Robert Harley v. Robert Wilkinson ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1632
ROBERT TIMOTHY HARLEY,
Plaintiff - Appellant,
v.
ROBERT M. WILKINSON, Acting Attorney General of the United States; REGINA
LOMBARDO, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and
Explosives,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:18-cv-00396-TSE-IDD)
Argued: September 10, 2020 Decided: February 22, 2021
Before KEENAN, WYNN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the majority opinion, in which Judge
Wynn joined. Judge Wynn wrote a concurring opinion. Judge Richardson wrote a
dissenting opinion.
ARGUED: Marvin David Miller, LAW OFFICE OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt, Assistant
Attorney General, Mark B. Stern, Patrick G. Nemeroff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellees.
2
BARBARA MILANO KEENAN, Circuit Judge:
In 1993, Robert Harley (Harley) was convicted of misdemeanor assault and battery
of a family member, in violation of Virginia Code § 18.2-57.2. As a result of this
conviction, he is prohibited for life under 18 U.S.C. § 922(g)(9) from possessing a firearm
unless he obtains a pardon or an expungement of his conviction. Harley filed this action
seeking a declaration that Section 922(g)(9) is unconstitutional as applied to him. He
argues that he no longer should be subject to the prohibition because he has demonstrated
good behavior during the 27 years since his conviction.
The district court granted summary judgment to the defendants, the United States
Attorney General and the Director of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (collectively, the defendants), concluding that the prohibition in
Section 922(g)(9) satisfies intermediate scrutiny as applied to Harley. After assuming
without deciding that domestic violence misdemeanants retain some level of Second
Amendment protection, the district court held that Section 922(g)(9) provides a reasonable
fit for the governmental objective of protecting families from gun violence caused by
convicted domestic abusers.
Upon our review, we agree with the district court and hold that 18 U.S.C.
§ 922(g)(9) is constitutional as applied to Harley. In reaching this conclusion, we adopt
the approach of our sister circuits and decline to read into the statute an exception for good
behavior or for the passage of time.
3
I.
In reviewing the district court’s award of summary judgment to the defendants, we
state the facts and draw all reasonable inferences in the light most favorable to Harley, the
nonmoving party. Smith v. Collins, 964 F.3d 266, 274 (4th Cir. 2020). After graduating
from high school in 1980, Harley joined the Fairfax County Department of Public Works
(the County) as an unskilled laborer. Throughout his thirty-year career with the County,
Harley was promoted numerous times, eventually rising to the rank of Industrial Electrician
II. He also earned three advanced job-related certifications during his tenure. After retiring
from the County, Harley began his own business as a licensed electrician.
In addition to his employment with the County, Harley served for decades as a
volunteer firefighter and an emergency medical technician. He ultimately became the fire
captain for the Dale City Volunteer Fire Department. Harley also was a member of the
Department’s board of directors. He won numerous awards for service related to his work
as a volunteer firefighter.
In 1993, Harley pleaded guilty to misdemeanor assault and battery of a family
member, in violation of Virginia Code § 18.2-57.2, based on an altercation he had with his
then-wife. In an affidavit admitted into evidence in the present case, Harley’s ex-wife
stated that she continued a “friendly relationship” with Harley after the incident, and that
they are “still friends to this day.” Harley has not been convicted of any other crimes since
the 1993 conviction. However, as noted above, Harley remains prohibited under 18 U.S.C.
§ 922(g)(9) from possessing a firearm based on that conviction.
4
Harley filed the present suit asserting that 18 U.S.C. § 922(g)(9) violates his Second
Amendment rights and is unconstitutional as applied to him. In his complaint, Harley
sought a declaratory judgment and an injunction prohibiting the government from
enforcing Section 922(g)(9) against him.
After considering the parties’ evidence and arguments, the district court granted the
defendants’ summary judgment motion, holding that Section 922(g)(9) is constitutional as
applied to Harley. The court concluded that the statute satisfied the constitutional test for
intermediate scrutiny, and that Harley’s conviction qualified as a “misdemeanor crime of
domestic violence” within the meaning of that statutory term. Harley appealed from the
district court’s judgment.
II.
Initially, we make two observations that inform our analysis in this case. First, we
note that Harley does not challenge the fact of his conviction under Virginia Code § 18.2-
57.2. Second, we emphasize that Harley does not contest the district court’s conclusion
that his conviction under Virginia Code § 18.2-57.2 qualifies as a misdemeanor crime of
domestic violence for purposes of Sections 922(g)(9) and 921(a)(33)(A). Accordingly, we
reject Harley’s invitation to reweigh the facts underlying his prior Virginia conviction.
We review de novo the district court’s decision granting summary judgment.
Calloway v. Lokey, 948 F.3d 194, 201 (4th Cir. 2020); see also United States v. Gibert, 677
F.3d 613, 618 (4th Cir. 2012) (“We review de novo a challenge to the constitutionality of
a federal statute.”). A party is entitled to summary judgment if “there is no genuine dispute
5
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
Section 922(g)(9) prohibits individuals previously convicted of a “misdemeanor
crime of domestic violence,” as defined in 18 U.S.C. § 921(a)(33)(A), from possessing a
firearm. As an initial matter, we observe that Harley does not challenge on appeal the
district court’s determination that his Virginia conviction qualifies under Section 922(g)(9)
as a “misdemeanor crime of domestic violence.” Instead, Harley argues that the district
court improperly conducted its as-applied analysis under the Second Amendment because
the court failed to consider Harley’s personal history following his conviction. He
contends that his individual characteristics, namely, the long passage of time since his
misdemeanor conviction and his exemplary life in the many years since his conviction,
render Section 922(g)(9) unconstitutional as applied to him.
In response, the defendants contend that under our decision in United States v.
Staten, 666 F.3d 154 (4th Cir. 2011), the district court properly rejected Harley’s as-applied
challenge. According to the defendants, Harley’s challenge is foreclosed because we held
in Staten that Section 922(g)(9) survives intermediate scrutiny by providing a reasonable
fit to meet a substantial governmental interest. We agree with the defendants’ argument.
Like our sister circuits, we apply a two-prong approach in considering as-applied
Second Amendment challenges. United States v. Chester, 628 F.3d 673, 680-83 (4th Cir.
2010); see also United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United States
v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Chovan, 735 F.3d 1127,
1137 (9th Cir. 2013); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d
6
1318, 1322 (11th Cir. 2015); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 685-
86 (6th Cir. 2016) (en banc); United States v. Jimenez, 895 F.3d 228, 232 (2d Cir. 2018);
Medina v. Whitaker, 913 F.3d 152, 156 (D.C. Cir. 2019); Kanter v. Barr, 919 F.3d 437,
441-42 (7th Cir. 2019). Under the first prong of this approach, we address whether the
challenged regulation “burdens or regulates conduct that comes within the scope of the
Second Amendment.” Chester, 628 F.3d at 680. If the challenged regulation satisfies this
first prong, or if we assume without deciding that the regulation meets this requirement,
we turn to perform under our second prong a “means-end” review, in which we consider
the regulation under the appropriate level of constitutional scrutiny. Id.
