Interesting Decision

U.S. v. DeFrance (9th Cir. 2024).  The defendant was convicted in 2013 of "partner or family member assault (PFMA) under Montana Code Annotated section 45-5-206(1)(a)."  He was charged in 2018 for possession of a firearm.  DeFrance argued that because the Montana statute includes emotional abuse, such a conviction does not necessarily include the use or threat of physical violence "therefore, a conviction under this statute does not qualify as a “misdemeanor crime of domestic violence” for purposes of § 922(g)(9)."

The appeals court concluded that:

Taken together, these authorities show that a person can violate section 45-5-206(1)(a) through any form of communication that inflicts bodily injury in the form of emotional anguish. The infliction of emotional anguish does not require the use of physical force as that term is defined by federal law. See Johnson v. United States, 559 U.S. 133, 138 (2010) (holding that physical force “refers to force exerted by and through concrete bodies—distinguishing physical force from, for example, intellectual force or emotional force”). 5 We recognize that the Supreme Court held in Castleman that a “misdemeanor crime of domestic violence” requires only the force necessary to commit common law battery, and that this is significantly less force than Johnson required for the violent felony standard at issue in Castro. See 572 U.S. at 163. Nevertheless, we are bound by our precedent in Castro, which observed that Montana’s PFMA statute “explicitly defines [bodily injury] more broadly than the generic definition.”

While DeFrance does not seem like the kind of person that I would like to marry anyone that I know, it seems that the government failed and did not even attempt to prove that DeFrance used or threatened physical violence.  The right decision, but I wonder why Montana did not argue for as "as applied" approach.

In any case, the historical evidence does not support the constitutionality of § 922(g)(9).  Assault or battery was never treated as a disarming offense in the Framing Era or immediately before the ratification of the Fourteenth Amendment.