New case in the fourth circuit. Covered by Dave Hardy here, and Clayton Cramer as well. There have been a few courts that have taken this issue seriously. What interesting about this ruling is that it would seem to have been decided under intermediate scrutiny:
We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond.
Not a clear cut victory just yet, but it’s about as close as we can ask. The shame is this defendant seems a good bit less than ideal.
Well, in fairness, I doubt that finding a DV misdemeanant who is even close to ideal is all that easy. We hear about the unusual ones – the parent who gets charged for spanking their hellspawn, the man who finally fights back against his abusive girlfriend – but they seem to be, well, unusual; outliers.
In addition, people who are fundamentally law-abiding are unlikely to be caught violating that stupid law after a DV conviction. Either because they don’t violate it or because don’t ever do things that get the cops attention.
The only “good” defendant is going to be someone who gets mousetrapped by not realizing that he is a prohibited person. But how many of them are left at this point?
Frankly, there is DV, and there is DV.
I’m not going to defend domestic violence. It was for decades ignored, and that was wrong.
It is now the subject of a politically driven witchhunt. That is equally wrong.
Having spent a decade as a prosecutor, and now as a defense attorney, I have no doubt whatsoever that some of what is prosecuted as domestic “violence” is hardly if at all violence in the least, as most of us understand the term. Some is pure posturing for divorce court. Some is mutual combat, where the victim is the first person to call 911. And some is driven by officers who arrive at a call, often by a neighbor or passerby, who decide that they have to arrest somebody – in my jurisdiction, arrest is MANDATORY if probable cause is determined to exist – despite the wishes of all parties that no prosecution ensue. I have seen brothers who engaged in a fight in the backyard (and when do brothers not do so?) find themselves the subject of prosecution, despite neither party seeking same.
And battery (at least in my jurisdiction) requires nothing more than touching in a rude, angry, or offensive manner. I have seen (no, I’m not kidding) a paper cup thrown prosecuted as domestic battery.
Generally, these events happen behind closed doors, and so they are the classic “he said, she said.” Yet prosecution goes on nevertheless, even when the “victim” wants the case dropped.
While this defendant may not be a sympathetic one, I have no doubt whatsoever that there are thousands of persons out there caught up in the domestic violence hysteria who do not remotely deserve to be considered “violent,” much less deserving to be deprived of a fundamental constitutional right. Would we bar their right to vote? To speak?
And before the snark begins, yes, there are thousands of others who deserve exactly the prosecution they are the subject of. I am not defending domestic violence. I write merely to point out that the DV dragnet often snares persons that are not deserving to be caught up in the net.