United States v. Samuel Hosford , 843 F.3d 161 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL ROBERT HOSFORD,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00550-DKC-1)
Argued: September 23, 2016 Decided: December 6, 2016
Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit
Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Diaz joined.
ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Dana Jill Brusca,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
GREGORY, Chief Judge:
In 2013, Mr. Samuel Hosford was indicted under 18 U.S.C.
§ 922 for unlicensed dealing in firearms and conspiracy to deal
firearms without a license. He moved to dismiss the indictment
on constitutional grounds. Specifically, he argued that the
indictment violated his Second Amendment right to engage in
intrastate firearm sales between non-prohibited persons; the Due
Process Clause of the Fifth Amendment for vagueness; and the
Commerce Clause. The district court denied his motion, and
Hosford timely appealed.
“We review the district court’s factual findings on a
motion to dismiss an indictment for clear error, but we review
its legal conclusions de novo.” United States v. Perry, 757
F.3d 166, 171 (4th Cir. 2014) (quoting United States v.
Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005)). We hold that the
prohibition against unlicensed firearm dealing comports with the
Second and Fifth Amendments both facially and as applied. It is
also a valid exercise of congressional power under the Commerce
Clause. Accordingly, we affirm the district court’s denial of
Hosford’s motion to dismiss his indictment.
2
I.
Hosford, a resident of Montgomery County, Maryland, sold
firearms to an individual he met in a public parking lot five
times over the course of two-and-a-half months. He had no
reason to believe that the individual was a prohibited
purchaser, but he also took no measures to ensure that the
individual was a valid purchaser. Unbeknownst to him, the
individual was an undercover officer. Hosford was arrested and
indicted for one count of conspiracy and five counts of
unlicensed firearm dealing.
According to the facts agreed to in his conditional plea
agreement, Hosford conspired with another man, Henry Parrott, to
sell firearms. Parrott purchased firearms from gun shows and
delivered them to Hosford. Hosford then sold these firearms to
the undercover officer. Over five transactions, Hosford sold
the officer eight guns and intended to sell another four guns
before he was arrested.
Hosford moved to dismiss his indictment as unconstitutional
under the Second Amendment, Due Process Clause of the Fifth
Amendment, and Commerce Clause. The district court held that
the indictment was constitutional. Hosford then pleaded guilty,
conditioned on the outcome of this appeal about the statute’s
constitutionality.
3
II.
Hosford was indicted under the Gun Control Act of 1968, 18
U.S.C. § 921 et seq., which prohibits individuals without a
license from regularly selling, for the predominant purpose of
gaining profit, firearms that are not part of their personal
collection or for their hobby. Because Hosford’s motion
challenges on Second Amendment and vagueness grounds the
constitutionality of this prohibition, we first more carefully
review the statutes at issue, as well as the burdens and
responsibilities they trigger.
18 U.S.C. § 922 forbids anyone “except a licensed importer,
licensed manufacturer, or licensed dealer, to engage in the
business of importing, manufacturing, or dealing in firearms.”
18 U.S.C. § 922(a)(1)(A).
18 U.S.C. § 921 lays out the relevant definitions for this
prohibition. A dealer is, in relevant part, “any person engaged
in the business of selling firearms at wholesale or retail.” 18
U.S.C. § 921(11)(A). A licensed dealer is a dealer who has
obtained a federal license to commercially buy and sell
firearms. Id. And under clarifying statutory definitions
passed in 1986, “[e]ngaged in the business” means “a person who
devotes time, attention, and labor to dealing in firearms as a
regular course of trade or business with the principal objective
4
of livelihood and profit through the repetitive purchase and
resale of firearms.” 18 U.S.C. § 921(21)(C); see also Firearm
Owners Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986).
And “with the principal objective of livelihood and profit”
means that the intent of the sale “is predominantly one of
obtaining livelihood and pecuniary gain,” as opposed to other
intents like decreasing or increasing one’s personal firearm
collection. 18 U.S.C. § 921(22). But these definitions
explicitly exempt anyone “who makes occasional sales, exchanges,
or purchases of firearms for the enhancement of a personal
collection or for a hobby, or who sells all or part of his
personal collection of firearms.” 18 U.S.C. § 921(21)(C).
