A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense “that he posed no prospective risk of violence” (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.
Here is the meat of the opinion, U.S. v. Engstrum (Stewart, D.J.) (June 15, 2009):
This matter is before the Court on Defendant’s Motion for Jury Instruction regarding his possession of a firearm. The Court previously denied Defendant’s Motion to Dismiss Indictment, in which Defendant argued that the Second Amendment to the U.S. Constitution protected his right to have a firearm in his house for home and self defense. In its April 17, 2009 Order, the Court found that strict scrutiny was required to justify a deprivation of an individual’s Second Amendment right to keep and bear arms. The Court also found that 18 U.S.C.