United States District Court, E.D. Virginia, Alexandria Division
ELLIS, III UNITED STATES DISTRICT JUDGE
thirty years ago plaintiff was involved in a domestic
incident with his ex-wife and was convicted of misdemeanor
assault and battery of a family member, in violation of Va.
Code § 18.2-57.2. Under federal law, specifically 18
U.S.C. § 922(g)(9), plaintiffs 1993 misdemeanor domestic
assault conviction makes it illegal for him to possess a
firearm. Plaintiff, who, as the record reflects, has obeyed
the law without incident since 1993, and who, as the record
also reflects, has a long history of public service, now
challenges the constitutionality of § 922(g)(9) as
applied to him. Simply put, plaintiff argues that one
misdemeanor conviction nearly thirty years ago should not
preclude him from possessing a firearm for the rest of his
life. He believes that under his specific circumstances,
§ 922(g)(9) unconstitutionally violates his Second
Amendment right to keep and bear arms. Thus, he seeks summary
judgment in his favor, a decision that would allow him to
possess firearms legally again.
part, the government has moved for summary judgment, noting
that each federal court of appeals to consider arguments like
plaintiffs has rejected as-applied challenges to §
922(g)(9). In other words, according to the government,
§ 922(g)(9) has no good behavior exception or expiration
provision and is not rendered unconstitutional simply because
a former perpetrator of a domestic violence misdemeanor
behaves himself for any particular period of time.
reasons that follow, the government's motion for summary
judgment must be granted and plaintiffs motion must be
essential and material facts of this case are undisputed.
They are as follows:
• In July of 1993, plaintiff was convicted in Fairfax
County Juvenile and Domestic Relations Court of committing
misdemeanor assault under Va. Code §18.2-57.2 following
the entry of a guilty plea.
• This conviction arose after plaintiff called the
Fairfax County Police Department and reported to the police
that he and his then-estranged wife, Angela, had argued and
gotten into a physical altercation.
• Plaintiff has not committed any other crimes since
• Plaintiff worked thirty (30) years for Fairfax County
Public Works and was recognized for his contributions to the
public upon his retirement.
• Plaintiff also served as a volunteer fireman/EMT for
many years and was highly decorated for this service.
there is "no genuine dispute as to [these] material
fact[s]" and because both parties have filed motions for
summary judgment, at least one party "is entitled to
judgment as a matter of law." Celotex v.
Catrett, 477 U.S. 317, 322 (1986).
operative statutory subsection in this case, §
922(g)(9),  was added to the statute in 1997 after
Congress recognized 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 are not charged with or
convicted of felonies.'" United States v.
Hayes, 555 U.S. 415, 426 (2009) (quoting 142 Cong. Rec.
22, 985 (1996) (statement of Sen. Lautenberg)). Section
922(g)(9) attempts to close this "'dangerous
loophole, '" by extending the federal firearm
prohibition to persons convicted of "'misdemeanor
crime[s] of domestic violence.'" Id.
(quoting 142 Cong. Rec. at 22, 986 (statement of Sen.
Lautenberg)) (alteration in original).
having been convicted of misdemeanor family assault, plainly
falls within the group of individuals Congress intended to
preclude from possessing firearms. And because the facial
validity of § 922(g)(9) has not been challenged here,
nor has it been successfully challenged elsewhere,
only issue presented in this case is whether § 922(g)(9)
is unconstitutional as applied to plaintiff.
Third Circuit has noted, an as-applied challenge differs from
a facial challenge because it "does not contend that a
law is unconstitutional as written but that its application
to a particular person under particular circumstances
deprived that person of a constitutional right."
United States v. Mitchell,652 F.3d 387, 405 (3d
Cir. 2011). As-applied challenges to the constitutionality of
statutes are not uncommon and therefore it is not surprising
that the Fourth Circuit has considered "the proper
framework for deciding as-applied Second Amendment
challenges." United States v. Staten, 666 F.3d
154, 158-59 (4th Cir. 2011) (discussing the two-step analysis
for considering as-applied constitutional challenges and
rejecting Staten's as-applied constitutional challenge to
18 U.S.C. § 922(g)(9)); see also United States v.
Chester,628 F.3d 673, 680 (4th Cir. 2010) (adopting the
two-step analysis for an as-applied challenge to 18 U.S.C.
§ 922(g)(9)) (citing United States v.
Marzzarella,614 F.3d 85, 89 (3d Cir. 2010)). Distilled
to its essence, the Fourth Circuit's analytical framework