(9) conviction, he is

unlikely to recidivate, and he has in fact been law-abiding for

those fifteen years.

Chovan cites several statistics in support of his argument

that he is at low risk of recidivism. He cites the Sentencing

Commission’s Measuring Recidivism study, which

establishes that those with stable employment are less likely

to recidivate and that “‘[r]ecidivism is comparatively low for
28 UNITED STATES V. CHOVAN

the lowest sentences (less than six months or probation).’” 

See Measuring Recidivism: The Criminal History

Computation of the Federal Sentencing Guidelines at 12, 14). 

He also cites a National Institute for Justice study for the

proposition that people who remain offense free for as long

as Mr. Chovan (and indeed for much shorter periods) pose a

recidivism risk equal to that of the general population. See

Blumstein & K. Nakamura, ‘Redemption’ in an Era of

Widespread Criminal Background Checks, NIJ Journal, June

2009, at 10).

But the Sentencing Commission statistics do not reveal

the actual rate of recidivism for those with stable employment

or short sentences; the statistics onlyestablish that individuals

in those two categories have comparatively lower recidivism

rates than individuals in other categories. Measuring

Recidivism at 14. Moreover, none of Chovan’s statistics has

to do with individuals convicted of domestic violence crimes

specifically. The National Institute for Justice studymentions

only burglary, robbery, and aggravated assault; it does not

mention domestic violence, nor does it make conclusions

about individuals convicted of crimes generally. 

‘Redemption’ at 12. Meanwhile, the government has referred

to domestic violence studies mentioned by the Skoien court

showing that the recidivism rates for individuals convicted of

domestic violence is significant—between 35 and 80 percent. 

See Skoien, 614 F.3d at 643–44.

Chovan also argues that he has not been arrested for

domestic violence since the 1996 conviction and has

otherwise been law-abiding. He argues that a March 2010

domestic violence call made by his estranged wife and victim

of the act of domestic violence underlying the 1996

conviction, Cheryl Fix, should not be held against him
UNITED STATES V. CHOVAN 29

because it did not result in a charge or even arrest and

amounts to “unsubstantiated allegations.” When San Diego

County Sheriff deputies responded to the call, Fix told them

that Chovan had become violent with her, struck her with a

cell phone, and threatened to hunt her down and shoot her if

she ever left him.

Although Chovan was not arrested for domestic violence,

we nonetheless consider the March 2010 domestic abuse call

and Fix’s statements. The call is part of the record. And it

should be considered, especially in light of one of the

underlying rationales of § 922(g)(9): acts of domestic

violence are under-reported and often do not lead to arrest or

conviction. See Skoien, 614 F.3d at 643 (explaining that in

enacting § 922(g)(9) Congress recognized that the felon-inpossession ban did not keep guns away from domestic

abusers because many domestic abusers are never charged

with or convicted of felonies (quoting 142 Cong. Rec. 22,985

(1996) (statement of Sen. Lautenberg))). The March 2010

domestic abuse call supports the conclusions that Chovan is

at risk of recidivism for domestic violence and that Chovan

might use a gun to commit future domestic violence. In light

of the domestic abuse call, § 922(g)(9)’s application to

Chovan is substantially related to the goal of reducing

domestic gun violence.

But even if we were to set aside the March 2010 domestic

abuse call and assume that Chovan has had no history of

domestic violence since 1996, Chovan has not presented

evidence to directly contradict the government’s evidence

that the rate of domestic violence recidivism is high. Nor has

he directly proved that if a domestic abuser has not

committed domestic violence for fifteen years, that abuser is

highly unlikely to do so again. In the absence of such
30 UNITED STATES V. CHOVAN

evidence, we conclude that the application of § 922(g)(9) to

Chovan is substantially related to the government’s important

interest of preventing domestic gun violence.

Finally, we note that if Chovan’s as-applied challenge

succeeds, a significant exception to § 922(g)(9) would

emerge. If Congress had wanted § 922(g)(9) to apply only to

individuals with recent domestic violence convictions, it

could have easily created a limited duration rather than

lifetime ban. Or it could have created a good behavior clause

under which individuals without new domestic violence

arrests or charges within a certain number of years of

conviction would automatically regain their rights to possess

firearms. But Congress did not do so. Congress permissibly

created a broad statute that only excepts those individuals

with expunged, pardoned, or set aside convictions and those

individuals who have had their civil rights restored. See

Skoien, 614 F.3d at 641 (“[S]ome categorical

disqualifications are permissible: Congress is not limited to

case-by-case exclusions of persons who have been shown to

be untrustworthy with weapons, nor need these limits be

established by evidence presented in court.”). The breadth of

the statute and the narrowness of these exceptions reflect

Congress’s express intent to establish a “zero tolerance

policy” towards guns and domestic violence.

