‘The time has come to treat the Second Amendment as a real constitutional right’

From today’s Fisher v. Kealoha opinion from the U.S. Court of Appeals for the 9th Circuit (and Judge Alex Kozinski’s separate opinion, though he also joined the panel opinion) — like many judicial opinions, it leaves much unresolved, but it flags an important question for the future: What sorts of procedures must the government offer for recovering Second Amendment rights that were lost as a result of a criminal conviction?

Kirk Fisher appeals the district court’s adverse grant of summary judgment on the issue of whether section 134-7 of the Hawaii Revised Statutes constitutionally prohibits him from owning or possessing firearms because of his 1997 conviction for “harassment” [of his wife and daughter] in violation of section 711-1106 of the Hawaii Revised Statutes. …

This appeal involves the interaction of three statutory provisions: (1) section 134-7(a) of the Hawaii Revised Statutes, which prohibits a person from owning or possessing firearms if that person is prohibited from possessing firearms under federal law; (2) 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of any “misdemeanor crime of domestic violence”; and 18 U.S.C. § 921(a)(33)(B)(ii), which provides that a person “shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] … if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored.” …

We have previously determined that section 922(g)(9) burdens conduct protected by the Second Amendment and upheld its constitutionality, facially and as-applied, under intermediate scrutiny. United States v. Chovan, 735 F.3d 1127, (9th Cir. 2013), considered, among other things, whether section 922(g)(9) could be constitutionally applied to a defendant based on a fifteen-year-old domestic violence misdemeanor conviction. We recognized that keeping firearms out of the hands of domestic abusers is an important government interest and noted the high rate of recidivism for domestic abusers and the number and likelihood of domestic violence deaths involving the use of a firearm.

We also rejected Chovan’s argument that section 922(g)(9) could not constitutionally apply to him because he had committed no further acts of domestic violence in the fifteen years following his conviction. Even assuming that Chovan had committed no such acts, we explained, Chovan had failed to adduce sufficient evidence: