United States Court of Appeals
For the First Circuit
No. 09-1810
UNITED STATES OF AMERICA,
Appellee,
v.
RUSSELL E. BOOKER,
Defendant, Appellant.
No. 09-2302
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL WYMAN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Virginia G. Villa, Assistant Federal Defender, for appellants.
Renée M. Bunker, Assistant U.S. Attorney, with whom Thomas E.
Delahanty II, United States Attorney, was on brief, for appellees.
May 2, 2011
LIPEZ, Circuit Judge. Appellants Russell Booker and
Michael Wyman were convicted under 18 U.S.C. § 922(g)(9), a law
that prohibits individuals convicted of a "misdemeanor crime of
domestic violence" from possessing, shipping, or receiving
firearms. The appellants' convictions under § 922(g)(9) each
rested on a prior misdemeanor offense under Maine's simple assault
statute. In this consolidated appeal, the appellants press two
primary arguments. First, they contend that only an intentional
offense can qualify as a "misdemeanor crime of domestic violence"
within the meaning of § 922(g)(9), and therefore the fact of a
conviction under Maine's undifferentiated assault statute, which
may be violated "intentionally, knowingly, or recklessly," cannot
alone establish the commission of a predicate domestic violence
offense under § 922(g)(9). Second, the appellants argue that
§ 922(g)(9) unconstitutionally abridges their Second Amendment
right to bear arms.1 After careful consideration of each of these
arguments, we find them unpersuasive. Accordingly, we affirm.
I.
In describing the facts underlying Russell Booker's and
Michael Wyman's convictions, we rely on the versions of the facts
agreed to by each defendant at his change-of-plea hearing and, to
1
Although the appellants do not describe these as alternative
arguments, we would reach the constitutional argument only if we
rejected the statutory argument. That is the case here.
-3-
a limited extent, on state court records proffered by the
government.2
A. Russell Booker
In 1998, Russell Booker pled guilty in the district court
in Skowhegan, Maine, to one count of simple assault against his
then-wife, Cheryl Booker. Tracking the language of Maine's assault
statute, Me. Rev. Stat. Ann. tit. 17-A, § 207, the criminal
complaint alleged that Booker "did intentionally, knowingly, or
recklessly cause bodily injury or offensive physical contact" to
his wife. Booker was sentenced to a term of 364 days'
incarceration, all but fourteen days of which was suspended, and a
year's probation. In addition, the court fined Booker $570,
ordered that he complete a domestic violence program, and forbade
him any contact with his wife until both she and a domestic
violence counselor approved contact in writing.
Eight years later, in 2006, Booker accidentally shot a
hunting companion with a .50-caliber black-powder rifle while deer
hunting. Officers from the Maine Warden Service, who were called
to investigate, questioned both Booker and his injured companion.
In the course of that questioning, the officers learned that Booker
was an avid hunter and owned a number of firearms. Based on this
information and the record of Booker's prior domestic assault
2
We look to these records only for details concerning the
sentencing and disposition of the state court convictions, and not
for the facts of the underlying misdemeanor offenses.
-4-
conviction, the federal Bureau of Alcohol, Tobacco, and Firearms
obtained a search warrant for Booker's residence. Federal officers
executed the warrant and found seven firearms in a gun case in
Booker's home.
In January 2008, a federal grand jury indicted Booker on
two counts of knowing possession of a firearm by an individual
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9). Booker pled not guilty. He proceeded to
file a series of motions to dismiss the indictment, arguing, inter
alia, that (1) since Maine's simple assault statute reaches
reckless as well as intentional conduct, a conviction pursuant to
the statute does not necessarily involve a sufficient mens rea to
qualify as a predicate "misdemeanor crime of domestic violence"
within the meaning of § 922(g)(9); and (2) § 922(g)(9)'s
restriction on individual possession of firearms violates the
Second Amendment. The district court denied each of Booker's
motions. After the Supreme Court issued its opinion in District of
Columbia v. Heller, 554 U.S. 570 (2008), Booker moved for
reconsideration of his argument for dismissal under the Second
Amendment, which the court again denied.
In September 2008, Booker entered into a conditional plea
agreement. He reserved the right to appeal a number of the
district court's orders, including those disposing of his motions
to dismiss the indictment. Following a change-of-plea hearing, the
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court accepted Booker's conditional plea. In June 2009, the
district court entered judgment and sentenced Booker to three
years' probation and a $1000 fine.
B. Michael Wyman
In 2002, Michael Wyman pled guilty in the Waldo County
Superior Court to simple assault against his live-in girlfriend,
Betsy Small. The criminal complaint, like the complaint filed in
Booker's assault case, alleged that Wyman "did intentionally,
knowingly, or recklessly cause bodily injury or offensive physical
contact" to Small. The court sentenced Wyman to seventy-two hours'
incarceration in county jail and imposed a $10 fine.
Roughly six years later, in 2008, Wyman again ran afoul
of the law. Wyman and Small were in the process of breaking off
their relationship and had arranged for Small to stop by Wyman's
house to pick up her belongings. Small arrived with three friends,
her fourteen-year-old son, and an infant daughter. The presence of
Small's friends angered Wyman, who emerged from the house
intoxicated, yelling, and carrying a loaded shotgun. After Wyman
fired the gun into the trees, Small and her companions quickly
departed.
