F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

D A N I E L E D W

A R D C H O V A N , D efendant-Appellant

. No. 11-50107

D.C. No. 3:10-cr-01805-J AH-1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California J ohn A. Houston, District J udg e, Presiding

Arg ued and Submitted F ebruary 1 5, 2012—Pasadena, California

F iled November 18, 2013

B efore: Harry

Preg erson, Michael Daly Hawkins, and Carlos T. B ea, Circuit J udg es.

Opinion by

J udg e Preg erson; Concurrence by

J udg e B eaU N I T E D S T A T E S V

. C H O V A N 2

SUMMARY *

Crim inal Law /Second Am endm ent

The panel affirmed the district court’s denial of a motion
to dismiss an indictment in a cas e i n w h i ch the defendant contended that 18 U.S.C. § 9 22(g ) (9), which prohibits persons convicted of domestic v iolence misdemeanors from possessing firearms for life, v iolates his Second A mendment rig ht to bear arms a

nd does not apply to him because his civil rig hts have been restored.

The p anel held that the defendant’s 1996 misdemeanor domestic violence conviction did not divest him of c ivil rig hts because it did not divest him of the rig ht to vote, the rig ht to

serve on a jury , or the rig ht to hold p ublic office, and that he therefore cannot q

ualify for the “civil righ ts restored”

e x c e ption to § 922(g )(9). The panel also r ejected the defendant’s a

rg ument that the civil rig hts restored ex c eption violates the Equal Protection Clause.

The panel held that intermediate scrutiny applies to the Second Amendmen t c l aim, and that § 922(g )(9) is constitutional on its face and as applied to the defendant.

Concurring in the result, J udg e B ea wrote separately to

ex p ress his d i s a greement w ith the majority ’s default d e termination that persons convicted of domestic violen c e misdemeanors are thereby disqualified from the core rig ht o f

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. C H O V A N 3

the Second Amendment to possess firearms for defense o f the home.

COUNSEL

Devin B urstein, F ederal Defenders o f San Dieg o, I nc., San Dieg o, California, for Defendant-Appellant

Caroline P. Han, Assistant United States Atto rney , San Dieg o, California, for Plaintiff-Appellee.

OP INION

PREGERSON, Circuit J udg e :

F ollowing the entry of a conditional g uilty plea, Da n i el Chovan a ppeals the district court’s denial of his motion to dismiss an indictment ag ainst h im for violation of 18 U .S.C. § 922(g )(9). Section 922(g )(9) prohibits persons convicted o f domestic v iolence misdemeanors from possessing f irearms 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 rig ht to bear arms. I n the alternative, he
argu e s that § 922(g )(9) does not apply to him because his civil rig hts have been restored w it h i n t he meaning o f 18 U.S.C. § 921(a)(33)(B )(ii). W e have jurisdiction pursuant to 28 U.S.C. § 1291. W e r e j ect Chovan’s “civil rig hts restored” arg ument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g ) (9) under intermediate scrutiny

.U N I T E D S T A T E S V

. C H O V A N 4

F A CTUAL & P ROCEDURAL BACK G ROUND

I n 1 996, Daniel Chovan was convicted in California state court of the misdemeanor of i n flicting corporal injury on a spouse in violation of California Penal Code § 2 73.5(a). The victim, Chery

l F ix

, 1 w a s l iving with Chovan at the time. 2 Chovan was sentence d t o 1 2 0 day s in jail and three y ears o f supervised release.

B e cause of this conviction, Chovan was prohibited from possessing firearms u nder b oth state and federal law. Under C alifornia Penal Code § 12021(c)(1), which at the ti m e applied to misdemeanants g enerally

, Chovan was barred from owning

, purchasing

, r eceiving

, or h aving in his possession o r under h is custody or control, any firearm for a ten-y ear period following his conviction. B u t under 18 U.S.C. § 92 2 ( g) (9 ),

a federal statute that applies only to p e rsons c o n v i c ted o f misdemeanor domestic violence crimes, Chovan w as barred from possessing any

firearm for life.

Section 922(g )(9) establishes two ex c eptions u n d e r which the statute w ill no long er a pply : ( 1 ) “ i f the conviction has been ex pung ed or set aside”; or (2) if the offender “has been pardoned or h as had ci v i l rig hts r estored (if the law of the applicable j u r i sdiction provides for the loss of civil rig hts under such an offense).” 18 U.S.C. § 921(a)(33)(B )(ii).

1 Fix m arried Ch o v an i n

1 9 97 an d ch an g ed

h er last n am e to “ Ch ov an .” W e ref er to h er as Fix th ro u g h o u t t h is op in io n f

or th e sak e o f clarity

. Fix

an d Ch o v an

sep arated in

2 00 9

.

2 Calif o rn ia P en al Co d e § 27 3 .5 (a) d o es n o t req u ire t h at t h e p arties b e

m arried

, bu t rath er ap p lies t o an y p erso n w h o w illf u l ly in f licts co rp o ral in j u ry “ u p on a p erso n w

h o is h is o r h er sp o u se, f

o rm er sp o u se, co h ab itan t, f o rm er co h ab itan t, o r th e m o t h er o r f ath er o f h is o r h er ch ild . . . .”U N I T E D S T A T E S V

. C H O V A N 5

These ex ceptions are not met if “the pardon, ex p ung e ment, o r restoration of civil rig h ts e x p r essly provides that the person may not ship, transport, possess, or receive firearms.” Id.

I n 2009, Chovan a

p p lied to purchase a firearm from a San Dieg o area g un dealer. He completed a required application form a nd answered “no” to the q u estion whether he had ever been convicted of a misdemeanor crime of domestic violence. His p urchase application was de n i ed after a backg r ound check revealed his 1 996 misdemeanor c onviction of domestic violence. At the time of his application, Chovan could leg ally
possess a firearm under California law because ten y ears h ad
p a s s e d since his 1996 c o n viction, but § 922(g ) (9) continued to bar him from possessing a firearm.

The F B I received information about Chovan’s attempted purchase and beg an investig ating C h o v a n. During their investig ation, F B I ag e n ts found videos o n the I nternet depicting Chovan and others shooting ri f l e s and conducting “border patrols” near the U.S.-Mex ico border.

The F B I also learned that in Mar c h 2 010, San Dieg o County Sheriff deputies responded t o a domestic dispute at Chovan’s residence. F ix

, Chovan’s then-estrang ed wife, told the officers that Chovan had b ecome violent, hit her with a cell phone, and threatened to hunt her down and shoot her if she ever left him. F ix said that she believed Chovan’s threats because he had weapons inside his house.

On April 15, 2010, F B I a

nd B ureau of Alcohol, Tobacco, F irearms and Ex p losives ag ents e x ecuted a search warrant o f Chovan’s house. I n the course of their search they found a nd confiscated four firearms

, including a Hig h Standard .22 caliber handg un that b elong ed to Chovan, and 532 rounds o fU N I T E D S T A T E S V

. C H O V A N 6

assorted ammunition. F ederal a g ents arrested Chovan the day after the search. During his arrest, Chovan admitt e d t h a t he had pos s e ssed and fired the firearms several times since his 1996 domestic violence conviction. A two-count indictment

was broug ht ag ainst Chovan. Count One alleg ed that Chovan had knowing ly possessed firearms in violation of § 9 22(g ), and Count Two a lleg e d that h e had made a false statement in the acquisition of a fir earm in v iolation o f 18 U .S.C. § 924(a)(1)(A).

Chovan moved to dismiss Count One, contending that (1) § 922(g )(9) is an unconstitutional v iolation of the Second Amendment; (2) his civil rig hts were “restore d ” within the meaning of § 921(a)(33)(B )(ii), a nd 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 d istrict cour t d en i ed Chovan’s motion to dismiss, concluding that § 922(g )(9) “is

a presumptively lawful p r ohibition and represents an

ex e mption from the rig h t to bear arms under the Second Amendment as articulated in [ District of Columbia v

. Heller

, 554 U.S. 570 (2008)] .”

C h o v an pled g uilty to Count One of the indictme n t , pursuant to a conditional p l ea ag r e e ment that preserved his rig ht to appeal the denial of h is motion to dismiss. 3 Chovan

was sentenced to five y ears probation. Chovan timely appealed the denial of his motion to dismiss.

3 Co u n t T w o w as d ism issed as a p art o f th e p lea ag reem en t an d is n ot at issu e in th is ap p eal.U N I T E D S T A T E S V

. C H O V A N 7

STANDARD OF REVIEW

W e review de nov o the constitutionality of a statute. United States v. Vongx a

y , 5 9 4 F .3d 1111, 1114 (9th Cir. 2010). W e also review d e novo constitutional challeng es to a district court’s denial of a motion to dismiss. Id.

D ISCUSSION

Chovan arg ues on appeal th a t § 922(g ) (9) violates the Second Amendment because it is an impermissible restriction

on the individual and fundament a l r i ght to bear arms. He

a l t ernatively arg ues that § 9 2 2(g )(9) does not apply to him because his c i v i l rig h ts were restored when his ten-y ear b an

on owning firearms u nder California state l aw ex pired, a nd thus that his c onviction should be v acated. W e disag ree with both arg uments.

I. Civil Rights Restored

W e start by addressing Chovan’s non-constitutional
arg ument that § 922(g )(9) does not apply to him because his civil rig hts have been rest o r e d. 4 Section 921(a)(33)(B )(ii) prevents the application of § 922(g )(9) in situations w here a defendant’s “ civil rig hts” have bee n restored. Chovan contends that his c ivi l rig hts were restored within the meaning of § 9 21(a)(33)(B )(ii) when his r ig ht t o o wn

4 S ee Dep ’t o

f Co mmerce v. U

n ited S ta tes H

o u se o f R e p re s en ta tives
, 5 2 5 U.S. 3 1 6
, 3 4 3

– 4 4 (1 9 9 9 ) (citin g Ash wa n d er v. Ten n

. Va l l ey Au t

h

. , 2 9 7 U.S. 2 8 8
, 3 47 (1 9 3 6 ) (B ran d eis, J
., co n c ur r i n g ) (“ [I]f a case can b e d ecid ed o n eith er o f tw o g ro u n d s, on e in v o lv in g a co n stitu t io n al q u estio n , th e o th er a q u estio n o f statu to ry co n stru ctio n o r g en eral law

, t h e Co u rt w i l l d ecid e o n ly

th e latter.”)).U N I T E D S T A T E S V

. C H O V A N 8

firearms was restored under California law ten y ears after his 1996 conviction.

Section 9 21(a)(33)(B )(i i) does not define the term “civil

r ig hts.” I n United S

tates v. Brailey

, however, we addres s e d how to interpret the term. 408 F .3d 609, 611–13 (9th Cir. 2005). I n 1997, J ames David B railey was convicted in Utah of a misdemeanor crime o f domestic violence. Id. at 610–11. As a result of this conviction, he was barred from possessing f i rearms under then-ex isting Utah state law. Id. at 611

. I n 2000, however, Utah amended its statutes such t h a t B railey and other misdemeanants were no long er prevented from possessing firearms. Id. a t 610–11. B railey was subsequently charg ed with f

i r e arm possession in violation of § 922(g )(9). Id. at 610. He app e al e d t he § 922(g )(9) conviction, maintaining that his civil rig hts had been restored within the meaning of § 921(a)(33)(B )(ii) because his rig ht to possess a g un had been restored under Utah law. Id.

