Fourth Circuit considers firearm prohibition for domestic violence misdemeanants

RICHMOND, Va. (CN) — A Fourth Circuit panel heard from a West Virginia man on Wednesday who argued prohibiting those with misdemeanor domestic violence convictions from possessing guns violates the Second Amendment.

David Nutter told the panel that his over-two-decade-old misdemeanor domestic violence convictions shouldn’t keep him from exercising the right to bear arms.

Nutter moved to dismiss his 2019 indictment for possessing firearms after having sustained convictions for misdemeanor crimes of domestic violence came after the Supreme Court ruled in New York State Rifle and Pistol Association v. Bruen that the government must show that a challenged firearm regulation is consistent with the nation’s historical tradition of firearm regulation. A federal judge in West Virginia denied Nutter’s motion, ruling the Second Amendment protects the rights of law-abiding citizens, not misdemeanants.

“Individuals who pose a threat to the safety of their families, and potentially others, would not have been welcome as part of a ‘well-regulated’ militia, and permitting them to possess firearms runs starkly counter to public safety goals of the Second Amendment,” U.S. District Judge Irene Berger, a Barack Obama appointee, said. “Inherent in the concept of self-defense is an interest in protecting the safety of innocent, law-abiding citizens from criminals who would do them harm.”

U.S. Circuit Judge Steven Agee, a George W. Bush appointee, noted the Supreme Court’s decision in U.S. v. Rahimi, in which the majority held that it is constitutional to ban guns for those with restraining orders temporarily. The high court held in the 2024 decision that the nation’s firearm laws have historically included provisions preventing individuals who threaten physical harm to others from misusing firearms.

Nutter argued his decades-old convictions don’t automatically make him an individual likely to threaten others. He also stated that Rahimi wasn’t applicable because it focused on temporary restrictions rather than permanent ones.

U.S. Circuit Judge Pamela Harris, another Obama appointee, raised the holding in U.S. v. Hunt , a Fourth Circuit case challenging firearm prohibitions for felons. The panel ruled that there is a tradition of permanently banning firearm possession on a categorical basis.

Attorney Lex Coleman, representing Nutter, spent the bulk of his allotted time attempting to poke holes in the historical reasoning used for the Rahimi and Hunt decisions.

“We are bound by Hunt ,” Harris said. “I understand you think Rahimi is wrong, you think Hunt is wrong, but that’s not a luxury that we have in deciding this case.”

Coleman said Hunt addresses a history of prohibiting felons, not misdemeanants, from possessing firearms. He emphasized that his client isn’t the kind of dangerous person the country’s founders restricted firearm use for.

“We’re calling this a misdemeanor. The state laws do it. Congress did. That means something, or what’s the point?” Coleman asked. “If you’re going to do it to misdemeanor domestic violence, then what about the person who violates a parking meter? What a person who drives too fast and endangers lives on the highway? What’s the proper proxy for dangerousness?”

Harris brought up the facts of the case to illustrate that the legislature had a reason for viewing those convicted of misdemeanor domestic violence as dangerous. 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.

“Yes, people were hit; that’s not in dispute. I’m not minimizing that,” Coleman said.

Harris disagreed.

“It seems like you are,” Harris told Coleman.

Coleman said that Nutter’s conduct is less egregious relative to what the founders determined to be felonies.

“It’s called a misdemeanor for a reason,” Coleman responded.

Government attorney William Glazer criticized Coleman’s use of the term “misdemeanor” to differentiate his clients’ convictions from those of felons. Glazer pointed out that for a domestic violence misdemeanor conviction, the accused must have used or attempted to use force.

“This is not going to reach to all misdemeanors. It’s only a narrow category of violent misdemeanors,” Glazer said. “Congress could conclude based on the statistical evidence that people who have committed these crimes do pose a danger not just to their family members, but to others if they’re allowed to be armed.”

For a facial challenge like the one Nutter lodged, the government only needs to show that the regulation can be constitutionally applied in at least one instance. The Sixth Circuit Court of Appeals recently upheld the constitutionality of the same regulation.

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

Coleman did not respond to a request for comment, while Glazer said he was unauthorized to speak with the media. Nutter ultimately was sentenced to 12 months in prison, to be followed by a three-year term of supervised release.