Fourth Circuit upholds firearms ban for domestic violence offenders 

RICHMOND, Va. (CN) —The Fourth Circuit held Wednesday that a statute barring people convicted of misdemeanor domestic violence from possessing firearms is constitutional under the Second Amendment.

The 16-page opinion penned by U.S. Circuit Court Judge Steven Agee, a George W. Bush appointee, held that the provision remains constitutional in the face of new Supreme Court precedent dictating how courts must analyze Second Amendment challenges.

David Nutter of West Virginia moved to dismiss his 2019 indictment for possessing firearms despite convictions for misdemeanor crimes of domestic violence. Nutter based his motion on the Supreme Court ruling in New York State Rifle and Pistol Association v. Bruen , which held the government must show that a challenged firearm regulation is consistent with the nation’s historical tradition of firearm regulation.

Nutter appealed to the Fourth Circuit after a federal judge ruled that the Second Amendment protects the rights of law-abiding citizens, not misdemeanants. Before hearing Nutter’s argument, the Fourth Circuit ordered the parties to provide supplemental briefing following the Supreme Court’s ruling on a similar matter in U.S. v. Rahimi .

In Rahimi , the majority held in 2024 that it is constitutional to ban guns for those with temporary restraining orders, ruling that the nation’s firearm laws have historically included provisions preventing individuals who threaten physical harm to others from misusing firearms.

Nutter contended that a restraining order as addressed in Rahimi requires findings about the actual or intended use of force, while a conviction for some qualifying misdemeanor crimes of violence may be predicated on a lesser finding of reckless offensive touching. Nutter’s misdemeanor convictions stem from striking his teenage stepdaughter, throwing a beer can that hit the seven-month-old child of his girlfriend, and pushing his girlfriend, causing her to fall back onto her other child.

Agee took issue with Nutter’s last-ditch attempt to use the supplemental brief to propose an as-applied challenge to the statute. As-applied challenges pertain to the statute’s specific application, considering the facts of the case. In contrast, to successfully lodge a facial challenge, Nutter had to show that the statute wouldn’t be valid under any circumstance.

“Nutter’s fleeting and generalized reference to it in his supplemental opening brief was both untimely (given that we had not authorized him to expand the issues on review) and insufficient,” Agee wrote. “We leave for another case the question of whether or when as-applied challenges to § 922(g)(9) can be made.”

Nutter hoped to persuad the judges that the 23-year gap since his last of three domestic violence convictions shows he is no longer an individual likely to threaten others. Agee found this argument futile as the government only needed to show that the regulation could be constitutionally applied in at least one instance.

“Arguments that a prior conviction should not permanently ban an individual from possessing firearms based on the amount of time that has lapsed since a conviction or a defendant’s purported rehabilitation are better suited to as-applied challenges or as policy arguments to Congress to advocate amending the statutory language,” Agee wrote.

Nutter attempted to further distance Rahimi from his case by emphasizing that Rahimi focused on temporary restrictions rather than permanent ones. Agee wrote that the challenged statutes in both instances stem from Congress wanting to restrict gun use to mitigate demonstrated threats of physical violence.

The three-judge panel relied on the Sixth Circuit Court of Appeals, which recently upheld the constitutionality of the same regulation inU.S. v. Gailes .

“When the presence of a gun accompanies the use of physical force, the likelihood that abuse turns to homicide greatly increases,” U.S. Circuit Judge Richard Griffin, also a Bush appointee, wrote for the Sixth Circuit panel. “It is no surprise then that Congress sought to deprive people with domestic-violence convictions of possessing firearms.”

This is the latest in many gun regulation challenges the Fourth Circuit has heard since Bruen . The appeals court has recently considered Maryland’s ban on semiautomatic weapons and a handgun safety course requirement and challenges to firearm prohibitions for meth users and those who spent time in mental institutions.

Nutter was ultimately sentenced to 12 months in prison, followed by a three-year term of supervised release.

Attorneys representing the government and Nutter did not respond to requests for comment by press time. U.S. Circuit Court Judge Pamela Harris, a Barack Obama appointee, and U.S. Circuit Judge Richard King, a Bill Clinton appointee, joined Agee in the ruling.