There are also a lot of really brutal, nasty, ugly people out there: usually, but not always, guys. Not only should they not be trusted with guns — they shouldn’t be trusted with hands. A recent decision of the United States 4th Circuit Court of Appeals, U.S. v. Chester (2010), perfectly captures this situation. Chester tells us we may be posing the wrong question when we ask whether domestic violence misdemeanors should be lifetime firearms disqualifiers.
Mr. Chester was convicted of domestic violence against his adult daughter in 2004, after a “dispute arose over what Meghan had eaten for lunch that day. In this attack, Chester slammed his daughter on the kitchen table. Meghan attempted to leave but Chester followed her, threatened her, and punched her in the face. Meghan fell to the floor in pain, but Chester continued to attack her. He began kicking her as she lay on the ground [...].”
In 2007, the police again were called to Mr. Chester’s home by the woman who was then his wife. (It appears that she decided to leave his little paradise.) At 5:00 AM, Mrs. Guerrant-Chester (as she is now known) discovered her husband outside their house, receiving oral sex from a prostitute. Mr. Chester responded ungraciously to being caught, using language unfit to repeat. “Once inside, Chester grabbed Guerrant-Chester’s face and throat and strangled her while repeatedly shouting ‘I’m going to kill you!’ Chester’s daughter, Samantha Chester, heard Chester repeatedly threaten to kill Guerrant-Chester and came to the kitchen.” The police found a shotgun and a handgun when they arrived, and Mr. Chester’s fun-filled adventure in 18 USC 922(g)(9) litigation began.
Now, Mr. Chester is making the argument that his Second Amendment rights are being violated by 18 USC 922(g)(9) — and the Court of Appeals agreed that the trial court needed to rehear his case in light of the questions raised by D.C. v. Heller (2008). (The Court of Appeals also pointed out that there is some dispute among scholars about exactly how far such firearms disqualifications can proceed — listing one of my law review articles as one of the dueling scholars.)
People like Mr. Chester, and cases like his, are likely to incline the courts toward upholding what is clearly an absurd law. There is really no originalist basis for making every misdemeanor violence conviction into a lifelong firearms disability. Instead, we should be asking why some of these crimes are only misdemeanors. Brutal crimes such as Mr. Chester’s attack on his daughter deserve serious punishment as felonies. Other domestic violence crimes, such as a wife slapping her husband, or a husband throwing a cup at his wife during an argument, certainly deserve punishment and discouragement — but by throwing all of these into the same kettle, we destroy all useful distinctions.
If the Supreme Court finds the Lautenberg Amendment unconstitutional, the majority must be very clear that there is a fix: a proper division of felonies and misdemeanors. There are many domestic violence crimes that deserve to be treated as felonies — and punished that way. There are others that do not.