Constitutionality of Permanent Firearm Prohibition for Domestic Violence Misdemeanants under the Second Amendment

Introduction

This commentary examines the Fourth Circuit’s decision in United States v. David Nutter, 22-4541 (4th Cir. May 14, 2025). The appellant, David Keith Nutter, was convicted under 18 U.S.C. § 922(g)(9) for possessing firearms after prior misdemeanor convictions for domestic violence in Ohio. He challenged the statute as violating his Second Amendment rights. Below, we survey the factual and procedural background, outline the key legal issues, and identify the parties and courts involved.

Plaintiff–Appellee: United States of America
Defendant–Appellant: David Keith Nutter
Amicus Curiae: Fourth Circuit Federal Public Defenders (supporting appellant)
District Court: U.S. District Court for the Southern District of West Virginia (Judge Irene C. Berger)
Court of Appeals: Fourth Circuit (Judges Agee, King, and Harris)
Key Issue: Whether 18 U.S.C. § 922(g)(9) facially violates the Second Amendment under the framework established in District of Columbia v. Heller, New York State Rifle & Pistol Ass’n v. Bruen, and United States v. Rahimi.

Summary of the Judgment

The Fourth Circuit unanimously affirmed Nutter’s conviction. Applying the Supreme Court’s two-step framework from Bruen, and the detailed historical-analogue analysis from Rahimi, the court held that § 922(g)(9) falls within the Nation’s tradition of disarming individuals adjudicated to pose a threat to public safety. Because Nutter mounted only a facial challenge, he bore the heavy burden of showing that the statute was unconstitutional in every conceivable application. The court found that:

The statute targets individuals with valid misdemeanor convictions involving the use or threatened use of physical force against certain domestic partners.
Historical “surety” and “going armed” regulations demonstrate an enduring tradition of disarming those adjudged dangerous, and these serve as relevant analogues to § 922(g)(9).
At least some applications of § 922(g)(9) (e.g., recent convictions for violent domestic assaults) clearly comport with the Second Amendment under Bruen and Rahimi.
Nutter failed to show that no circumstances exist in which the statute is constitutional, thus the facial challenge fails under the Salerno standard.

Analysis

1. Precedents Cited

District of Columbia v. Heller (2008): Recognized an individual right to keep and bear arms but acknowledged that certain disarmament statutes were permissible.
United States v. Salerno (1987): Established the “no set of circumstances” standard for successful facial challenges.
New York State Rifle & Pistol Ass’n v. Bruen (2022): Articulated the two-step test—textual inquiry and historical-tradition inquiry—for assessing Second Amendment challenges.
United States v. Price (en banc) (4th Cir. 2024): Reaffirmed application of the Bruen framework in the Fourth Circuit.
United States v. Rahimi (2024): Upheld 18 U.S.C. § 922(g)(8) by identifying colonial-era surety and going-armed laws as historical analogues, illustrating how the government may disarm those under domestic violence restraining orders.
United States v. Canada (4th Cir. 2024): Confirmed that facial challenges fail if a statute has any plainly legitimate application.
United States v. Gailes (6th Cir. 2024): Applied Bruen and Rahimi to § 922(g)(9), upholding its facial constitutionality by reference to the same historical analogues.

2. Legal Reasoning

The Fourth Circuit’s reasoning follows Bruen’s two steps:

Textual Inquiry: Whether the Second Amendment’s plain text covers Nutter’s conduct (i.e., possession of a firearm). Although the court did not fully litigate step one, it noted that if § 922(g)(9) restricts “the people,” it would nonetheless pass muster under step two. Importantly, the analysis of step two obviates the need for a definitive answer at step one in a facial challenge context.
Historical-Tradition Inquiry: Whether the government’s prohibition aligns with America’s historical tradition of firearm regulation. Drawing on Rahimi, the court found surety and going-armed laws—statutes requiring dangerous persons to post bond or forbidding them to carry weapons—as “relevantly similar” analogues:

Both historical and modern statutes respond to adjudications that a person poses a threat.
They are tailored to mitigate proven dangers rather than imposing broad, indefinite disarmament without individualized findings.
Although § 922(g)(9) may appear permanent, it contains mechanisms (pardons, expungements, restoration of rights, and time-limitations on dating-relationship convictions) that mirror historical flexibility and higher procedural safeguards around convictions.

Because § 922(g)(9) demonstrably fits within this historical tradition, it does not infringe the Second Amendment on its face.

3. Impact

This decision reinforces the rule that federal statutes disarming individuals with domestic violence convictions survive facial Second Amendment challenges if they track longstanding historical analogues of disarming dangerous persons. Practitioners should note:

Future challenges to § 922(g)(9) must proceed as as-applied attacks, focusing on particular facts rather than broad facial claims.
Legislative reform, not litigation, remains the proper avenue for addressing policy concerns about permanent firearm disabilities for dated or rehabilitated convictions.
Courts will look to the quality of the underlying conviction (force, threat of force) and procedural safeguards (judicial findings, opportunity to expunge) in evaluating as-applied challenges.

Complex Concepts Simplified

Facial vs. As-Applied Challenge: A facial challenge asserts that a law is invalid in all its applications; an as-applied challenge contends that a law is unconstitutional under the specific facts of one case. Facial challenges face the tougher “no set of circumstances” burden.
Bruen’s Two-Step Test: First, check if the Amendment’s text covers the regulated conduct. Second, if it does, ask whether the regulation aligns with historical tradition.
Historical Analogues: Laws from the Founding Era (or thereabouts) that share a similar purpose (“why”) and method (“how”) with the modern regulation, even if they differ in precise terms.
Surety and Going-Armed Laws: Colonial statutes that required individuals deemed dangerous (e.g., threatening neighbors) to post bond or to forgo carrying weapons, serving as prototypes for modern disarmament of dangerous persons.
“Plainly Legitimate Sweep”: A statute need only be valid in some applications to survive a facial challenge.

Conclusion

The Fourth Circuit’s decision in United States v. Nutter affirms that 18 U.S.C. § 922(g)(9) is facially constitutional under the Second Amendment. By adhering to Bruen and Rahimi, the court demonstrated that permanently disarming individuals with misdemeanor domestic violence convictions falls comfortably within America’s historical tradition of disarming adjudged threats to public safety. Defendants may still pursue as-applied challenges in future cases, but broad attacks on § 922(g)(9) face a steep uphill battle under the “no set of circumstances” standard. This ruling thus cements a precedent that federal restrictions on firearm possession by domestic violence misdemeanants are consistent with both historical practice and constitutional text.