Wyman called 9-1-1 and reported that he had fired a gun
at the back of his house to encourage Small and her friends to
leave. Two county sheriffs were dispatched to Wyman's house, where
Wyman readily admitted to firing the shotgun and was placed under
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arrest. Before they left, Wyman asked one of the sheriffs to stoke
his wood stove and turn off the lights in his house. Inside the
house, the sheriff noted a gun rack containing several firearms,
and Wyman identified the shotgun that he had used to drive off
Small and her friends. The sheriff secured and seized the shotgun.
In August 2008, a federal grand jury indicted Wyman on a
single count of knowing possession of a firearm by an individual
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9). Wyman pled not guilty, and filed a
motion to dismiss the indictment on grounds identical to those
asserted by Booker: that (1) a conviction pursuant to Maine's
simple assault statute, which reaches reckless as well as
intentional conduct, does not necessarily involve a sufficient mens
rea to categorically qualify as a "misdemeanor crime of domestic
violence" under § 922(g)(9); and (2) § 922(g)(9)'s prohibition on
possession of firearms is in derogation of the Second Amendment.
The district court denied the motion.
Wyman entered into a conditional plea agreement in March
2009, reserving his right to appeal the district court's order
denying his motion to dismiss the indictment. In September 2009,
the court entered judgment and sentenced Wyman to incarceration of
a year and one day, with three years' supervised release to follow.
-7-
C. Appeal and Consolidation
Booker and Wyman each timely appealed his conviction
under 18 U.S.C. § 922(g)(9). The appeals were argued separately,
but, because the appellants have raised identical issues in
challenging their convictions, we now consolidate their appeals for
purposes of this opinion.
II.
A. The Lautenberg Amendment
The statutory provision under which Wyman and Booker were
convicted, 18 U.S.C. § 922(g)(9), was enacted in 1996 as part of
the Omnibus Consolidated Appropriations Act of 1997. Known
commonly as the Lautenberg Amendment to the Gun Control Act of 1968
(or simply the "Lautenberg Amendment"), the provision makes it
"unlawful for any person . . . who has been convicted in any court
of a misdemeanor crime of domestic violence, to . . . possess in or
affecting commerce, any firearm or ammunition."
With its enactment of the Lautenberg Amendment, Congress
recognized a problem of significant national concern in the
combination of domestic violence and guns, and saw the existing law
as insufficiently protective of its victims. See, e.g., 142 Cong.
Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg)
(noting national statistics reporting 150,000 domestic violence
incidents involving a gun each year). Previously, federal law
prohibited possession of firearms only for individuals who had been
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convicted of a felony. United States v. Hartsock, 347 F.3d 1, 5
(1st Cir. 2003). Congress concluded that the focus on felony
convictions left guns in the hands of a large number of domestic
abusers who were convicted of lesser crimes, often due to some
combination of plea bargaining, "[o]utdated or ineffective laws
[that] treat domestic violence as a lesser offense," and lack of
cooperation from victims. 142 Cong. Rec. S10379 (daily ed. Sept.
12, 1996) (statement of Sen. Feinstein). Through the Lautenberg
Amendment, Congress sought to "close this dangerous loophole," id.,
and "establish[] a policy of zero tolerance when it comes to guns
and domestic violence," 142 Cong. Rec. S8831 (daily ed. July 25,
1996) (statement of Sen. Lautenberg).
The provision defines a "misdemeanor crime of domestic
violence" to be an offense that (1) "is a misdemeanor under
Federal, State, or Tribal law," (2) "has, as an element, the use or
attempted use of physical force, or the threatened use of a deadly
weapon," and (3) is "committed by a current or former spouse,
parent, or guardian of the victim, by a person with whom the victim
shares a child in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian, or by
a person similarly situated to a spouse, parent, or guardian of the
victim." 18 U.S.C. § 921(a)(33)(A). The third of these
requirements, specifying that the victim of the crime must have
been a domestic intimate or similarly situated individual, need not
-9-
be a formal element of the statute of offense. United States v.
Hayes, 129 S. Ct. 1079, 1087 (2009). Instead, the government
simply must prove beyond a reasonable doubt that the prior offense
was committed against a domestic intimate or similarly situated
individual. Id. Thus, convictions under generic assault and
battery statutes may qualify as "misdemeanor crime[s] of domestic
violence" under § 922(g)(9).
B. Maine's Assault Statute
Maine's simple assault statute provides that "[a] person
is guilty of assault if . . . [t]he person intentionally, knowingly
or recklessly causes bodily injury or offensive physical contact to
another person." Me. Rev. Stat. Ann. tit. 17-A, § 207(1). To be
convicted of assault under the statute, therefore, an individual
must at a minimum be found to have acted recklessly. See State v.
Patterson, 881 A.2d 649, 651 (Me. 2005). Maine law defines
recklessness to mean "consciously disregard[ing] a risk" in a
manner that, "when viewed in light of the nature and purpose of the
person's conduct and the circumstances known to the person,"
constitutes "a gross deviation from the standard of conduct that a
reasonable and prudent person would observe in the same situation."
Me. Rev. Stat. Ann. tit. 17-A, § 35(3).
III.
