HAMILTON, Senior Circuit Judge:
Section 922(g)(9) of Title 18 of the United States Code prohibits a person who has been convicted of a misdemeanor crime of domestic violence from possessing, shipping, or receiving a firearm in or affecting interstate commerce. 18 U.S.C. § 922(g)(9). The sole issue on appeal is whether Mark Staten's conviction on one count of violating § 922(g)(9) survives his as-applied constitutional challenge under the Second Amendment, U.S. Const. amend. II. For reasons that follow, we affirm the judgment of the district court.
Late in the evening on April 7, 2009, two deputy sheriff officers responded to a domestic disturbance call from Staten's wife. Upon arriving at the Statens' home, Staten's wife reported that she and her husband had been arguing for two days; that she feared for her safety due to his drinking;
Staten was indicted on one count of knowingly possessing three firearms following a misdemeanor conviction for domestic violence, in violation of §§ 922(g)(9) and 924(a)(2). He subsequently moved to dismiss the indictment on the ground that § 922(g)(9) violated his right to bear arms in defense of his home under the Second Amendment to the United States Constitution. Staten initially brought his Second Amendment challenge as a facial challenge alleging substantial overbreadth and as an as-applied challenge. The government opposed the motion. Both sides filed multiple memorandums in support of their respective positions, with the government offering quotations and citations to scholarly social science evidence in its filings. We glean from the record that the district court did not conduct an evidentiary hearing on Staten's motion to dismiss because Staten never requested one.
After the district court denied Staten's motion to dismiss, see United States v. Staten, 2010 WL 3476110 (S.D.W.Va. Sept. 2, 2010), Staten entered a conditional plea of guilty to violation of § 922(g)(9), as alleged in the single-count indictment, pursuant to a plea agreement that reserved his right to appeal the district court's denial of his motion to dismiss. See Fed. R.Crim.P. 11(a)(2). Pursuant to Exhibit A of the plea agreement, entitled "STIPULATION OF FACTS," the government and Staten "stipulate[d] and agree[d]," inter alia, that: (1) prior to April 7, 2009, he had been convicted of three misdemeanor crimes of domestic violence, as defined in 18 U.S.C. § 921(a)(33); (2) his wife Angela was the victim of all three crimes; (3) his right to possess a firearm had not been restored; (4) on April 7, 2009, he told a deputy that he knew that he was not to be in possession of any firearms; and (5) he knowingly possessed ammunition which could be fired from the firearms found hanging on the wall of his living room on April 7, 2009. (J.A. 234).
The district court sentenced Staten to nine and one-half months of imprisonment, to be followed by three years of supervised release. Staten timely noted the present appeal in which he continues to press his as-applied challenge to his § 922(g)(9) conviction under the Second Amendment.
We review de novo the district court's rejection of Staten's as-applied Second Amendment challenge to § 922(g)(9). See United States v. Malloy, 568 F.3d 166, 171 (4th Cir.2009) ("This court reviews a
We begin our consideration of Staten's as-applied challenge to his § 922(g)(9) conviction under the Second Amendment by setting forth the legal principles relevant to our analysis. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. Amend. II. In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held for the first time that the right to keep and bear arms, as provided in the Second Amendment, is an individual right without regard to militia service. Id. at 595, 128 S.Ct. 2783. According to the Court, the core right of the Second Amendment is "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635, 128 S.Ct. 2783. Based upon this holding, the Court invalidated District of Columbia laws banning the possession of handguns and requiring citizens to keep firearms in inoperable condition. Id. The Court was careful to note, however, that the right to keep and bear arms under the Second Amendment is not unlimited, and that its holding did not invalidate "presumptively lawful regulatory measures," id. at 627 n. 26, 128 S.Ct. 2783, such as "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms," id. at 626-27, 128 S.Ct. 2783.