Because the application of § 922(g)(9) to Chovan is

substantially related to the government’s important interest of

preventing domestic gun violence, Chovan’s as-applied

challenge fails.
UNITED STATES V. CHOVAN 31

CONCLUSION

For the foregoing reasons, we reject Chovan’s “civil

rights restored” claim, hold that intermediate scrutiny is the

proper standard to apply to his Second Amendment claim,

and uphold § 922(g)(9) and its application to Chovan under

intermediate scrutiny. AFFIRMED.

BEA, Circuit Judge, concurring:

I concur in the result of this case. I write separately to

express my 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. First, however, let me detail the points on which the

majority and I agree.

I.

Based on the weight of authority of our sister circuits, the

majority opinion decides to apply to this Second Amendment

case the familiar “scrutiny” tests that have become the

method of analysis of challenged legislation under the First

Amendment. Because appellant does not argue this point but

accepts it, see Blue Br. at 24 (arguing that strict scrutiny

should apply), I will treat the point as waived and accept the

application of the tiers of scrutiny analysis to the Second

Amendment jurisprudence. But see Heller v. Dist. of

Columbia, 670 F.3d 1244, 1271 (D.C. Cir. 2011)

(Kavanaugh, J., dissenting) (“Are gun bans and regulations to

be analyzed based on the Second Amendment’s text, history,
32 UNITED STATES V. CHOVAN

and tradition[,] . . . [o]r may judges re-calibrate the scope of

the Second Amendment right based on judicial assessment of

whether the law advances a sufficiently compelling or

important government interest to override the individual

right? . . . In my view, Heller and McDonald leave little doubt

that courts are to assess gun bans and regulations based on

text, history, and tradition, not by a balancing test such as

strict or intermediate scrutiny.”); Eugene Volokh,

Implementing the Right To Keep and Bear Arms for SelfDefense: An Analytical Framework and a Research Agenda,

56 UCLA L. Rev. 1443, 1443, 1461–73 (2009) (“[U]nitary

tests such as ‘strict scrutiny,’ ‘intermediate scrutiny,’ ‘undue

burden,’ and the like don’t make sense here” in the Second

Amendment context because the language of Heller seems to

foreclose scrutiny analysis).

I agree with the majority that, if we are to apply the “tiers

of scrutiny” to our Second Amendment jurisprudence, the

correct way to do so is the two-step inquiry adopted by

several other circuits, whereby we “(1) ask[] whether the

challenged law burdens conduct protected by the Second

Amendment and (2) if so, . . . apply the appropriate level of

scrutiny.” Maj. Op. at 18.

I also agree with the majority’s application of step one. 

It correctly holds that there is insufficient evidence to

conclude that the prohibition on misdemeanants owning

firearms is “longstanding.” Therefore, Chovan’s “Second

Amendment rights are intact.” Maj. Op. at 20 (quoting

United States v. Chester, 628 F.3d 673, 681–82 (4th Cir.

2010)).
UNITED STATES V. CHOVAN 33

I further agree with the majority opinion when, at step

two, it “recognize[s] that 18 U.S.C. § 922(g)(9) substantially

burdens Second Amendment rights.”1 Maj. Op. at 22.

Finally, I agree with the majority that if one applies

intermediate scrutiny, § 922(g)(9) would satisfy this level of

scrutiny. The governmental interest in preventing a possible

recidivist from committing more serious violence through the

use of a gun is a “substantial governmental interest,” and

§ 922(g)(9) constitutes a “reasonable fit” between the

legislation and its goal. Maj. Op. at 23–27.

II.

The sole basis of my disagreement with the majority

opinion is the “default” effect ofthe misdemeanor conviction. 

I call it “default” because, without explanation,2the majority

held Chovan’s domestic violence misdemeanor conviction

deprives him of his core right to gun possession for selfdefense in the home, which, the Supreme Court held in

Heller, the Second Amendment gives a “law-abiding,

1

I do not, however, think the burden “is lightened” to some degree by

the exceptions for those whose convictions have been pardoned,

expunged, or set-aside, and for those who have had their civil rights

restored. Maj. Op. at 22. If the convictions are no longer extant, there is

no burden whatsoever. If the conviction remains, the full burden obtains. 

There is no “light” burden.

Removal of the convictions is relevant, however, to the narrowtailoring requirement of the strict scrutiny test. See infra, at 49–51.