The first of Booker and Wyman's arguments on appeal turns
on the requisite mens rea for a "misdemeanor crime of domestic
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violence" under § 922(g)(9). As noted above, the Maine assault
statute under which the appellants were convicted may be violated
either recklessly, knowingly, or intentionally. The two appellants
contend that only an intentional offense may qualify as a predicate
"misdemeanor crime of domestic violence" within the meaning of
§ 922(g)(9). They seek support for their interpretation in the
provision's reference to the "use or attempted use of physical
force," a phrase that also appears in 18 U.S.C. § 16(a) and has
been interpreted in that context, the appellants argue, to require
a degree of intentionality.
The appellants' argument hangs on the interpretation of
the statutory text of §§ 921(a)(33)(A) and 922(g)(9), and thus our
review is de novo. Zimmerman v. Puccio, 613 F.3d 60, 70 (1st Cir.
2010).
A. The Meaning of a "Misdemeanor Crime of Domestic Violence"
In discerning the meaning of "misdemeanor crime of
domestic violence" under § 922(g)(9), we start first, as always,
with the language of the statute itself. United States v.
DiTomasso, 621 F.3d 17, 22 (1st Cir. 2010). Where the language of
the statute is plain and the meaning unambiguous, we will do no
more than enforce the statute in accordance with those plain terms.
Mass. Museum of Contemporary Art Found., Inc. v. Büchel, 593 F.3d
38, 50 (1st Cir. 2010).
-11-
We have construed the statutory definition at issue here
on two prior occasions. In United States v. Meade, 175 F.3d 215
(1st Cir. 1999), we considered whether the definition of
"misdemeanor crime of domestic violence" required that the
qualifying predicate offense include, as a formal element, the
relationship between the misdemeanant and victim. Id. at 218-21.
We held that it did not, finding the language of the statutory
definition unambiguous.3 Id. at 221.
Two years later, in United States v. Nason, 269 F.3d 10
(1st Cir. 2001), we revisited § 922(g)(9) to examine the interplay
between the definition of a "misdemeanor crime of domestic
violence" and the language of Maine's assault statute. As noted
above, Maine's assault statute may be violated by conduct causing
either "bodily injury" or "offensive physical contact." Me. Rev.
Stat. Ann. tit. 17-A, § 207(1). The appellant in Nason contended
that the reference to "physical force" in the definition of a
"misdemeanor crime of domestic violence" could not be reconciled
with the latter variant of assault. We disagreed, reading the
"plain and unambiguous meaning" of the phrase "physical force" to
be "power, violence, or pressure directed against another person's
body," which we found broad enough to encompass the "offensive
3
This interpretation of the statute anticipated, and was
confirmed by, the Supreme Court's subsequent holding in Hayes, 129
S. Ct. 1079.
-12-
physical contact" variant of Maine's assault statute. Nason, 269
F.3d at 16, 20-21.
The appellants suggest that Nason is no longer good law,
or at a minimum must be reconsidered, in light of the Supreme
Court's recent opinion in Johnson v. United States, 130 S. Ct. 1265
(2010). In Johnson, the Supreme Court held that a Florida felony
conviction for "[a]ctually and intentionally touch[ing]" did not
qualify as a "violent felony" under the Armed Career Criminal Act
(ACCA),4 18 U.S.C. § 924(e), because it did not necessarily involve
the "use . . . of physical force against the person of another."
Johnson, 130 S. Ct. at 1269-73. The Court read the reference to
"physical force," in the context of the ACCA's definition of
"violent felony," to mean "force capable of causing physical pain
or injury to another." Id. at 1271. Because Florida's highest
court had interpreted "actually and intentionally touching" to be
met by "any intentional physical contact, 'no matter how slight,'"
id. at 1270 (quoting State v. Hearns, 961 So. 2d 211, 218 (Fla.
2007)), the Court held that a conviction under the state statute
could not categorically qualify as a violent felony.
The appellants argue that this reasoning repudiates
Nason's holding that "offensive physical contact" involves the "use
4
The ACCA imposes enhanced sentences on "career" criminals
(i.e., those who have at least three prior convictions for a
"violent felony") convicted of unlawful gun possession under
§ 922(g).
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of physical force" within the meaning of § 922(g)(9). However, the
Court expressly rejected the suggestion that its analysis in
Johnson would have any effect on interpretation of § 922(g)(9),
stating:
We have interpreted the phrase "physical
force" only in the context of a statutory
definition of "violent felony." We do not
decide that the phrase has the same meaning in
the context of defining a misdemeanor crime of
domestic violence.
Id. at 1273 (emphasis in original). The appellants' argument for
reconsidering Nason is thus without merit.
In neither of our previous cases interpreting § 922(g)(9)
did we consider the question before us now, namely, whether the
federal definition of "misdemeanor crime of domestic violence" can
be read to prescribe an intentional state of mind for a qualifying
predicate offense. Turning to the statutory language, it is
undeniably significant that, of the three elements enumerated in
the definition, none specifies a particular -- or minimum -- mens
rea. As set forth above, the only express requirements for a
§ 922(g)(9) predicate are that it (1) was a misdemeanor, (2) had,
"as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon," and (3) was committed against
a domestic intimate or similarly situated individual. 18 U.S.C.
§ 921(a)(33)(A). Nor do any of the terms used in the definition
necessarily imply a particular state of mind. In construing terms
left undefined by the statute, we must strive to give them their
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"ordinary or natural meaning." Smith v. United States, 508 U.S.
