                Rehearing granted, December 30, 2010



                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4084


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WILLIAM SAMUEL CHESTER, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District   of   West   Virginia,  at  Charleston.   John   T.
Copenhaver, Jr., District Judge. (2:08-cr-00105-1)


Argued:   December 4, 2009                 Decided:   February 23, 2010


Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Edward Henry Weis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.     Elizabeth
Dorsey Collery, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.     ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Charles T. Miller, United States Attorney, Gerald M.
Titus, III, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     A    grand   jury    sitting   in    the    Southern     District       of    West

Virginia indicted William Samuel Chester, Jr., for possession of

a firearm after having been convicted of a misdemeanor crime of

domestic    violence,     in    violation       of    18   U.S.C.   §    922(g)(9).

Chester    moved     to    dismiss       the     indictment,        arguing        that

application of the federal statute to him violated his Second

Amendment right to keep and bear arms as explained in District

of Columbia v. Heller, 128 S. Ct. 2783 (2008). The district

court denied the motion. Thereafter, Chester pled guilty but

reserved his right to appeal the district court’s denial of his

motion to dismiss the indictment. He now reiterates his Second

Amendment challenge to § 922(g)(9).

     In    the    proceedings    below,        the    district   court       did    not

address    whether    Heller     required       the    Government       to   justify

individual laws that restrict Second Amendment rights. Instead,

it dismissed Chester's claim in reliance on Heller’s much-noted

language as to “presumptively lawful” gun regulations—notably,

the felon-dispossession laws. J.A. 60-61. Following the pattern

of other lower federal courts, it drew an analogy between felons

and domestic violence misdemeanants, concluding that the Heller

language should be read to include both because the potential

violent acts of those found guilty of domestic violence is often




                                      -2-
far greater than that of those who commit non-violent felonies.

J.A. 61.

        We find that the district court erred when it failed to

scrutinize § 922(g)(9) apart from the language in Heller. We

agree       with    the   Seventh    Circuit      decision    in    United    States    v.

Skoien, 587 F.3d 803, 808 (7th Cir. 2009), insofar as it held

that        challenges      to   firearms       regulations        under     the   Second

Amendment must be individually analyzed because such regulations

restrict the exercise of a constitutional entitlement. In this

case, the district court neither determined the most appropriate

level of scrutiny of § 922(g)(9), nor did it substantively apply

that        level   of    scrutiny   to    an   analysis     of    §   922(g)(9), 1    and

therefore,          we    vacate     and    remand     this        case    for     further

proceedings. 2



        1
       The district court did conclude, without any analysis,
that § 922(g)(9) “survives Second Amendment scrutiny, whether
deemed intermediate or strict, both facially and as here
applied.” J.A. 61.     That conclusory language is insufficient
particularly as it is not based on an evidentiary ground in the
record or any legal analysis for the conclusion.
        2
       We note that on September 30, 2009, the Supreme Court
granted certiorari in McDonald v. Chicago, a distinct but
related Second Amendment case appealed from the Seventh Circuit.
National Rifle Ass'n v. Chicago, 567 F.3d 856 (7th Cir. 2009),
cert. granted, McDonald v. Chicago, 77 U.S.L.W. 3691 (U.S. Sept.
30, 2009) (No. 08-1521). In McDonald, the issue presented is
whether the Second Amendment right to keep and bear arms is
incorporated as against the States by the Fourteenth Amendment's
Privileges or Immunities or Due Process Clauses. Oral argument
is calendared for Tuesday, March 2, 2010.

                                            -3-
                                               I.

       On February 4, 2005, Chester was convicted in state court

in West Virginia for the misdemeanor crime of domestic battery

and domestic assault in violation of W. Va. Code § 61-2-28(a) &

(b).   J.A.    36-37.     In   the      criminal       complaint       filed    in    Kanawha

County, West Virginia, an officer stated that he interviewed

defendant’s then 22 year-old daughter, Meghan Chester, who said

that the defendant, her father, “beat her up and assault[ed]

her” during an argument over what she had eaten for lunch that

day.    J.A.    41     (brackets     added).          Meghan    stated       that     her    dad

slammed her on the kitchen table and punched her in the face.

Id. She then fell to the ground, where her father began kicking

her    and    dumped    buckets      of       water    over    her     head.    Id.     Meghan

escaped      and     locked    herself        in     the   bathroom     and     her     mother

eventually took her to the hospital. Id. Megan told police that

she thought her father was intoxicated during the argument. Id.