2

I would say ipse dixit, except some other courts dixerunt’d first. See,

e.g., Chester, 628 F.3d at 682–83. So, this is more of an argument from

the non-binding authority of our sister circuits’ opinions.
34 UNITED STATES V. CHOVAN

responsible citizen.”3 The majority opinion in our case states

that Chovan’s constitutional “claim is not within the core

right identified in Heller—the right of a law-abiding,

responsible citizen to possess and carry a weapon for selfdefense—by virtue of [his] criminal history as a domestic

violence misdemeanant.” Maj. Op. at 14 (quoting Chester,

628 F.3d at 682–83). Therefore, it concludes, because

§ 922(g)(9)’s burden, although “substantial[],” is not total,

intermediate scrutiny is the correct standard. Id. at 22. “In

sum,” the majority opinion concludes, “§ 922(g)(9) does not

implicate the core Second Amendment right . . . .” Id. at 23.

Why?

a.

The majority opinion holds that Chovan forfeited his core

Second Amendment right when he was convicted of a

misdemeanor. Id. at 22 (stating that Chovan can no longer be

considered a “law-abiding, responsible citizen . . . by virtue

of [his] criminal history as a domestic violence

misdemeanant”). In this, the majority are not alone. The

Fourth Circuit has made a similar conclusion. See Chester,

628 F.3d at 682–83.

This default disqualification of misdemeanants from the

“core” right of the Second Amendment resembles the

SupremeCourt’s “disqualification” language regarding felons

in Heller. The Court in Heller seemed to equate the status of

3

It should be noted that the guns Chovan was found to possess were (1)

at his home, and (2) of the kind traditionally used for defense of the home

(a Winchester shotgun, a .22 caliber rifle, .22 caliber handgun, and a

Baldwin & Company antique shotgun).
UNITED STATES V. CHOVAN 35

a felon or of one mentally ill with a presumptive

disqualification from the Second Amendment right. See Dist.

of Columbia v. Heller, 554 U.S. 570, 631 (2008) (linking

“disqualifi[cation]” with being a felon or insane); id. at 635

(“Assuming that Heller is not disqualified from the exercise

of Second Amendment rights, the District must permit him to

register his handgun and must issue him a license to carry it

in the home.”) (emphasis added).

Just as Heller found felons to be presumptively

disqualified from the protection of the Second Amendment,

so the majority have found a domestic violence

misdemeanant, Chovan, to be presumptively disqualified

from the “core” protection of the Second Amendment. This

conclusion seems to stem from a perceived similarity

between felons and domestic violence misdemeanants. This

conclusion, however, is mistaken. Throughout history,felons

have been subject to forfeiture and disqualification, but

misdemeanants, in direct contrast to felons, have not.

At common law, there was a fundamental difference

between felons and misdemeanants. In particular, felonies

resulted in forfeiture of property and rights. 2 William

Blackstone, Commentaries *96–97 (discussing forfeiture as

the historical foundation of felony); id. at *377 (describing

the possible punishments of serious crime as including

“confiscation, by forfeiture of lands, or moveables, or both,

or of the profits of lands for life: others induce a disability, of

holding offices or employments, being heirs, executors, and

the like”); see C. Kevin Marshall, Why Can’t Martha Stewart

Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 715 (2009)

(recognizing that at common law a felony could result in

attainder and “civil death,” whereby the felon could no longer

“perform[] legal functions, such as being a witness or suing”). 
36 UNITED STATES V. CHOVAN

Misdemeanors, on the other hand, did not; as the historian

Theodore Plucknett put it, “most of the characteristics of

criminal proceedings did not attach to misdemeanours. Thus,

they were not subject to . . . forfeiture . . . .” Theodore Frank

Thomas Plucknett, A Concise History of the Common Law

456 (1956). Even today, felons can suffer numerous

restrictions on their constitutional rights. See United States

v. McCane, 573 F.3d 1037, 1049 (10th Cir. 2009)

(Tymkovich, J., concurring) (“[T]he application of § 922(g)

to a violent felon . . . would appear appropriate under any

Second Amendment reading. After all, felons lose out on

fundamental rights such as voting and serving on juries, and

face discrimination that need only survive rational basis

review.”). Indeed, as this court has held, “felons are

categorically different from the individuals who have a

fundamental right to bear arms.” United States v. Vongxay,

594 F.3d 1111, 1115 (9th Cir. 2010); see McLaughlin v. City

of Canton, Miss., 947 F. Supp. 954, 975 (S.D. Miss. 1995)

(finding that “The historical distinction between felonies and

misdemeanors is more than semantic. Traditionally, dire

sanctions have attached to felony convictions which have not

attached to misdemeanor convictions. Many of these

sanctions are in force today. Disenfranchisement was, and

remains, one such sanction. Another such sanction is that

which prohibits felons from owning or possessing firearms”

and concluding that laws disenfranchisingmisdemeanants are

subject to strict scrutiny).

Thus, although felon disqualification from the scope of

the Second Amendment makes sense from an historical

perspective, the same cannot be said for misdemeanants. 

Felon disqualification from the entire scope of the Second

Amendment does not justify misdemeanant disqualification

from the core of the Second Amendment. See Volokh, supra,
UNITED STATES V. CHOVAN 37

at 1498 (“If felon bans are upheld on the grounds that felons

have historically been seen as outside the scope of various

constitutional rights, then felon bans would offer a poor

analogy for bans on possession by misdemeanants (even

violent misdemeanants) . . . .”).

b.

Not only does the status-based analogy of felons to

misdemeanants not make sense; selecting intermediate

scrutiny as the correct level at which to review a categorical,

status-based disqualification from the core right of the

Second Amendment also does not make sense.

Many circuits have chosen intermediate scrutiny to

analyze statutes that undeniably burden Second Amendment

rights. They have often done so based on an analogy between

the right to free speech and the right to keep and bear arms.

Indeed, as the Seventh Circuit has recognized, “[b]oth Heller

and McDonald suggest that First Amendment analogues are

. . . appropriate.” Ezell v. City of Chicago, 651 F.3d 684, 706

(7th Cir. 2011). The Seventh Circuit went on to summarize

the tiers of scrutiny at work in the realm of the First

Amendment:

In free-speech cases, . . . content-based

regulations are presumptively invalid, and

thus get strict scrutiny. On the other hand,

time, place, and manner regulations on speech

need only be reasonable and justified without

reference to the content of the regulated

speech. . . . [R]egulations in a traditional

public or designated public forum get strict

scrutiny, while regulations in a nonpublic
38 UNITED STATES V. CHOVAN

forum must not discriminate on the basis of

viewpoint and must be reasonable in light of

the forum’s purpose.

Id. at 708 (internal quotations marks and citations omitted). 

As the Tenth Circuit has stated, the right to keep and bear

arms “is qualified by what one might call the ‘who,’ ‘what,’

‘where,’ ‘when,’ and ‘why.’” United States v. HuitronGuizar, 678 F.3d 1164, 1165–66 (10th Cir. 2012). The

“when” and “where” qualifications are known in free-speech

jurisprudence as time, place, and manner restrictions. The

“what” and “why” qualifications are content-based

restrictions.

That leaves the “who,” and it remains a sticking point. 

Categorical restrictions of constitutional rights based on an

individual’s class or status fit ill with free-speech

jurisprudence. The Seventh Circuit has argued that

categorical limits on the Second Amendment are analogous

to the categorical limits in the free-speech context, such as

obscenity or defamation. United States v. Skoien, 614 F.3d

638, 641 (7th Cir. 2010) (“Categorical limits on the

possession of firearms would not be a constitutional anomaly. 

Think of the First Amendment, which has long had

categorical limits: obscenity, defamation, incitement to crime,

and others.”). These categorical limits on free speech,

however, are based on what is said, not who is saying it. Cf.

Skoien, 614 F.3d at 649–51 (Sykes, J., dissenting) (“Adapting

First Amendment doctrine to the Second Amendment context

is sensible in some cases . . . . But this particular First

Amendment analogydoesn’t work here.”). Our constitutional

jurisprudence does not analyze status-based restrictions on

free speech under intermediate scrutiny. A street-corner

harangue on the beauties of revolution can perhaps be
UNITED STATES V. CHOVAN 39

prohibited on grounds that it presents a clear and present

danger of violence; but it cannot be prohibited solely because

the speaker has a misdemeanor record.

Judge Jones of the Fifth Circuit recognized this

incompatability between intermediate scrutiny and statusbased disqualifications in her recent dissent from a denial of

rehearing en banc. Nat’l Rifle Ass’n, Inc. v. Bureau of

Alcohol, Tobacco, Firearms, &Explosives, 714 F.3d 334 (5th

Cir. 2013) (Jones, J., dissenting from denial of rehearing en

banc). She disagreed with the opinion’s conclusion that

intermediate scrutiny was the correct standard to apply to

§§ 922(b)(1) and (c)(1), which prohibit federally licensed

firearms dealers from selling handguns to persons under the

age of twenty-one. Nat’l Rifle Ass’n of Am., Inc. v. Bureau of

Alcohol, Tobacco, Firearms, &Explosives, 700 F.3d 185 (5th

Cir. 2012). The majority in that case chose intermediate

scrutiny because “the ban on handgun sales to minors under

21 is analogous to longstanding, presumptively lawful bans

on possession by felons and the mentally ill.” Id. at 206. 

Judge Jones argued that such categorical exclusions should

not be analyzed under intermediate scrutiny.