Post Heller, we first considered the constitutionality of § 922(g)(9) under the Second Amendment in an unpublished opinion in United States v. Chester (Chester I), 367 Fed.Appx. 392 (4th Cir.2010) (per curiam). In Chester I, we vacated William Chester's § 922(g)(9) conviction and remanded his "appeal for clarification of the precise contours of his Second Amendment claim—a necessary step in determining the appropriate standard of constitutional scrutiny to apply—and for development of the record under the appropriate means-end framework." United States v. Chester (Chester II), 628 F.3d 673, 678 (4th Cir. 2010). Notably, we did not identify the appropriate level of scrutiny in Chester I, "leaving that task to the district court on remand." Id. at 678. Moreover, agreeing with the Seventh Circuit's panel decision in United States v. Skoien (Skoien I), 587 F.3d 803 (7th Cir.2009), vacated, 614 F.3d 638 (7th Cir.2010) (en banc), we expressly rejected the government's argument that § 922(g)(9) was valid by analogy based on Heller's "`presumptively lawful'" language. Chester I, 367 Fed.Appx. at 393.
After we issued Chester I, the government petitioned for panel rehearing in light of the fact that the Skoien I panel decision had been vacated by the Seventh Circuit sitting en banc. Chester II, 628 F.3d at 678. Thereafter, the Seventh Circuit issued its en banc decision in Skoien, see United States v. Skoien (Skoien II), 614 F.3d 638 (7th Cir.2010) (en banc), rejecting a Second Amendment challenge to § 922(g)(9) on the basis that logic and data demonstrate a substantial relationship between § 922(g)(9) and an important governmental objective. See Skoien II, 614 F.3d at 642.
Subsequently, in a published opinion we refer to in the present opinion as Chester II, we granted the government's petition for panel rehearing, vacated Chester I,
The second part of the two-part approach involves application of the appropriate form of means-end scrutiny. Id. In Chester II, we held that intermediate scrutiny is the appropriate standard to analyze a challenge to § 922(g)(9) under the Second Amendment.
Applying this two-part approach in Chester II, we first asked whether the possession of a firearm in the home by a domestic violence misdemeanant is protected by the Second Amendment as historically understood. Chester II, 628 F.3d at 680. Notably, the government did not take the position in Chester II, as they do in the present appeal, that persons convicted of misdemeanors involving domestic violence were altogether excluded from the Second Amendment as it was understood by the founding generation. Id. at 680-81. Based upon this and the lack of historical evidence on the issue in the appellate record, we were unable to say in Chester II that the Second Amendment, as historically understood, did not apply to persons convicted of domestic violence misdemeanors. Id. at 681. Under such circumstance, we held that "[w]e must assume... that Chester's Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense." Id. at 681-82.
Accordingly, we proceeded to apply intermediate scrutiny. We were quickly stopped in our tracks, however, by the understandably undeveloped record. On this point, we explained:
Chester II, 628 F.3d at 683. As we file the present opinion, Chester remains pending in the district court for the Southern District of West Virginia on remand.
Having set forth the relevant legal principles, we now turn to analyze Staten's as-applied challenge under the Second Amendment to his § 922(g)(9) conviction. We first note that although Staten expressly concedes in his opening appellate brief that, under Chester II, intermediate scrutiny is the appropriate standard for analyzing his as-applied challenge under the Second Amendment to his § 922(g)(9) conviction, he nonetheless devotes a large portion of his brief to his argument that strict scrutiny is the appropriate standard in order to preserve such argument for further appellate review. Because we are bound by Chester II, we do not address this argument further. See Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (panel may not overrule decision of prior panel in same circuit; only en banc court may overrule prior panel decision).
On appeal, the government first defends Staten's § 922(g)(9) conviction on the basis that § 922(g)(9) is presumptively lawful under Heller. The government promptly acknowledges, however, that we rejected this exact argument in Chester II, 628 F.3d at 679, but explains that it nonetheless presented it in the event of further appellate review. Again, we are bound by Chester II, and thus reject the government's argument that § 922(g)(9) is presumptively lawful under Heller. Jones, 94 F.3d at 905.