W e rejected B railey ’s arg ument, concluding that his civil rig hts had n ever been “lost” beca u s e his misdemeanor conviction had not taken away his “core civil rig hts”: the rig ht to vote, to sit as a juror, or to hold public office. I d

. at 613. B e cause B railey ’ s ci v i l r ig hts had never been lost, we reasoned that they could not have b e en restored. W e noted that most other circuits had also concluded that, “where civil rig hts are not d ivested for misdemeanor convictions, a person convicted of a misdemeanor cr i me of domestic violence
cannot benefit from the federal restoration ex ception.” Id. at 612 (citing United States v. Jennings
, 323 F .3d 263 (4th Cir. 2003); United State s v. Barnes
, 295 F .3d 1354 (D.C. Cir. 2002); United States v. Smith

, 171 F .3d 6 17 (8th Cir. 1 999));

se e a l s o Logan v. United S

tates , 552 U.S. 23, 37 (2007) (holding that a different “civil rig hts restored” ex ception didU N I T E D S T A T E S V

. C H O V A N 9

not apply to “an offender who lost no civil rig hts”). Thus, we concluded that B raile y f ailed to meet § 922(g ) (9)’s civil rig hts restored ex ception.

Chovan arg ues that Brailey ’s reading of the civil rig hts

r e stored ex ception is too narrow a nd “create[ s] an equal protection problem. ” According to Chovan it is unfair that under Brailey

, individuals w ho lose the rig ht to vote, serve on

a jury

, or hold public office b ecause of their convictions but later have these rig hts restored can possess firearms, while individuals like Chovan who never lost these rig hts cannot.

Chovan’s equal protection arg ument is foreclosed by our decision in United S

tates v

. H ancock

, 231 F .3d 557 (9th Cir. 2000). I n 1994 and 19 9 5
, G ary H ancock was convicted o f four Ariz ona state misdemeanors involving violence o r t h r e ats of violence a g ainst h is wife. Id

. at 5 60. I n 19 9 9
, Hancock was c onvicted o f possessing a fi r e ar m in violation of § 922(g ) (9). Id

. On appeal, Hancoc k a rg ued that his indictment should have been dismissed o n equal protection
g rounds. I

d

. at 565. He arg ued that i n Ariz ona, domestic violence misdemeanants are t r eated more harshly under § 9 22(g )(9) than felo n s b ecause Ariz ona misdemeanants, unlike felons, are not deprived of their civil rig hts and a s a result can never have their civil rig h ts restored. Id. at 566.

Apply ing rational b a s is review, we rejected Hancock’s
eq u a l p rotection claim. Id. at 566–67. F irst, we ex p lained that when Cong ress enacted § 9 22(g ) (9), it “was a ware of the discrepancies in state p rocedures for revoking and r estoring civil rig hts

. . . . [ D] isparate treatment of some offenders was the inevitable result of C o ng ress’ decision to ‘look to state l a w t o define the restoration ex ception.’” Id. (citing Unite d States v

. Smith

, 171 F .3d 617, 625 (8th Cir. 1999)). Second,U N I T E D S T A T E S V

. C H O V A N 10

we noted that in a ddition to the civil rig hts restored ex ception, § 922(g ) (9) p r o v i d e s “several adequate leg al mechanisms” for which b o th misdemeanants and felons can qualify : “ pardon,

ex p ung ement, and setting aside of convictions.” I d. at 567. Viewing the two ex ceptions t o g ether, we found that “Cong ress reasonably could c oncl u d e that felons who h ad been throug h a stat e ’ s r e storation process and had reg ained their civil rig h t s

. . . were more fit to own firearms than domestic-violence m i s demeanants who had not h ad their convictions ex pung ed o r been pardoned.” Id

. W e therefore upheld the civil rig hts restored ex c eption under rational basis review as at least “minimally rational.” Id.

Here, we apply B railey and conclude that Chovan’s 1996

m i s d e m e a n o r domestic violence c o n viction did not dives t h i m of civil rig ht s b e c au s e it did not divest him of the rig ht to vote, the rig ht to serve o n a jur y , or the rig ht to h o ld public

o f f i c e

. B ecause Chovan never lost these “core” c ivil rig hts, he cannot qualify for the c ivil rig hts restored e x c eption to § 922(g )(9). F urther, we reject Chovan ’ s a r g ument that the civil rig hts restored ex c e ption violates t h e Equal Protection Clause for the same reasons we ar t i c ulated in Hancock

. Id. at 566–67.

II. Second Am endm ent Challenge

Having concluded tha t Chovan does not qualify f o r the “civil righ t s r estored” ex c e ption, we turn to his Second Amendment challen ge t o § 922(g )(9). Chovan’s Second Amendment arg

ument is predicated on the Supreme Court’s holding in District of Columbia v. Heller that the S e co nd Amendment protects “an i n d ividual rig ht to k eep and bear arms.” 554 U.S. 570, 595 (2008).U N I T E D S T A T E S V

. C H O V A N 11

I n Heller

, the Suprem e C o u r t struck down District o f Columbia laws banning handg un possession in the h ome a nd

r e q uiring all firearms in homes to be unloaded a n d disassembled or “bound by a trig g er lock or similar device.” Id. at 630, 6 3 5

. W hile the Heller Court declined to “undertake a

n ex haustive h istorical analy sis

. . . o f th e full
scope of the Second Amendm e n t , ” i t did establish that the individual rig ht g uaranteed by the a mendment i s “ n ot unlimited.” Id. at 626–27.

The Heller Court sug g e sted that the core of t h e S e co nd Amendment rig ht is to allow “ law-abiding

, re s p onsible citiz ens 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 tex tual a nd historical analy sis of the amendment. See id. at 576–605. F inally

, the Court established that “weap o n s n ot ty pically possessed by law-abiding citiz ens for la w f u l purposes” a

re not protected by the Second A mendment, id. at 625, and that

c e r t a i n “ l ong standing prohibitions” are “presum p t i v e l y l a w f u l
reg ulatory

measures”:

[ N] oth i ng in our opinion should be taken to cast doubt o n long standing prohibitions on the possession of firearms by felons and t he mentally ill, or laws forbidding the carry ing o f firearms in sensiti v e places such as schools and g o vernment b uilding s, or laws imposing

c o n d i t i o n s a n d q u a l i f i c a t i o n s o n t h e commercial sale of arms.

Id. at 626–27; see also id. at 627 n.26; M c D o n ald v. City of Chicago

, 561 U.S. __, 130 S. Ct. 3020, 3047 (2010).U N I T E D S T A T E S V

. C H O V A N 12

The constitutionality of § 922(g )(9) i s a question o f first impression in this c ircuit, althoug h a number of other c ircuits have upheld the statute using vary ing rationales. W e briefly summariz e the different approaches taken by these circuits.

A. Approaches Taken By Other Circuits

1. U p h e l d a s a “ Pr e sumptively Lawful Longstandi n g Prohibition”: Eleventh Circuit

The Eleventh Ci rc uit considered the constitutionality o f § 922(g )(9) and upheld it as a “presum p t i v e ly lawful long standing prohibition[ ] .” United States v. W hite

, 593 F .3d 1199, 1 20 5 ( 1 1th Cir. 2 010). That court analog iz ed § 922(g )(9) to the f

elon-in-possession ban the Heller C o u rt listed as a presumptively lawful re s t r i ction, noting that “althoug h passed relatively recently

, § 922(g )(9 ) addresses the thorny p roblem of domestic v iolence, a problem Cong ress recog niz ed as not remedied by ‘long standing ’ felon-inpossession laws.” Id. at 1206. Concluding that “ Heller does
not cast doubt” on § 922(g )(9)’s cons t i t u t ionality because § 922(g )(9) is a presumptively lawful prohibition, a nd without further constituti o n a l analy sis, the Eleventh Circuit upheld the statute. Id.

Two o ther circuits have criticiz ed W hite ’s approach. I n United States v. Chester

, the F o urth Circuit stated that “for all practical purposes” W

hite tre a t s “

Heller ’s listing o f presumptively lawful measures” as a sort of “safe harbor for unlisted r eg ulatory measures, such as 28 U.S.C. § 922(g )(9)” that are “analog o us to those measures specifica l l y listed in H e l ler .” 6 28 F

. 3 d 673, 679 (4th Cir. 2010). The C h e s t e r

c o u rt criticiz e d the approach as “approx imat[ ing ] rationalbasis review, w hich has b e e n rejected by Heller .” Id. I nU N I T E D S T A T E S V

. C H O V A N 13

United States v. S

k o i en , the Seventh Circuit sitting e n banc declined to address whether § 922(g )(9) is p r e sumptively lawful, stating

, “W e do not think it profitable to parse the[ ]
passag es of Heller [ that list presumptively lawful measures]

as i f they c ontained an answer to the question whether § 922(g )(9) is valid.” 6 14 F .3d 6 38, 640 (7th Cir. 2010) (en banc).

2. Remanded to District Court to Apply Intermediate

Scrutiny: Fourth Circuit

I n Chester

, the F o u rth Circuit considered William Samuel Chester’s arg u ment that his § 922(g )(9) conviction abridg ed his rig ht to keep and b ea r arms under the Second Amendment. 628 F

. 3d at 674. T he c o u r t h e ld first that a two-part inquiry

applies to Second Amendment claims:

The first question is “ w h ether the challeng ed law imposes a burden on conduct fallin g within the scope of the Second Amendment’s
g uarantee. ”

. . . I f the challeng e d reg ulation burdens conduct that was within the scope of the Second A mendment as historically understood, then we move to the se cond step of apply ing an appropriate f orm of means-end scrutiny

.

Id. at 6 80 (quoting United States v. Marzzarella

, 614 F .3d 85, 89 (3d Cir. 2010)). After canvassing the historical evidence

on the Second A mendment rig h ts of domestic violence misdemeanants and f

i n d i n g i t “ i nconclusive,” the court stated, “W e must assume, therefore, that Chester’s Second A mendment rig h ts are intact and that he is entitled to someU N I T E D S T A T E S V

. C H O V A N 14

measure of Second A m endment protection to keep a nd
possess firearms in his home for self-defense.” Id. at 681–82.

I n its discussion of the s e cond step—whether the challeng ed reg ulation survi ves the appropriate level o f scrutiny —the F ourth Circuit noted that the Heller Court left
open the question of what level of scrutiny app l i e s to a law burdening Second Amendme n t-protected conduct, althoug h the Court made clear that rational basis review was not sufficient. Id. at 682. The Chester court went on to state:

Although Chester a sserts his rig ht to possess

a f irearm in his home for the purpose o f self-defense, w e be l ieve his claim is not within the core rig ht identified in Heller —the rig ht o f a law-abiding

, responsible citiz en to possess a n d carry a weapon for selfd efense—by virtue of Chester’s criminal history as a domestic v iolence misdemeanant. Hell e r , [ 554 U.S. at 635]

. According ly

, we conclude that intermediate scrutiny is more appropriate than s t rict scrutiny for Chester and similarly

situated persons.