The panel’s level of scrutiny is based on an

analogy between young adults and felons and

the mentally ill, as if any class-based

limitation on the possession of firearms

justifies any other, so long as the legislature

finds the suspect “discrete” class to be

“dangerous” or “irresponsible.” On such

reasoning, a low level of scrutiny could be

applied if a legislature found that other

groups—e.g. aliens, or military veterans with

PTSD—were “dangerous” or “irresponsible.”
40 UNITED STATES V. CHOVAN

NRA, 714 F.3d at 345 (Jones, J., dissenting). Judge Jones is

correct. Categorical curtailment of constitutional rights based

on an individual’s status requires more rigorous analysis than

intermediate scrutiny.

c.

Moreover, when the majority hold that Chovan’s status as

a misdemeanant excludes him from the core protection of the

Second Amendment, it construes Heller as erecting not one

but two barriers preventing persons from asserting their right

to keep and bear arms. 

The majority quote two passages from Heller as pertinent

to ascertaining Chovan’s Second Amendment rights. The

first Heller passage discusses presumptive disqualifications

from the scope of the Second Amendment.

Although we do not undertake an exhaustive

historical analysis today of the full scope of

the Second Amendment, nothing 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.
UNITED STATES V. CHOVAN 41

Heller, 554 U.S. at 626–27. In a footnote, the Court held that

these restrictions were “presumptively lawful,”4 and that the

“list does not purport to be exhaustive.” Id. at 627 n.26.

A second Heller passage, according to the majority,

defines the “core” right protected by the Second Amendment:

“And 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 635.

4 Although the court in Heller said laws that disqualify felons from

possessing firearms were “presumptively lawful,” it did not explain this

phrase. See United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010)

(stating that “the phrase ‘presumptively lawful’ could have different

meanings . . . . [It] could be read to suggest the identified restrictions are

presumptively lawful because they regulate conduct outside the scope of

the Second Amendment. On the other hand, it may suggest the

restrictions are presumptively lawful because they pass muster under any

standard of scrutiny,” but preferring the first reading); United States v.

Williams, 616 F.3d 685, 692 (7th Cir. 2010) (stating that “‘presumptively

lawful’ . . . by implication[] means that there must exist the possibility that

the ban could be unconstitutional in the face of an as-applied challenge”). 

Heller does not say whether this “presumption” was rebuttable or

irrebuttable. If it is rebuttable, moreover, by what can it be rebutted?

Again, the opinion is silent. Perhaps the best reading of this footnote is

that the presumption is irrebuttable. Just as structural error “requires

automatic reversal,” Washington v. Recuenco, 548 U.S. 212, 218 (2006),

so the status of being a felon automatically establishes that those

individuals do not have the constitutional right to possess firearms. See

United States v. Vongxay, 594 F.3d 1111, 1117 (9thCir. 2010) (upholding

§ 922(g)(1)’s restriction on firearm possession for felons, and noting that

“to date no court that has examined Heller has found 18 U.S.C. § 922(g)

constitutionally suspect” (internal quotation marks omitted)). The

language in Heller suggests that felons are, for now at least, conclusively

outside the scope of the Second Amendment.
42 UNITED STATES V. CHOVAN

The majority construe the Heller Court in these two

passages to be recognizing two different hurdles separating

citizens from the core right of the Second Amendment. The

first hurdle determines whether someone is a felon or

mentally ill. If so, this person is presumptively disqualified

from the Second Amendment’s protection. I agree with this

interpretation of the first passage.

The majority construe the second passage, however, as

recognizing a further hurdle over which individuals must leap

to assert their core right to keep and bear arms in defense of

the home. Although individuals have access to a non-core

Second Amendment right if they are not felons or mentally

ill, the majority conclude, only those deemed “law-abiding”

and “responsible” can lay claim to the “core” right of the

Second Amendment to possess firearms for self-defense in

the home. Without articulating a reason, the majority

construe the terms “law-abiding” and “responsible” as

recognizing a second standard, stricter than the

“presumptively lawful” disqualification of felons and the

mentally ill. That second standard, the majority conclude,

again without explanation, excludes domestic violence

misdemeanants. Maj. Op. at 14.

I construe the second passage differently. The terms of

the second passage correspond precisely to the terms of the

first passage. They are two sides of the same coin. “Lawabiding” in the second passage corresponds to “felon” in the

first passage. “Responsible” in the second passage

corresponds to “mentally ill” in the first passage. Thus, Iread

Heller’s second passage as restating the first passage. Heller

does not cast doubt on “prohibitions on the possession of

firearms by felons and the mentally ill,” which is another way

of saying that the Second Amendment establishes rights to
UNITED STATES V. CHOVAN 43

possess firearms for defense of the home in “law-abiding,

responsible citizens.”

If, as under the majority’s reading, the terms “lawabiding” and “responsible” are not tied to “felons” and

“mentally ill,” how are the lower courts to recognize the

limits of the “law-abiding, responsible citizen” standard?

