An As-Applied Exception to the Domestic Violence Prohibitor?

  • Date:
  • March 10, 2021

In the federal courts of appeals, judges have been increasingly confronted with constitutional challenges to the federal laws that prohibit particular classes of people from possessing firearms. Federal law currently bars nine categories:

  1. A person with a conviction for an offense that carries a possible punishment of more than one year in prison
  2. A fugitive from justice
  3. A person who is an unlawful user of or addicted to any controlled substance
  4. A person who “has been adjudicated as a mental defective or who has been committed to a mental institution”
  5. A noncitizen who is either unlawfully in the United States or who is here on a nonimmigrant visa
  6. A person who has been discharged from the Armed Forces under dishonorable conditions
  7. Anyone who has renounced their U.S. citizenship
  8. A person subject to certain domestic violence restraining orders
  9. Anyone convicted of a misdemeanor crime of domestic violence

The overwhelming majority of Second Amendment litigation over prohibited person status has concerned the first category—often called the “felon prohibitor.” Most courts have declined to create exceptions to this category through “as-applied” challenges that would hold that the law’s application to a particular person is unconstitutional. (You can peruse all our blog posts on these many cases through the “prohibited person” tag on our posts here.) In addition, at least one federal court of appeals has made as-applied challenges available to the prohibition on firearms for those with prior involuntary mental health commitments.

Just last week, I saw an argument that called for creating another category of as-applied challenges—this time to § 922(g)(9), the provision barring those convicted of domestic violence misdemeanors. In Harley v. Wilkinson, Fourth Circuit Judge Julius Richardson dissented from the majority’s decision upholding the prohibition as constitutional.

There, the challenger had been convicted 27 years prior for a misdemeanor offense of assault and battery against a family member after an altercation with his then-wife. The majority declined to craft an exemption for situations like these. “[W]e adopt the approach of our sister circuits and decline to read into the statute an exception for good behavior or for the passage of time.” It assumed that at step one of the two-part methodology used to decide Second Amendment challenges that the statute implicated conduct protected by the Second Amendment, but held at step two that the statute satisfied intermediate scrutiny.

In dissent, Judge Richardson argued the case “should be sent back to the district court so it can consider the particular circumstances of Harley’s conviction.” He thought, in other words, that the DV prohibitor should be just as subject to as-applied challenges as the felon prohibitor or the mental health prohibitor. No other circuit court, it bears emphasizing, has allowed challenges to the law barring firearm possession for DV misdemeanants. Notably, Judge Richardson did not say what the district court should be looking for when it reviewed Harley’s sentence. The circuit courts that do allow challenges to one of the other prohibitors disagree with each other and sometimes even within the same circuit on what makes for a successful as-applied challenge. I explored some of these issues in a recent article, but to me the difficulty in those contexts just underscores the complexities in creating an as-applied exception here. Consider that the courts that do allow as-applied challenges to the felon prohibitor debate whether it is the seriousness of the offense or the dangerousness of the offense that matters most in the calculus. But with § 922(g)(9), the offense involves domestic violence and thus seems to qualify as serious and dangerous. It’s not clear what the governing framework would be to figure out which misdemeanants could not be constitutionally deprived their right to firearms. With a Supreme Court that may be poised to re-enter the Second Amendment debate sooner rather than later, we are likely to see many more appeals for exceptions to the list of prohibited persons.