223, 228 (1993). In common parlance, a "use of physical force" may
be described as reckless or intentional.
The government, reminding us that we "are not licensed to
practice statutory remodeling," United States v. Griffith, 455 F.3d
1339, 1344 (11th Cir. 2006), invites us to end our analysis here.
The government further notes that Congress included a mens rea
requirement in the immediately preceding section of the legislation
that enacted § 922(g)(9), and argues that Congress knew how to
specify a heightened mens rea if it had wanted to include one.5
While we ultimately agree that the absence of a mens rea
requirement from the statute is dispositive here, we proceed to
address the appellants' arguments to the contrary out of an
abundance of caution.
Appellants' argument for a heightened mens rea
requirement rests on analogy to case law interpreting two distinct
statutory provisions, (1) the definition of "crime of violence"
under 18 U.S.C. § 16 and (2) the definition of "violent felony"
under the ACCA, 18 U.S.C. § 924(e). We have previously declined to
5
The provision enacting § 922(g)(9) is found at section 658
of the Omnibus Consolidated Appropriations Act of 1997. See Pub.
L. No. 104-208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996).
Section 657 of that Act amended 18 U.S.C. § 922(q), which made it
"unlawful for any individual knowingly to possess a firearm . . .
at a place that the individual knows, or has reasonable cause to
believe, is a school zone." Id. § 657, 110 Stat. at 3009-369 to
-371 (emphasis added).
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give determinative weight in our construction of § 922(g)(9) and
§ 921(a)(33)(A) to decisions interpreting similar language in other
statutes, including both § 16 and the ACCA. See Meade, 175 F.3d at
221. As we explained in Meade, § 922(g)(9) "has a distinct,
focused, and singular purpose that is not covered by any of the
other statutes," and "precedent teaches that the case for
construing one statute in a manner similar to another is weakest
when the two have significant differences." Id. at 221 (citing
United States v. Granderson, 511 U.S. 39, 50-51 (1994)). We reach
the same conclusion again here.
The appellants first direct our attention to the general
definition of a "crime of violence," codified at 18 U.S.C. § 16,
which includes "an offense that has as an element the use . . . of
physical force against the person or property of another." 18
U.S.C. § 16(a).6 In Leocal v. Ashcroft, 543 U.S. 1 (2004), the
Supreme Court considered whether this definition could encompass a
state conviction for driving under the influence and causing
serious bodily injury, an offense which typically either has no
mens rea element or requires only negligence in the operation of a
6
The definition of "crime of violence" codified at 18 U.S.C.
§ 16 does not pertain to any specific statutory scheme, but instead
is "incorporated into a variety of statutory provisions, both
criminal and noncriminal." Leocal v. Ashcroft, 543 U.S. 1, 7
(2004). Section 16 was originally enacted as part of the
Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473,
§ 1001(a), 98 Stat. 2136.
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vehicle.7 Parsing the language of the statute, the Court held that
the phrase "'use . . . of physical force against the person or
property of another' most naturally suggests a higher degree of
intent than negligent or mere accidental conduct," and thus the
petitioner's conviction could not be considered a "crime of
violence." Id. at 9-10. Appellants would have us infer from
Leocal's treatment of § 16 a heightened mens rea requirement for
§ 922(g)(9).
We find appellants' arguments under Leocal unavailing for
at least two reasons. First, the case for analogizing § 922(g)(9)
to § 16 is particularly weak. In the course of drafting
§ 921(a)(33)(A), Congress expressly rejected § 16's definition of
"crime of violence," adopting a definition of "misdemeanor crime of
violence" that was, according to the sponsor of the Lautenberg
Amendment, "probably broader" than the definition of "crime of
violence" in § 16. 142 Cong. Rec. S11872-01, S11877 (daily ed.
Sept. 30, 1996) (statement of Sen. Lautenberg). Second, even if we
were to find § 16 an appropriate analog, Leocal would not answer
7
The petitioner in Leocal was a Haitian citizen and lawful
permanent resident of the United States who was ordered deported
under 8 U.S.C. § 1227(a)(2)(A)(iii), which renders deportable
"[a]ny alien who is convicted of an aggravated felony." Leocal,
543 U.S. at 3-4. The case implicated § 16 because the definition
of "aggravated felony" includes a "crime of violence" within the
meaning of 18 U.S.C. § 16. Prior to the appeal, an immigration
judge (and subsequently the Board of Immigration Appeals) had
concluded that the petitioner's prior state court conviction for
driving under the influence and causing serious bodily injury
constituted a conviction of a "crime of violence."
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the question before us. In holding that the language of § 16
"requir[es] a higher mens rea than . . . merely accidental or
negligent conduct," id. at 11, the Court expressly reserved
judgment on whether an offense involving the reckless use of force
against a person or property may constitute a crime of violence
under § 16.8 Id. at 13. The Court has not revisited the question.
Likewise, we have not yet had occasion to consider the issue. But
see Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-30 (9th Cir.
2006) (holding that reckless conduct falls outside the ambit of
§ 16); Tran v. Gonzales, 414 F.3d 464, 470-71 (3d Cir. 2005)
(same).