Here, under the first prong, we will assume without deciding that domestic violence
misdemeanants are entitled to some degree of Second Amendment protection. Staten, 666
F.3d at 160-61. Therefore, we proceed to the second prong of the analysis, in which we
apply intermediate scrutiny to consider Harley’s challenge to Section 922(g)(9). Id. at 161;
Chester, 628 F.3d at 683. Under the standard of intermediate scrutiny, the government
bears the burden of establishing a reasonable fit between the challenged law and a
substantial governmental objective. Staten, 666 F.3d at 161. A statute may meet this
standard despite being overinclusive in nature. Id. at 167.
Our analysis in this case is governed directly by our decision in Staten, in which we
rejected an as-applied Second Amendment challenge to Section 922(g)(9). Staten, 666
F.3d at 168. There, relying on extensive social science research presented by the
government, we concluded that the government had established that:
7
(1) domestic violence is a serious problem in the United States; (2) the rate
of recidivism among domestic violence misdemeanants is substantial; (3) the
use of firearms in connection with domestic violence is all too common; (4)
the use of firearms in connection with domestic violence increases the risk
of injury or homicide during a domestic violence incident; and (5) the use of
firearms in connection with domestic violence often leads to injury or
homicide.
Id. at 167. Based on this record, we concluded that Section 922(g)(9) survived intermediate
scrutiny. Id. at 168. We explained that despite the possibly overinclusive “net cast” by
Section 922(g), the evidence showed “a reasonable fit” between the statute and the
substantial governmental objective of reducing domestic gun violence. Id. at 167. In
reaching this conclusion, we emphasized that the fit between the statutory prohibition and
the governmental interest need only be a reasonable fit, not a perfect one. Id. at 162.
Moreover, in making this determination, we did not consider any individual characteristics
of the person raising the as-applied challenge but focused entirely on the statute itself and
the evidence addressing statutory purpose and fit.
In accord with our analysis in Staten, we decline Harley’s request that we review
his individual characteristics as part of our consideration of his as-applied challenge to
Section 922(g)(9). Harley’s suggested approach is fundamentally flawed because it
effectively would create an exception to the statute that does not exist. The statute imposes
a flat prohibition, with no reference to individual circumstances occurring after the
disqualifying conviction. Despite its power to do so, Congress did not provide a sunset
clause or a good behavior exception to the statute. See Stimmel v. Sessions, 879 F.3d 198,
211 (6th Cir. 2018) (citing Chovan, 735 F.3d at 1141-42).
8
We also observe that the definition of “misdemeanor crime of domestic violence”
applicable in Section 922(g)(9) narrowly defines the category of prohibited individuals, by
requiring that the underlying conviction have “as an element, the use or attempted use of
physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). The definition of a “misdemeanor crime
of domestic violence” also requires that the conviction have been secured through a jury
trial with counsel, or after an intelligent waiver of a defendant’s constitutional rights. Id.
§ 921(a)(33)(B). And the statute provides that the firearm prohibition no longer applies,
with some exceptions, if the domestic violence misdemeanor conviction “has been
expunged or set aside” or if “the person has been pardoned or has had civil rights restored.”
Id. § 921(a)(33)(B)(ii). These requirements demonstrate Congress’ ability and willingness
to place limitations on a statutory prohibition. Thus, we will not depart from the text of
the statutory scheme to create by judicial fiat an exception to Section 922(g)(9).
When enacting Section 922(g)(9), Congress expressed grave concerns that the risk
of escalating violence by domestic violence misdemeanants would be increased by their
having access to firearms. In the context of “million[s of] acts of domestic violence, and
hundreds of deaths from domestic violence, each year,” Section 922(g)(9) was designed to
help reduce the incidence of deaths caused by acts of domestic violence. United States v.
Castleman, 572 U.S. 157, 159-60 (2014). Because many domestic violence offenses fail
to qualify under the felon in possession prohibition in Section 922(g)(1), Section 922(g)(9)
was enacted to “close a dangerous loophole.” Id. at 160 (citation and alteration omitted).
As noted above, a statutory provision can be constitutional under intermediate scrutiny
despite its potentially overinclusive nature. Staten, 666 F.3d at 167. Thus, although
9
Harley’s post-conviction life may suggest that he is not a high risk for engaging in
assaultive conduct toward a family or household member, this fact merely would render
the reach of the statute overinclusive, not unconstitutional.
Our conclusion is not altered by Harley’s reliance on dicta in two of our prior
decisions discussing the review of individual characteristics in as-applied challenges.
Notably, in both those cases, we rejected as-applied challenges to Section 922(g)(1)
seeking consideration of individual characteristics, emphasizing the rarity of such potential
consideration. United States v. Moore, 666 F.3d 313, 319-20 (4th Cir. 2012); United States
v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012). For example, in Moore we prefaced our
discussion of evaluating individual characteristics with a warning that such a framework
was merely a “theoretical” possibility. 666 F.3d at 320. And in Smoot, we noted that any
review of individual characteristics in an as-applied challenge to Section 922(g)(1) would
require factual circumstances outside the “realm of ordinary challenges.” 690 F.3d at 221
(citation omitted).
Moreover, our dicta in Moore and Smoot, that individual circumstances may be
relevant in rare cases involving as-applied challenges to Section 922(g)(1), has limited
relevance in the context of Section 922(g)(9). In contrast to the single crime identified in
Section 922(g)(9), which requires “as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon,” 18 U.S.C. § 921(a)(33)(A)(ii), the
language of Section 922(g)(1) broadly prohibits individuals convicted of “a crime
punishable by imprisonment for a term exceeding one year” from possessing a firearm. Id.