Next, in contrast to the government's litigation position in Chester II, the government here seeks to defend the constitutionality of Staten's § 922(g)(9) conviction on the basis that, according to the government, persons convicted of domestic violence misdemeanors were altogether excluded from the Second Amendment as it was understood by the founding generation. The government cites laws from England and the colonies prior to the American Revolution in support of this proposition. Staten, for his part, opposes this argument on the merits and, alternatively, contends the government is now precluded from raising such argument by failing to raise it in Chester II.
We conclude that delving into any of this multi-level debate under the first part of the Chester II approach is unnecessary. This is so because, assuming arguendo that Staten's Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense, our following analysis leads us to conclude that the government has carried its burden under intermediate
The net effect of our winnowing of the various opposing arguments just outlined is that this case picks up where Chester II left off; we must consider whether the government has carried its burden of establishing that § 922(g)(9) survives intermediate scrutiny. Under the intermediate scrutiny standard, the government bears the burden of establishing a reasonable fit between § 922(g)(9) and a substantial governmental objective. Chester II, 628 F.3d at 683. We note that although our published opinion in Chester II had not yet issued at the time the district court denied Staten's motion to dismiss his indictment based upon the Second Amendment, the district court applied intermediate scrutiny in essentially the same formulation as we subsequently adopted in Chester II in rejecting Staten's as-applied Second Amendment challenge.
The government identifies reducing domestic gun violence as the substantial governmental objective of § 922(g)(9). Section 922(g)(9)'s legislative history directly supports this position. See United States v. Hayes, 555 U.S. 415, 426, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (noting that legislative history of § 922(g)(9) indicates that it was passed in response to Congress' concern that existing felon-in-possession laws were not keeping firearms out of the hands of domestic abusers because many people who engage in serious spousal or child abuse ultimately were not charged with or convicted of felonies and that the statute was designed to close this dangerous loophole). Moreover, common sense and case law fully support the government's position, which position Staten does not contest. As the First Circuit recently held, "keeping guns away from people who have been proven to engage in violence with those whom they share a domestically intimate or familial relationship. . . is undeniably important." United States v. Booker, 644 F.3d 12, 25 (1st Cir.2011); see also Hayes, 555 U.S. at 426-27, 129 S.Ct. 1079 ("Construing § 922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress' manifest purpose. Firearms and domestic strife are a potentially deadly combination nationwide."); Skoien II, 614 F.3d at 642 ("no one doubts that the goal of § 922(g)(9), preventing armed mayhem, is an important governmental objective"). Based upon § 922(g)(9)'s legislative history, the relevant case law, and common sense, we hold that the government has carried its burden of establishing that reducing domestic gun violence is a substantial government objective.
We begin our reasonable fit inquiry by considering the precise contours of § 922(g)(9). Pursuant to § 922(g)(9),
18 U.S.C. § 922(g)(9). For purposes of § 922(g)(9), the term "misdemeanor crime of domestic violence" is defined as follows:
18 U.S.C. § 921(a)(33)(A) (emphasis added). In United States v. White, 606 F.3d 144 (4th Cir.2010), we held that the term "physical force," as used in § 921(a)(33)(A)(ii), means "force capable of causing physical pain or injury to another person." White, 606 F.3d at 153 (internal quotation marks omitted). Therefore, a "misdemeanor crime of domestic violence," for purposes of a § 922(g)(9) offense, is one in which the use or attempted use of force capable of causing physical pain or injury to another or the threatened use of a deadly weapon is an element of the offense.