To obtain a license, a prospective firearms dealer must
submit an application, be at least twenty-one years old, pay a
fee, and establish lawful premises for selling firearms. 18
U.S.C. § 923(a), (d). If the applicant fulfills these steps and
is otherwise legally able to possess, transport, and ship
firearms, the application must be approved. 18 U.S.C. § 923(d).
Licensed dealers are subject to regulations that those
conducting personal sales are not. For example, the Attorney
General may require licensed dealers to maintain importation,
production, shipment, and other kinds of records, 18 U.S.C.
§ 923(g)(1)(A), and may inspect a dealer’s inventory or records
5
without reasonable cause for a warrant, subject to other
limitations, 18 U.S.C. § 923(g)(1)(B).
III.
We first review Hosford’s Second Amendment challenges. “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. For centuries, the
Second Amendment received minimal judicial interpretation.
Then, in District of Columbia v. Heller, 554 U.S. 570
(2008), the Supreme Court determined that the Second Amendment
protects an individual “right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Id. at
635. The Court held unconstitutional the District of Columbia’s
ban on possession of handguns in the home and its requirement
that all firearms in the home be stored in a manner that
rendered them inoperable for immediate self-defense. Id.
But the Court underscored that Heller was not meant “to
clarify the entire field” of Second Amendment jurisprudence.
Id. It further emphasized that Heller should not “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
6
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” Id. at 626-27.
In a footnote, the Court identified these kinds of prohibitions
as “presumptively lawful regulatory measures.” Id. at 627 n.26.
Since Heller, courts have endeavored to establish what
conduct the Second Amendment protects and what burdens on that
conduct are constitutionally justifiable. The Fourth Circuit
has adopted a two-pronged inquiry for Second Amendment
challenges. First, the court must ask “whether the challenged
law imposes a burden on conduct falling within the scope of the
Second Amendment’s guarantee.” United States v. Chester, 628
F.3d 673, 680 (4th Cir. 2010) (quoting United States v.
Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). If it does not,
then the law comports with the Second Amendment. But if the
challenged regulation does burden conduct within the scope of
the Second Amendment as historically understood, the court must
apply “an appropriate form of means-end scrutiny.” Id. at 680.
Against this backdrop, Hosford raises both facial and as-
applied Second Amendment challenges to the prohibition against
unlicensed firearm dealing. We consider each in turn.
A.
We first examine Hosford’s facial challenge. To succeed in
a facial constitutional challenge, a movant “must establish that
7
no set of circumstances exists under which the Act would be
valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
Because of this stringent standard, a facial challenge is
perhaps “the most difficult challenge to mount successfully.”
Id. And while courts generally engage in the above-mentioned
two-pronged analysis for facial Second Amendment challenges, our
precedent simplifies that analysis for prohibitions deemed
“presumptively lawful” in Heller.
In United States v. Moore, 666 F.3d 313 (4th Cir. 2012),
this Court found the federal prohibition against possession of
firearms by felons facially constitutional because it was
identified in Heller as presumptively lawful. Id. at 318-19.
According to this Court, the Supreme Court’s identification of
“longstanding prohibitions on the possession of firearms by
felons” as presumptively lawful “streamlined” the otherwise-
applicable two-pronged analysis. Id. at 317-18. “It is unclear
to us whether Heller was suggesting that ‘longstanding
prohibitions’ such as these . . . were historically understood
to be valid limitations on the right to bear arms or did not
violate the Second Amendment for some other reason.” Id. at 318
(quoting Chester, 628 F.3d at 679); see also Marzzarella, 614
F.3d at 91. But either reasoning demonstrated that these
presumptively lawful prohibitions were facially constitutional,
8
because they could be constitutionally applied. Moore, 666 F.3d
at 318-19.