The appellants' reliance on authority interpreting the
definition of "violent felony" under the ACCA fares no better. The
ACCA defines a "violent felony" to be a crime punishable by a term
8
Additionally, as the district court pointed out in its order
denying Booker's first motion to dismiss the indictment, United
States v. Booker, 555 F. Supp. 2d 218, 222, 225 (D. Me. 2008),
Leocal gave "significant weight" in interpreting the definition of
"crime of violence" to contextual cues that are absent here, 543
U.S. at 12 n.9. Specifically, the Court focused on the fact that
the Immigration and Naturalization Act, pursuant to which the
petitioner in Leocal was facing deportation, elsewhere defined a
"serious criminal offense" to include § 16's definition of a "crime
of violence" as well as "any crime of reckless driving or of
driving under the influence of alcohol . . . if such crime involves
personal injury to another." Id. at 11-12 & n.9 (quoting 8 U.S.C.
§ 1101(h)). The Court found this separate listing of § 16 and DUI
offenses "revealing" and concluded that it "strongly supports our
construction of § 16." Id. at 12 & n.9. As the district court
aptly noted here, there is no analogous contextual support for
distinguishing between an intentional domestic assault and a
reckless one. Booker, 555 F. Supp. 2d at 225.
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of more than a year that either (1) "has as an element the use,
attempted use, or threatened use of physical force against the
person of another" or (2) "is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another."
18 U.S.C. § 924(e)(2)(B). The two prongs of this definition are
often referred to as the "force clause" and the "residual clause,"
respectively. See United States v. Dancy, No. 09-2628, 2011 WL
1418854, at *9 (1st Cir. Apr. 13, 2011).
The appellants cite the Supreme Court's decision in Begay
v. United States, 553 U.S. 137 (2008) -- holding that a conviction
for driving under the influence is not a "violent felony" under the
ACCA because it "need not be purposeful or deliberate," id. at 145
-- as "inferential" evidence that the phrase "use of physical
force" can only encompass offenses involving a heightened mens rea.
However, Begay dealt solely with the residual clause of the ACCA's
definition of violent felony.9 Begay's holding neither addressed
nor sheds any light on the meaning of "use of physical force," a
phrase which appears only in the force clause.10
9
The Court took "as a given" that a driving-under-the-
influence offense does not fall within the scope of the force
clause. Begay, 553 U.S. at 141.
10
For the same reason, our recent opinion in United States v.
Holloway, 630 F.3d 252 (1st Cir. 2011), in which we held that
reckless offenses are not sufficiently "purposeful" to qualify as
a "violent felony" under the residual clause, id. at 260-62; see
also Dancy, 2011 WL 1418854, at *11, does not inform our analysis
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Moreover, as we note above, the Supreme Court recently
rejected the notion that its case law interpreting the phrase "use
. . . of physical force" under the ACCA would control
interpretation of that phrase under § 922(g)(9). Johnson, 130 S.
Ct. at 1273. There are sound reasons to decline to interpret the
two statutes in tandem. To be sure, the ACCA and § 922(g)(9) are
both animated by a protective rationale. See Begay, 553 U.S. at
146 ("[T]he [ACCA] focuses upon the special danger created when a
particular type of offender -- a violent criminal or drug
trafficker -- possesses a gun."); Hartsock, 347 F.3d at 2 ("[T]he
ultimate purpose of [§ 922(g)(9)] is to protect domestic abuse
victims from the risk of further violence involving firearms.").
However, the statutes address significantly different threats.
Whereas the ACCA seeks to protect society at large from a diffuse
risk of injury or fatality at the hands of armed, recidivist
felons, § 922(g)(9) addresses an acute risk to an identifiable
class of victims -- those in a relationship with a perpetrator of
domestic violence. As Senator Lautenberg noted:
By their nature, acts of domestic violence are
especially dangerous and require special
attention. These crimes involve people who
have a history together and perhaps share a
home or a child. These are not violent acts
between strangers, and they don't arise from a
chance meeting. Even after a separation, the
individuals involved, often by necessity, have
a continuing relationship of some sort, either
here.
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custody of children or common property
ownership.
142 Cong. Rec. S8831-06, S8832 (daily ed. July 25, 1996) (statement
of Sen. Lautenberg). The threshold at which § 922(g)(9) will be
triggered (misdemeanor crimes) is, accordingly, lower than the
felony threshold set for the ACCA. See id. at S8831 (referring to
Congress's goal of "establish[ing] a policy of zero tolerance when
it comes to guns and domestic violence").
We thus end where we began, with the plain, unambiguous
language of § 922(g)(9). Put simply, the statutory definition of
"misdemeanor crime of domestic violence" does not prescribe an
intentional mens rea. We therefore hold that an offense with a
mens rea of recklessness may qualify as a "misdemeanor crime of
domestic violence" under § 922(g)(9).
B. The Rule of Lenity and the Doctrine of Constitutional Doubt
The appellants offer two additional arguments for finding
their prior convictions under Maine's assault statute insufficient
to support a conviction under § 922(g)(9). First, invoking the
lenity doctrine, the appellants argue that the phrase "use . . . of
physical force" is intractably ambiguous and must be given the
interpretation most lenient to the defendant. This argument
presupposes an ambiguity that has no basis in the statute's text.