       Over    two    years    later,      on      October     10,    2007,    the    Kanawha

police    again      responded     to     a    domestic       abuse    situation       at    the

Chester      family    home.    This      time,       Mrs.    Linda    Guerrant-Chester,

defendant’s        then-wife,      called.            J.A.    48.     When    the     officers

arrived, Mrs. Chester told them that she awoke at 5:00 a.m. and

discovered         defendant     outside            receiving        oral     sex     from     a

prostitute. Id. Mrs. Chester said that defendant stated, “[s]o

you    fucking       caught    me”   and        dragged       her    inside     the    house.


                                               -4-
Chester then grabbed his wife’s face and throat, strangling her,

and repeatedly shouted “I’m going to kill you!” Id. While the

couple’s daughter, Samantha Chester, attempted to calm down the

defendant, Mrs. Chester called the police. Id. Samantha Chester

told the officers that she heard defendant repeatedly threaten

to kill Mrs. Chester. Id. During a search of the home, officers

located a loaded 12-gauge shotgun in the kitchen pantry and a

9mm pistol in the defendant’s bedroom. J.A. 49, 76, 119. Both

firearms belonged to the defendant. J.A. 76, 119.



                                         II.

     On May 6, 2008, a federal grand jury returned a one-count

indictment which charged Chester with violating 18 U.S.C. § 922

(g)(9) by knowingly possessing two firearms, in and affecting

interstate       commerce,      after     having        been     convicted        of    a

misdemeanor crime of domestic violence. J.A. 6-7. Chester moved

to   dismiss     the     indictment.     J.A.        8-14.    The    district     court

directed the parties to submit briefing in light of the Supreme

Court opinion in Heller. J.A. 3. After receiving the briefs, the

district court denied Chester’s motion. J.A. 58-62.

     The    district      court    issued      a     brief     written     opinion     on

October    7,    2008.    The   court    cited       Heller’s       observation      that

“nothing    in    our    opinion   should       be    taken     to    cast   doubt     on

longstanding      prohibitions      on   the       possession        of   firearms     by


                                         -5-
felons and the mentally ill . . . .” J.A. 60 (citing Heller, 128

S. Ct. at 2816-17).     The court then drew an analogy between non-

violent felons and domestic violence misdemeanants, finding that

the Heller language could, and in this case, should, be read to

include both. The court analyzed the issue as follows:

     The thrust of the majority opinion in Heller leaves
     ample   room  for   the  government   to   control   the
     possession of firearms by misdemeanants found guilty
     of domestic violence. Indeed, the need to bar
     possession   of    firearms   by    domestic    violence
     misdemeanants in order to protect family members and
     society in general from potential violent acts of such
     individuals is quite often far greater than that of
     the similar prohibition of § 922(g)(1) on those who
     commit nonviolent felonies.

J.A. 61.

     Chester then entered a conditional guilty plea, preserving

his right to appeal the district court’s denial of his motion to

dismiss. J.A. 115-116, 120-123.           The district court imposed a

sentence of five months in prison, followed by a three-year term

of supervised release. 3 J.A. 125-26. Chester appealed on the

grounds    that   18   U.S.C.   §   922(g)(9)    violates   the   Second

Amendment. J.A. 131. This court has jurisdiction of Chester’s

claim pursuant to 28 U.S.C. § 1291.




     3
       On February 26, 2009, Chester filed a motion asking the
district court to set a date for him to self report and he began
serving his term of incarceration. J.A. 5.



                                    -6-
                                         III.

     This case challenges the constitutionality under the Second

Amendment   of    18    U.S.C.     § 922(g)(9),       a   statute    that   bans     gun

possession for individuals previously convicted of a misdemeanor

crime of domestic violence. 4 Chester’s challenge rests on the

Supreme   Court’s       recent     decision     in    District      of   Columbia    v.

Heller,   where    it       held   unconstitutional        two   statutes      in    the

District of Columbia that banned the possession of handguns and

required that all firearms in the home be kept inoperable. 128

S. Ct. at 2821-22. The issue is therefore whether Heller renders

unconstitutional        a    statutory    gun        prohibition     imposed    on    a

domestic violent misdemeanant convicted for inflicting physical

abuse on his daughter.




