This is not a Second Amendment case, but rather a case to determine the scope of the Lautenberg Amendment, codified in 18 USC 922(g)(9). This is not a challenge to Lautenberg facially, on Second Amendment grounds. The 6th Circuit opinion can be found here.
The government’s argument is unpersuasive. It overlooks the nearly identical language of Â§ 921(a)(33)(A) and 18 U.S.C. Â§Â§ 16(a) and 924(e)(2)(B)(i). Section 921(a)(33)(A)(ii) defines a “misdemeanor crime of domestic violence” as a crime that “has, as an element, the use or attempted use of physical force,” against a victim with whom the defendant shares a domestic relationship.Â Like Â§ 921(a)(33)(A)(ii), Â§Â§ 16(a) and 924(e)(2)(B)(i) use the phrase “physical force” to define “crime of violence” and “violent felony,” respectively. Section 16(a) defines a “crime of violence” in part as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” For its part, Â§ 924(e)(2)(B)(i) defines a “violent felony” in part as a crime “that has as an element the use, attempted use, or threatened use of physical force.” By defining a “misdemeanor crime of domestic violence” to require “the use or attempted use of physical force,” Â§ 921(a)(33)(A)(ii) drops the reference to “threatened use” from Â§Â§ 16(a) and 924(e)(2)(B)(i) but otherwise tracks the language of Â§Â§ 16(a) and 924(e)(2)(B)(i). The provisions’ similarity supports the inference that Congress intended them to capture offenses criminalizing identical degrees of force.
Tennessee statute, under which Castleman was convicted, includes the mere threat of force, and other force that would not necessarily be violent. Noting:
In so holding, the Court interpreted the “physical force” requirement in that statute as “violentÂ force … capable of causing physicalÂ pain or injury to another person” and “strong physical force.”Â Id.Â at 1271.
It’ll be interesting to see what the Supreme Court does with this, but it would reserve the circuit split on this matter either way. I tend to agree with the 6th Circuit opinion here:
The government resists this conclusion by emphasizing Â§ 922(g)(9)’s reference to “misdemeanor” offenses, but the government asks us to put more weight on the term “misdemeanor” than Congress meant the term to bear. Had Congress intended the word “misdemeanor” to have the effect suggested by the government, then Congress would have had no need to modify “misdemeanor” with the phrase “crime of violence.” Congress could simply have prohibited any person convicted of a “misdemeanor domestic assault or battery offense” from possessing a firearm. It chose not to do so.
Yet the government’s position is that any misdemeanor assault conviction against a domestic partner is a disabling offense. If the Supreme Court upholds the sixth circuit opinion here, it would essentially mean there would have to be a finding that there was actual violence, or attempted violence involved. There mere conviction would not be sufficient unless the statute itself involved those things.