Id. at 682–83. The Chester court found that the g overnment had not “car

r ied its burden of e stablishing a reasonable fit between the importan t object of reducing domestic g un violence and § 922(g )(9)’s perma nent disarmament of all d o m e s t i c

- v i olence misdemeanants,” and i t t h e r e f o r e remanded the case to afford t h e p ar ties the opportunity to present evidence on this question in the first instance. Id . at 683.U N I T E D S T A T E S V

. C H O V A N 15

3. Upheld After A

pplication of Intermediate or Heightened Scrutiny: F

irst, F ourth, and Seventh Circuits

I n United States v. Skoien

, the Seventh Circuit sitting en banc upheld § 922(g )(9) after assuming that intermediate scrutiny or its e quivalent a p p lied, and therefore that an “importa n t g o vernmental objective” and “substantially relat e d ” m eans were n ecessary to u phold the statute. 614 F

. 3d a t 641–42. The Seventh Circuit ex amined a number of studies supporting the relationship between § 922(g )(9) and the important g overnment interest of preventing g un violence. Id. at 642–44. The cour t n o t e d

, f or ex a mple, that it is established that “firearms c a u s e injury or d eath in domestic situations,” and that “[ d] omestic assaults with firearms are approx imately twelve times mo r e l ikely to e nd in the victim’s death than are assaults by knives or fists.” Id.
at 643 ( citing L inda E. Saltz man, J ames A

. Mercy
, Patrick W. O’Carroll, Mark L . Rosenberg & Philip H. Rhodes, W eapon I n volvement and Injury Outcomes in Family and Intimate Assaults

, 267 J

. Am. Med. Ass’n 3043 (1992)). T h e court also noted that “[ t] he presence of a g u n i n the home of a convicted domestic abuser is ‘strong ly and independ e ntly associated with an increased risk of homicide.’” Id. (quoting Arthur L

. Kellermann, et al., Gun Ownership as a Risk Factor for Homicide in the H

o m e , 3 29 N ew Eng land J

. Med. 1084, 1087 (1993)). I n lig h t of “[ b] oth log ic and data,” the Seventh Circuit held that keeping g un s f r om domestic violence misdemeanants i s substantially related to the g overnment interest of preventing

g un violence. I

d. at 642.

The Skoien c o urt a lso held that § 9 2 2 (g ) (9) was constitutional as applied to Skoien. Id. at 645. S k o i en contended that § 922(g )(9) was not substantially related to anU N I T E D S T A T E S V

. C H O V A N 16

important g overnment objective because it “perpetual[ ly ] ” disqualifies all persons convicted o f domestic violence, even people who had not b een in leg al trouble for many y ears. Id.

a t 6 44. The court rejected Skoien’s arg ument, emphasi z i n g the s t a tute’s ex ceptions under which domestic violence misdemeanants may reg ain their rig hts to possess fir e a r m s. The court also noted,

Skoien is poorly situa t ed to contend that the
statute creates a lifetime ban for someone who does not pose any risk of further o ffenses [ because] Skoien is himself a recid ivist, having been convicted twice of domestic battery

. . . . A person to wh o m a statute properly applies can’t o b tain relief based on arg uments that a differently s ituated person mig ht present.

Id. at 645 (citing United States v. Salerno

, 481 U.S. 739, 745 (1987)).

The F irst Circuit similarly upheld § 922(g )( 9 ) a fter apply ing the equivalent of intermediate sc r u tiny

. United States v

. Booker

, 644 F .3d 12, 25 (1st Cir. 2011). The Booker
court found that while § 922(g )(9) “appears c onsistent with Heller ’s reference to certain presumptively lawful reg ulatory measures,” any “categ orical ban on g un o wnership by a class of individ u al s m ust be supported by some form of ‘strong showing

, ’ necessitating a substantial relationship between the restriction and an important g overnmental objective.” Id. at 25. The court upheld § 922(g )(9) a fter concluding that social science research supported a f i n ding of “a substantial relationship between § 922(g )(9)’s di s q ualification o f domestic violence misdemeanants from g un own e rship a ndU N I T E D S T A T E S V

. C H O V A N 17

the g overnmental interest in preventi n g gun violence in the home.” Id.

F inally

, the F ourth Circuit in United States v. St a t en considered the constitutionality o f § 922(g )(9) on a full record after its decision in Chester

. Unlike in Chester

, w h e re the
court r emanded the application of intermediate scrutiny to the district court b ecause the record w as incomplete, in Staten the
court upheld § 92 2 ( g ) (9) under intermediate scrutiny

. 666 F .3d 154, 167 (4th Cir. 2011). The Staten court first h eld that the g overnment had carried its burden of establishing that reducing domestic g un violence is a substantial g overnment

o b j e c tive. Id. at 161. The court then ex amined the social science studies cited by the g overnment and fo und that the
g overnment had established that:

(1) d omestic violence is a serious problem in the Uni t ed States; (2) the rate of recidivism
among domestic violence mis d e meanants is substantial; (3) the use of firearms in connection with d omestic violence i s all too
common; (4) the use of firearms in connection

w i t h domestic violence increases the risk o f injury or homicide during a domestic violence incident; and (5) the use of firearms in connection w ith domestic violence often leads to injury or homicide.

Id. at 167. T h e court concluded that the g overnment h ad therefore “carried its bur d e n o f establishing a reasonable fit between the substan t i a l g overnment objective of reducing domestic g un violence and keeping f irearms o ut o f the h ands of [ d omestic violence misdemeanants] ”. Id.U N I T E D S T A T E S V

. C H O V A N 18

B. Chovan’s Second Am endm ent Challenge

After considering the approaches taken by other c i rcuits that c onsidered the constitutionality o f § 922(g ) (9), we hold

as follows. W e adopt the two-step Second Ame ndment inquiry undertaken by the Third C i rcuit in Marzzarella

, 614 F .3d at 89, and the F o urth Circuit in Chester

, 628 F .3d at 680, among other circuits. Apply ing that inquiry

, w e hold that § 922(g )(9) b u rdens conduct fall i n g within the scope o f the Second Amendment’s g uarantee and t h a t intermediate scrutiny applies to Chovan’s Second Amendment challeng e

. F inally

, like the F irst, F ourth, and Seventh Circuits, we a pply 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

T he two-step Second Amendment inquiry we ado p t (1) a sks w hether the challeng e d law burdens conduct protected by the Second Amendment and (2) i f s o , directs
courts to apply an appropriate level o f scrutiny

. Chester

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

. 3d at 89.

W e believe this two-step inquiry reflects the S u p r eme Court’s holding in Heller that, w hile the Second A mendment protects an individual r ig ht to keep and bear arms, the scope of that rig ht is not unlimited. 554 U.S. a t 626–27. The twostep inquiry is also consisten t w i th the approach taken b y other circuits considering various f i r earms restrictions postHeller

. See, e.g. , Heller v

. District of Columbia

, 670 F .3d 1244, 1 251–58 (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, F ourth, Seventh, T enth, and D.C. Circuits in holdingU N I T E D S T A T E S V

. C H O V A N 19

that the two-step framework outlined above applies to Second Amendment challeng es.

2. Applying the Two-Step I nquiry: Section 922(

g ) ( 9) A f f e c t s S e c o n d A m e n d m e n t R i g h t s a n d Intermediate Scrutiny Applies

At the f i r s t s tep of the inquiry

, we conclude that b y p r o h i b i t i n g d o m e s t i c v i o l e n c e m i s d e m e a n a n t s f r o m possessing firearms, § 922(g )(9) burdens rig hts protected by the Second Amendment.

S e c t ion 922(g )(9) is not mentioned in Heller

. T h e g overnment arg ues that § 922(g )(9) is a presumptively lawful
reg ulatory measure and d oes not burden rig h t s historically understood to be protected b y the S e c ond Amendment. According to the g overnment, § 922(g )(9) is part o f a “ long line of prohibitions a

nd restrictions on the rig ht to possess firearms by people perceived as dang erous or violent.”

W e do not ag ree. Fi r s t , i t is n ot c lear that such prohibitions are so long standing. The first federal firearm restrictions reg arding violent offenders were not passed until 1 9 3 8
, a s part of the F ederal F irearms Act. See C. Kev i n Marshall, W

hy Can’t Martha Stewart H ave a Gun?
, 32 Harv. J .L

. & Pub. Pol’y 695, 6 98, 708 (2009) (noting that “one can with a g ood deg ree of confidenc e s a y t h at bans on convicts
po s sessing firearms were u nknown before W orld W a r I ”). Second, a

nd more i m p o r tantly

, the g overnment has not proved that domestic violence misdemeanants in particular have historically been restricted from bearing arm s

. The Fe d e ral F irearms Act of 1938 only restricted f irea r m possession for those individuals convicted o f a “cri m e o f violence,” defined as “murder, manslaug hter, rape, may hem,U N I T E D S T A T E S V

. C H O V A N 20

kidnapping

, burg lary

, housebreaking

, and certain forms o f
ag g r avated assault—assault with intent to kill, commit rape,

or rob; assault with a dang erous weapon, or ass a u l t w ith intent to commit any offense punishable by imprisonment for

more than o ne y ear.” Id. at 699 (internal quotation m arks omitted). Domestic v iolence misdemeanants—like Chovan,

w h o w as c onvicted of simple misdemeanor assault unde r Califo rn ia Penal Code § 273.5(a)—would not be restricted from p ossessing firearms under the F e deral F irearms A ct. I n fact, domestic violence misde m e anants were not restricted from possessing firearms until 1996, with the passag e of the L autenberg Amendment to the Gun Contro l A c t of 1968. Pub. L

. No. 104-208, § 658, 1 10 Stat. 3009, 3009-371 (1996).

B ecause o f “the lack of historical evidence in the record before us, we are certainly n ot a b le to say that th e S e co nd Amendment, as historically understood, did not apply to persons convicted of domestic violen c e misdemeanors. W e must assume, therefore, that [ Chovan] ’ s Second A mendment rig hts are intact and that he is entitled t o s o m e measure o f Second Amendment protection to k eep a nd possess f

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

W e now reach the second step of the Second A mendment inquiry

. I n H

eller

, the S u p r e m e Court did not specify what level of scrutiny cou r t s m u s t apply to a statute challeng ed under t h e S e c ond Amendment. The Heller Court did, however, indicate that rational ba s i s review is not appropriate. See Heller , 554 U.S. at 628 n.27 (“I f all that was required to

overcome the rig h t to keep and bear arms was a rational basis, the Second A mendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have

no effect.”). Having con c l uded that § 922(g ) (9) burdens Second Amendment rig hts, we r eject rational basis r eviewU N I T E D S T A T E S V

. C H O V A N 21

and con cl u d e that some sort of heig htened scrutiny must apply

.

I n determining the app r o p r iate level of scrutiny

, other circuit courts have looked to the F irst Amendment a s a g uide. See, e.g. , Chester

, 628 F .3d a t 682; Marzzarella

, 614 F .3d at 89 n.4, 96–97; Ezell

, 651 F .3d at 7 03, 707. We ag r e e with these courts’ determinat ion that, just a s in the F irst Amendment contex t, the level of s c r u tiny in the Second Amendment contex t should d epend on “the nature o f the conduct being reg ulat e d a n d the deg ree to which the challeng ed law burdens the rig ht.” See Chester , 628 F .3d at 6 8 2 ; see also Marzzarella

, 614 F .3d at 96–97. M o r e specifically

, the level of scrutiny should depend on (1) “how close the law c omes to the core of the Second A mendment rig ht,” and (2) “the severity of the law’s burden on the r ig ht.” Ezell , 651 F .3d at 703.

Heller tells us that the c ore of the Second Amendment is “the rig ht of law-abiding

, r esponsible citiz ens to use arms in defense o f hearth and home.” 554 U .S. at 635. Sect i o n 92 2 (g )(9) does not implicate this core Second A mendment rig ht b ecause it reg ulates fi rearm possession for individuals with criminal convictions. “ A ltho u gh [Chovan] asserts his rig ht to possess a firearm in his home for the purpose of selfdefense, we b elieve his claim is n o t within the core rig ht identified in Heller

—the rig ht of a law-abiding, responsible citiz en to possess and carry a weapon for self- d e f e n se—by virtue of [ Chovan] ’s criminal history as a domestic violence misdemeanant.” Chester

, 628 F .3d at 682–8 3 ; cf

. Ezell

, 651 F

. 3d at 708 (finding that a challeng ed statute implicated the core Second A mendment rig ht because “the plaintiffs are the ‘law- a

biding

, responsible citiz ens’ whose SecondU N I T E D S T A T E S V

. C H O V A N 22

A m e n d m e n t r i g h t s a

r e e n t i t l e d t o f

u l l s o l i c i t u d e u n d e r H e l l e r ”).