§ 922(g)(1). Thus, the prohibition in Section 922(g)(1) encompasses an innumerable range
10
of possible convictions and conduct, including some that potentially could exceed the
statutory purpose of Section 922. In contrast, it would be an extremely rare case, if any, in
which the framework “theoretically” envisioned by Moore and Smoot could be found
appropriate in an as-applied challenge to Section 922(g)(9), in which the use or attempted
use of physical force, or the threatened use of a deadly weapon, supporting the underlying
conviction is manifestly related to the statutory prohibition. 1
For these reasons, we adopt the approach of our sister circuits and decline to read
into Section 922(g)(9) an exception for good behavior or for the passage of time following
a disqualifying conviction for a misdemeanor crime of domestic violence. See Chovan,
735 F.3d at 1142; Stimmel, 879 F.3d at 210-11; see also Binderup v. Att’y Gen., 836 F.3d
336, 349 (3d Cir. 2016) (en banc) (rejecting a passage of time exception for the felon in
possession of a firearm prohibition in Section 922(g)(1)). Congress, not the courts, must
decide whether exceptions for good behavior or the passage of time should be added to
Section 922(g)(9). Thus, while we commend Harley’s apparently model life after his
1
Harley’s heavy reliance on United States v. Hosford, 843 F.3d 161 (4th Cir. 2016),
is unavailing. Hosford involved facial and as-applied challenges to 18 U.S.C. §
922(a)(1)(A), which prohibits “any person . . . except a licensed importer, licensed
manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or
dealing in firearms, or in the course of such business to ship, transport, or receive any
firearm in interstate or foreign commerce.” § 922(a)(1)(A) (emphasis added); see Hosford,
843 F.3d at 165. In rejecting the as-applied challenge, we determined that the challenger’s
individual circumstances fit within the statutory purpose of the prohibition. Hosford, 843
F.3d at 169–70. Such an approach is inapplicable here. Section 922(a)(1)(A)’s prohibition
applies to nearly the entire population, thus encompassing a larger portion of the population
than Section 922(g)(1), making its easily distinguishable from the narrow prohibition in
Section 922(g)(9). And even if the decision in Hosford were applicable, Harley has failed
to distinguish his individual circumstances from Section 922(g)(9)’s statutory purpose.
11
conviction, the question whether to restore his ability to obtain a firearm is a matter of
public policy entrusted solely to Congress. 2 Or, as noted, he may seek a pardon or
expungement under Virginia law—the avenues for relief that Congress has already
provided in the statute.
We therefore hold that the district court did not err in granting summary judgment
to the defendants, and that Section 922(g)(9) is constitutional as applied to Harley.
Accordingly, we affirm the district court’s judgment.
AFFIRMED
2
Harley also argues that the district court improperly relied on social science studies
presented by the defendants, because those studies purportedly contain disputed material
facts. This argument lacks merit, however, because while Harley disputes the relevance of
those studies to his individual circumstances, he does not challenge the conclusions reached
in the studies or the methodology used. See Angell v. Chesapeake & Ohio Ry. Co., 618
F.2d 260, 262 (4th Cir. 1980) (holding the application of undisputed facts is a matter of
law properly decided by courts). Additionally, the social science studies were relevant to
the government’s burden of demonstrating a substantial governmental interest. See Staten,
666 F.3d at 163-67; United States v. Skoien, 614 F.3d 638, 643-44 (7th Cir. 2010) (en
banc). Therefore, we reject Harley’s challenge to the district court’s consideration of the
social science evidence.
12
WYNN, Circuit Judge, concurring:
I concur entirely in the well-reasoned majority opinion. I write separately to note
my disagreement with my dissenting colleague’s view, which would effectively gut the
statute, according with neither its plain language nor legislative intent.
My dissenting colleague would effectively read into § 922(g)(9) an exception for
domestic violence convictions that are not, in his view, “serious” enough. But doing so
would unjustifiably subvert the intent of Congress, as made clear in the plain language of
the statute: “It shall be unlawful for any person . . . who has been convicted in any court of
a misdemeanor crime of domestic violence,” to engage in certain firearm-related activity.
18 U.S.C. § 922(g)(9). The statute defines “misdemeanor crime of domestic violence.” Id.
§ 921(a)(33). And that definition provides specific exceptions. Id. § 921(a)(33)(B). While
the definition narrows the scope of the statute to a particular group of domestic violence
misdemeanants, none of the statutory exceptions pertains to how “serious” the underlying
domestic violence offense was.
That should not be surprising. After all, it is self-evident on the face of the statute
that Congress wished to single out domestic violence convictions, regardless of how
“serious” those convictions are. The statute already covers those “who ha[ve] been
convicted in any court of[] a crime punishable by imprisonment for a term exceeding one
year”—that is, those who have been convicted of crimes generally considered more
“serious.” Id. § 922(g)(1). The only misdemeanants covered by the statute are those
convicted of crimes of domestic violence.
13
That distinction represents Congress’s policy judgment. And, as we have held, that
was Congress’s prerogative. United States v. Staten, 666 F.3d 154, 163–67 (4th Cir. 2011).
Underlying Congress’s decision to single out domestic violence misdemeanors are the
“sobering” realities that “[d]omestic violence often escalates in severity over time,” “the
presence of a firearm increases the likelihood that it will escalate to homicide,” and “many
perpetrators of domestic violence are convicted only of misdemeanors.” United States v.
Castleman, 572 U.S. 157, 160 (2014).
My dissenting colleague brushes aside our precedent approving of the
constitutionality of this measure with a puzzling reference to the Supreme Court’s decision
in Castleman. Dissenting Opinion at 31 (“Now that the Supreme Court has mandated a
broader scope for § 922(g)(9), Staten cannot control the outcome of Harley’s challenge.”).
But my colleague gets the matter precisely backwards. The Supreme Court’s decision in
Castleman only serves to highlight why § 922(g)(9) is constitutional, even as applied to
those domestic violence misdemeanants whose misdemeanors some may deem not to be
“serious.”
As the Supreme Court explained, “‘[d]omestic violence’ is not merely a type of
‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’
in a nondomestic context.” Castleman, 572 U.S. at 165. But even otherwise innocuous acts,
in the particular context of domestic violence, can “accumulat[e] . . . over time,” thereby
“subject[ing] one intimate partner to the other’s control.” Id. at 166. For that reason, the
Court went on, “[i]f a seemingly minor act . . . draws the attention of authorities and leads
to a successful prosecution for a misdemeanor offense”—which, all too often, is a big
14
“if”—“it does not offend common sense or the English language to characterize the
resulting conviction as a ‘misdemeanor crime of domestic violence.’” Id.
The Court also pointed to the text of the statute, noting that other statutory
provisions “show that when Congress wished to define ‘domestic violence’ as a type of
‘violence’ simpliciter, it knew how to do so. That it did not do so here suggests, if anything,
that it did not mean to.” Id. at 166 n.6. Therefore, the Court noted, Congress has the option
“to define ‘domestic violence’—where it wants to—as requiring violent force.” Id.
It is hard to see how all of this supports the dissent’s view. The Supreme Court
plainly interpreted the statute to cover all enumerated domestic violence misdemeanors—
not just those for “serious” offenses—and concluded that this was Congress’s intent.
Moreover, it is hard to fathom why the Supreme Court would have given the statute a
meaning in Castleman that it believed to be unconstitutional without engaging with the
constitutional concerns raised, albeit in passing, by the defendant in that case.