     4
       This statute was enacted in 1996 along with 18 U.S.C. §
922(g)(8) as part of the so-called Lautenberg Amendment to the
Gun Control Act. See generally United States v. Barnes, 295 F.3d
1354, 1364 (D.C. Cir. 2002); U.S. v. Luedtke, 589 F. Supp. 2d
1018 (E.D. Wis. 2008). The statute states:

     (g) It shall be unlawful for any person—
     . . . .
     (9) who has been convicted in any court of a
     misdemeanor crime of domestic violence,
     to ship or transport in interstate or foreign
     commerce, or possess in or affecting commerce, any
     firearm or ammunition; or to receive any firearm or
     ammunition which has been shipped or transported in
     interstate or foreign commerce.

18 U.S.C. § 922(g)(9).



                                         -7-
                                        A.

      In Heller, the Court based its holding on a reading of the

Second Amendment's main clause, the “operative clause.” Id. at

2789 (“The Second Amendment is naturally divided into two parts:

its prefatory clause and its operative clause. The former does

not   limit   the   latter      grammatically    but    rather   announces   a

purpose.”). The Court read the operative clause to “guarantee

the individual right to possess and carry weapons in case of

confrontation.”     Id.    at   2797.    Although    not   codified   in   the

amendment, the Court found that this right included a right to

“self-defense,” which it described as “the central component of

the right itself.” Id. at 2801. It held that the District of

Columbia statutes were unconstitutional because they prohibited

a class of arms that Americans utilize for the lawful purpose of

self-defense, thus prohibiting citizens from using firearms for

“the core lawful purpose of self-defense.”             Id. at 2818.

      The Supreme Court carefully circumscribed Second Amendment

rights, however, and defined them as “not unlimited.” Id. at

2816. It explained that “longstanding prohibitions” derived from

various   historical      restrictions        were   “presumptively    lawful

regulatory measures.” Id. at 2816-17 & n.26; id. at 2816 (“From

Blackstone    through     the   19th-century     cases,    commentators    and

courts routinely explained that the right was not a right to

keep and carry any weapon whatsoever in any manner whatsoever


                                        -8-
and for whatever purpose.”). The Court provided a non-exclusive

illustrative      list   of     such   presumptively     lawful     exceptions,

including but not limited to “longstanding prohibitions on the

possession of firearms by felons and the mentally ill[.]” Id. at

2816-17.   Thus,    Heller      explicitly    left    some   gun   restrictions

intact.

     Although     Heller      disclaimed     any   constitutional    defect   in

some gun regulations, it refrained from identifying the proper

standard of scrutiny for analyzing whether a statute infringes

on Second Amendment rights. Id. at 2821. The Court concluded

that the D.C. statute would fail under any “of the standards of

scrutiny   that    we    have    applied     to    enumerated   constitutional

rights.” Id. at 2817-18. Notwithstanding this silence, the Court

did provide some guidance. It rejected rational basis review,

id. at 2817 n.27, and rejected the standard proposed by Justice

Breyer in his dissent, an “interest-balancing inquiry.” 5 Id. at

2821. The Court also distinguished between different types of


     5
       Justice Breyer’s interest-balancing test inquires “whether
the statute burdens a protected interest in a way or to an
extent that is out of proportion to the statute's salutary
effects upon other important governmental interests.” Heller,
128 S. Ct. at 2852 (Breyer, J., dissenting). The majority
rejected Justice Breyer’s suggestion on the basis that the
Second Amendment, like the First Amendment, is the very product
“of an interest-balancing by the people[,]” id. at 2821
(majority opinion), and that the Amendment itself “elevates
above all other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Id.



                                       -9-
Second Amendment rights. It identified the most important “core

right” of the Second Amendment as the right of “law-abiding,

responsible citizens to use arms in defense of hearth and home.”

Id.

                                       B.

      In the wake of Heller, lower federal courts have employed

two distinct tacks when faced with constitutional challenges to

gun   regulations     under   18    U.S.C.   §   922(g).    Many   courts     have

upheld provisions of § 922(g) under the “presumptively lawful

regulations”     or   the     “longstanding      prohibition”      language     in

