Gun Ban Justified by 1997 Domestic Violence Conviction

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By Patrick L. Gregory

Hawaii can ban a person from owning guns based on a 1997 domestic violence conviction under the Second Amendment, the U.S. Court of Appeals for the Ninth Circuit held May 5 ( Fisher v. Kealoha , 9th Cir., No. 14-16514, 5/5/17 ).

Keeping guns away from domestic abusers serves a “substantial government interest” that justifies the ban, the court said.

But the state will likely face a challenge to its process for restoring gun rights, which requires a gubernatorial pardon, Judge Alex Kozinski said in a concurrence to the court’s unsigned opinion.

Giving the governor “unbounded discretion sits in uneasy tension with how rights function,” Kozinski said.

Judges Michael Daly Hawkins and Carlos T. Bea were also on the panel.

Old Conviction

Kirk C. Fisher argued that the ban was unconstitutional as applied to him because his conviction “occurred many years ago” and he committed no crimes since then, the court said.

It was inconsequential that Fisher’s conviction was two decades ago , the court said, citing its decision in United States v. Chovan.

In Chovan, the court rejected a similar challenge by a man who “had committed no further acts of domestic violence” in the 15 years after his conviction, the court said.

Fisher also argued that the ban was unconstitutional because his rights could only be restored by a gubernatorial pardon, the court said.

The court rejected that argument because he failed to apply for a pardon and was therefore “in no position to argue” that the state’s restoration process was insufficient.

Te-Hina Te-Moana Ickes of Honolulu argued for Fisher. The Honolulu Department of the Corporation Counsel argued for the city.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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