Castleman also contradicts the dissent’s implication, based on limited legislative
history, that § 922(g)(9) was meant only to combat “serious” domestic violence. See
Dissenting Opinion at 24. In fact, as Castleman noted, “to the extent that legislative history
can aid in the interpretation of this statute,” it does not support the contention that
“Congress could not have intended for the provision to apply to acts involving minimal
force.” Castleman, 572 U.S. at 171; see also id. at 172 (“[N]othing about these Senators’
isolated references to severe domestic violence suggests that they would not have wanted
§ 922(g)(9) to apply to a misdemeanor assault conviction like Castleman’s.”). Rather, as
noted, Congress’s interest was in preventing any member of a defined subset of domestic
15
violence misdemeanants from possessing firearms, based on the risks that subset of
misdemeanants posed to others. The governmental interest is in preventing future harm,
and its method of doing so is by disarming individuals who have demonstrated a potential
to enact that future harm. The application to Harley is thus not “far outside [the law’s]
justification.” Dissenting Opinion at 24 n.5. In other words, as we concluded in Staten—
and conclude again today—Congress’s policy judgment in enacting § 922(g)(9) survives
intermediate scrutiny, even in the context of Harley’s as-applied challenge, given the
narrowness of the statutory provision. ∗
Further, adopting my dissenting colleague’s view would create a strange anomaly
in our case law. After all, this Court has already held that § 922(g)(1) may constitutionally
be applied to even nonviolent felons. United States v. Pruess, 703 F.3d 242, 247 (4th Cir.
2012); see also Hamilton v. Pallozzi, 848 F.3d 614, 623 (4th Cir. 2017) (upholding
Maryland laws “substantially similar” to § 922(g)(1) against an as-applied challenge by a
felon convicted of credit card fraud, credit card theft, and credit card forgery). It would be
a strange world indeed if we were to make exceptions to the firearm prohibition for some
domestic violence misdemeanants—whose crime is specifically enumerated in the statute
and by definition includes some level of violence—while rejecting challenges from those
with plainly nonviolent felony convictions.
∗
See Staten, 666 F.3d at 167 (“We recognize that the net cast by § 922(g)(9) may
be somewhat over-inclusive given that every domestic violence misdemeanant would not
necessarily misuse a firearm against a spouse . . . if permitted to possess one. However,
this observation merely suggests that the fit is not perfect. Intermediate scrutiny does not
require a perfect fit; rather only a reasonable one.”).
16
Finally, I note that the Supreme Court has (unanimously) indicated a concern with
courts engaging in analyses to determine whether individuals may safely possess firearms
after having lost their rights to do so. A federal statute, 18 U.S.C. 925(c), “permits the
Attorney General to grant relief from a firearms disability if ‘the applicant will not be likely
to act in a manner dangerous to public safety and . . . the granting of the relief would not
be contrary to the public interest.’” Stimmel v. Sessions, 879 F.3d 198, 211 (6th Cir. 2018)
(alteration in original) (quoting 18 U.S.C. 925(c)). But “Congress has withheld funding for
processing § 925(c) relief applications since 1992 after finding that reviewing applications
was a ‘very difficult and subjective task which could have devastating consequences for
innocent citizens if the wrong decision [wa]s made.’” Id. (alteration in original) (quoting
S. Rep. No. 102-353, at 19 (1992)).
Section 925(c) also permits judicial review where the Attorney General denies
relief. In United States v. Bean, 537 U.S. 71 (2002), the applicant argued that the Attorney
General’s failure to act on his application due to the lack of funding constituted a “denial,”
permitting judicial review.
The Supreme Court disagreed and concluded federal courts lack jurisdiction in the
absence of an “actual decision” by the Attorney General. Id. at 76. Further, and relevant to
this case, the Court emphasized that the Attorney General was to be “the primary
decisionmaker” because the evaluation necessitated by § 925(c) was one for which courts
were less competent than the executive branch:
Whether an applicant is “likely to act in a manner dangerous to public safety”
presupposes an inquiry into that applicant’s background—a function best performed
by the Executive, which, unlike courts, is institutionally equipped for conducting a
17
neutral, wide-ranging investigation. Similarly, the “public interest” standard calls
for an inherently policy-based decision best left in the hands of an agency.
Id. at 77.
Here, Harley seeks to avoid the limitations of § 925(c) by pursuing an as-applied
challenge directly in federal court, arguing that his specific circumstances mean that §
922(g)(9) is unconstitutional as applied to him. The dissent would permit him to do that.
Respectfully, in my view, the statutory structure speaks for itself. Harley’s relief, if any,
lies in obtaining a pardon in Virginia or receiving relief from the Attorney General. 18
U.S.C. §§ 921(a)(33)(B)(ii), § 925(c). Those are the paths Congress has designated. And it
is within its constitutional rights to do so.
18
RICHARDSON, Circuit Judge, dissenting:
The Second Amendment provides, “A well regulated militia, being necessary to the
security of a Free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. CONST. amend. II. In Heller v. District of Columbia, the Supreme Court
turned to text, history, and tradition to conclude that the Amendment codified a preexisting
“individual right to keep and bear arms” but instructed that this right, like most rights, “is
not unlimited.” 554 U.S. 570, 595, 626 (2008). In this appeal, we review one legislative
effort at restricting who may keep and bear arms. Section 922(g)(9) permanently disarms
anyone convicted of a misdemeanor crime of domestic violence. Harley, having been
convicted nearly thirty years ago under Virginia law, falls under the plain language of the
statute. We ask only if the Second Amendment permits his statutory disarmament.
We do not face this challenge on a clean slate. For we have held that this prohibition
is subject to and generally valid under intermediate scrutiny. United States v. Staten, 666
F.3d 154 (4th Cir. 2011). Harley accepts this holding, agreeing that the prohibition is
generally constitutional. 1 Harley argues only that the prohibition cannot constitutionally
1
In United States v. Chester, we assumed that domestic-violence misdemeanants
were covered by the Second Amendment in the face of historical ambiguity. 628 F.3d 673,
681 (4th Cir. 2010); see also Staten, 666 F.3d at 160. However, because those convicted
of domestic violence misdemeanors were not “law-abiding” and thus outside the Second
Amendment’s core protections, we held that intermediate scrutiny applied to § 922(g)(9).
Chester, 628 F.3d at 683. We have also used this notion of “law-abiding” individuals to
preclude illegal aliens from the scope of the Second Amendment entirely. United States v.
Carpio-Leon, 701 F.3d 974, 979, 981 (4th Cir. 2012). But we have never defined what it
means to be “law-abiding.” See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 689
(6th Cir. 2016). What we have made clear, however, is that “any person committing any
crime [does not] automatically lose[] the protection of the Second Amendment”: some
be applied to him because of his “individual circumstances.” The district court
categorically rejected this argument and the majority follows suit, accepting that no
circumstances could ever create constitutional concerns. I disagree. Under existing
Second Amendment precedent, this case should be sent back to the district court so it can
consider the particular circumstances of Harley’s conviction. 2
Second Amendment jurisprudence leaves much to be desired. 3 Even so, it permits
Harley to bring his challenge based on his circumstances. For a prohibition that is generally
“persons who commit some offenses might nonetheless remain in the protected class of
‘law-abiding, responsible’ person[s].” Carpio-Leon, 701 F.3d at 981. Otherwise “the
Government could make an end-run around the Second Amendment” through minor
infractions, such as speeding. Binderup v. Att’y Gen., 836 F.3d 336, 350–51 (3d Cir. 2016)
(making a similar argument in the context of defining felonies broadly to escape Second
Amendment scrutiny). And if someone’s specific conviction did not remove them from
the “law-abiding” core of the Second Amendment, then strict scrutiny would apply. See
Chester, 628 F.3d at 683. But Harley does not claim that he remains a law-abiding person
protected by the core of the Second Amendment after his conviction.