The burden the statute places o n domestic viole n ce misdemeanants’ rig hts, h o wever, is quite substantial. Unlike the reg ulations in Marzzarella or Heller II , § 922(g )(9) does
not mer e l y r e g ulate the manner in which persons may

ex e r cise their Second A men d m en t rig hts. Cf. Marzzarella

, 614 F .3d at 97 (concluding that obliterated serial n u m bers
reg ulation “does n o t s everely limit the possession o f firearms” b e cause “[ 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 o f C olumbia’s g un reg istration requirements were not a severe b u r d en because they d o not “p r event[ ] an individual from possessing a firearm in his home or el s e where”). I nstead, as Chovan
arg ues, § 922(g )(9) amounts t o a “total prohibition” on firearm possession f

or a class of individuals—in fact, a “lifetime ban.” As such, the statut e i s a more “serious encroachment” on the Second Amendment r i ght. See Ezell

, 651 F .3d at 7 0 8. B ut Chovan g oes too far w h e n h e arg ues that § 922(g )(9) is too broad because it “contains no provision limiting its a

pplicability .” As e x p lained above, § 922(g )(9)

ex e mpts those with ex p un ge d

, p ardoned, or set-aside convictions, or those w ho h ave h a d their civil rig hts r estored. Therefore, w hile we recog niz e that § 922(g )(9) substantially burd e n s Second Amendment rig hts, the burden is lig htened by these ex c eptions.

I n sum, § 9 2 2 ( g )(9) does not implicate the core Second Amendment r ig ht, b ut it does p l a ce a substantial burden onU N I T E D S T A T E S V

. C H O V A N 23

the rig ht. According ly

, we conclude that intermediate rather than strict scrutiny

is the proper standard to apply

. 5

3. Applying Intermediate Scrutiny, W e Uphold § 922( g) ( 9 ) and Its Application to Chovan

Althoug h courts h ave used various t e r m i nolog y to describe t h e intermediate scrutiny standard, all f orms o f the standard require (1) the g o v ernment’s s t a t e d objective to be sig nificant, substantial, or important; and (2) a reasonable fit between the challeng ed reg ulation a n d the asserted objective. Chester

, 628 F .3d at 6 83. As w e ex p lain below, § 922(g )(9), both on its face a

nd as applied to Chovan, survives intermediate scrutiny

.

a. Important Government Interest

Chovan c oncedes that § 922(g )(9) was motivate d by the important g overnment interest of “ keeping firearms away from those most likely to misuse them” o r “preventing g un violence.” W e ag r ee that § 9 22(g ) (9) advances an important
g overnment objective, b ut define the objective slig htly more narrowly , as preventing domestic g un violence.

5 Mo st co u rts h av e also f

o u n d th at in term ed iate scru tin y o r its eq u iv alen t i s th e p ro p er stan d ard to ap ply to Seco n d A m en d m en t ch allen g es t o § 9 2 2 (g )(9 ) an d sim i lar statu tes. S ee, e

. g

. , Bo o ker

, 6 4 4 F.3 d at 25 ; Ch ester , 6 2 8 F.3 d at 6 8 2

– 8 3 ; Ma rzza rella

, 6 14 F.3 d at 9 7 ( a p p ly in g in term ed iate scru tin y to Seco n d Am e n d m en t ch allen g e o f 18 U.S.C. § 9 22 (k ), a ban o n p o ssessio n of f irearm s w ith o b literated serial n u m b ers); Reese
, 6 2 7 F.3 d at 8 0 2 (ap ply i n g in term ed iate scru tin y to Seco n d A m en d m en t ch allen g e o f 1 8 U.S.C. § 9 2 2 (g )(8 ), w h ich ban s t h e p o ssessio n o f f

irearm s b y t

h o se su b j ect to d o m estic p ro tectio n o r d ers); Heller II , 6 70 F.3 d at 1 2 5 7 (ap p ly in g in term ed iate scru tin y to District o f Co lu m b ia’ s f irearm reg istratio n

req u irem en ts).U N I T E D S T A T E S V

. C H O V A N 24

T hat t h e government interest behind § 922(g ) (9) was to prevent domestic g un violence is apparent from the face o f the statute and its leg islative h i s t o r y

. As the g overnment

ex p lains, the 1996 passag e of § 922(g )(9) w as motivate d b y the concern that g uns were not being kept awa y f r o m domestic abusers under felon-in- p o ssession laws because “many people who eng ag e in s e r ious spousal or child abuse ultimately a

re not charg ed with o r convicted of fe l o n i es.” Skoien

, 614 F .3d a t 643 ( quoting 142 Cong

. Rec. 22985 (1996) (statement of Sen. L au t enberg ) (internal quotation marks omitted)); see also United S tates v. Haye s , 5 55 U.S. 415, 426 (2009); United States v. W hite

, 593 F .3d 1 199, 1205 (11th Cir. 2010). Throug h § 9 22(g ) (9), Cong r e s s soug ht to “close this d a n ge r ous loophole” and “establish[ ] a policy o f

z ero tolerance when it comes to g uns and domestic v iolence.” Booker

, 6 44 F .3d at 16 (quoting 142 Cong

. Rec. S8831 (daily ed. J uly 25, 1996) (statement of Sen. L autenberg) ( i n ternal quotation marks omitted) ( emphasis added )). Thus, the leg islative history of § 922(g )(9) shows that Cong ress did not enact the statute for the purpose of “preventing g un v iolence,”

as Chovan arg ues. I nstead, Cong ress p a s sed § 922(g )(9) to prevent domestic g u n violence.

W e and o ther circuits have previously de f i n e d the
g overnment intere s t behind § 922(g )(9) in this way

. I n United States v. Belless

, we noted that th e p u r p o se o f § 922(g )(9) is “to k e ep firearms out o f the h ands of people whose past v iolence in d omestic relationships makes them untrustworthy custodians of d e a d l y force.” 338 F .3d 1063, 1067 ( 9th Cir. 2003). I n B ooker

, the Fi r s t C ircuit similarly defined the interest behind § 9 22(g ) (9) as “keeping g uns away from people who have been p ro v en to eng ag e in vi o lence w ith those with whom they share a d omestically intimate or familial relationship, or who live with them or theU N I T E D S T A T E S V

. C H O V A N 25

like.” 644 F .3d at 2 5

. F inally

, in Staten
, the F ourth Circuit defined the interest behind § 922(g )(9) as “reducing domestic
g un violence.” 666 F .3d at 161 (emphasis added).

I t is self-evident that the government interest o f preventing domestic g u n violence is important. See Booker

, 644 F .3d at 25 (“[ K] eeping g u ns away from people who have been proven to eng ag e in [domestic] violence

. . . is undeniably important.” (citing Carey 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 hig hest order in a free and civiliz e d society .”))). W e hold that the
g overnment has met its burden to show that redu cing domestic g un violence is an important g overnment objective.

b. Substantially Related to G overnment Interest

Keepingg uns from domestic violence misdemeanants is substantially related to the broader inter e s t of preventing domestic g un violence for four related reasons. F irst, we ag ree w i t h the g overnment that the leg islative history indicates that Cong ress enacted § 922(g ) ( 9) because it soug ht
to r each the p eople who had demonstrated violence, but were not kept from possessing firearms by § 922(g )(1) because domestic abusers a

re not often co n v icted of felonies. See Hayes , 129 S. Ct. at 1087.

Second, we ag ree with the g overnment that “a h ig h rate o f domestic violence recidivism ex ists.” T h e g overnment relies

on Skoien

, in which the Seventh Circuit pointed to a number of studies estimating a rate of domestic violen c e recidivism between 35% a n d 8 0 %

. See Skoien

, 614 F .3d a t 643–44. Estimates of “[ t] he full recidivism r ate,” which “includes violence that does not lead to a n arrest,” “rang e from 4 0% toU N I T E D S T A T E S V

. C H O V A N 26

80% ‘when victims are followed long itudin a l ly a nd interviewed d i r e c tly .’” 6 14 F .3d at 644 (citing Carla Smith Stover, Domestic Violence Res
., 2 0 J

. I nterpersonal Violence 448, 4 50 ( 2005)). The Skoien court also cited two o t h er studies that estimated the full recidivism rate to be 35% a nd 52%, respectively

. I

d. (citing J ulia C. B abcock, e t a l.

, D o e s Batterers’ Treatment W ork? A M

eta-A n a l ytic Review of Domestic Violence Treatm ent , 23 Clinical Psy chol. Rev. 1023, 1039 (2004) (estimating a 35% recidvism rate b a sed on partners’ reports); J ohn H

. L aub & Robert J

. Sampson, Understanding D e s i s t a nce from Crime
, 28 Crime & J ust. 1, 31 (200 1 ) ( e stimating that only 4 8% of domestic abusers “suspended” t h eir abusive conduct w ithin three y ears o f conviction)).

Th ird, we ag ree with the g overnment that domestic abusers use g uns. The g overnment ex p lains that “Cong ress acknowledg ed that the use of g u ns in inc i d e n ts of domestic violence wa s a co mpelling concern,” and cites to the Cong r essional Record i n which Cong ress found that “annual l y , o ver 150,000 incidents of domestic violence involve a g u n.” See United S tates v

. S m i t h

, 742 F

. Supp. 2d 855, 867 ( S.D.W .Va. 2010) ( citing Cong

. Rec. 22,986)). The
g overnment further r e l i es on the fact, articulated in Booker

, that “ nearly 52,000 individuals w ere murdered by a domestic intimate between 1976 and 1996, a n d t h e perpetrator used a firearm in roug hly 65% of the murders.” Booker

, 644 F .3d at 26.

F inally

, we ag r ee with the g overnment that the use o f
g uns by domestic ab u s e r s i s more likely to result in the victim’s death. The g overnment cites a medical study relied
upon in Skoien for the proposition that incidents of domestic violence involving firearms a r e twelve times more likely t oU N I T E D S T A T E S V

. C H O V A N 27

end in the victim ’ s death than incidents where a perpetrator is either unarmed or armed with a k n i f e a l one. See Skoien

, 614 F .3d at 643 (citing L inda E. Saltz man, J ames A. Mercy
, Patrick W. O’Carroll, Mark L

. Ro s e n berg & Philip H

. Rhodes, W

eapon Involvement and Injury Outcomes in Family and Intimate Assaults

, 267 J

. Am. Medical Ass’n 3043 (1992)).

Putting these four c onclusions tog ether, the g o vernment has demonstrated that domestic violence misdemeanants a re likely to commit acts of domestic violence ag ain and that, if they do so with a g un, the risk o f d eath to the victim is sig nificantly increased. W e hol d that the g overnment has thereby met its burden to show that § 922(g )(9)’s p rohibition

on g un possession by d o m e s t ic violence misdemeanants is substantially r e lated to the important g overnment interest o f preventing domestic g un violence. B ecause § 9 22(g )(9) is supported by an important g overnment interest a nd substantially related to that interest, the statute passes constitutional muster under intermediate scrutiny

.

c. Chovan’s As-Applied Challenge

Chovan arg ues that § 922(g )(9) is unconstituti o n al a s applied to him be cause his 1 996 domestic violence conviction occurred f ifteen y ears before his § 922(g )(9) c onviction, he is unlikely to recidivate, and he has in fact been law-abiding for those fifteen y ears.