"[T]he rule of lenity only applies if, after considering text,
structure, history, and purpose, there remains a grievous ambiguity
or uncertainty in the statute such that the Court must simply guess
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as to what Congress intended." Barber v. Thomas, 130 S. Ct. 2499,
2508-09 (2010) (citations omitted) (internal quotation marks
omitted). As we have held here and in Nason, we find no ambiguity
in the phrase "use . . . of physical force" when read in light of
the "text, structure, history, and purpose" of § 922(g)(9), and
thus the appellants' appeal to the doctrine of lenity is misplaced.
Cf. Hayes, 129 S. Ct. at 1088-89 (rejecting application of lenity
doctrine in light of finding that § 921(a)(33)(A)'s definition of
"misdemeanor crime of domestic violence" is not grievously
ambiguous).
Second, and in a similar vein, the appellants argue that
the doctrine of constitutional doubt demands that we hold
§ 922(g)(9) applicable only to intentional, violent conduct and
thereby avoid reaching the constitutionality of the statutory
scheme. The doctrine of constitutional doubt "teaches that
Congress is presumed to legislate in accordance with the
Constitution and that, therefore, as between two plausible
constructions of a statute, an inquiring court should avoid a
constitutionally suspect one in favor of a constitutionally
uncontroversial alternative." United States v. Dwinells, 508 F.3d
63, 70 (1st Cir. 2007). This rule has no application in the
present case. As stated, the doctrine of constitutional doubt only
comes into play when there are "two plausible constructions" of a
statute; "the absence of any ambiguity defeats the constitutional
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avoidance argument." Id. As the statute here is not ambiguous,
the rule does not come into play.
IV.
We turn now to the appellants' second line of argument.
The appellants contend that, in light of the Supreme Court's
recognition in Heller of an individual right to gun ownership
protected by the Second Amendment, their convictions under
§ 922(g)(9) must be found unconstitutional. As the argument raises
a constitutional challenge to a federal statute, our review is de
novo. See United States v. Rene E., 583 F.3d 8, 11 (1st Cir.
2009). Moreover, because it is facial in nature, the appellants'
challenge to the constitutionality of § 922(g)(9) must fail if we
determine that the statute "has a plainly legitimate sweep." Wash.
State Grange v. Wash. State Repub. Party, 552 U.S. 442, 449 (2008)
(internal quotation marks omitted).
A. The Decisional Framework
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, the Supreme Court found for the first time
that this language secured an individual, and not just a
collective, right to bear arms. 554 U.S. at 576-626. Though
announcing a significant new understanding of the Second Amendment,
the Court narrowly crafted Heller's actual holding. At issue in
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the case was the constitutionality of several firearm restrictions
-- most notably, a blanket ban on the ownership of handguns --
enacted by the District of Columbia. Id. at 574-75. The Court
held that, under any level of scrutiny applicable to enumerated
constitutional rights,11 the District's ban on handgun possession
in the home "would fail constitutional muster."12 Id. at 629. In
so doing, the Court expressly left for "future evaluation" the
precise level of scrutiny to be applied to laws trenching upon
Second Amendment rights. Id. at 626, 634-35.
In a passage that has been the subject of much debate in
the courts as well as extensive academic commentary, the Court also
stated that there are limits to the Second Amendment right:
Like most rights, the right secured by the
Second Amendment is not unlimited. From
Blackstone through the 19th-century cases,
commentators and courts routinely explained
that the right was not a right to keep and
carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. . . .
Although we do not undertake an exhaustive
historical analysis today of the full scope of
the Second Amendment, nothing in our opinion
11
The Court acknowledged that the laws at issue would survive
rational-basis scrutiny, but stated that such scrutiny only applies
when reviewing laws "under constitutional commands that are
themselves prohibitions on irrational laws," such as the Equal
Protection Clause, rather than when assessing encroachment on an
enumerated right, such as was the situation in Heller and is the
situation here. Heller, 554 U.S. at 628 n.27.
12
Similarly, the Court held that a provision of D.C. law
requiring gun-owners to secure their guns with a trigger-lock or
keep the guns disassembled unquestionably infringes upon Second
Amendment rights. Id. at 630.
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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.
Id. at 626-27. In an accompanying footnote, the Court offered an
important clarification of this passage: "We identify these
presumptively lawful regulatory measures only as examples; our list
does not purport to be exhaustive." Id. at 627 n.26. The full
significance of these pronouncements is far from self-evident.
Indeed, the Court itself acknowledged that it had not left the law
"in a state of utter certainty." Id. at 635. We thus find
ourselves in agreement with the Seventh Circuit's observation, in
United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en
banc), of the relative futility of "pars[ing] these passages of
Heller as if they contain an answer to the question whether §
922(g)(9) is valid."
Nonetheless, as the Skoien court noted, at least a couple
of important points can be gleaned from this passage. First, it
"tell[s] us that statutory prohibitions on the possession of
weapons by some persons are proper." Id. That is, the Second
Amendment permits categorical regulation of gun possession by
classes of persons -- e.g., felons and the mentally ill, see
Heller, 554 U.S. at 626 -- rather than requiring that restrictions
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on the right be imposed only on an individualized, case-by-case
basis.
Second, the passage signals "that the legislative role
did not end in 1791." Skoien, 614 F.3d at 640. The felony firearm
disqualification, which numbers among Heller's list of
"presumptively lawful" measures, presents a case in point. Though
there may be some historical predicates for restricting the gun
rights of those who have been convicted of a crime,13 see id.; cf.