Accordingly, the question we must resolve under the reasonable fit inquiry is whether the government has carried its burden of establishing a reasonable fit between the substantial governmental objective of reducing domestic gun violence and the keeping of firearms out of the hands of: (1) persons who have been convicted of a crime in which the person used or attempted to use force capable of causing physical pain or injury to another against a spouse, former spouse, or other person with whom such person had a domestic relationship specified in § 921(a)(33)(A)(ii); and (2) persons who threatened use of a deadly weapon against such persons. In resolving this question, we first observe
18 U.S.C. § 921(a)(33)(B)(ii).
With the narrowness of § 922(g)(9)'s prohibitory sweep in mind, we turn to evaluate the evidence offered by the government in support of its reasonable fit burden. Specifically, the government bears the burden of establishing a reasonable fit between the substantial government objective of reducing domestic gun violence and keeping firearms out of the hands of persons (1) who have been convicted of a crime in which the person used or attempted to use force capable of causing physical pain or injury to another against a spouse, former spouse, or other person with whom such person had a domestic relationship specified in § 921(a)(33)(A)(ii) or (2) who have threatened the use of a deadly weapon against such a person. To carry its burden, the government primarily relies upon empirical evidence garnered from social science studies, the results of which and conclusions drawn therefrom appear in scholarly social science reports (also commonly referred to as articles).
The government starts its reasonable fit analysis with identifying the scope of the problem to indicate its magnitude. Specifically, the government starts with what it characterizes as the well-settled proposition that domestic violence is a serious problem in the United States. In support, the government cites findings from a July 2000 social science research report cosponsored by the National Institute of Justice
Id. (emphasis added).
We recognize that this scholarly social science report is one among many which have reached the same conclusion, i.e., that domestic violence presents a serious problem in the United States. Indeed, the Supreme Court has cited such reports in support of its express recognition in 2006 that domestic abuse is a serious problem in the United States. See Georgia v. Randolph, 547 U.S. 103, 117, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (recognizing "that domestic abuse is a serious problem in the United States" in reliance on, inter alia, U.S. Dept. of Justice, National Institute of Justice, Patricia Tjaden and Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women 25-26 (2000)). Staten wisely does not dispute the unfortunately indisputable proposition that domestic violence is a serious problem in the United States. We hold the government has so established.
Moving on, the government asserts that empirical evidence regarding a significant rate of recidivism among domestic violence misdemeanants establishes a substantial relationship between keeping guns out of the hands of domestic violence misdemeanants and reducing domestic gun violence. Again, the government relies upon the findings and conclusions of scholarly social science reports. For example, the government cites a federally funded grant report finding that out of a sample of 3,662 suspects arrested for misdemeanor domestic violence in Cincinnati, Ohio between August 1993 and May 1996, 17% were re-arrested for domestic violence during the three-year study period. See U.S. Dept. of Justice, National Institute of Justice, John Wooldredge and Amy Thistlethwaite, Reconsidering Domestic Violence Recidivism: Individual and Contextual Effects of Court Dispositions and Stake in Conformity 6, NCJ 188509 (October 1999), available at http://www.ncjrs.gov/pdffiles1/ nij/grants/188509.pdf. The government further points out that although this data accounts for repeat incidents resulting in re-arrest, it does not account for the many repeat domestic violence acts that are never reported to the police. In support, the government cites a social science report estimating that, based upon survey results,
In response to this social science evidence regarding the recidivism rate among domestic violence misdemeanants, Staten primarily argues on appeal that although the government offered quotations from and specific citations to the social science reports upon which it relies, the government should be considered to have proffered no evidence because the government did not offer paper copies of such reports as part of the record. The crux of the government's response is that the social science reports upon which it relies with respect to all issues under intermediate scrutiny were and continue to be readily available for examination on the Internet and at no time below did Staten or the district court inform the government of any difficulty in accessing the reports.
We believe the far better practice is for the government to offer copies of whatever reports/articles upon which it seeks to rely in attempting to carry its burden under intermediate scrutiny for inclusion in the record at the district court level. However, with respect to the reports upon which the government relies in the present case, because Staten has never disputed the accuracy of either the government's representations as to their ready availability via the Internet or the accuracy of the government's representations as to their content, we reject Staten's argument that the government cannot rely upon the reports to meet its burden under intermediate scrutiny in this case. We also note that, with one exception which we will address later in this opinion, we had no trouble viewing such reports via the Internet using the websites included in the addendum to the government's appellate brief.