Chovan cites several statistics in support of his arg ument that h e is at low r i s k o f r ecidivism. He cites the Sentencing C o m m i s s i o n ’ s M

e a s u r i n g R e c i d i v i s m s t u d y , w h i c h establishes that those with stable employ ment are less likely
to recidivate and that “‘[ r ] ecidivism is comparatively low forU N I T E D S T A T E S V

. C H O V A N 28

the lowest sentences (less than six m o nths or probation).’” S e e M ea s u r i n g R e c i d i vi s m : T h e C r i m i n a l H

i s t o r y Computation of the Federal S entencing Guidelines at 12, 1 4). He a l s o cites a National I nstitute f o r J ustice study for the proposition that people w h o remain o f fense free for as long as Mr. Chovan (and indeed for much shorter periods) pose a recidivism r isk equal to that of the g e neral po p u l a t i o n. See B lumstein & K. Nakamur a , ‘Redemption’ in a n Era of W idespread Criminal Background Checks

, NI J J ournal, J u ne 2009, at 10).

B u t the Sentencing Commission statistics do not reve al the a ctual rate of recidivism for those with stable employ ment

or short sentences; the statistics only establish that individuals in those two categ ories have comparatively lower recidivism
rates than individuals in o t her categ ories. Measuring Recidivism at 14. Moreover, none of Chovan’s statistics has
to do with individuals c onvicted of domestic violence crimes specifically

. The National I nstitute for J ustice study mentions only burg lary

, robbery

, and ag g ravated assault; it does not mention domestic violence, nor does it make conclusi ons

a b o u t i n d i v i d u a l s c o n v i c t e d o f c r i m e s g e n e r a l l y

. ‘Redemption’ at 12. Meanwhile, the g overnment has referred
to domestic violence studies menti oned by the Skoien court showing that the recidivism rates for individuals convicted o f domestic violence is sig nificant—between 35 and 80 percent. See Skoien , 614 F

. 3 d at 643–44.

Chovan also arg ue s t h a t he has not been arrested for domestic viol e n c e since the 1996 conviction and has otherwise b e en law- a b i d i ng

. He arg ues that a March 2010 domestic violence call made b y his estrang ed wife and victim

o f the act of domestic v iolence underly ing the 1996 conviction, Chery l F ix

, should not be held a g ainst himU N I T E D S T A T E S V

. C H O V A N 29

because it did not r esult in a charg e or even arrest a nd
amounts to “unsubstan t iated alleg ations.” W hen San Dieg o County Sheriff deputies responded to the call, F ix told them that Chovan h ad become v iolent with her, struck her wi t h a cell phone, and threatened to hunt her down and shoot her if she ever left him.

Althoug h Chovan was not arrested for domestic violence,

we nonetheless consider the March 2010 domestic abuse c all and F ix ’s statements

. T h e call is p art of the record. And it sh o u l d b e c onsidered, especially in lig ht of o n e of the underly i n g rationales of § 922(g )(9): acts of domestic violence are under-reported and often do not lead to arrest o r conviction. S

e e S k o ien
, 614 F .3d at 643 (ex plaining that in enacting § 922(g )(9) Cong ress recog niz ed that the felon-inpossession b an did not k eep g uns aw a y from domestic abusers because many domestic a b u s e r s are never charg ed with or convicted of f

e lonies (quoting 142 Cong

. Rec. 22,985 (1996) (statement of Sen. L autenberg )))

. T h e March 2010 domestic abuse call supports the conclusions that Chovan is
at risk of recidivism for d omestic v iolence and that Chovan mig ht use a g u n to commit future domestic violence. I n lig ht of the domestic abuse call, § 922(g )(9)’s applicati o n t o Chovan is su b s t a n tially related to the g oal of reducing domestic g un violence.

B u t even if we were to set aside the March 2010 domestic abuse call and assume that Chova n h a s had no h istory o f domestic v iolence since 1996, Chovan has not presented evidence to directly contradict the g overnment’s e v idence that the rate of domestic violence recidivism is hig h. N or has h e directly p roved that if a domestic abuser has n o t committed domestic violence f or fifteen y ears, that abuser is hig hly u n l ikely to do so ag ain. I n the absence of suchU N I T E D S T A T E S V

. C H O V A N 30

evidence, we conc l u de that the application o f § 922(g )(9) to Chovan is substantially related to the g o vernment’s important interest of preventing

domestic g un violence.

F in a l l y , we n ote that if Chovan’s a s-applied challeng e succeeds, a sig nificant ex ception to § 922(g ) (9) would
emerg e. I f Cong ress had wanted § 922(g )(9) to apply only to individuals with recent dom es t i c violence convictions, it could have easily created a limited duration rather than lifetime ban. Or it could h ave created a g ood behavior clause under which individuals without new domestic violence
arrests or charg es w ithin a certain number of y ears o f conviction would automatically reg ain their rig hts to possess firearms. B ut Cong ress did not do so. Cong ress permissibly created a broad statute that only ex cepts those indivi d u a ls with ex p ung ed, pardoned, or set aside convictions and those individuals who have had their civil rig h ts restored. See S k o i e n , 6 1 4 F

. 3 d a t 6 4 1 ( “ [ S ] o m e c a t e g o r i c a l disqualifications are permissible: Cong ress is not limited to case-by -case ex clusions of persons who have been shown to be untrustworthy with w eapons, nor n eed these limits b e established by evidence presented in court.”). The breadth o f the statute and the n arrowness of t h e s e e x ceptions reflect C o n g ress’s ex press intent to e stablish a “z ero toleran c e policy ” towards g

uns and domestic violence.

B e cause the application o f § 9 2 2(g )(9) to Chovan is substantially related to the g overnment’s important interest o f preventing domestic g un v iolence, Chov a n ’s as-applied challeng e fails.U N I T E D S T A T E S V

. C H O V A N 31

CONCLUSION

F or the foreg o ing r easons, we reject Chovan ’ s “civil rig hts resto r ed” claim, hold that intermediate scrutiny is the
proper standard to apply to h is Second Amendment c laim, and uphold § 922(g )(9) and its application to Chovan u n d er intermediate scrutiny

. AF F IRMED.

B EA, Circuit J udg e, concurring :

I concur in the r e sult of this case. I write separately to

ex p ress my disag reement w i th the majority ’s default determination that persons convicted of domestic v i o lence misdemeanors are thereby disqualified from the core rig ht o f the Second Amendment to p ossess firearms for defense of the home. Fi rst, however, let me detail the points o n which the majority and I ag ree.

I

.

B a sed o n the weig ht of authority of o ur sister circuits, the majority opinion decides to apply to this Second A mendment

case the f

amiliar “scrutiny ” tes t s that have become the method of a

naly sis of c hall e n ged leg islation under the F irst Amendment. B ecause appellant does n ot arg ue this point but accepts it, see B lue B r. at 24 (arg uing that strict scrutiny should apply ), I

will treat the point as waived and accept the application of the tiers o f scrutiny analy sis to the Second Am e n d m e nt jurisprudence. But see Heller v

. Dist. of Columbia

, 670 F

. 3d 1 2 44, 1271 (D.C. Cir. 2 011) (Kavanaug

h, J
., dissenting ) ( “Are g un bans and reg ulations to be analy z e d b ased on the Second Amendment’s tex t, history

,U N I T E D S T A T E S V

. C H O V A N 32

and tradition[ ,]

. . . [ o ] r may judg es re-calibrate the scope o f the Second A mendment rig ht based on judicial assessment o f whether the law advances a sufficiently compelling o r important g o vernment interest to override the indi v i d ual rig ht?

. . . I n my view, Heller and McDonald leave little doubt that courts are to ass es s gu n bans and reg ulations based on tex t, history

, a n d t r adition, not by a b alancing test such a s

s t r i c t o r i n t e r m e d iate s c r u t i n y

. ” ) ; E u ge n e V o l o k h

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

, 56 UCL A L

. Rev. 1443, 1 4 43, 1461–73 (2009) (“ [ U ] n i t ary tests such a s ‘strict scrutiny ,’ ‘intermediate scrutiny ,’ ‘undue burden,’ and the like don’t make sense here” i n t h e Second Amendment contex t because the lang uag e of Heller seems to foreclose scrutiny a

naly sis).

I ag ree with the majority that, if w e a re to apply the “tiers of scrutiny ” to our Second Amendment j u r i s prudence, the
correct way to do so is the two-step inqui r y adopted b y several other circuits, whereby we “(1) a s k [ ] whether the challen g e d law burdens conduct protected by the Second Amendment and (2) if so,

. . . apply the appropriate level o f scrutiny .” Maj. Op. at 18.

I also ag ree with the majority ’s application of step one. I t correctly holds that there is insufficient ev i d ence to conclude that the pr o hibition o n misdemeanants owning firearms i s “long standing .” T herefore, Chovan’s “Second Amendment rig h ts are intact.” Maj. Op. at 20 (quoting United States v. C

h ester , 628 F .3d 673, 681–82 (4th Cir. 2010)).U N I T E D S T A T E S V

. C H O V A N 33

I f urth e r ag ree with the majority o pinion when, at step two, it “recog

niz e[ s] that 18 U.S.C. § 9 22(g )(9) substantially burdens Second Amendment rig hts.” 1 Maj. Op. at 22.

F in a l l y , I ag ree with the majority that if one applies intermediate scrutiny

, § 922(g )(9) would satisfy this level o f scrutiny

. The g overnmental interest in preventing a possible recidivist from committing more serious violence throug h the

use of a g un is a “substantial g overnmental inter e st,” a nd § 922(g )(9) constitutes a “reasonable f i t ” between the leg islation and its g oal. Maj. Op. at 23–27.

I I

.

The sole basis of my d i s a g r e ement with the majority opinion is the “default” effect o f the misdemeanor conviction. I call it “ default” because, w ithout ex planation, 2 the majority held Chovan’s domestic v iolence misdemea nor conviction deprives him of his core rig ht to g un p o s s e s s i o n f or selfdefense in the home, which, the Supreme Court held in Heller

, the Secon d A mendment g ives a “law-abiding

,

1 I d o n o t, h o w ev er, th i n k th e b u rd en “ is lig h t en ed ” to so m e d eg ree b y t h e ex cep tio n s f

o r th o se w

h ose co n v ictio n s h av e b een p ard o n e d

, ex p u n g ed

, o r set- asid e, an d f o r th o se w

h o h av e h ad t h e i r civ il rig h ts resto red

. Maj

. Op

. at 2 2

. If th e co n v ictio n s are n o lo n g er ex tan t, th ere is

n o bu rd en w

h atso ev er. If th e co n v ictio n rem ain s, th e f u ll b u rd en ob tain s. T h ere is n o “ lig h t” b u rd en

.

Re m o v al o f th e co n v ictio n s is relev an t, h o w ev er, to th e n arro w

tailo rin g req u irem en t o f

th e strict scru tin y

test. S ee in fra , at 4 9 –5 1

.