Why should we stop with domestic violence misdemeanors

in defining categorical disqualifications from the core right of

the Second Amendment? Why not all misdemeanors? Why

not minor infractions? Could Congress find someone once

cited for disorderly conduct to be “not law-abiding” and

therefore to have forfeited his core Second Amendment right?

Why should not legal determinations that were made without

any trial at all disqualify individuals from the core Second

Amendment right? Note, § 922(g) does not stop with

convictions. Section 922(g)(8), for instance, even curtails

Second Amendment rights based on restraining orders, with

no trial at all, but rather with only a hearing of which the

defendant received notice and the opportunity to participate.5

 

5

 The statute 18 U.S.C. § 922(g)(8) states:

[It shall be unlawful for any person] who is subject to

a court order that—(A) was issued after a hearing of

which such person received actual notice, and at which

such person had an opportunity to participate; (B)

restrains such person from harassing, stalking, or

threatening an intimate partner of such person or child

of such intimate partner or person, or engaging in other

conduct that would place an intimate partner in

reasonable fear of bodily injury to the partner or child;

and (C)(i)includes a finding that such person represents

a credible threat to the physical safety of such intimate

partner or child; or (ii) by its terms explicitly prohibits

the use, attempted use, or threatened use of physical
44 UNITED STATES V. CHOVAN

Compare United States v. Reese, 627 F.3d 792, 802 (10th Cir.

2010) (finding intermediate scrutiny to be the correct level of

scrutiny under which to analyze § 922(g)(8) because it targets

a “narrow class[] of persons who, based on their past

behavior, are more likely to engage in domestic violence,”

and upholding the law on that ground), with United States v.

Knight, 574 F. Supp. 2d 224, 226 (D. Me. 2008) (finding that

§ 922(g)(8) satisfies strict scrutiny because “reducing

domestic violence is a compelling government interest” and

the prohibition is “temporary” and therefore “narrowly

tailored”). Why should we not accept every congressional

determination for who is or is not “law-abiding” and

“responsible” for Second Amendment purposes?

Why not? Because Heller was a constitutional decision. 

It recognized the scope of a passage of the Constitution. The

boundaries of this right are defined by the Constitution. They

are not defined by Congress. See NRA, 714 F.3d at 345

(Jones, J., dissenting) (“In any event, it is circular reasoning

to adopt a level of scrutiny based on the assumption that the

legislature’s classification fits that level.”).

As we have seen, in the Founding period, felonies

historically resulted in disqualification from certain rights,

but misdemeanors did not, nor did infractions, nor restraining

orders. I therefore conclude that domestic violence

misdemeanants are not disqualified from the core protection

of the Second Amendment, and that § 922(g)(9) accordingly

should be analyzed, not under intermediate scrutiny, but

force against such intimate partner or child that would

reasonably be expected to cause bodily injury, [to

possess in or affecting commerce, any firearm or

ammunition.]
UNITED STATES V. CHOVAN 45

under strict scrutiny. See United States v. Engstrum, 609 F.

Supp. 2d 1227, 1231 (D. Utah 2009) (finding that strict

scrutiny is the correct rigor of analysis to apply to § 922(g)(9)

because, first, Heller described the right to keep and bear

arms as “fundamental,” 554 U.S. at 593, and second, because

Heller classified the Second Amendment right alongside the

First and Fourth Amendments which are traditionally

analyzed under strict scrutiny, but still upholding the statute

under strict scrutiny analysis).

III.

To be sure, strict scrutiny is a rigorous standard. The

Supreme Court has called it “‘strict’ in theory but usually

‘fatal’ in fact.” Bernal v. Fainter, 467 U.S. 216, 219 n.6

(1984) (“Only rarely are statutes sustained in the face of strict

scrutiny.”) (citing Gerald Gunther, The Supreme Court, 1971

Term—Foreword: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal Protection,

86 Harv. L. Rev. 1, 8 (1972)). But see Adarand Constructors,

Inc. v. Peña, 515 U.S. 200, 237 (1995) (“[W]e wish to dispel

the notion that strict scrutiny is strict in theory, but fatal in

fact.”) (internal quotation marks omitted).

Scholarly analysis shows that federal courts uphold

around thirty percent of the laws they analyze under strict

scrutiny. Adam Winkler, Fatal in Theory and Strict in Fact:

An Empirical Analysis of Strict Scrutiny in the Federal

Courts, 59 Vand. L. Rev. 793, 862–63 (2006). Moreover,

federal courts uphold Congressional statutes under strict

scrutiny about half the time. Id. at 818.

There are several theories regarding what the purpose of

strict scrutiny is, and what sorts of governmental acts can
46 UNITED STATES V. CHOVAN

satisfy its rigorous requirements. One theory defines strict

scrutiny as upholding laws that undeniably burden

constitutional rights only “when the government can

demonstrate that infringements are necessary to avoid highly

serious, even catastrophic harms.” Richard H. Fallon, Jr.,

Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1302 (2007)

(describing several competing theories of strict scrutiny

analysis); see City of Richmond v. J.A. Croson Co., 488 U.S.

469, 521 (1989) (Scalia, J., concurring) (arguing that “At

least where state or local action is at issue, only a social

emergency rising to the level of imminent danger to life and

limb . . . can justify an exception to” constitutional rights

under strict scrutiny analysis); Lee v. Washington, 390 U.S.

333, 334 (1968) (Black, J., concurring) (stating that the

governmental goals of “maintaining security, discipline, and

good order” in a prison can satisfy strict scrutiny analysis).

As Justice Thomas has argued, another way to say

“compelling governmental interest” is “pressing public

necessity.” Fisher v. Univ. of Texas at Austin, 133 S. Ct.

2411, 2423 n.1 (2013) (Thomas, J., concurring). This

“pressing public necessity” consists “only[of]those measures

the State must take to provide a bulwark against anarchy, or

to prevent violence.” Grutter v. Bollinger, 539 U.S. 306, 353

(2003) (Thomas, J., concurring in part and dissenting in part).

I have already suggested that free speech doctrines should

not be applied to Second Amendment restrictions that are

based on the status of the individual. See supra, Part II.b. 

More analogous to status-based restrictions on the right to

keep and bear arms would be restrictions on the freedom of

association. Freedom of association cases often involve

governmental action that restricts association based on the

status or conduct of the individuals, just as § 922(g)(9)
UNITED STATES V. CHOVAN 47

restricts the right to keep and bear arms for particular persons

based on their status and previous conduct. In both cases,

moreover, this governmental action is often directed towards

preventing violence and preserving public safety.

Federal courts apply strict scrutiny to freedom of

association cases. Roberts v. United States Jaycees, 468 U.S.

609, 623 (1984) (“Infringements on [the right to associate]

may be justified by regulations adopted to serve compelling

state interests . . . that cannot be achieved through means

significantly less restrictive of associational freedoms.”). 

Despite applying strict scrutiny, however, federal courts still

often uphold statutes affecting freedom of association; in

particular, federal courts uphold freedom of association

regulations under a strict scrutiny analysis “when the asserted

justification for the laws was public safety or effective law

enforcement.” Winkler, supra, at 868; see, e.g., Tabbaa v.

Chertoff, 509 F.3d 89, 92 (2d Cir. 2007) (finding under strict

scrutiny analysis that customs officials did not violate

plaintiffs’ freedom of association rights by detaining and

searching plaintiffs at the border when they returned from an

Islamic conference in Canada because “given the intelligence

[the officials] received, the inspection policy was narrowly

tailored to achieve the compelling governmental interest in

preventing potential terrorists from entering the United

States”); Grider v. Abramson, 180 F.3d 739, 749, 752 (6th

Cir. 1999) (finding under strict scrutiny analysis that

municipal officials did not violate plaintiffs’ freedom of

association rights with their crowd control plan during a KKK

rally because the plan “constituted a necessary constraint

narrowly fashioned to further a compelling governmental

interest in public safety and order” to prevent “disorderly

conduct, breaches of the peace, and serious injuries to persons

and property”).
48 UNITED STATES V. CHOVAN

In our case, too, based on the data the majority discuss in

detail, the government’s interest in public safety and

preventing gun violence is sufficiently compelling and

narrowly tailored to satisfy those prongs of strict scrutiny

analysis. See Maj. Op. at 23–27; cf. United States v.

Armstrong, 706 F.3d 1, 8 (1st Cir. 2013) (finding that

§ 922(g)(9) satisfies constitutional scrutiny “under any

standard”).

Section 922(g)(9) frames the governmental interest: to

prevent life-threatening harm to a predictable group of

victims, i.e. those who have suffered domestic violence, from

a predictably violent set of convicted criminals, i.e. those who

have been convicted of a domestic violence misdemeanor. 

As the majority note, there is a sufficient body of penalogical

knowledge regarding recidivism in domestic violence cases

to satisfy the compelling interest element required in strict

scrutiny analysis. Maj. Op. at 25–26; see also Skoien,

614 F.3d at 642–44 (discussing these studies in detail). 

Moreover, as the Supreme Court has stated, § 922(g)(9)

targeted a particular deficiency in the felon-in-possession

statute.

Existing felon-in-possession laws, Congress

recognized, were not keeping firearms out of

the hands of domestic abusers, because “many

people who engage in serious spousal or child

abuse ultimately are not charged with or

convicted of felonies.” 142 Cong. Rec. 22985

(1996) (statement of Sen. Lautenberg). By

extending the federal firearm prohibition to

persons convicted of “misdemeanor crime[s]

of domestic violence,” proponents of
UNITED STATES V. CHOVAN 49

§ 922(g)(9) sought to “close this dangerous

loophole.” Id.[] at 22986.

