Lifetime Gun Ban Constitutional in Spousal Abuse Cases

A federal appeals court upheld the constitutionality of a lifetime ban on gun possession for anyone convicted of misdemeanor domestic violence.

The 9th U.S. Circuit Court of Appeals held Monday that a person convicted of domestic violence is disqualified from the core right of Second Amendment to possess firearms for defense of the home.

The only two exceptions are: if the conviction is expunged or set aside and if the offender is pardoned and has his or her civil rights restored.

Daniel E. Chovan, of San Diego, challenged the law as unconstitutional violation of the Second Amendment right to bear arms.

The U.S. Supreme Court decision recognizing a personal right to possess handguns found the core of the Second Amendment right “is to allow ‘law-abiding, responsible citizens to use arms in defense of hearth and home,’” the opinion states.

Chovan didn’t meet that requirement.

“Keeping guns from domestic violence misdemeanants is substantially related to the broader interest of preventing domestic gun violence,” wrote Judge Harry Pregerson.  Because the gun ban “is supported by an important government interest and substantially related to that interest, the statute passes constitutional muster…” he said.

Chovan was convicted in 1996 of a misdemeanor charge of inflicting corporal injury on his live-in girlfriend at the time, Cheryl Fix.  He was sentenced to 120 days in jail and three years probation.  Despite the conviction, Fix married Chovan in 2007, but they later separated in 2009, according to the court.  That same year Chovan applied to buy a fire arm from a San Diego gun dealer.

In addition to jail time, he was barred from owning or possessing a fire arm for 10 years after his conviction, but under federal law he is barred from firearm possession for life.

His application to buy a weapon was denied following a background check showed the domestic violence conviction.

The FBI began checking on Chovan and found Internet videos showing him shooting rifles and conducting “border patrols” near the U.S.-Mexico border. And in 2010, San Diego deputies responded to a domestic dispute at his house, in which Fix told officers he hit her with a cell phone and threatened to shoot her if she ever left him.

FBI agents searched Chovan’s house and found a rifle, handgun and over 500 rounds of ammunition. He was charged with federal possession of firearms despite the ban for a domestic violation conviction.  It was at that point he challenged the law’s constitutionality.

Pregerson was joined by Judge Michael Daly Hawkins.

Although agreeing in the outcome of the decision, Judge Carlos Bea disagreed with the majority’s determination that people convicted of domestic violence misdemeanors are “thereby disqualified from the core right of the Second Amendment to possess firearms for defense of the home.”

Case: U.S. v. Chovan, No. 11-50107

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/11/18/11-50107.pdf

 

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