Eleventh Circuit: § 922(g)(9) Is A Presumptively Lawful Prohibition on Possession of Firearms

In United States v. Ludivic White, Jr. (08-16010), the Eleventh Circuit affirmed the conviction of a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).  The decison discussed a number of issues, the last of which was "whether § 922(g)(9) may be properly included as a presumptively lawful “longstanding prohibition[] on the possession of firearms,” a category of prohibitions the Supreme Court has implied survives Second Amendment scrutiny. Heller, __ U.S. __-__, 128 S. Ct. at 2816-17."

The Second Amendment provides as follows: “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. Last year, in Heller, the Supreme Court interpreted this language to “guarantee [an] individual right to possess and carry weapons in case of confrontation.” __ U.S. __, 128 S. Ct. at 2797. In Heller, the Court held that the District of Columbia’s ban on handgun possession in the home by law-abiding citizens violated the Second Amendment. Id. In dictum, the Court qualified the right to bear arms: “[l]ike most rights, [it] is not unlimited.” Id. at __, 129 S. Ct. at 2816. “[N]othing in [Heller] should be taken to cast doubt on 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 . . . .” Id. at __-__, 129 S. Ct. at 2816-17.

***

Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by “longstanding” felon-in-possession laws. We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt.

***

We now explicitly hold that § 922(g)(9) is a presumptively lawful “longstanding prohibition[] on the possession of firearms.” Heller, __ U.S. __-__, 128 S. Ct. at 2816-17. Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White’s conviction.

(emphasis added).  The published opinion was written by the Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.