The same reasoning applies here. Hosford’s facial
challenge fails if the prohibition against unlicensed firearm
dealing is the type of regulation deemed “presumptively lawful”
in Heller. There may be debate as to whether the Supreme Court
called presumptively lawful all “laws imposing conditions and
qualifications on the commercial sale of arms,” or only
“longstanding . . . laws imposing conditions and qualifications
on the commercial sale of arms.” Heller, 554 U.S. at 626-27.
But we need not parse that language here: the prohibition
against unlicensed firearm dealing is a longstanding condition
or qualification on the commercial sale of arms and is thus
facially constitutional.
First, the regulation covers only the commercial sale of
firearms. It affects only those who regularly sell firearms,
not owned for personal use, in the course of trade or business
for the principal purpose of profit. It explicitly excludes the
vast majority of noncommercial sales, such as sales from one’s
own personal collection, sales meant to enhance one’s hobby, and
infrequent sales or exchanges.
Second, the regulation imposes a mere condition or
qualification. Though framed as a prohibition against
9
unlicensed firearm dealing, the law is in fact a requirement
that those who engage in the commercial sale of firearms obtain
a license. A prospective dealer who wishes to obtain a license
need only submit an application, be at least twenty-one years
old, pay a fee, and establish lawful premises for selling
firearms. 18 U.S.C. § 923(a), (d). Neither the application
procedure nor the fee are so prohibitive as to turn this
condition or qualification into a functional prohibition. Cf.
Ill. Ass’n of Firearms Retailers v. City of Chicago, 961 F.
Supp. 2d 928, 938-939 (N.D. Ill. 2014) (finding that city
ordinances allowing firearm sales and transfers only outside
city limits were a functional ban on firearm acquisition);
Teixeira v. County of Alameda, 822 F.3d 1047 (9th Cir. 2016)
(noting that if no unincorporated area of county qualifies under
zoning requirement that firearm retailers must be 500 feet from
certain establishments, zoning requirement may be functional ban
on firearm stores).
And lastly, this prohibition against unlicensed firearm
dealing is longstanding. Federal appellate courts have only
recently begun to establish how old a firearm regulation must be
to be longstanding. And no court has previously examined
whether the prohibition at issue here is longstanding. But a
review of similar cases establishes that the prohibition against
10
unlicensed firearm dealing is of similar age to other
longstanding firearm regulations, and is thus also longstanding.
The Third Circuit found New Jersey’s permit requirement for
possessing handguns “longstanding”; New Jersey established its
permit requirement in 1966 and first required permits for only
concealable handguns in 1924. Drake v. Filko, 724 F.3d 426, 432
(3d Cir. 2013). The D.C. Circuit noted that the U.S. Supreme
Court found prohibitions on the possession of firearms by felons
to be longstanding “although states did not start to enact
th[ose prohibitions] until the early 20th century.” Heller v.
District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011); see
also C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32
Harv. J.L. & Pub. Pol’y 695, 708 (2009) (noting that bans on
possession of firearms by felons not passed in any state other
than New York until 1923, and not passed in states with
constitutional right-to-arms provisions until 1925). And the
D.C. Circuit found that Washington, D.C.’s handgun-registration
requirement, first passed in 1975, was longstanding, even though
some states first regulated the possession of handguns in 1927
or 1932, and those laws required less of the purchaser. See
Heller, 670 F.3d at 1254; see also, e.g., 47 Stat. 650, 652
(1932) (requiring purchasers of pistols in District of Columbia
11
to give seller basic personal identifying information); 1927
Haw. Sess. Laws 209, 211 (same).
Licensing requirements for dealers have been around for as
long as these laws, if not longer. The federal government first
required dealers to obtain licenses in 1938, nearly eighty years
ago. Federal Firearms Act, Pub. L. No. 75-785, 52 Stat. 1250,
1250 (1938) (repealed 1968) (replaced with Gun Control Act of
1968, Pub. L. 90-618, 82 Stat. 1213). And some states required
licenses for dealers even earlier. 1 Thus, the federal progenitor
of the law at issue was passed decades before the handgun-
licensing requirements examined by the Third Circuit and D.C.
