Earlier this week, in United States v. McGinnis, a Fifth Circuit panel upheld 18 U.S.C. § 922(g)(8) against a Second Amendment challenge. That provision prohibits a person subject to certain types of restraining orders from possessing guns or ammunition while the order is in effect. With this decision, the Fifth joins a chorus of other courts brushing aside facial challenges to the federal prohibitors.
In July 2017, McGinnis was arrested for possessing a firearm while subject to a domestic violence restraining order (one that had been issued 23 months prior to his arrest and was set to expire in 4 weeks). When police searched his backpack after placing him under arrest, they “found a short-barrel AR-15 rifle with a collapsible stock and 3D-printed lower receiver, along with five thirty-round magazines. The backpack also held several envelopes containing documents entitled ‘9/11/2001 list of American Terrorist’ (sic). The list included the names and addresses of several prominent politicians.” The government charged McGinnis with (1) possessing an unregistered short-barrel rifle in violation of the National Firearms Act, and (2) possessing ammunition while subject to a DV protective order. His appeal concerned only the latter.
McGinnis principally argued that § 922(g)(8) is unconstitutional on its face under the Second Amendment. If that sounds like a familiar challenge in the Fifth Circuit, that’s because it is. In 2001, in United States v. Emerson, a panel of the Fifth Circuit became the first federal court of appeals in the country to construe the Second Amendment as protecting an individual right unconnected to militia service. In a tour de force opinion that presaged Justice Scalia’s Heller opinion, Judge Garwood surveyed history and commentary to conclude that the Second Amendment right belongs to private citizens to exercise for private purposes. That panel, nonetheless, upheld § 922(g)(8) as constitutionally permissible. McGinnis argued that Heller had displaced Emerson’s holding.
Writing for the McGinnis panel, Judge Duncan rejected that notion. He noted that after Heller the federal appellate courts, including the Fifth Circuit, had converged on a two-step framework that asks (1) whether the conduct is within the scope of the right, and then, if so, (2) whether the government can prove the law passes means-end scrutiny. Although the panel was skeptical that Heller undermined the result in Emerson, “in an abundance of caution [it] proceed[ed] to re-analyze the constitutionality of § 922(g)(8) under the two-step  framework.” In keeping with an increasingly common practice, the court assumed the statute burdened conduct at step one and went straight to step two.
At step two, the court decided that intermediate, not strict, scrutiny applied. Noting that “choosing the appropriate level of scrutiny involves some degree of arbitrariness,” the court found the reasons for strict scrutiny wanting. As it said:
While § 922(g)(8) is broad in that it prohibits possession of all firearms, even those kept in the home for self-defense, it is nevertheless narrow in that it applies only to a discrete class of individuals for limited periods of time. Critically, the discrete class affected by § 922(g)(8) is comprised of individuals who, after an actual hearing with prior notice and an opportunity to participate, have been found by a state court to pose a “real threat or danger of injury to the protected party.” Emerson, 270 F.3d at 262. Put differently, individuals subject to such judicial findings are not the “responsible citizens” protected by the core of the Second Amendment.
(As an aside, it seems to me that the court’s description of those whom a court has determined to be a danger to themselves as not “responsible” may undermine advocates’ efforts to attack extreme risk/red flag laws on Second Amendment grounds. My forthcoming article with Joseph Blocher discusses some of these issues.)
After settling on intermediate scrutiny, the court conducted the tailoring analysis. The court found a reasonable fit between the law and the interest in reducing domestic abuse with firearms because the prohibition is temporary and occurs only after an adversary hearing. (The panel went out of its way to contrast 922(g)(8), which only imposes a temporary disability, with 922(g)(9), which bars those with DV misdemeanor convictions from firearms for life.) The court therefore rejected McGinnis’s facial challenge. It clarified, however, that its holding “does not foreclose the possibility of a successful as-applied challenge to § 922(g)(8).”
In another interesting part of the decision—which Darrell Miller will be blogging about next week—Judge Duncan issued a separate concurring opinion, joined by Judge Jones, calling for rejection of the circuit’s use of the two-part framework in favor of the text, history, and tradition approach. He stated that he would support en banc review “in this case or any appropriate future case” to get there.