2
In no respect do I question the “sobering” realities of domestic violence or the
deadliness that guns bring to this national crisis. United States v. Castleman, 572 U.S. 157,
159–60 (2014).
3
To be fair, some of the confusion stems from the Supreme Court’s puzzling
guidance in Heller. On the one hand, the Court directed we look to text, history, and
tradition to understand the Second Amendment. Yet the Court also instructed that “nothing
in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms.” 554 U.S. at 626–27; see id. at 627 n.26
(describing these as examples of “presumptively lawful regulatory measures”). Even as
dictum, this language casts a long shadow on lower courts. It is not readily apparent how
felon-dispossession laws or bans on firearm possession by the mentally ill fit within the
analytical framework Heller directs we apply. So rather than develop a cogent theory of
the contours of the Second Amendment, we often focus on whether a given regulation falls
within the scope of Heller’s list. Cf. United States v. McCane, 573 F.3d 1037, 1047–50
(10th Cir. 2009) (Tymkovich, J., concurring).
20
constitutional may well be unconstitutional when applied to a particular person whose
circumstances take him outside the ban’s justifications. See Hamilton v. Pallozzi, 848 F.3d
614, 626 n.11 (4th Cir. 2017); United States v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012).
An as-applied challenge is “based on a developed factual record and the application of a
statute to a specific person.” Educ. Media Co. at Va. Tech v. Insley, 731 F.3d 291, 298 n.5
(4th Cir. 2013) (emphasis added) (quoting Richmond Med. Ctr. for Women v. Herring, 570
F.3d 165, 172 (4th Cir. 2009) (en banc)). And a law that may be constitutional when
applied to one person may be unconstitutional as applied to another. See Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320, 329 (2006).
We have considered a plaintiff’s particular circumstances in an as-applied challenge
before. See United States v. Hosford, 843 F.3d 161, 169–70 (4th Cir. 2016). In Hosford,
we engaged in a fact-specific as-applied inquiry after finding a licensing scheme for
firearms dealers facially valid. Looking to Hosford’s particular circumstances, we found
that the law was constitutional as applied: “the government’s interests in the law generally
also justify applying the law to Hosford” since Hosford’s conduct in selling firearms
without background checks was exactly the problem Congress was trying to solve. Id. We
thus asked whether an otherwise valid law could constitutionally apply to Hosford’s own
circumstances based on the government’s interest. See Insley, 731 F.3d at 298 (“[T]he
state must justify the challenged regulation with regard to its impact on the plaintiffs.”).
Similarly, the Sixth Circuit remanded an as-applied challenge to the law disarming
the mentally ill because the government had not justified the restriction based on plaintiff’s
specific circumstances. Tyler, 837 F.3d at 686, 699. The Sixth Circuit agreed that the fit
21
did not need to be perfect, but “the amount of overreach must be reasonable, and it is the
government’s burden, not [the challenger’s], to prove that [the law’s] scope is in
proportion to the interest served.” Id. at 698 (internal quotation marks omitted).
This approach also applies to a First Amendment as-applied challenge. 4 For
example, in Insley we declared that an otherwise valid restriction on alcohol advertisements
in school newspapers violated the First Amendment as applied to a couple of college
papers. 731 F.3d at 294, 296, 302. As those particular papers had a majority of readers
over the age of 21, we found that the restrictions were too broad and failed to further a
legitimate government interest under intermediate scrutiny. Id. at 301.
We also should review a plaintiff’s particular circumstances where a disarmament
law hinges on state-law convictions. We have permitted such as-applied challenges to the
federal-felon-disarmament law (§ 922(g)(1)) because of its broad scope despite the law
being “presumptively valid” and Congress creating no exceptions to its sweep. See Smoot,
690 F.3d at 221; United States v. Moore, 666 F.3d 313, 319–20 (4th Cir. 2012). And
although we have never had a successful as-applied challenge to the felon-disarmament
law, we have acknowledged that the success of an as-applied challenge is “theoretically”
possible where a challenger’s “factual circumstances remove his challenge from the realm
of ordinary challenges.” Moore, 666 F.3d at 319–20; see United States v. Pruess, 703 F.3d
242, 245–47 (4th Cir. 2012) (rejecting challenge to the felon-disarmament law as applied
4
We often look to First Amendment law as a guidepost for Second Amendment
claims. Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (en banc); Chester, 628 F.3d
at 682.
22
to a plaintiff with a non-violent conviction after finding that more than twenty convictions
placed him outside the Second Amendment’s core).
The Third Circuit has largely adopted this approach for as-applied challenges to the
felon-disarmament law (§ 922(g)(1)). That court permitted plaintiffs to challenge the
constitutionality of applying the law based on their specific state convictions. Binderup,
836 F.3d at 350–53. After reviewing plaintiffs’ convictions, the court found that they were
not serious enough to remove plaintiffs from the Second Amendment’s protection in part
because the state convictions were labeled as misdemeanors and led to minor punishments,
showing that the convictions were not “serious.” Id. The court then found that the
government failed to meet its burden under intermediate scrutiny because it offered no
evidence “explaining why banning people like them (i.e., people who decades ago
committed similar misdemeanors) from possessing firearms promotes public safety” while
plaintiffs provided evidence of their low likelihood of future danger or recidivism. Id. at
353–56.
When we recently considered the felon-disarmament law (§ 922(g)(1)), we
favorably cited the analysis of Binderup and noted that a plaintiff’s particular facts may be
relevant for other disarmament laws. Hamilton, 848 F.3d at 625–26, 626 n.12. We rejected
an as-applied challenge for anyone convicted of a crime designated by the state as a felony.
But we did not reject considering particular facts in an as-applied challenge. In fact, we
recognized the felon-disarmament law might encompass a crime that state law does not
consider a felony but that falls within the federal definition (“a crime punishable by
imprisonment for a term exceeding one year,” § 922(g)(1)). And in that instance, a court
23
may conduct individualized scrutiny based on the particular circumstances of the offender.
See id. at 626 n.11. So where the state treats a conviction as a misdemeanor, like in
Binderup, we can look at specific facts underlying the conviction at issue, even for
intermediate scrutiny. And in doing so, we can see whether the government’s legitimate
interests are furthered by applying the law to the particular facts underlying plaintiff’s state
conviction.