Circuit. And licensing requirements on dealers have existed at
least as long as regulations on the possession of handguns.
For these reasons, the prohibition against unlicensed
firearm dealing is a longstanding condition or qualification on
the commercial sale of firearms. As a result, Hosford’s facial
Second Amendment challenge fails.
B.
Even if a statute is facially constitutional, “the phrase
‘presumptively lawful regulatory measures’ suggests the
1
See, e.g., 47 Stat. 650, 652 (1932) (District of Columbia
established licensing requirement in 1932); 1927 Haw. Sess. Laws
209, 211 (Hawaii established licensing requirement in 1927).
12
possibility that one or more of these ‘longstanding’ regulations
‘could be unconstitutional in the face of an as-applied
challenge.” Chester, 628 F.3d at 679 (quoting United States v.
Williams, 616 F.3d 685, 692 (7th Cir. 2010)). We thus now turn
to Hosford’s as-applied challenge.
As stated above, this Court has established a two-pronged
analysis for Second Amendment challenges: “whether the
challenged law imposes a burden on conduct falling within the
scope of the Second Amendment’s guarantee,” and if so, whether
the challenged law survives “an appropriate form of means-end
scrutiny.” Chester, 628 F.3d at 680. But even when applying
this analysis, we are at liberty to assume that a challenged
statute burdens conduct protected by the Second Amendment and
focus instead on whether the burden is constitutionally
justifiable. Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir.
2013) (“[W]e are not obliged to impart a definitive ruling at
the first step of the Chester inquiry. And indeed, we and other
courts of appeals have sometimes deemed it prudent to instead
resolve post-Heller challenges to firearm prohibitions at the
second step”). Because we can resolve the statute’s
constitutionality on the inquiry’s second prong, we also find it
prudent in this case to assume, without holding, that the
13
federal prohibition against unlicensed firearm dealing burdens
conduct protected by the Second Amendment.
1.
We first must determine what level of scrutiny applies.
The right to bear arms, after all, “is not unlimited.” Heller,
554 U.S. at 626. Even as historically and traditionally
understood, law-abiding citizens do not have the “right to keep
and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” Id.
In United States v. Masciandaro, 638 F.3d 458 (4th Cir.
2011), this Court held that laws burdening “core” Second
Amendment conduct receive strict scrutiny, while less severe
burdens receive only intermediate scrutiny. Id. at 471. We
noted that core Second Amendment conduct includes the
“fundamental right to possess firearms for self-defense within
the home. But a considerable degree of uncertainty remains as
to the scope of that right beyond the home . . . .” Id. at 467.
“[A]s we move outside the home, firearm rights have always been
more limited, because public safety interests often outweigh
individual interests in self defense.” Id. at 470. Thus, “less
severe burdens on the right, laws that merely regulate rather
than restrict, and laws that do not implicate the central self-
14
defense concern of the Second Amendment, may be more easily
justified.” Id. at 470 (quoting Chester, 628 F.3d at 682).
Here, even assuming that the prohibition implicates conduct
protected by the Second Amendment, the prohibition does not
touch on the Second Amendment’s core protections. Individuals
remain free to possess firearms for self-defense. Individuals
also remain free to purchase or sell firearms owned for
personal, self-defensive use. The law merely imposes a
licensing requirement on those who wish to profit by regularly
selling firearms outside of their personal collection; it
serves, not as a prohibition, but as a condition or
qualification. The law, therefore, regulates rather than
restricts, addresses only conduct occurring outside the home,
and does not touch on self-defense concerns. It is thus subject
to intermediate scrutiny.
2.
To satisfy intermediate scrutiny, the government must show
that “there is a ‘reasonable fit’ between the challenged
regulation and a ‘substantial’ government objective.” Chester,
628 F.3d at 683 (quoting Bd. of Trs. of State Univ. of N.Y. v.
Fox, 492 U.S. 469, 480 (1989)).
The government enacted the prohibition against unlicensed
firearm dealing, alongside myriad other firearm regulations,
15
because “the ease with which firearms could be obtained
contributed significantly to the prevalence of lawlessness and
violent crime in the United States.” Huddleston v. United
States, 415 U.S. 814, 824 (1974) (citing S. Rep. No. 90-1097, at
2198 (1968)). The government’s interest is, therefore, “to
c[ur]b crime by keeping ‘firearms out of the hands of those not
legally entitled to possess them because of age, criminal
background, or incompetency.’” Id.
Such interests in public safety and preventing crime are
indisputably substantial governmental interests. See Woollard,
712 F.3d at 877. The question then is whether there is a
reasonable fit between the prohibition against unlicensed
firearm dealing and the government’s objectives.
The requirement that firearm dealers——those who regularly
engage in the business of selling firearms——obtain licenses is a
crucial part of the federal firearm regulatory scheme. Licensed
dealers are subject to more stringent regulations and
governmental oversight than private sellers. See 18 U.S.C.
§ 923(g)(1). By subjecting firearm dealers to routine
inspections, which require neither a warrant nor probable cause,
the government has more opportunities to ensure compliance with
laws that have demonstrated effects on reducing gun violence.
16
For example, prohibiting those under a restraining order
for domestic violence from possessing firearms correlates to a
statistically significant decrease in intimate partner
homicides. See Elizabeth R. Vigdor & James A. Mercy, Do Laws
Restricting Access to Firearms By Domestic Violence Offenders
Prevent Intimate Partner Homicide?, 30 Eval. Rev. 313, 332
(2006). And restricting these individuals’ access to firearms
by prohibiting their purchase of firearms, rather than merely
their possession, is significantly more effective. Id. at 333.
Requiring sellers to conduct background checks, as licensed
firearms dealers must do under federal law, also significantly
reduces prohibited purchasers’ access to firearms. See
Katherine A. Vittes et al., Legal Status and Source of
Offenders’ Firearms in States with the Least Stringent Criteria
for Gun Ownership, 19 Injury Prevention 26, 29 (2013). Indeed,
of those studied, very few offenders purchased a weapon from a
federal firearms dealer, in large part because of the
background-check requirement. Id. at 30. Without a prohibition
against the unlicensed dealing of firearms, individuals who
regularly engage in the business of selling firearms for profit
would have no incentive to obtain a license and subject
themselves to these requirements.
17
Despite Hosford’s protestations, this prohibition against
the unlicensed dealing of firearms is not “a broad prohibition,
applying to the entire law-abiding population, that
substantially burdens conduct that goes to the core of rights
secured under the Second Amendment.” Appellant Br. at 29. Nor
does this prohibition impermissibly implicate “the right of a
non-prohibited person to engage in the private, intrastate sale
of firearms to another non-prohibited person,” even assuming
such a right is countenanced in the Second Amendment’s core
protections. Appellant Br. at 12. Individuals are free to sell
firearms from their personal collection, to sell firearms only
occasionally, and to sell firearms commercially with a license.
This prohibition is a narrowly delineated, reasonable fit to
further Congress’s important objectives in public safety and
crime prevention: it affects only those select individuals who
regularly sell firearms they do not personally own in their
collection or for their hobby, for the principle purpose of
accruing profit. And it is a necessary component to the
effectiveness of federal firearm regulations.
Moreover, nothing about Hosford’s situation changes this
analysis as applied to him. Over the course of five separate
occasions, he sold to an unknown individual nearly a dozen
firearms that he purchased hours before. A grand jury indicted
18
Hosford for the unlawful, regular sale of firearms for the
principal purpose of profit, where the firearms were not part of
his personal collection or for his hobby. And Hosford does not
contest that his conduct violated the statute.
Applying the federal prohibition to Hosford affects no
“core” constitutional right, so applying only intermediate
scrutiny remains appropriate. His brief possession of the
firearms he sold had no connection to the long-held right to
self-defense; he did not purchase or own them for that purpose.