2 I w o u ld s ay ip se d ixit , ex cep t so m e o th er co u rts d ixeru n t ’d f

irst. S ee, e.g

. , Ch ester , 6 2 8 F.3 d at 6 82

– 83

. So , th is is m o re o f an arg u m en t f

ro m th e n o n

- b in din g au th o rity o f o u r sister circu its’ o p in io n s.U N I T E D S T A T E S V

. C H O V A N 34

responsible citiz en.” 3 The majority opinion in our case states that Chovan’s constitutional “claim is not within the core rig ht identified in Heller —the rig ht of a l a w-abiding, responsible citiz en to posse s s a nd carry a weapon for selfdefense—by virtue of [ hi s ] c r iminal history as a domestic violence misdemeanant.” M a j

. Op. at 14 (quoting Chester

, 628 F .3d at 682–8 3 )

. Therefore, it concludes, because § 922(g )( 9)’s burden, a lthoug h “substantial[ ]
, ” is not total, intermediate scrutiny is the correct standard. Id. at 22. “ I n sum,” the majority opinion concludes, “§ 922(g ) (9) does not implicate the core Second A mendment r ig ht

. . . .” Id. at 23.

W h y ?

a.

The majority opinion holds that Chovan forfeited his core Second Amendment rig ht when he was c o n v icted o f a misdemeanor. Id. a t 2 2 (stating that Chovan can no long er be considered a “law-abiding

, responsible citiz en

. . . by v irtue of [his] crim i n a l h istory as a domestic violence misdemeanant”). I n this, the majori t y a r e n ot alone. The F ourth Circuit has made a simi lar conclusion. See Chester

, 628 F .3d at 682–83.

This default disqualif

i cation of misdemeanants from the “core” r i gh t of the Second Amendment r esembles the Su p r e m e C o u

r t ’ s “ d i s q u a l i fication” lang u ag e reg arding felons in Heller

. The Court in Heller seemed to equate the status o f

3 It sh o u ld b e n o ted th at th e g u n s C h o v an w as f o u n d to p o ssess w ere (1 )
at h is h o m e, an d (2 ) o f th e k in d trad itio n ally u sed f o r d ef en se o f th e h o m e (a W i n ch ester sh o tg u n , a .2 2 calib er rif l e, .2 2 calib er h an dg u n , an d a B ald w i n & Co m p an y an tiq u e sh otg u n ).U N I T E D S T A T E S V

. C H O V A N 35

a felon or o f one mentally ill with a pre sumptive disqualification from the Second Amendment rig ht. S ee Dist. of Columbia v. Heller

, 554 U.S. 570, 631 (2008) (linking “disqualifi[ c a t i o n ] ” with being a felon or insane); id. at 635 (“Assuming that Heller is not disqualified from the ex ercise of Second Amendment rig hts, the District must permit him to reg ister his handg un and must issue him a license to c arry it in the home.”) (emphasis added).

J ust as Heller found felons to be presumpti v el y disqualified from the protection of the Second Amendment,

s o the majority have f ound a domestic violen c e misde m e a nant, 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 d o mestic violence misdemeanants. This conclusion, however, is mistaken. Throug hout history

, felons have been subject to forfeiture and d i s q ualification, but misdemeanants, in direct contrast to felons, have not.

At c ommon law, there was a fundamental difference between felons and misdemeanants. I n p articular, felonies resulted in forfeiture of property a nd righ t s

. 2 W illiam B lackstone, Commentaries * 96–97 (discussing forfeiture a s the historic al f

o undation of f

elony ); id. at *377 ( describing the possible punishments o f serious crime as i n cluding

“ c o n fiscation, by forfeiture of lands, or moveables, or bot h

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

, o f holding offi ce s o r employ ments, being heirs, ex ecutors, a nd the like”); see C. Kevin Marshall, W hy Can’t Martha Stewart Have a Gun?
, 32 Harv. J .L

. & Pub. Pol’y 695, 71 5 ( 2 009) (recogniz ing that at c o m mon law a felony could result in attainder a

nd “civil death,” whereby the felon could no long er “perform[ ] leg a l functions, such as being a witness or suing ”).U N I T E D S T A T E S V

. C H O V A N 36

M i s d emeanors, on the other hand, d id not; as the historia n T h e o dore Plucknett put it, “most of the characteristics o f criminal proceeding s did not attach to misdemeanours. Thus, they were n ot subject to

. . . forfeiture

. . . .” Theodore F rank Thomas Plucknett, A Concise Histor y of the Common Law 456 (19 5 6 ). Even today

, felons can suffer numerous restrictions on t h e ir c onstitutional rig hts. See United States

v. McCane
, 573 F .3d 1037, 1049 (10th Cir. 2 009) (Ty mkovich, J

. , c o n curring ) (“[ T] he application of § 922(g )
to a viole n t f

e l o n

. . . would appear appropriate under any Second Amendmen t r e ading

. A fter all, felons lose out on fundamental rig h ts such as voting and servingon juries, and face discrimination that need on l y survive rational basis review.”). I ndee d

, a s this court h as held, “felons a re categ orically differen t from the individuals who have a fundamental rig ht to bear a rms.” United States v. V

o n gxay , 594 F .3d 1111, 1115 (9th Cir. 2 010); see McLaughlin v. City of Canton, Miss
., 947 F

. Supp. 954, 9 7 5 (S.D. Miss. 1 995) (finding that “The historical distinction between felonies a nd misdemeanors is more than semantic. Tradi t i o n ally

, dire sanctions have attached to felony convictions which h ave not attached to misdemeanor c o nvictions. Many of these sanctions are in force today

. Dise n f ranchisement was, a

nd remains, one such sanction. A noth e r s u c h sanction is that which p r ohibits f

elons from owning or possessing firearms” and concluding that l a

w s d i senfranchising misdemeanants a re subject to strict scrutiny

).

Thus, althoug h felon disqualification f r o m the scope o f the Second Am e ndment makes sense from an historical perspective, the same cannot b e said for misdem eanants. F elon disqualification fro m the entire scope o f the Second Amendment d oes not justif y misdemeanant disqualification from the core o f the Second Amendment. See Volokh, supra ,U N I T E D S T A T E S V

. C H O V A N 37

at 1498 (“I f felon bans are upheld on the g rounds that felons have historically been seen as out s i d e the scope of v arious constitutional rig hts, t h en felon bans would offer a poor analog y for bans on posse s s i o n by misdemeanants (even violent misdemeanants) . . . .”).

b.

N o t only does the status-based analog y of felo n s t o misdemeanants no t make sense; selecting intermediate scrutiny as the correct level a t which to r eview a categ orical, status-based disqu a l i fication from the core rig ht of the Second Amendment also does not make sense.

Many circuits have chosen i n t e r mediate scrutiny to analy z e statutes that undeniably burden Second A mendment rig hts. They have often d o ne so based on an analog y b etween t h e r i g h t to free speech and the r ig ht to keep and bear a rms. I ndeed, as the Seventh Circuit has r ecog niz ed, “[ b] oth Heller and M cDonald sug g est that F irst A mendment analo gu es a re

. . . appropriate.” Ezell v. City of Chicago

, 651 F .3d 6 84, 706 (7th Cir. 2 011). The Seventh Circui t went on to summariz e the tie r s o f scrutiny at work in the realm of the F irst Amendment:

I n f ree-speech c a ses,

. . . conte nt-based
reg ulations are presumptively invalid, a nd thus g et strict scrutiny

. On th e o ther hand, time, place, and manner reg ulations on speech need only b e reasonable a nd justified without refere n ce to the c ontent of the r eg ulated speech.

. . . [ R] eg ula tions in a traditional publi c o r desig nated public forum g et strict scrutiny

, while reg u l a t ions in a nonpublicU N I T E D S T A T E S V

. C H O V A N 38

forum must n o t d iscriminate o n the basis o f view p o int and must be reasonable in lig ht o f the forum’s purpose.

Id. at 708 ( internal quotations marks and citations omitted). As the Tenth Circuit has stated, the rig ht to k eep and bear

arms “is qualified by what one mig ht c a ll the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why

. ’” United State s v

. HuitronGuizar
, 678 F .3d 1164, 1165–66 (10th Cir. 2012). The “when” and “where” qualifications are known in free-speech jurispr u d e n ce as time, place, a nd manner restrictions. The “what” and “why ” qualifications a r e content-based restrictions.

That leaves the “who,” a n d i t remains a sticking point. Categ orical re s t r ictions o f constitutional rig hts based on an individual’s c lass or status f it ill w i t h free-speech jurisprude n c e

. The Seventh Circuit has a rg ued that categ orical limits o n the Second Amendm e n t are analog ous to the c ateg orical limits in the f r ee-speech co n t ex t, such a s obscenity or defamation. U nited Sta tes v. Skoien

, 6 14 F .3d 638, 641 (7th Cir. 2010) (“Categ orical limit s o n the possession of f

irearms would not be a constitutional anomaly

. Think of the F irst A me n d m ent, which has long h ad categ ori c a l l i m i t s : o b s cenity

, defamation, incitement to crime, and others.”). These c ateg orical limits o n free speech, however, are based on what is said, not w ho is say ing it. Cf. Skoien

, 614 F .3d at 649–51 (Sy k es, J
., dissenting ) ( “Adapting F irst Amendment d octrine to the Second Amendment c ontex t i s s ensible in some cases

. . . . B ut this particul a r Fi r s t Amendm e n

t a n a l og y d oesn’t work here.”). Our constitutional jur i sprudence does not analy z e status-based restrictions on free speech under intermediate scrutiny

. A street-c orner harang u e o n the beauties of r e v o lution can perhaps beU N I T E D S T A T E S V

. C H O V A N 39

p r o h i b ited on g rounds that it presents a clear and presen t dang er of violence; but it cannot be prohibited solely because the speaker has a misdemeanor record.

J udg e J ones o f the F ifth Circuit recog niz ed t h i s incompatability between intermediate scrutiny and statusbased d isqualifications in her recent dissent from a denial o f rehear i n g en banc. Nat’l Rifle Ass’n, Inc. v. B u reau of Alcohol, Tobacco, Firearms, & E xplosives

, 714 F .3d 334 (5th Cir. 2013) (J ones, J
., d issenting from denial of reheari n g e n banc). She dis a g reed w ith the opinion’s conclusion that intermediate scrutiny w as the correct standard t o a pply to §§ 922(b)(1) and (c)(1), which prohibit feder a l l y licensed f i rearms dealers from selling handg uns to persons under t h e ag e 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 ca s e chose intermediate scrutiny b e cause “the ban on handg un sal e s to minors under 21 is analog ous to long standing

, p resum ptively lawful bans

on possession by felons and the mentall y ill.” Id. a t 206. J udg e J ones a

rg ued that such categ ori c a l ex clusions should not be analy

z ed under intermediate scrutiny

.

The p anel’s level o f scrutiny is b ased on an analog y between y oung a dults and felons a nd the mentally ill, as if a n y class-based limitation on the p ossession of f irearms justifies any ot h e r, so long as the leg islature finds the suspect “ discrete” class to be “dang erous” or “irresponsible.” On such reasoning

, a low level of scrutiny could be applied if a leg islature found that oth e r g roups—e.g . aliens, o r military veterans with PTSD—were “dang erous” or “irresponsible.”U N I T E D S T A T E S V

. C H O V A N 40

NRA
, 714 F .3d at 345 (J o nes, J
., dissenting )

. J udg e J ones is
correct. Categ o rical curtailment of constitutional r i g h ts based

on an individual’s status r equires more r ig orous analy sis than intermediate scrutiny

.

c.

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

a misdemeanant ex cludes him from the core protection of the Second Amendment, it construes H eller as erecting not o ne but two barriers preventing p e r sons from asserting their rig ht to keep and bear arms.

The majority quote two passag es from Heller a s pertinent
to ascertaining Cho v a n ’s Second Amendment rig hts. The fi r s t Heller passag e discusses presumptive disqualifications from the scope of the Second Amendment.