Heller. These courts say a particular § 922(g) provision passes

muster    constitutionally         either    because    Heller     specifically

stated    the   particular     regulations       were      constitutional,      as

regarding felons and the mentally ill, § 922(g)(1) and (4), or

via analogy to the so called “presumptively lawful regulations.” 6



      6
       We have upheld the felony possession provision and the
mentally ill possession provision under the Heller language in
unpublished cases. U.S. v. Brunson, No. 07-4962, 292 Fed. Appx.
259, *261 (4th Cir. Sept. 11, 2008) (upholding §922(g)(1)); U.S.
v. McRobie, No. 08-4632, 2009 WL 82715, *1 (4th Cir. Jan. 14,
2009) (upholding § 922(g)(4)). Many other appellate courts have
concluded similarly. E.g., U.S. v. Anderson, 559 F.3d 348, 352
(5th Cir. 2009) (upholding §922(g)(1)); U.S. v. McCane, 573 F.3d
1037, 1047 (10th Cir. 2009) (same); U.S. v. Stuckey, No. 08-
0291, 317 Fed. Appx. 48, 50 (2nd Cir. March 18, 2009) (same).
     Other federal courts have also upheld § 922(g)(9) via
analogy to the Heller exceptions for felons and the mentally
ill. E.g., United States v. White, -- F.3d --, 2010 WL 59127 at
*5 (11th Cir. Jan. 11, 2010), United States v. Booker, 570 F.
Supp. 2d 161, 163-64 (D. Me. 2008); U.S. v. Luedtke, 589 F.

                                      -10-
Other      federal   courts      have    individually       analyzed    the       specific

statutory provision at issue, determined the appropriate level

of constitutional scrutiny, and then scrutinized the statute in

light of the factual circumstances before the court. 7

       The      Seventh         Circuit,     in      a      case      involving         the

constitutionality          of     §    922(g)(9),        recently     confronted        the

tension between a court’s obligation to scrutinize statutes that

infringe on constitutional rights and the presumptively lawful

regulations language in Heller.                    Skoien, 587 F.3d at 808. The

court noted “for starters[,]” that the Supreme Court language

about presumptively lawful regulatory measures was dicta, and

although it did not ignore it, it concluded that “it would be a

mistake to uphold this or other gun laws simply by invoking the

Court's      reference     to     these    ‘presumptively          lawful    regulatory

measures,’ without more.” Id. Additionally, the Seventh Circuit

noted that the term “presumptively lawful regulatory measures”

lacked clarity. It could include regulations presumed “to fall

outside      the   scope    of    the     Second    Amendment       right    as    it   was

understood at the time of the framing” or it could mean that

some       regulations     “are       presumptively       lawful     under    even      the



Supp. 2d 1018, 1022-23 (E.D. Wis. 2008); United States v. White,
No. 07-00361, 2008 WL 3211298 at *1 (S.D. Ala. Aug. 6, 2008).
       7
       E.g., United States v. Miller, 604 F. Supp. 2d 1162, 1171
(W.D. Tenn. 2009); United States v. Engstrum, 609 F. Supp. 2d
1227, 1231-34 (D. Utah 2009).

                                           -11-
highest standard of scrutiny applicable to laws that encumber

constitutional          rights.”         Id.     Lastly,        the     Seventh     Circuit

explained that in Heller, the Supreme Court left ambiguous the

contours    of    the    historically           justified     exceptions,      suggesting

that some restrictions on firearms will require a case-by-case

analysis. Id. (citing Heller, 128 S. Ct. at 2821). For all of

these reasons, the Seventh Circuit found that “gun laws-other

than those like the categorically invalid one in Heller itself

[e.g., total ban on handguns]-must be independently justified.”

Id.

       We agree in part with the Seventh Circuit’s approach to

this   unchartered       realm      of    Second       Amendment      jurisprudence.        Of

course, Supreme Court dicta controls when it is on point and it

is the only available authority. United States v. Fareed, 296

F.3d 243, 247 (4th Cir. 2002) (applying dicta and stating that

the    circuit     court      can        be    bound    by      Supreme     Court    dicta,

particularly when the dicta is recent and not enfeebled by later

statements). Further, this circuit has applied the Heller dicta

to uphold statutes that prohibit gun possession by felons and

the mentally ill in unpublished opinions. See supra note 6. But

the Heller dicta does not reference the regulation at issue in

this case, § 922(g)(9).              Cf. United States v. White, -- F.3d --,

2010   WL   59127       at   *5    (11th       Cir.    Jan.   11,     2010).   Even       read

broadly,    the     dicta         from    Heller       cannot     and     should    not    be


                                               -12-
interpreted to control every challenge to every gun regulation.

Instead,    it    seems   clear   that    cases   that     fall    outside      the

specific exceptions in Heller warrant independent constitutional

scrutiny.