Rene E., 583 F.3d at 15-16 (discussing evidence that Founders
13
We note that the historical pedigree of laws disarming those
convicted of a crime is subject to substantial debate among
scholars. See, e.g., Don B. Kates, A Modern Historiography of the
Second Amendment, 56 UCLA L. Rev. 1211, 1231 n.100 (2009) ("[T]here
is ample historical support for excluding [felons] from the right
to arms: Nations which accepted the right to arms invariably
extended that right only to virtuous citizens; and at common law
felons were 'civilly dead,' having lost all rights including the
right to possess property of any kind."); C. Kevin Marshall, Why
Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695,
714 (2009) (surveying early American authorities interpreting the
Second Amendment as well as English antecedents and concluding that
they "point against lifetime total disarmament of all 'felons'");
Adam Winkler, Heller's Catch-22, 56 UCLA L. Rev. 1551, 1563 (2009)
("The Founding generation had no laws limiting gun possession by
the mentally ill, nor laws denying the right to people convicted of
crimes. Bans on ex-felons possessing firearms were first adopted
in the 1920s and 1930s, almost a century and a half after the
Founding." (footnote omitted)); Carlton F.W. Larson, Four
Exceptions in Search of a Theory: District of Columbia v. Heller
and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009)
(concluding that "felon disarmament laws significantly postdate
both the Second Amendment and the Fourteenth Amendment"); Glenn
Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn.
L. Rev. 461, 480 (1995) (noting that, at the time of the Founding,
"felons, children, and the insane were excluded from the right to
arms precisely as (and for the same reasons) they were excluded
from the franchise").
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considered the gun right to be limited to those who could exercise
it in a virtuous manner), the modern federal felony firearm
disqualification law, 18 U.S.C. § 922(g)(1), is firmly rooted in
the twentieth century and likely bears little resemblance to laws
in effect at the time the Second Amendment was ratified.14 Indeed,
the current federal felony firearm ban differs considerably from
the version of the proscription in force just half a century ago.
Enacted in its earliest incarnation as the Federal Firearms Act of
1938, the law initially covered those convicted of a limited set of
violent crimes such as murder, rape, kidnapping, and burglary, but
extended to both felons and misdemeanants convicted of qualifying
offenses. See Federal Firearms Act, ch. 850, §§ 1(6), 2(f), 52
Stat. 1250, 1250-51 (1938); Skoien, 614 F.3d at 640. The law was
expanded to encompass all individuals convicted of a felony (and to
omit misdemeanants from its scope) several decades later, in 1961.
See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-
342, § 2, 75 Stat. 757, 757 (1961).
14
The law, 18 U.S.C. § 922(g)(1), applies to all individuals
convicted of a federal felony, thus encompassing individuals
convicted of crimes as disparate as tax evasion, see 26 U.S.C. §
7201, and bank robbery, see 18 U.S.C. § 2113. This breadth, and
particularly the inclusion of nonviolent offenses, constitutes a
significant departure from earlier understandings of a "felony."
At common law, for example, "[o]nly the most serious crimes" were
considered to be felonies, leaving even grievous offenses such as
kidnapping and assault with intent to rape classified as
misdemeanors. United States v. Watson, 423 U.S. 411, 439-440
(1976) (Marshall, J., dissenting).
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The recency of enactment and the continuing evolution of
this "presumptively lawful" limit on gun ownership support the
conclusion that, "although the Justices have not established that
any particular statute is valid, . . . exclusions need not mirror
limits that were on the books in 1791."15 Skoien, 614 F.3d at 641.
Nor can it be that the relative age of a regulation is the key to
its constitutionality. As the Seventh Circuit has observed, "[i]t
would be weird to say that § 922(g)(9) is unconstitutional [at this
time] but will become constitutional by 2043, when it will be as
'longstanding' as § 922(g)(1) was when the Court decided Heller."
Id.
Indeed, § 922(g)(9) fits comfortably among the categories
of regulations that Heller suggested would be "presumptively
lawful." 554 U.S. at 627 n.26. Section 922(g)(9) is, historically
and practically, a corollary outgrowth of the federal felon
disqualification statute.16 Moreover, in covering only those with
15
Of course, evidence of historical attitudes towards and
regulation of firearms are relevant to a law's constitutionality.
In Rene E., for example, we looked closely at the history of
restrictions on possession of guns by juveniles in holding
constitutional 18 U.S.C. § 922(x)(1), which prohibits juvenile
handgun possession. 583 F.3d at 13-16. Our decision in Rene E.
should not be taken to suggest, however, that a law may only be
found constitutional by reference to its historical provenance.
16
As the Supreme Court noted in Hayes, the Lautenberg
Amendment "extended" the existing felon disqualification to
individuals convicted of a misdemeanor crime of domestic violence.
129 S. Ct. at 1082. The legislative history of the provision makes
plain that the Lautenberg Amendment was specifically intended to
remedy a failure of the felon disqualification scheme -- namely,
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a record of violent crime, § 922(g)(9) is arguably more consistent
with the historical regulation of firearms than § 922(g)(1), which
extends to violent and nonviolent offenders alike. See C. Kevin
Marshall, Why Can't Martha Stewart Have a Gun?, 32 Harv. J.L. &
Pub. Pol'y 695, 698 (2009) ("[A]ctual 'longstanding' precedent in
America and pre-Founding England suggests that a firearms
disability can be consistent with the Second Amendment to the
extent that . . . its basis credibly indicates a present danger
that one will misuse arms against others and the disability
redresses that danger."). As Skoien notes, this extension of the
felon firearm ban to non-violent offenders renders it "difficult to
condemn § 922(g)(9), which like the 1938 Act is limited to violent
crimes." 614 F.3d at 641.