Althoug h we do n ot undertake an ex haustive historical analy sis to d a y of the full scope o f
t h e Second Amendment, nothing in our opinion shou l d b e taken to cast doubt on l o n g s t anding prohibitions on the possession o f firearms by f

elons and the mentally ill, o r laws forbidding the carry ing of firearms in sensitive places such as schools a nd
g overnment building s, o r laws imposing

c o n d i t i o n s a n d q u a l i f i c a t i o n s o n t h e commercial sale of arms.U N I T E D S T A T E S V

. C H O V A N 41

Heller

, 554 U .S. at 626–27. I n a f ootnote, the Court held that these restrictions were “presumptively lawful,” 4 and that the “list does not purport to be ex h austive.” Id. at 627 n.26.

A second Heller passag e, according to the maj o rity

, defines the “core” rig ht protected by the Second Amendment: “And whatever else [ the Second Amendment] leaves to future evaluation, it surely elevates a bove all o ther interests the rig ht of law-abiding

, responsible c itiz ens to use arms in defense o f hearth and home.” Id. at 635.

4 A lth o u g h th e co u r t i n H e l l er said law s th at d isq u alif y f elo n s f ro m p o sses s i n g firearm s w ere “ presu m p tiv ely law f

u l,” it d id n o t ex plain th is
p h rase. S ee Un ited Sta tes v. Ma rzza rella

, 6 14 F.3 d 8 5
, 9 1 (3 d Cir. 20 1 0) (statin g th at “ th e p h rase ‘ p resu m p t iv ely l aw f

u l’ co u ld h av e d if

f eren t

m ean in g s

. . . . [It] co u ld b e read to su g g est th e i d en tif ied restrictio n s are p resu m p tiv ely law f

u l becau s e th ey reg u late co n d u ct o u tsid e th e sco p e o f th e S e c o n d Am en dm en t. On th e o t h er h an d

, it m ay su g g est th e restrictio n s are p resu

m p tiv ely law f

u l b ecau s e th ey p ass m

u ster u n d er an y stan d ard o f scru tin y ,” b u t p ref errin g th e f

i rst read in g ); Un ited Sta tes v. W illia ms , 61 6 F.3 d 6 8 5, 69 2 (7 th Cir. 2 0 1 0 ) (statin g th at “ ‘ p resu m p tiv ely law f u l’

. . . b y im

p licatio n [] m ean s th at t

h ere m u st ex ist th e p o ssib ility th at th e b an co u ld b e u n co n stitu tio n al in t h e f ace o f an as- ap p lied ch allen g e”). Heller d o es n o t say w

h eth er th is “p r e su

m p tio n ” w as reb u ttab le or irreb u ttab le. If i t i s reb u ttab le, m o reo v er, b y w

h at can i t b e reb u tted ? A g a in

, th e o p i n io n is silen t. Perh ap s th e b est read in g o f th is f o o tn o te is th at th e p resu m

p tio n is irreb u ttab le. J u s t as stru ctu ral erro r “ req u i res

au to m atic rev ersal,” W

a sh in g to n v. Recu en co , 5 4 8 U.S. 2 1 2
, 2 18 (2 0 0 6 ),

so th e statu s o f b ein g a f elo n au to m atically estab lish es t h at th ose i n d i v i d u als d o n o t h av e th e co n s titu tio n al rig h t to p o ssess f irearm s. S e e Un ited S ta tes v. Vo n gxa

y , 5 94 F.3 d 1 1 1 1, 1 1 1 7 (9 th Cir. 2 0 1 0 ) (u ph o ld in g § 92 2 (g )(1 )’ s restrictio n o n f irearm p o s sessio n f

or f elo n s, an d n o t in g th at

“ t o d ate n o co u rt th at h as ex am in ed H eller h as f o u n d 1 8 U.S.C. § 92 2 (g )

c o n s t i tu tio n ally su sp ect” (in tern al q u o tatio n m ark s o m itted )). T h e lan g u ag e in Heller su g g ests th at f elo n s are, f

o r n o w at least, co n clu s iv ely

o u tsid e th e sco p e o f

th e Seco n d A m en d m en t.U N I T E D S T A T E S V

. C H O V A N 42

The majority construe the Heller Court in th e s e t w o passag es to be recog niz ing two d if fe r e n t hurdles separating citiz ens from the core rig ht of the Second Amendment. The first hurdle determines w h e t h e r someone is a f elon o r mentally ill. I f so, this person is pr e s u mptively disqualified from the Second Amendment’s protection. I ag r ee with this interpretation of the first passag e

.

The majority cons t r u e the second passag e, however, a s recog niz ing a further hurdle o ver which individuals must leap to assert their c ore rig h t to keep and bear arms in defense of the h ome. Althoug h individuals h ave access to a non-core Second Amendment rig ht if they a re n ot felons or mentally i l l

, the majority conclude, only those deemed “law-abidin g” and “ responsible” can lay claim to the “cor e ” rig h t of the Second A mendment to possess fi r earms for self-defense in the home. W ithout articulating a re a son, the majority
construe the terms “law-abiding ” and “responsible” a s

r e c o gn i z i n g a s e c o n d s t a n d a r d

, s t r i c t e r t h a n t h e “presumptively lawful” disqualification o f felons and the mentally ill. That second standard, t h e majority conclude,
ag ain without ex planation, e x c ludes domestic violence misdemeanants. Maj. Op. at 14.

I construe the second passag e differently

. T he terms o f the second passag e co r r e spond p recisely to the terms of the first passag e. Th ey are two sides of the same coin. “L awabiding ” in the second passag e corresponds to “felon” in the f i rst passag e. “ Responsible” in the second passag e corresponds to “mentally ill” in the first passag e

. Thus, I read Heller ’s second p assag e a s restating the first passag e. Heller does not cast doubt on “prohibitions on the possess i o n o f firearms by felons and the mentally ill,” w hich is another way

o f say ing that the Second Amendment establishes rig ht s t oU N I T E D S T A T E S V

. C H O V A N 43

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

, responsible citiz e ns.”

I f

, as under the majority ’s reading

, the terms “lawabiding ” a

nd “responsible” are not tied to “felons” a nd “mentally ill,” how are t h e l ower courts to recog niz e the limits of the “law-abiding

, responsible citiz en” st andard? W h y should w e stop with domestic violence misdemeanors in defining categ o rical d isqualifications from the core rig ht o f the Second Amendment? W hy n ot all misdemeanors? W h y not minor infractions? Could Cong ress find someone once cited for disorder l y conduct to be “not law-abiding ” a nd therefore to have forfeited his core Second Amendment rig ht? W h y should not leg al determinations that were made without
any tri al at all disqualify individuals from the core Second Amendment rig ht? Note, § 922(g ) do e s n ot stop with

c o n victions. Section 922(g )(8), f or instance, even curta i l s Second A mendment r ig hts based o n restraining orders, with

no trial at a ll, but rather w ith only a hearing o f w hich the defendant r eceived notice a nd the opportunity to participate. 5

5 T h e statu te 1 8 U.S.C. § 9 22 (g )(8 ) states:

[It sh all b e u n l aw f

u l f o r an y p e r s o n ] w

h o is su b j ect to

a co u rt ord er th at— (A) w as issu ed af ter a h earin g of

w h ich su ch p erso n receiv ed actu al n o tice, an d at w h ich

su ch p erso n h ad an o p po r t u n i ty to p articip ate; (B ) restrain s su ch p ers o n f ro m h arassin g , stalk in g , or th reaten in g an in tim ate p artn er o f su ch p erso n o r ch ild

o f su ch in tim ate p artn er o r perso n , o r en g ag in g in o th er

co n du ct th at w o u l d p l ace an in tim ate p artn er in

reaso n ab le f

ear o f b o d ily in

j u ry to th e p artn er o r ch i ld ;

an d (C)(i) in clu d es a f

in d in g th at s u ch p erso n rep resen ts

a cred ib le t

h reat to t h e p h y s ical saf

ety o f su ch in tim ate p artn er o r ch ild ; o r (ii) b y its t erm s ex p licitly p ro h ib its th e u se, attem

p ted u s e, o r th reaten ed u se o f p h y sicalU N I T E D S T A T E S V

. C H O V A N 44

Compare United States v. Reese
, 627 F .3d 792, 802 (10th Cir. 2010) (finding intermediate scrutiny to be the correct level o f scrutiny under which to a

naly z e § 922(g )(8) because it targ e ts

a “narrow c lass[ ] of pers o n s w h o , based on their past b e havior, are more likely to eng ag e in domestic viole n c e , ” and upholding the law on that g r ound), with United States v. Knight

, 574 F

. Supp. 2d 224, 226 ( D. Me. 2008) (finding that § 922(g )(8) satisfies strict scrutiny beca use “reducing domestic violence is a compelling g overnment inte rest” a nd the prohibition is “temporary ” and the refore “narrowly tailored”). W hy should we not a c c e pt every cong ressional determination for who is or is not “law-abiding ” a nd “responsible” for Second Amendment purposes?

W h y not? B ecause Heller was a constitutional decision. I t recog niz ed the scope of a p assag e of the Constitution. The boundaries of this r ig ht are defined by the Constitution. They

are not defined by Cong ress. See NRA
, 7 1 4 F .3d at 345 (J ones, J
., dissenting ) (“I n any event, it is circular r easoning to adopt a level o f scrutiny based on the assumption that the leg islature’s classification fits that level.”).

As we h ave seen, in the Fo u n d ing period, felonies historically resul t e d in disqualification from certain rig hts, but misdemeanors did not, nor did infractions, nor restraining orders. I therefore c onclude that d o mestic violence misdemeanants a

re not disqualified from the core protection of the Second Amendment, and that § 922(g )(9) according ly should be analy

z e d, n ot u nder intermediate scrutiny

, but

f o rce ag ain st su ch in tim ate p artn er o r ch ild th at w ou ld

reaso n ab ly b e ex p ected to cau se b o d ily in j u ry , [to
p o ssess i n o r af

f ectin g co m

m erce, an y f

i rearm or

am m u n i tio n .]U N I T E D S T A T E S V

. C H O V A N 45

u n d e r strict scrutiny

. See United States v. Engstrum
, 609 F. Supp. 2d 122 7
, 1231 (D. Utah 2 009) (finding that strict scrutiny is the correct rig or of analy sis to apply to § 922(g )(9) because, first, Heller descr i b e d the rig ht to keep and bear

arms as “fundamental,” 554 U.S. at 593, and second, because Heller classified the Second Amendment rig ht along side the F irst and F o urth Ame n d ments w hich are traditionally analy z e d under strict scrutiny

, but still upholding the statute under strict scrutiny

analy sis).

I I I

.

To b e sure, strict sc ru t iny is a rig orous standard. The S u preme Court has c alled it “ ‘ strict’ in theory but usual l y

‘ f a t al’ in fact.” Bernal v. F ainter
, 467 U.S. 216, 21 9 n

. 6 (1984) (“Only rarely a

re statutes sustained in the face of strict scrutiny .”) ( citing G erald Gunther, The Supreme Court, 1971 Term—Foreword: In Sear c h o f Evolving Doctrine on a C h a n ging Court: A Model for a Newer Equal Protection
, 86 Harv. L

. Rev. 1, 8 (1972)). B ut see A darand Constructors, Inc. v. Peña
, 5 15 U.S. 2 00, 237 (1995) (“[ W ] e wish to dispel the notion that strict scrutiny is strict in theory

, but f a t a l in fact.”) (internal quotation marks omitted).

