The Lawletter Vol 43 No 5
The Gun Control Act of 1968 bars firearm possession by certain groups of individuals, including convicted felons and those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution.” 18 U.S.C. § 922(g)(1), (4). In 1996, Congress added a domestic violence misdemeanant restriction. Id. § 922(g)(9). Recognizing that “[e]xisting 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 are not charged with or convicted of felonies,” Congress extended the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence to “close this dangerous loophole.” United States v. Hayes, 555 U.S. 415, 426 (2009) (internal quotation marks, citation, and bracket omitted).
To qualify as a “misdemeanor crime of domestic violence” for purposes of § 922(g)(9), the predicate offense must have as an element the “use or attempted use of physical force, or the threatened use of a deadly weapon,” by a person who has a specified relationship with the victim. See 18 U.S.C. § 921(a)(33)(A)(ii).
In Stimmel v. Sessions, 879 F.3d 198 (6th Cir. 2018), the plaintiff (“Stimmel”) pleaded no contest to knowingly causing or attempting to cause physical harm to a family or household member in violation of an Ohio statute, thus bringing himself squarely within § 922(g)(9)'s scope. When Stimmel challenged the prohibition on Second Amendment and Equal Protection grounds, the Sixth Circuit joined what it described as a growing consensus among its sister circuits in upholding the constitutionality of the firearm restriction.
On the Second Amendment issue, the court first decided that, assuming that an individual's Second Amendment rights remained intact to some degree even after his conviction of misdemeanor domestic violence, it would apply an intermediate level of scrutiny, rather than strict scrutiny, in deciding whether the statute violated the Second Amendment. This intermediate level of scrutiny was warranted, the court said, given that domestic violence misdemeanants were at least somewhat removed from the Second Amendment's core protected class, and given that domestic violence misdemeanants had multiple mechanisms for obtaining relief from their firearm disability. A related federal provision allows such persons to (1) petition to set aside their conviction; (2) seek a pardon; (3) have their conviction expunged; or (4) have their civil rights fully restored.
A “reasonable fit” existed between the challenged statute and the important government interest of preventing domestic gun violence, the court held, and thus the statute did not violate rights protected by the Second Amendment under the intermediate level of scrutiny. The Sixth Circuit rejected Stimmel’s contention that the fit cannot be reasonable where a single domestic violence misdemeanor conviction was sufficient justification for disarming him, for all practical purposes, for life.
The government may rely on a wide range of sources, including legislative history, empirical evidence, case law, and even common sense, in satisfying its burden of demonstrating a reasonable fit between a challenged restriction on Second Amendment rights and some significant, substantial, or important government objective. Id. at 207-08. In Stimmel, the government presented evidence of high recidivism rates among domestic abusers, and of the risks presented by the presence of a firearm in domestic abusers' homes. For example, it cited studies concluding that incidents of domestic violence involving a firearm are 12 times more likely to end in the victim's death than incidents involving a knife or an unarmed abuser, and that the presence of a gun in the residence of a domestic abuser is strongly and independently associated with homicide. In short, the court accepted a sister circuit's conclusion that "No matter how you slice these numbers, people convicted of domestic violence remain dangerous to their spouses and partners.” United States v. Skoien, 614 F.3d 638, 644 (7th Cir. 2010).
As for his equal protection claim, Stimmel had to adequately plead and show that the government treated him disparately, as compared to similarly situated persons, and that such disparate treatment either burdened a fundamental right, targeted a suspect class, or had no rational basis. The court concluded that Stimmel was not similarly situated to those with whom he wished to compare himself—individuals disqualified from possessing firearms because they had been adjudicated as a “mental defective.”
In the wake of the 2007 Virginia Tech massacre, Congress enacted legislation authorizing federal grants to help states improve the quality of the mental health information they make available to the databases searched by the national instant criminal background check system when an individual tries to purchase a firearm. To be eligible for a grant, a state must certify that it has implemented a program allowing those disqualified from possessing a firearm because of a mental defect to apply to the state for relief from that particular firearm disability. In contrast with a misdemeanor conviction for domestic violence, the court stated, a mental defect is an involuntary and possibly temporary and treatable medical condition. Thus, the mere fact that Stimmel, as a domestic violence misdemeanant, did not have the same avenue as persons adjudicated as mental defective for reestablishing his right to possess a firearm did not violate his equal protection rights. Stimmel, 879 F.3d at 212.