To frame Harley’s challenge to the law disarming domestic-violence
misdemeanants (§ 922(g)(9)), we must first explore the law’s justifications and scope. In
1996, Congress justified enacting § 922(g)(9) because existing laws disarming felons
“were not keeping firearms out of the hands of domestic abusers, because ‘many people
who engage in serious spousal or child abuse ultimately are not charged with or convicted
of felonies.’” United States v. Hayes, 555 U.S. 415, 426 (2009) (emphasis added) (quoting
142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)); United States v. Chovan,
735 F.3d 1127, 1140 (9th Cir. 2013) (noting that Congress was targeting those who
“demonstrated violence”). Thus, Congress sought to “close this dangerous loophole” and
prevent serious domestic-violence offenders from possessing firearms. Hayes, 555 U.S. at
426 (quoting 142 Cong. Rec. 22986). 5 To do so, § 922(g)(9) bans the possession of a gun
5
We do not cite this legislative history in order to interpret the statute and suggest
that non-serious domestic violence offenses are not covered by the text. Rather, it serves
to highlight the Government’s interest and the law’s fit. Staten, 666 F.3d at 161 (using
legislative history to show the government’s interest in reducing domestic gun violence).
When a law applies far outside its justification, constitutional concerns may be raised in
as-applied constitutional challenges. We do not face a question about what Congress
meant, for we all agree the text of the statute covers Harley. We ask instead whether that
application is constitutional.
24
by an individual who has “been convicted in any court of a misdemeanor crime of domestic
violence.” And a “misdemeanor crime of domestic violence” includes (1) any state-law
misdemeanor that (2) “has, as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon” and that is (3) committed by a family member of the
victim. 18 U.S.C. § 921(a)(33)(A).
In Staten, we rejected one Second Amendment challenge to § 922(g)(9). 666 F.3d
at 167. Based on the law’s justification and supposed narrow scope, we rejected the claim
that § 922(g)(9) could not be constitutionally applied to Staten. 6 We found that the
government had established a reasonable fit between § 922(g)(9)’s “narrow” prohibitory
sweep and the government’s interest in “reducing domestic gun violence and keeping
firearms out of the hands of: (1) persons who have been convicted of a crime in which the
person used or attempted to use force capable of causing physical pain or injury” against
a family member “and (2) persons who have threatened the use of a deadly weapon against”
a family member. 666 F.3d at 167 (emphasis added). To establish this reasonable fit, the
government showed that: Domestic violence was a serious issue, recidivism rates were
high for domestic violence misdemeanants, firearms are too often used in connection with
6
The record reveals that Staten had at least three domestic-violence convictions,
including one for repeatedly beating his second wife with a closed fist. See Joint Appendix
304–06, United States v. Staten, 666 F.3d 673 (No. 10-5318). Unsurprisingly, Staten never
argued that the nature of those convictions (or his multiple other arrests for domestic-
violence offenses and for violating protective orders, id.) mattered to his challenge. See
Appellant Br. 6–7, 26–32, United States v. Staten, 666 F.3d 673 (No. 10-5318), Dkt. No.
17. And so we did not address the specifics of his prior conduct in rejecting his claims.
25
domestic violence, and firearms increase and are often connected to injuries and homicides
related to domestic violence. Id.
On first glance, the scope of § 922(g)(9)’s ban appears to be narrowly focused. But
as a result of recent Supreme Court decisions, it may now sweep beyond its design to
encompass conduct outside its original justifications in two meaningful ways. First, the
“use of physical force” that is a necessary element of a “misdemeanor crime of domestic
violence” includes any “offensive touching,” not just violent force. United States v.
Castleman, 572 U.S. 157, 162–63 (2014). Compare id., with Johnson v. United States, 559
U.S. 133, 140, 143 (2010) (holding that the “use of physical force” in § 924(e)(2)(B)(i)’s
definition of a “violent felony” requires “violent force”). Second, that offensive touching
need not be intentional, since the Supreme Court has held that § 922(g)(9) encompasses a
state crime requiring only reckless conduct. Voisine v. United States, 136 S. Ct. 2272, 2280
(2016).
This expanded scope is illustrated by the law Harley was convicted under, Virginia
Code § 18.2-57.2. A conviction under that Virginia law does not require the use of violent
force but may be satisfied with an “offensive touching.” United States v. White, 606 F.3d
144, 147–48 (4th Cir. 2010), abrogated on other grounds by Castleman, 527 U.S. at 167–
68. And it also criminalizes both the intentional use of force and the reckless use of force.
See Clark v. Commonwealth, 691 S.E.2d 786, 788–89 (Va. 2010) (stating that a common-
law definition of assault and battery applies to § 18.2-57.2); see also Trent v.
Commonwealth, No. 1844–03–02, 2004 WL 1243037, at *1 (Va. Ct. App. June 8, 2004)
(stating that Virginia law imputes an intent to do bodily harm to the defendant if he acts
26
with “reckless and wanton disregard of the lives and safety of others”); Morrison v.
Commonwealth, No. 2645-00-2, 2002 WL 663641, at *2 (Va. Ct. App. Apr. 23, 2002)
(finding that assault and battery includes acting “in a manner of reckless and wanton
disregard”). The breadth of Virginia Code § 18.2-57.2 does not remove Harley’s
conviction from the reach of § 922(g)(9)’s use-of-physical-force requirement now that the
Supreme Court has made clear that an “offensive touching” qualifies as “physical force”
and the non-intentional reckless use of that force suffices. Castleman, 572 U.S. at 162–63;
Voisine, 136 S. Ct. at 2280.
But these same broad interpretations of § 922(g)(9) create the potential to ensnare
individuals who fall outside the ban’s justifications and whose conduct may not
permanently deprive them of their individual right to possess a gun for self-defense.
Consider a wife spitting on her spouse or knocking him off an ATV through reckless
driving. Cf. Castleman, 572 U.S. at 165 n.5 (citing sources for the proposition that physical
forms of domestic violence “may include spitting” or “relatively minor assaults such as
painful pinching or squeezing”); White, 606 F.3d at 148 (noting that Virginia has long held
that battery may be accomplished by the slightest touch, including spitting (citing Hardy
v. Commonwealth, 58 Va. (17 Gratt.) 592, 601 (1867))); Davis v. Commonwealth, 143 S.E.
641, 643 (1928) (permitting battery conviction based on reckless driving). Those
examples, though it is perhaps fanciful to think that such conduct would be prosecuted,
would fall outside the type of serious abuse likely to lead to recidivism and firearm violence
that justified § 922(g)(9)’s lifetime firearm dispossession.
27
Harley’s own case—at least as alleged—is less clear but also highlights the statute’s
broad scope. Nearly thirty years ago, Harley paid a $75 fine after pleading guilty to a
misdemeanor domestic assault charge under Virginia Code § 18.2-57.2. As Harley alleges,
[t]he charge was based on a single, one off incident[:] Mr. Harley and his
wife had an argument while she was inside a SUV and he was standing
outside the vehicle. He stood on the running board and reached into the
vehicle to turn it off, and she pushed him. He reached inside the vehicle to
hold on and, in so doing, he grabbed her arm.
