“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fourth Circuit judge Julius Richardson argued in dissent that the courts should effectively create an exception for subsequent good behavior to a federal law that prohibits people who were convicted of domestic violence from owning firearms. The majority rejected Richardson’s view and affirmed a district court decision ruling that a man convicted of domestic violence against his wife many years ago could not challenge the federal law as applied to him in its February 2021 decision in Harley v Wilkinson.

 In 1993, Robert Harley, who worked for the Fairfax County Department of Public Works, was convicted of misdemeanor assault and battery against his wife. This offense is considered a “misdemeanor crime of domestic violence” under federal law, which prohibits anyone so convicted of possessing a firearm “unless he obtains a pardon or an expungement.”

Without attempting to obtain such relief, Hartley filed a federal lawsuit 25-plus years later, contending that the law is unconstitutional as applied to him because he “has demonstrated good behavior” since his conviction. The district court rejected his claim on summary judgment, and Hartley appealed.

In a 2-1 decision, a Fourth Circuit panel affirmed the district court’s ruling. Even assuming that people convicted of such domestic violence continue to have Second Amendment rights, the majority explained, the federal government had established that there was a “reasonable fit” between the law and a “substantial government objective.” As the Fourth Circuit had held in rejecting an earlier as-applied challenge to the law, the primary objective was “reducing domestic gun violence,” which the government had proven is a “serious problem” with a high “rate of recidivism” that “often leads to injury or homicide.” The majority rejected Hartley’s request to consider the circumstances of his case and his subsequent good behavior as “fundamentally flawed” because it would create a judge-made exception to the statute that “does not exist” and that Congress “did not provide.” The majority noted that several other federal courts of appeal had similarly rejected such an “exception for good behavior or for the passage of time,” and that it was up to “Congress, not the courts” to decide whether to create one.

Trump judge Richardson dissented, claiming that the Second Amendment does not permit Hartley’s “statutory disarmament.”  He claimed that the court had considered an individual’s “particular circumstances” in other cases concerning gun safety restrictions, such as a case limiting dealer licensing, and that the court should send this case back to the lower courts for such an evaluation. He also argued that a recent Supreme Court decision making clear that domestic violence includes “offensive touching” and not just “violent force” meant that the law may now “sweep beyond what he claimed was its “original justification,” making consideration of “individual circumstances” important.

The majority explained what was wrong with Richardson’s arguments. With respect to the court’s prior consideration of challenges to gun safety laws, the majority noted that the court had made clear that consideration of individual circumstances would be relevant only in “rare cases” and not in this case, where a broad “range of possible convictions” under state law are involved and the “threatened use of a deadly weapon” is “manifestly related to the statutory prohibition.” In a concurring opinion, Judge James Wynn wrote that the Supreme Court’s domestic violence decision only “highlight[s]” the constitutionality of the gun safety law at issue and “contradicts” Richardson’s suggestion that the statute was meant to cover only “severe” domestic violence. Instead, Wynn continued, Congress’ interest is in “preventing future harm” by “disarming individuals” with prior convictions because  of the “potential to enact that future harm.” Rather than saying that Hartley should pursue the remedies created under the law, Wynn pointed out, Richardson’s view “would effectively gut the statute,” contradicting both its “plain language” and “legislative intent.”

Trump judge Richardson is the latest Trump judge, starting with now-Justice Amy Coney Barrett, to argue in dissent that a federal gun safety law should be severely limited or ruled unconstitutional. There is a serious future risk that a majority on a federal court, including the Supreme Court, may yet adopt that view, making confirmation of fair-minded constitutionalist judges nominated by President Biden extremely important. For now, at least, despite Trump judge Richardson’s efforts, there is no “good behavior” exception in the Fourth Circuit to the federal law prohibiting people convicted of domestic violence from possessing firearms.