Staten also attacks the government's social science evidence regarding recidivism on the basis that the district court did not comment on the fact that, from report to report, recidivism rates vary from one in five to four in five. According to Staten, such variations suggest that none of the reports are particularly reliable. Finally, he criticizes the government's evidence on the ground that it does not compare the recidivism rates of domestic violence misdemeanants to other offenders such as violent felons. Notably, Staten has offered no evidence in the form of social science reports or otherwise to undermine the validity of the conclusions drawn in the social science reports relied upon by the government.
We reject Staten's arguments as just set forth. While Staten is correct that the recidivism rates provided in the social science reports relied upon by the government vary more than a trivial amount, a
Moreover, the fact that the government does not offer evidence comparing the recidivist rates of domestic violence misdemeanants to other offenders such as violent felons is of no moment. Felons are already prohibited from possessing firearms, see 18 U.S.C. § 922(g)(1), and Congress is obviously entitled to address one societal problem at a time.
Having established that domestic violence is a serious problem in the United States and that the rate of recidivism among domestic violence misdemeanants is substantial, the government next seeks to establish that the use of firearms in connection with domestic violence is all too common, increases the risk of injury or homicide during domestic violence, and often leads to injury or homicide. In support of this proposition, the government first relies upon a report published by the Bureau of Justice Statistics, an arm of the United States Department of Justice, which reports that, for example, in 2005, 678 women and 147 men were fatally shot by their respective intimate partners in the United States. See U.S. Dept. of Justice, National Institute of Justice, Bureau of Justice Statistics, James Alan Fox and Marianne Zawitz, Homicide Trends in the United States at 101 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ htius.pdf. For the same year, 504 women and 182 men were killed by their respective intimate partners by a method other than being shot with a gun. Id. Thus, in 2005, 57% of women and 43% of men killed by an intimate partner in the United States were killed by a gun.
To summarize, the government has established that: (1) domestic violence is a serious problem in the United States; (2) the rate of recidivism among domestic violence misdemeanants is substantial; (3) the use of firearms in connection with domestic violence is all too common; (4) the use of firearms in connection with domestic violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide. These established facts along with logic and common sense compel us to hold that the government has carried its burden of establishing a reasonable fit between the substantial government objective of reducing domestic gun violence and keeping firearms out of the hands of: (1) persons who have been convicted of a crime in which the person used or attempted to use force capable of causing physical pain or injury to another against a spouse, former spouse, or other person with whom such person had a domestic relationship specified in § 921(a)(33)(A); and (2) persons who have threatened the use of a deadly weapon against such a person. In so holding, we consider important the fact that Congress substantially tailored the reach of § 922(g)(9) by limiting its application to those persons who have used or attempted to use force capable of causing physical pain or injury in a domestic disturbance or those persons who have threatened the use of a deadly weapon in a domestic disturbance. We recognize that the net cast by § 922(g)(9) may be somewhat over-inclusive given that every domestic violence misdemeanant would not necessarily mis-use a firearm against a spouse, former spouse, or other person with whom such person had a domestic relationship specified in § 921(a)(33)(A), if permitted to possess one. However, this observation merely suggests that the fit is not perfect. Intermediate scrutiny does not require a perfect fit; rather only a reasonable one. Masciandaro, 638 F.3d at 474; Chester II, 628 F.3d at 683. In accord with the unanimous view of our sister circuits who have addressed the issue, we have no trouble concluding the fit here is, at least, reasonable. See Booker, 644 F.3d at 26 (upholding § 922(g)(9) against an as-applied Second Amendment challenge based upon conclusion that § 922(g)(9) substantially promotes important government objective of preventing domestic gun violence); Skoien II, 614 F.3d at 642 ("logic and data" establish a "substantial relation" between
Accordingly, we hold that, on Staten's as-applied challenge under the Second Amendment, § 922(g)(9) satisfies the intermediate scrutiny standard. We, therefore, affirm the judgment of the district court.
AFFIRMED.