J.A. 9. During the incident, there “was no punching, slapping, hitting, or violence.” Id.
While Harley and his wife later separated and divorced, they “remained on friendly and
amicable terms working collaboratively to successfully raise their children.” Id. Harley
provided an affidavit from his ex-wife supporting his version of the incident underlying his
conviction. J.A. 23–24.
The government, citing a police report, suggests that Harley’s actions were more
serious and perhaps not a lone incident. See Appellee Br. 3; J.A. 73. Maybe so. But the
district court ignored the conduct underlying the conviction, believing it was not germane,
and granted summary judgment for the government. In doing so, the court disregarded
Harley’s particular conviction. But the conduct underlying the conviction may create an
avenue for a successful as-applied challenge. Because this conduct was in dispute and
because we cannot resolve “genuine disputes of fact in favor of the party seeking summary
judgment,” Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (quoting Tolan v.
Cotton, 572 U.S. 650, 656 (2014)), the proper course for the district court was to deny the
government’s motion at this stage, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). It may of course be true that Harley shoved and struck his ex-wife as the
28
government alleges. But it may also be true that his conviction stemmed from a reckless
offensive touching as Harley contends. And if that is the case, then the district court should
consider in the first instance whether those actions are constitutionally sufficient to deprive
Harley of the right to keep and bear arms under the Second Amendment. 7
Yet the majority categorically determines that someone like Harley may not
challenge § 922(g)(9)’s prohibition based on individual circumstances taking them outside
the “realm of ordinary challenges.” Majority Op. 8-10 (quoting Smoot, 690 F.3d at 221).
Such a challenge is permissible, the majority notes, for felon-disarmament laws like
§ 922(g)(1). But the majority excludes § 922(g)(9) from such a challenge for three reasons:
7
As we recognized in Hamilton, how a sovereign state labels and treats a crime
bears on whether one convicted of it may be constitutionally deprived of all Second
Amendment rights. 848 F.3d at 626 & n.11. In Hamilton, we rejected the claim that
§ 922(g)(1) was unconstitutional as applied to an individual convicted of credit-card fraud,
theft, and forgery—state-law felonies. Id. at 627–28. There is ongoing debate on whether
felons have historically been disarmed because of the danger they pose to the public or
because of their lack of virtue. See Binderup, 836 F.3d at 348–49 (stating that the right to
bear arms is tied to virtuous citizenry); Folajtar v. Att’y Gen. U.S., 980 F.3d 897, 924 (3d
Cir. 2020) (Bibas, J., dissenting) (stating that the right to bear arms is tied to
dangerousness); Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting)
(same). But either way, in analyzing the constitutionality of § 922(g)(1), we have afforded
significant weight to the state’s belief of how dangerous or unvirtuous those convicted of
particular crimes are. Hamilton, 848 F.3d at 626. In Hamilton, the state’s designation was
so important to our reasoning that we held that an individual convicted of a law a state
labels a felony cannot succeed in an as-applied challenge to § 922(g)(1). Id. at 625–26.
Adhering to Hamilton, we should look to the state sovereigns in the context of § 922(g)(9).
Unlike § 922(g)(1), we know the justification for disarming domestic-violence
misdemeanants: to prevent serious domestic violence offenders from possessing guns and
harming family members. See Hayes, 555 U.S. at 426. And along with the alleged
circumstances of the offense, Harley alleges that he was punished with only a $75 fine (the
maximum allowable punishment was imprisonment for less than a year and a fine of
$2,500, see Va. Code Ann. §§ 18.2-57.2, -11) and was not prohibited by the
Commonwealth from possessing a firearm.
29
(1) Staten forecloses an individualized as-applied challenge to § 922(g)(9); (2) § 922(g)(9)
has no enumerated exceptions; and (3) § 922(g)(9) is supposedly a narrow, uniform law.
But none of these reasons justify categorically foreclosing Harley’s as-applied challenge. 8
The majority’s reliance on Staten to categorically reject any consideration of
individualized circumstances in an as-applied challenge to a conviction under § 922(g)(9)
impermissibly overlooks the rationale of Staten. See Majority Op. 8. In Staten, we rejected
plaintiff’s as-applied challenge to § 922(g)(9). Applying intermediate scrutiny, we upheld
the law as a reasonable fit between reducing gun violence and the disarmament. Staten,
666 F.3d at 167. But we expressly relied on the supposed narrow scope of § 922(g)(9) in
doing so. At that time, we had held that § 922(g)(9) required “the use or attempted use of
force capable of causing physical pain or injury to another or the threatened use of a deadly
weapon [as] an element of the” disqualifying domestic-violence misdemeanor. Id. at 162.
The government had shown that there was a reasonable fit between reducing domestic gun
violence and keeping guns out of the hands of individuals convicted of those domestic-
violence misdemeanors. Id. at 167. As a result, any overbreadth of § 922(g)(9), as then
defined, “merely suggests that the fit is not perfect.” Id.
But in finding § 922(g)(9) was narrow and met the reasonable-fit standard, we relied
on White’s holding that “offensive touching” was excluded from § 922(g)(9)’s scope. See
8
Nor does reason indulge such a conclusion when one considers that the majority’s
holding leaves us applying a more exacting constitutional analysis to § 922(g)(1), a
presumptively lawful regulation under Heller, than to § 922(g)(9), a law which carries no
such presumption. See Staten, 666 F.3d at 160 (stating § 922(g)(9) is not presumptively
lawful under Heller).
30
Staten, 666 F.3d at 163 (Ҥ 922(g)(9) does not apply to persons convicted of a misdemeanor
for using or attempting to use force against a spouse which is incapable of causing physical
pain or injury to another, such as an offensive touching in a common law battery.” (citing
White, 606 F.3d at 153)). But Castleman overruled White and invalidated Staten’s premise
that § 922(g)(9) has a narrow scope. See United States v. Carthorne, 878 F.3d 458, 468
(4th Cir. 2017) (recognizing the abrogation of White). Now that the Supreme Court has
mandated a broader scope for § 922(g)(9), Staten cannot control the outcome of Harley’s
challenge.
Perhaps Staten would control if a hypothetical domestic-violence misdemeanant
was convicted of a crime requiring the intentional use of “force capable of causing physical
pain or injury.” Staten, 666 F.3d at 167. But, as a result of Castleman and Voisine, it has
little applicability to convictions that stem from a reckless offensive touching. It may turn
out that the government can show that Harley intentionally used the type of force that
Staten found that Congress could regulate. But Harley’s alleged conduct was merely
reckless offensive touching, and that was excluded from Staten’s analysis of § 922(g)(9).
And that is reason enough to consider Harley’s as-applied challenge.