United States v. Hayes, 555 U.S. 415, 426 (2009).

As to “narrow tailoring,” the second element of the strict

scrutiny test, it is important to note that § 922(g)(9) applies

only to those domestic violence convicts who remain

convicted. Misdemeanants hold in their own hands the power

to remove the taint of conviction and rejoin the protected

class of those who may possess firearms. They can seek

pardon, expungement, set-aside of their conviction, or

restoration of civil rights. 18 U.S.C. § 921(a)(21)(B).6 The

frequency of such expungements, moreover, seem to have

risen in many states since the enactment of § 922(g)(9). See

Robert A. Mikos, Enforcing State Law in Congress’s Shadow,

90 Cornell L. Rev. 1411, 1463–64 & nn. 187–88 (2005).

In answer to Chovan’s as-applied challenge, California,

where Chovan was convicted, makes expungement of

misdemeanor convictions a right. Under § 1203.4a(a) of the

California Penal Code, all misdemeanants can have their

 

6

 The statute 18 U.S.C. § 921(a)(21)(B) states:

A person shall not be considered to have been

convicted of such an offense for purposes of this

chapter if the conviction has been expunged or set

aside, or is an offense for which the person has been

pardoned or has had civil rights restored (if the law of

the applicable jurisdiction provides for the loss of civil

rights under such an offense) unless the pardon,

expungement, or restoration of civil rights expressly

provides that the person may not ship, transport,

possess, or receive firearms.
50 UNITED STATES V. CHOVAN

convictions expunged after completion of their sentences if

they have not been charged with or convicted of a further

crime and have “lived an honest and upright life.” Moreover,

defendants must be informed of this right to expungement

“either orally or in writing, at the time he or she is

sentenced.” Id. at § 1203.4a(c)(1). Prosecuting attorneys

have fifteen days from the filing of the petition for dismissal

with the court to object. Id. at § 1203.4a(f). This

participation of the district attorneys in the process allows

California to maintain some adversarial integrity in the

expungement proceedings, as the district attorney can oppose

the motion if the convict’s rehabilitation is doubtful. This

system places the evaluation of the convict’s rehabilitation,

vel non, in the state. Indeed, California courts have

interpreted § 1203.4a(a) to mandate expungement when

misdemeanants have complied with its terms. See, e.g.,

People v. Chandler, 250 Cal. Rptr. 730, 734 (Cal. Ct. App.

1988) (“[A] defendant moving under Penal Code section

1203.4a is entitled as a matter of right to its benefits upon a

showing that he has fulfilled the conditions of probation for

the entire period of probation. It was apparently intended that

when a defendant has satisfied the terms of probation, the

trial court should have no discretion but to carry out its part

of the bargain with the defendant.”) (citations and quotation

marks omitted).

Section 922 is in part a federalism-based statute. It looks

to state law, passing restrictions on certain convicts based on

decisions made by state legislatures and courts. Section 922

also ceases to apply if convicts have satisfied the state

procedures for expungement. This helps the statute satisfy

the narrow tailoring prong of strict scrutiny. It allows those

who no longer pose a threat to society to demonstrate their

rehabilitation and reclaim their Second Amendment rights. 
UNITED STATES V. CHOVAN 51

It is not a blunt instrument. Rather, it targets only those

whom the states continue to deem not rehabilitated. It is

therefore narrowly tailored to the goal of preventing only

those who pose the greatest risk to potential domestic

violence victims from possessing guns.

With the aforementioned considerations in mind, I

conclude that § 922(g)(9) advances a compelling

governmental interest, and does so in a narrowly tailored

manner. Therefore, the statute satisfies strict scrutiny

analysis.

IV.

The Heller opinion did not provide lower courts with

explicit guidance on how to analyze challenges to statutes

under the Second Amendment. If we are to apply the familiar

tiers of scrutiny analysis in Second Amendment cases, instead

of a pure textual, historical, and structural analysis, however,

history and precedent still dictate a more stringent

examination of these issues than the majority allow. Strict

scrutiny has become an integral aspect of much of our

constitutional jurisprudence. See Fallon, supra, at 1268

(ranking strict scrutiny “among the most important doctrinal

elements in constitutional law”). After applying strict

scrutiny to § 922(g)(9), I come to the same conclusion as do

the majority, and uphold the law. The close look afforded by

strict scrutiny, however, ensures that the law truly is narrowly

tailored to further a compelling governmental interest, and

ensures that the Second Amendment’s contours are drawn by

the Constitution, and not by Congress.