       In Skoien, the Seventh Circuit proceeded to expound on what

it thought to be the proper method of inquiry, fashioning a two-

part test. Skoien, 587 F.3d at 808-09. The test started with

historical analysis, determining that “some gun laws will be

valid because they regulate conduct that falls outside the terms

of the right as publicly understood when the Bill of Rights was

ratified.    If    the    government     can   establish    this,        then   the

analysis need go no further.” Id. For laws without the proper

historical pedigree, however, the “law will be valid (or not)

depending on the government's ability to satisfy whatever level

of means-end scrutiny is held to apply[.]” Id. at 809.

       Turning to the facts of its case, the court in Skoien noted

that there was neither a record developed, nor argument made, by

the Government as to “whether a person convicted of a domestic-

violence misdemeanor is categorically excluded from exercising

the Second Amendment right as a matter of founding-era history

and background legal assumptions.” Id. at 810.                  Further, if it

were    assumed    the    Government     could    not    show     that     firearm

possession by domestic violence misdemeanants fell “outside the

scope of the Second Amendment right as it was understood at the


                                       -13-
time of the framing,” id. at 808, there was neither record nor

argument on the issue of what rationale justified § 922(g)(9).

Accordingly,    the   Seventh     Circuit   remanded   the    case     to    the

district court for further proceedings. Id. at 816.

    We find ourselves similarly situated in the case at bar.

The district court did not provide an analysis which reflected

the historical undertones of Heller and did not specifically

address    whether    and   why    § 922(g)(9)   might       qualify    as     a

“presumptively lawful regulation.”          Heller, 128 S. Ct. at 2817

n.26.     And further, as in Skoien, if we assume possession of a

firearm by a misdemeanant falls within the scope of the Second

Amendment right, there is no record, argument or analysis in the

district court as to why § 922(g)(9) meets “whatever level of

means end scrutiny is held to apply.”          Skoien, 587 F.3d at 809.

We have no record as to the particular basis Chester uses to

ground his claim to the Second Amendment, much less an analysis

from the district court as to how or why that claim merits a

particular level of constitutional scrutiny.             Without such a

basic underpinning in the record, we are left with the prospect

of issuing an advisory opinion which is not within our province

to do. See Michael v. Cockerell, 161 F.2d 163, 164 (4th Cir.

1947).

    As did the Seventh Circuit in Skoien, we must remand this

case for the creation of a record, one that includes argument


                                    -14-
and    judicial        analysis,          which       we,    as   an     appellate         court,    can

meaningfully review.                 In that regard, upon remand, the district

court must conduct an analysis of the constitutional validity of

§ 922(g)(9) which is “independently justified.”                                        The district

court should consider and interpret the historical analysis from

Heller,          although      it        is     not    bound        by    the     threshold         test

articulated in Skoien.                        It should also identify, justify, and

apply an appropriate level of constitutional scrutiny.

       In        Skoien,     the        Seventh        Circuit       observed         “[l]aws       that

restrict         the   right        to    bear        arms    are      subject        to   meaningful

review,          but   unless        they        severely         burden        the    core       Second

Amendment          right       of        armed        defense,           strict        scrutiny       is

unwarranted.”            Id.       at         812.          There,       the      court         selected

intermediate scrutiny because the core right was reserved as a

right for “law-abiding, responsible citizens” to use arms for

their “natural right of armed defense.” Id. at 812. Under the

facts       of    Skoien,      the        defendant’s         claim       was     “several        steps

removed from the core constitutional right” because he was not

“law-abiding,” and he used his gun for hunting, not for self-

defense. Id.

       In the case at bar, it is clear that Chester was not “law-

abiding,” and is therefore at least one step “removed from the

core    constitutional              right.”            See    id.         But    his       reason    for

possessing         his      gun,        and     therefore,          which       right      or    rights


                                                     -15-
specifically applied to him, were not clarified in the record.

Chester identified in his trial pleadings at least three bases

upon   which     he   contends    the   Second    Amendment   may   override    a

statute   like    §   922(g)(9),    militia      service,   self-defense,      and

hunting, but failed to identify which ground, if any, he claims

applies to him.        These aspects of Second Amendment activity were

simply not addressed by the Government or the district court,

much less by evidence of record.               Without a more ample record,

we are left to speculate.           On remand, Chester must identify the

basis of his claim to Second Amendment protection and make a

record to support it; to which the Government may respond.                  Then

the district court can rule based on a full and complete record

as   to   what    level   of     scrutiny      applies,   thereby   creating    a

sufficient record to permit appellate review.



                                        IV.

       For the reasons stated, the judgment is vacated and the

case is remanded for further proceedings not inconsistent with

this opinion.

                                                          VACATED AND REMANDED




                                        -16-