Even so, the majority takes Staten to mean that an individualized consideration is
never warranted in an as-applied challenge to § 922(g)(9). 9 This overlooks not only our
9
The majority also states that even in a context where an individualized
consideration is warranted, such consideration is only a “theoretical possibility.” Majority
Op. 10. The majority mistakenly relies on Moore for this assertion. Moore says that
theoretically, “a case might exist in which an as-applied Second Amendment challenge to
§ 922(g)(1) could succeed.” 666 F.3d at 320 (emphasis added). This addresses the rare
success of challenges to § 922(g)(1), not how often we evaluate individual characteristics.
31
now-rejected interpretation of § 922(g)(9) but also the substance of Staten’s challenge.
Given Staten’s extensive record of criminal conduct, he never argued that his factual
circumstances or the nature of his convictions made the ban unconstitutional as applied to
him in particular. See supra, n.6. Instead, he argued that the law was unconstitutional as
applied to anyone convicted of misdemeanor crimes of domestic violence. Appellant Br.
6–7, 26–32, United States v. Staten, 666 F.3d 673 (No. 10-5318), Dkt. No. 17. Harley does
not challenge § 922(g)(9) without regard to his unique circumstances. Instead, he accepts
that § 922(g)(9) is generally constitutional, arguing only that it is unconstitutional when
applied to him, an individual convicted thirty years ago of a misdemeanor crime of
domestic violence allegedly based on a reckless offensive touching. Cf. Hamilton, 848
F.3d at 626 n.11. This fundamentally different challenge Harley raises cannot be controlled
by Staten’s rejection of that plaintiff’s claim. See Dahnke-Walker Milling Co. v.
Bondurant, 257 U.S. 282, 289 (1921) (“A statute may be invalid as applied to one state of
facts and yet valid as applied to another.”).
Nor is § 922(g)(9)’s lack of enumerated exceptions a reason to preclude an
individualized as-applied analysis. The majority believes that where a “statute imposes a
flat prohibition, with no reference to individual circumstances occurring after the
disqualifying crime,” no constitutional exceptions can be created. Majority Op. 8.
Nevertheless, the majority simultaneously notes that § 922(g)(1)—a statute that “imposes
a flat prohibition, with no reference to individual circumstances occurring after the
disqualifying crime”—is so broad that constitutional exceptions can be created. Id. at 9.
Assuredly, the lack of enumerated exceptions in a statute does not preclude the success of
32
a constitutional challenge based on one’s particular circumstances. Otherwise, as-applied
challenges would disappear, and this cannot be so. See United States v. Treasury Emps.,
513 U.S. 454, 477–78 (1995) (stating a strong preference for as-applied challenges); see
also Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing,
113 HARV. L. REV. 1321, 1328 (2000) (“As-applied challenges are the basic building
blocks of constitutional adjudication.”). In that world, individuals either fall within
exceptions enumerated in the statute or they do not, in which case there is no recourse for
potentially unconstitutional prohibitions. 10
The majority’s argument then retreats to its last defense: breadth. First, the breadth
of a statute is not dispositive in deciding whether individualized scrutiny is required. The
relevant question in an as-applied analysis is whether the law applies unconstitutionally in
only some factual circumstances. See Insley, 731 F.3d at 298 & n.5; Herring, 570 F.3d at
172. Of course, the broader a statute, the more likely it is that these challenges succeed,
but that does not mean that a narrower law is immune from attack. All that is needed for a
successful as-applied challenge is “one state of facts” where the statute applies
10
Judge Wynn asserts that an individual disarmed by statute may not turn to the
Constitution because the executive is empowered to grant discretionary relief under 18
U.S.C. § 925(c), as discussed in United States v. Bean, 537 U.S. 71 (2002). First, the
Concurrence itself notes that this discretionary relief is unavailable because of a lack of
funding. Second, Bean dealt with administrative-law discretion and addressed no
constitutional issues, much less blessed all federal-disarmament statutes as constitutional.
537 U.S. at 74-79. But even more to the point, I struggle to see how this discretionary
power for an executive official to grant relief (or a state’s pardon power) eliminates the
ability to bring a Second Amendment constitutional challenge.
33
unconstitutionally. Ayotte, 546 U.S. at 329. Congress’s specificity, or lack thereof, in
crafting laws cannot sidestep our judicial review. See id. 11
But even if the breadth of a statute could preclude any individualized scrutiny, we
now know that § 922(g)(9) covers sufficiently divergent conduct to warrant this
individualized consideration. The majority continues to insist that § 922(g)(9) is a narrow
and focused statute. See Majority Op. 8–9; cf. Staten, 666 F.3d at 162–63 (the “term
‘misdemeanor crime of domestic violence,’ as construed in White, 606 F.3d at 155, keeps
§ 922(g)(9)’s prohibitory sweep narrow”). But as already discussed, the Supreme Court’s
cases since Staten broadened the reach of § 922(g)(9) so that it covers an offender who
only recklessly caused an offensive touching.
Harley’s alleged individualized circumstances plausibly place him outside the realm
of ordinary challengers to § 922(g)(9). And Staten does not preclude his challenge given
11
The government’s reliance on United States v. Carter, 669 F.3d 411 (4th Cir.
2012), is no more availing. Carter argued that § 922(g)(3)’s bar on possessing a firearm
while being an unlawful drug user or addict could not constitutionally be applied to him as
a user of only marijuana. Carter, 669 F.3d at 417, 420. Noting that the government had
failed to put forward any academic research or empirical studies to carry its burden of
proving a reasonable fit between its interest in protecting the community from gun violence
and § 922(g)(3), this Court vacated the district court’s judgment and remanded. Id. at 413,
418. But we did so only after addressing Carter’s particularized argument that a user of
marijuana could not be disarmed because any risk associated with mixing drugs and guns
is limited to dealers of drugs. Id. at 420. We found that many risks that apply to dealers
of marijuana would apply to users as well: Risks, such as the “loss of self control” and the
“need to deal with sellers of drugs and to enter black markets doing so[,] . . . along with
heightened financial costs, might be shown to drive many users [of marijuana] to a life of
crime.” Id. Far from holding that no individualized scrutiny was permitted under
§ 922(g)(3), we remanded for the government to produce evidence showing that disarming
users of marijuana, a subset of those covered by § 922(g)(3), substantially furthered its
interest in protecting the community from gun violence. Id. at 417–21.
34
the intervening Supreme Court directives and the different challenge presented there. Nor
does anything inherent in § 922(g)(9) preclude us from considering Harley’s individualized
circumstances in an as-applied challenge. So the district court should have considered
whether Harley’s circumstances permit permanently depriving him of the right to keep and
bear arms under the Second Amendment.
* * *
An individual falling within a statutory prohibition that can be constitutionally
applied to some may still challenge whether the prohibition can be constitutionally applied
to him. That fundamental principle should apply equally to the individual right enumerated
in the Second Amendment. Harley plausibly claims that § 922(g)(9) cannot be
constitutionally applied to him as an individual with a nearly thirty-year-old misdemeanor
conviction for recklessly causing an offensive touching. We should not categorically reject
that claim. Accordingly, I respectfully dissent.
35