S c h o larly analy sis shows that federal courts uphol d around thirty p ercent o f t he laws they analy z e under strict scrutiny

. Adam W inkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of S trict S c r u t iny in the Federal Courts
, 5 9 Vand. L

. Rev. 793, 862–63 (2006). Moreover, federal c ourts uphold Cong ressional statutes unde r s trict scrutiny about half the time. Id. at 818.

There are several theories reg arding what the purpose of

s t rict scrutiny is, and what sorts of g overnmental acts c a nU N I T E D S T A T E S V

. C H O V A N 46

s a t i sfy its rig orous requirements. One theory defines str i ct scrutiny a s upholding laws that undeniably burden constitutional rig h ts only “when the g overnment can demonstrate that infring ements are necessary to a void hig hly serious, even catastrophi c h arms.” Richard H. F allon, J r ., Strict Judicial Scrutiny
, 54 UCL A L

. Rev. 1267, 1302 (2007) (describing several c o mpet ing theories of strict scrutiny analy sis); see City of Richmond v

. J.A. Croson Co.
, 488 U.S. 469, 521 (1989) (Scalia, J
., concurring ) (arg uing t hat “ At least where state or local actio n is at issue, only a social
emerg ency

rising to the level of imminent dang er to life a nd limb

. . . c an justify an ex ception to” co n s titutional rig hts under strict scrutiny

analy sis); Lee v. W

ashington

, 390 U.S. 333, 334 (1968) (B lack, J
., concu r r ing ) (stating that the
g overnmental g oals of “maintaining security

, discipline, a nd
g ood order” in a prison can satisfy strict scrutiny

analy sis).

As J u s t i c e Thomas h as a r g ued, another way to say “compelling g overnmental interest” is “pressing p ublic necessity .” Fisher v. Univ. of Texas a t Austin
, 133 S. Ct. 2411, 2423 n.1 ( 201 3 ) ( T h omas, J
., concurring )

. This “pressing public necessity ” consists “ o n l y [of] those measures the State must take to prov ide a bulwark ag ainst anarchy

, o r to p revent violence.” Grutter v. Bollinger

, 539 U.S. 306, 353 (2003) (Thomas, J
., c oncurring in part a n d dissenting in part).

I have already sug g ested that f ree speech doctrines should
not be app l i e d t o Second Amendment restrictions that a re based on the status o f the individual. See s u p r a , P a rt I I .b. More a nal o g ous to status-based restrictions on the rig ht to keep and bear arms would be r e s t ri ctions on the freedom o f association. F reedom o f a s sociation cases often involve
go v ernmental action that restricts association b ased on the

s t a tus or conduct of the individuals, just as § 922(g) ( 9 )U N I T E D S T A T E S V

. C H O V A N 47

restricts the rig ht to keep and bear a r ms f or particular persons based on their status and previous co n d u c t

. I n both cases, moreover, this g overnmental action is often d irected towards preventing violence and preserving public safety

.

F ederal c ourts a

pply strict scrutiny to fr eedom o f association cases. Roberts v

. United States Jaycees
, 4 68 U.S. 609, 623 (1984) ( “ I nfring ements on [ the rig ht to associate]
may be justified by reg ulations adopted to serve compelling
state interests

. . . that c annot be achieved throug h means sig nificantly less restrict i v e o f associational freedoms.”). Despite apply ing strict scrutiny

, h owever, federal courts still often uphold statutes affecting freedom of as s o c i ation; in particular, federal courts uphold freedom o f a ssociation
reg ulations under a strict scrutiny analy sis “when the asserted justification f

o r t h e laws was public safety or effective law enforcement.” W inkler, supra , at 868; see, e.g. , Tabbaa v

. Chertoff

, 509 F .3d 89, 9 2 (2d Cir. 2 007) (finding under strict scrutiny analy sis that c u stoms official s did not violate plaintiffs’ freedom o f association rig hts by detaining a nd searching plaintiffs at the border when they returned from an I slamic conference in Canada because “g iven the intellig e nce [ the o fficials] received, t h e i nspection policy was narrowly tailored to achieve the com p e l l ing g overnmental interest in
p reventing potential terrorists from entering the United States”); Grider v. Abramson

, 180 F .3d 739, 749, 752 (6th Cir. 1999) ( finding under s t rict scrutiny analy sis that municipal o fficials did not violate plaintiffs’ freedom o f association rig h ts with their crowd control plan during a KKK rally b ecause the plan “cons t i t u ted a necessary constraint narrowly f

ashioned to further a c o mpelling g ove rnmental int e rest in p ublic safety and o rder” to prevent “disorderly conduct, breaches o f the peace, and serious injuries to persons and property

”).U N I T E D S T A T E S V

. C H O V A N 48

I n our case, too, based on the data the majority discuss in detail, the g overnment’s interest in p u b l ic safety a nd preventing g un violence is sufficiently c om p elling a nd

na rr o w l y tailored to satisfy those prong s of strict scrutiny

ana l y s i s

. See Maj. O p. at 23–27; cf. United States v

. Armstrong
, 7 0 6 F. 3d 1, 8 (1st Cir. 2 013) (finding that § 9 2 2 (g)(9) satisfies constitutional scrutiny “under any standard”).

Section 9 22(g )(9) frames the g overnmental interest: to pr e v ent life-threatening harm to a predictable g roup o f victims, i.e. those who h ave suffered domestic violence, from

a predictably violent set of c o n victed criminals, i.e. those w ho have b een convict e d of a domestic violence misdemeanor. As the majority note, there is a sufficient body of penalog ical knowledg e reg arding recidivism in d omestic violence cases to sati sfy the compelling interest element required in strict scrutiny analy sis. Maj. Op. at 25–26 ; see also Skoien

, 614 F .3d at 642–44 (discussing these studies in detail). M o r eover, as the Supreme Court has stated, § 922(g )(9) targ e ted a particular deficiency in the felon-in-possession
statute.

Ex isting felon-in-possession laws, C ong ress recog niz e d

, were not keeping firearms out o f the hands of domestic a

busers, because “many people who eng ag e in serious spousal or child abuse ultimately a

re n o t charg ed with o r convicted of f

e lonies.” 142 Cong

. Rec. 22985 (1996) (statement of S e n

. L autenberg ). B y

ex tending the federal firearm prohibiti o n to persons convicted of “misdemeanor crime[ s] of domestic v i o l e n c e , ” p r o p o n e n t s o fU N I T E D S T A T E S V

. C H O V A N 49

§ 922(g )(9) soug ht to “close this dang erous 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 d o mestic violence convicts who remain convicted. Misdemeanants hold in their o wn hands the power to remove the taint of conviction and rejoin the p r o t ected cl a s s o f those who may possess firearms. T hey can seek pardon, e x pung ement, set-aside o f their c onviction, o r restoration o f c ivil rig hts. 18 U.S. C

. § 9 21(a)(21)(B ). 6 The frequency of such ex pung ements, moreover, seem to have risen in many

states since the enactment of § 922(g )(9). See Robert A. Mikos, Enforcing State Law in Co n g r e s s ’ s S h a d ow , 90 Cornell L . Rev. 1411, 1463–64 & nn. 187–88 (2005).

I n answer to Chovan’s as-applied challeng e, California, where Chovan was convicted, makes ex pung ement o f misdemeanor convictions a rig ht. Under § 1203.4a(a) of the Ca l i fornia Penal Code, all misdemeanants can have their

6 T h e statu te 1 8 U.S.C. § 9 21 (a)(2 1 )(B ) states:

A perso n sh all n ot b e co n sid ered to h a ve b e e n

co n v icted o f s uch an o f

f en se f or p u rp o ses of th is ch ap ter if th e c o n v i ctio n h as b een ex p u n g ed o r set asid e, o r is an o f

f en se f o r w h ich th e pe r s o n h as been
p ard o n ed o r h as h ad civ il rig h ts resto red (if t h e law of th e ap p licab le j u risd ictio n pro v id es f o r th e lo ss o f civ i l rig h ts u n d e r su ch an o f f en s e) u n less th e p ard o n , ex p u n g em en t , o r resto ratio n o f civ i l rig h ts ex p ress ly
p ro v id es th at t

h e perso n m ay n o t sh ip

, tran s p o rt, p o ssess, o r receiv e f

irearm s.U N I T E D S T A T E S V

. C H O V A N 50

convictions ex pung ed after c o mpletion of their sentences if they have not been ch a rge d with or convicted of a f urther crime and have “lived an honest and uprig ht life.” Moreover, defendants must be informed of this rig ht to ex p un g ement “ei t h e r orally or in writing

, at the time he or she is sentenced.” Id. at § 1 203.4a(c)(1). Prosecuting attorney s have fifteen day s from the filing of the p etition for d ismissal with the c o urt to object. Id. at § 1203.4a(f). This
pa r ticipation of the d istrict a ttorney s in the process a llows California t o m a i ntain some adversarial integ r ity in the

ex p ung ement proceeding s, as the district attorney can oppose the motion if the c o nvict’s rehabilitation i s d oubtful. This
sy stem p laces the evaluation of the c o n v ict’s rehabilitation, vel non , in t h e state. I ndeed, California courts have interpreted § 1203. 4a(a) to mandate ex pung ement when misdemeanants have c o mplied w i th its terms. See, e.g. , People v. Chandler

, 250 Cal. Rptr. 7 30, 7 3 4 ( Cal. Ct. App. 1988) (“[ A] defendant moving under Penal Code section 1203.4a is en t itled as a matter of r ig ht to its benefits u pon a showing that he has f

ulfilled the c onditions of p r o b a t ion for the entire period of probation. I t was apparently intended that when a d efendant has satisfied the terms of probation, the trial c ourt should have no dis c r etion but to carry out its part of the b arg ain with the defendant.”) (citations and quotation marks omitted).

Section 922 is in part a federalism-based statute. I t looks
to state law, passing restrictions on certain convicts based on decisions made by state leg islatures and courts. Section 922 also ceases to apply if convicts have satisfied the state proced u r e s for ex pung e ment. This helps the statute satisfy
t h e narrow tailoring prong of strict scrutiny

. I t allows t h o s e

w h o no long er pose a threat to society to demonstrate their rehabilitation and reclaim their Second Amendment righ t s.U N I T E D S T A T E S V

. C H O V A N 51

I t is not a blunt i n s trument. Rather, it targ ets only those whom the states continue to deem not rehabilitated. I t is
t herefore narrowly tailored to the g oal of p reventing o n l y those who pose the g r eatest risk to potential domestic violence victims from possessing g uns.

W ith the aforementioned considerations in mind, I

c onclude that § 922(g )(9) advances a compelling
g overnmental interest, and d o e s so in a narrowly tailored

manner. T herefore, the statu te satisfies strict scrutiny analy sis.

I V.

The H eller o pinion d i d not provide lower courts with

ex p licit g uidance on how to analy z e challe n g es to statutes under the Second Amendment. I f we are to apply the familiar tiers o f scrutiny analy sis in Second A mendment cases, instead of a pure tex tual, historical, and structural analy sis, however, history and precedent s t i l l d ictate a more string ent

ex a mination of these issues than the m a j o rity allow. Strict scrutiny has become an integr al aspect of much of our constitutional jurisprudence. See F allon, supra , at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After apply ing strict scrutiny to § 922(g )(9), I

come to the same conclusion as do the majority

, and uphold the law. T he close look afforded b y strict scrutiny

, however, ensures that the law truly is narrowly tailored to f

u r ther a compelling g overnmental interest, a nd

ensures that the Second Amendment’s contours are drawn b y the Constitution, and not by Cong r ess.