His indictment does not implicate his right to keep firearms in
his home. Indeed, any attempt to characterize Mr. Hosford’s
conduct as “core” Second Amendment conduct, thus deserving of
higher scrutiny, goes merely to whether Mr. Hosford was guilty
of the crime. If he were a hobbyist, sold firearms only
occasionally, or sold firearms from his personal collection, he
may argue——assuming he were even indicted——that his core Second
Amendment conduct was implicated. But that hypothetical
scenario is not at issue here.
And in applying intermediate scrutiny, the government’s
interests in the law generally also justify applying the law to
Hosford. Hosford sold firearms on multiple occasions to an
individual whom, as far as the record shows, he did not vet. He
kept no record of the firearms he sold. He conducted no
19
background check. He did not know whether the buyer was
prohibited, and took no steps to ensure that the buyer could
legally purchase firearms. His actions are the exact kind of
unlicensed firearm dealing that Congress feared when passing the
licensing requirement as an attempt to stymie the unregulated
flow of firearms to prohibited purchasers. For these reasons,
Hosford’s as-applied Second Amendment challenge also fails.
IV.
Hosford next argues that the federal prohibition against
unlicensed firearm dealing is void for vagueness, both facially
and as applied. “[T]he void-for-vagueness doctrine requires
that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,
357 (1983).
Yet “[a] plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law
as applied to the conduct of others.” Holder v. Humanitarian
Law Project, 561 U.S. 1, 18-19 (2010) (quoting Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
(1982)). Thus, if a law clearly prohibits a defendant’s
20
conduct, the defendant cannot challenge, and a court cannot
examine, whether the law may be vague for other hypothetical
defendants. Because the prohibition against unlicensed firearm
dealing is not vague as applied to Hosford, both his as-applied
and facial challenges fail. 2
In 1975, this Court upheld the pre-1986, less specific
prohibition against unlicensed firearm dealing. United States
v. Huffman, 518 F.2d 80 (4th Cir. 1975) (per curiam). 3 At the
time, the statute prohibited individuals from “engag[ing] in the
business of selling firearms or ammunition at wholesale or
retail,” but did not define what “business” meant. See id. at
81. The defendant “engaged in more than a dozen transactions in
the course of a few months. He frequently built firearms, or
had them rebuilt, and exchanged them for other weapons which he
subsequently sold or traded. There was also evidence that he
2Hosford argues that his facial vagueness challenge should
be heard even if the claim is not vague as applied to him,
because the statute may nonetheless “chill constitutionally-
protected activity.” Appellant Br. at 40. But his argument
confuses a due-process vagueness challenge with a First
Amendment overbreadth challenge. Because Hosford has not
alleged an overbreadth claim, we decline to address it.
3Hosford alleges that Huffman is not persuasive because it
was decided pre-Heller. But Heller’s recognition of an
individual right to keep and bear arms has no bearing on whether
a statute is vague as a matter of due process.
21
traded large quantities of military ammunition for firearms.”
Id. This Court held that the statute was not vague as applied
to the defendant. Id.
Here, the prohibition against unlicensed firearm dealing is
much narrower and clearer: it regulates only individuals who
regularly sell, for the principal purpose of accruing profit or
maintaining a livelihood, firearms that are not part of their
personal collection or for their hobby. And like the defendant
in Huffman, Hosford engaged in transactions that resulted in the
sale or attempted sale of a dozen weapons over the course of a
few months. Indeed, Hosford’s conduct may be even more clearly
commercial than that of the defendant in Huffman. In Huffman,
the defendant both traded and built firearms, which could
possibly imply that he had a hobby; Hosford resold for profit
weapons he purchased a few hours earlier. Thus, applying the
narrower and more clarifying statute to Hosford’s similarly
commercial sale of firearms is not unconstitutionally vague.
Hosford argues that the statute is unclear as to whether
someone is a “dealer” or “collector,” and whether someone sells
the guns for profit or as a mere hobby. Appellant Br. at 48.
But statutes necessarily have some ambiguity, as no standard can
be distilled to a purely objective, completely predictable
standard. “[T]he law is full of instances where a man’s fate
22
depends on his estimating rightly . . . some matter of degree.”
