In Legal Bulletin 98-6 issued on September 3, 1998, I told you about United States Court of Appeals for the District of Columbia Circuit’s decision which struck down part of the federal law that prohibits police officers with convictions for domestic violence misdemeanors from carrying a firearm. The court struck down the portion of 18 U.S.C. § 925(a)(1) that purported to withhold the public interest exception from those convicted of domestic violence misdemeanors. The court found that Congress did not have any rational basis to withhold the public interest exception from those convicted of domestic violence misdemeanors, but allow the exception to apply to those convicted of more serious felonies. Fraternal Order of Police v. United States of America, 152 F.3d 998 (D.C. Cir. 1998) (F.O.P. I)

    On the Government’s motion for rehearing, the D.C. Circuit reversed itself and held there is a rational basis for prohibiting those convicted of domestic violence misdemeanors, but not felons, from carrying a gun. Stating that "‘wisdom too often never comes, and so one ought not to reject it merely because it comes late,’" the court held that formal and informal hiring practices (felons are not usually hired as police officers) makes it somewhat rational to believe the felon problem deserves less Congressional attention than the misdemeanor problem. In the absence of evidence negating the proposition that felons normally are not hired, the court said it would allow congress to craft these "‘rough’" or even "‘illogical’" solutions that have an "‘imperfect fit between means and ends.’" The court went on to address other constitutional challenges to 18 U.S.C. § 922(g)(9) (the provision making it illegal for domestic violence misdemeanants to carry guns) and rejected each, holding the statute did not violate association member’s substantive due process rights, Second Amendment rights to carry firearms, nor violate the Commerce Clause. The court also rejected the argument the statute violates states’ rights to be free from unwarranted federal government intrusion under the Tenth Amendment, noting the statute does not require state officials to do anything to enforce its provisions. Fraternal Order of Police v. United States of America, ___ F.3d ___ (D.C. Cir., No. 97-5304, opinion filed April 16, 1999) (F.O.P. II).

    As before, technically the F.O.P. II decision binds only those federal district courts located in the District of Columbia Circuit, and the decision is probably not the last word on the law. The F.O.P. will more than likely seek review of this decision in the United States Supreme Court. Unless and until the Tenth Circuit Court of Appeals strikes down the law or the United States Supreme Court reverses the F.O.P. II decision, the disqualification still applies in Kansas.