While the categorical regulation of gun possession by
domestic violence misdemeanants thus appears consistent with
Heller's reference to certain presumptively lawful regulatory
measures, we agree with the Seventh Circuit's conclusion in Skoien
that some sort of showing must be made to support the adoption of
a new categorical limit on the Second Amendment right. Id. The
Court made plain in Heller that a rational basis alone would be
that it omitted from its sweep a class of criminals who posed a
significant and particularized danger to those around them. See
142 Cong. Rec. S10379, S10380 (daily ed. Sept. 12, 1996) (statement
of Senator Feinstein) (explaining that the Lautenberg Amendment was
meant to "close th[e] dangerous loophole" that allowed domestic
abusers charged with lesser offenses to escape firearm
disqualification under § 922(g)(1)).
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insufficient to justify laws burdening the Second Amendment. 554
U.S. at 628 n.27. The parties here champion competing standards:
the appellants argue that strict scrutiny is required, because
§ 922(g)(9) infringes upon the "core" constitutional right
recognized in Heller to "possess firearms in the home,"17 whereas
the government urges that we adopt intermediate scrutiny (while
asserting that the law would survive more stringent review). We
think it sufficient to conclude, as did the Seventh Circuit, that
a categorical ban on gun ownership by a class of individuals must
be supported by some form of "strong showing," necessitating a
substantial relationship between the restriction and an important
governmental objective. Skoien, 614 F.3d at 641.
B. Constitutionality of § 922(g)(9)
Section 922(g)(9) finds its animating interest in keeping
guns away from people who have been proven to engage in violence
with those with whom they share a domestically intimate or familial
relationship, or who live with them or the like. This interest,
which appears plainly on the face of the statute and is borne out
by its legislative history, see 142 Cong. Rec. S8832 (statement of
Sen. Lautenberg), is undeniably important. See Skoien, 614 F.3d at
17
While we do not attempt to discern the "core" Second
Amendment right vindicated in Heller, we note that Heller stated
that the Second Amendment "elevates above all other interests the
right of law-abiding, responsible citizens to use arms in defense
of hearth and home." 554 U.S. at 635. We would question whether
appellants, who manifestly are not "law-abiding, responsible
citizens," fall within this zone of interest.
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642 ("[N]o one doubts that the goal of § 922(g)(9), preventing
armed mayhem, is an important governmental objective."); cf. Carey
v. Brown, 447 U.S. 455, 471 (1980) ("The State's interest in
protecting the well-being, tranquility, and privacy of the home is
certainly of the highest order in a free and civilized society.").
The appellants raise no serious argument to the contrary.
Nor can there be any question that there is a substantial
relationship between § 922(g)(9)'s disqualification of domestic
violence misdemeanants from gun ownership and the governmental
interest in preventing gun violence in the home. Statistics bear
out the Supreme Court's observation that "[f]irearms and domestic
strife are a potentially deadly combination nationwide." Hayes,
129 S. Ct. at 1087. According to figures collected by the Justice
Department and included in the record here, nearly 52,000
individuals were murdered by a domestic intimate between 1976 and
1996, and the perpetrator used a firearm in roughly 65% of the
murders (33,500). The risk of fatality from an assault involving
a firearm is far greater than that associated with other weapons.
See Skoien, 614 F.3d at 642-43 (discussing studies finding that an
assault with a gun is five times more deadly than an assault with
a knife, and that domestic assaults with guns are twelve times as
likely to result in fatality than assaults with knives or fists).
Not surprisingly, research has found that "[t]he presence
of a gun in the home of a convicted domestic abuser is 'strongly
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and independently associated with an increased risk of homicide.'"
Id. at 643-44 (quoting Arthur L. Kellerman, et al., Gun Ownership
as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med.
1084, 1087 (1993)). It follows that removing guns from the home
will materially alleviate the danger of intimate homicide by
convicted abusers.18 And, as the Seventh Circuit has noted, the
fact that the recidivism rate for domestic violence is high
suggests that there are "substantial benefits in keeping the most
deadly weapons out of the hands of domestic abusers." Id. at 644
(surveying studies estimating overall domestic violence recidivism
rate to be between 35% and 80%).
In light of the above, it is plain that § 922(g)(9)
substantially promotes an important government interest in
preventing domestic gun violence. We thus reject the appellants'
Second Amendment challenge to the law.
Affirmed.
18
Moreover, the risk of homicide extends beyond those in an
intimate relationship with the abuser. As the Seventh Circuit
notes in Skoien, "[r]esponding to a domestic-disturbance call is
among an officer's most risky duties." 614 F.3d at 644. Between
2000 and 2009, close to 8% of non-accidental law enforcement
officer fatalities in the line of duty were related to domestic
disturbance calls. Federal Bureau of Investigation, Law
Enforcement Officers Killed and Assaulted 2009 Table 19 (2010).
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