Johnson v. United States, 135 S. Ct. 2551, 2561 (2015) (quoting
Nash v. United States, 229 U.S. 373, 377 (1913)). And where, as
here, the statute clearly gave notice to Hosford that he ought
not to regularly sell firearms that he only purchased and resold
for profit——firearms not acquired for the purpose of a personal
collection or for the hobby of collecting firearms——his as-
applied vagueness challenge fails. As a result, Hosford’s
facial challenge also fails.
V.
Lastly, Hosford argues that the prohibition against
unlicensed firearm dealing is not a valid exercise of Congress’s
power under the Commerce Clause. The Commerce Clause allows
Congress to regulate (1) the channels of interstate commerce;
(2) the instrumentalities of interstate commerce, and persons or
things in interstate commerce; and (3) activities that
“substantially affect” interstate commerce. Gonzales v. Raich,
545 U.S. 1, 16-17 (2005). We join our sister circuits in
holding that the prohibition against unlicensed firearm dealing
is a valid exercise of Congress’s power under the Commerce
Clause. See Mandina v. United States, 472 F.2d 1110 (8th Cir.
23
1973); United States v. Hornbeck, 489 F.2d 1325 (7th Cir. 1973)
(per curiam).
In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court
upheld the federal Controlled Substances Act’s application to
individuals who grew and consumed marijuana for personal use.
See id. at 7. Those individuals cultivated their own marijuana
or received marijuana for free from caregivers. They did not
purchase or sell marijuana or marijuana products, either
interstate or intrastate. Id. at 7.
Despite the intrastate and noncommercial nature of the
activity, the Supreme Court held that it had a substantial
effect on interstate commerce. The individuals were
cultivating, for themselves, a fungible commodity for which
there was an established interstate market. Id. at 18. The
purpose of the Controlled Substances Act was to “control the
supply and demand of controlled substances in both lawful and
unlawful drug markets.” Id. at 19. Congress had a “rational
basis for believing that leaving home-consumed marijuana outside
federal control would . . . affect price and market conditions.”
Id. And lastly, the growing demand for marijuana in the
interstate market could draw in-state, homegrown marijuana into
the interstate market, thus frustrating Congress’s purposes if
left unregulated. Id.
24
More so than the respondents in Gonzales, Hosford——just
like similar individuals who would be indicted under this law——
engaged in commercial, inter-personal conduct. He purchased and
resold firearms, a fungible commodity for which there is an
established interstate market, to unknown individuals. And like
the market for marijuana, Congress has a rational basis to
believe that leaving intrastate firearm markets unregulated
would affect the interstate market or draw firearms purchased
intrastate into the interstate market. Indeed, research
indicates that firearms found illegally in one state may be
traced back to legal purchases in other states. See Steven G.
Brandl & Meghan S. Stroshine, The Relationship Between Gun and
Gun Buyer Characteristics and Firearm Time-to-Crime, 22 Crim. J.
Pol’y Rev. 285, 287 (2011) (noting that all firearms begin on
legal market); Glenn L. Pierce et al., Research Note,
Characteristics and Dynamics of Illegal Firearms Markets:
Implications for a Supply-Side Enforcement Strategy, 21 Just. Q.
391, 401 (2004) (finding that 35% of illegally possessed and
traced firearms originated from different state). And in cities
such as New York or Boston, where firearm regulations are
strictest, the vast majority of illegally possessed firearms
originated out of state. Brandl, supra at 289 (New York and
Boston have strict regulations); Pierce, supra at 401 (finding
25
that, of firearms traced, 82.6% of firearms recovered in New
York originated out of state, and 66.4% of firearms recovered in
Boston originated out of state). Leaving the intrastate,
commercial sale of firearms unregulated would frustrate
Congress’s purpose to police the interstate firearms market.
For these reasons, the unlicensed dealing of firearms, even in
intrastate sales, implicates interstate commerce and may be
constitutionally regulated by Congress under the Commerce
Clause.
VI.
For these reasons, the district court’s decision not to
dismiss Mr. Hosford’s indictment is
AFFIRMED.
26