United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2834
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Robert Bena, *
*
Appellant. *
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Submitted: May 10, 2011
Filed: December 21, 2011
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Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Robert Bena pleaded guilty to unlawful possession of firearms while subject
to a court order of protection, in violation of 18 U.S.C. § 922(g)(8). Bena reserved
his right to appeal the district court’s1 denial of his motion to dismiss the indictment.
On appeal, Bena renews his arguments that § 922(g)(8) violates the Second, Fifth,
and Sixth Amendments. We affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
I.
On February 2, 2010, a grand jury returned a one-count indictment charging
Bena with possession of multiple firearms while subject to a no-contact order, in
violation of § 922(g)(8). The underlying order arose out of an Iowa criminal charge
that alleged Bena had assaulted his wife by kicking her in the ribs. Pursuant to Iowa
Code § 664A.3, an Iowa district court entered the order at Bena’s initial appearance
on the charge. Bena appeared via television monitor, but he did not have the
assistance of counsel. The Iowa court found that there was probable cause to believe
that “a domestic abuse assault had occurred” and also found that “the presence of
[Bena] in [his wife’s] residence poses a threat to the safety of [his wife], persons
residing with [his wife], or members of [his wife’s] immediate family.” The court
ordered, among other things, that Bena “shall not use, or attempt to use, or threaten
to use physical force against [his wife] that would reasonably be expected to cause
bodily injury.”
Bena filed a motion to dismiss the federal indictment, asserting multiple
constitutional challenges to § 922(g)(8). As relevant here, Bena claimed that
§ 922(g)(8) is unconstitutional on its face under the Second Amendment. He also
asserted that § 922(g)(8), as applied in this case, violated his rights under the Fifth
and Sixth Amendments, because the underlying state order was obtained in violation
of his rights to due process of law and assistance of counsel. The district court denied
the motion.
Bena pleaded guilty pursuant to a written plea agreement, reserving the right
to appeal the issues raised in his motion to dismiss. The district court imposed a
sentence of three years’ probation. Bena now appeals, renewing his constitutional
challenges.
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II.
We review Bena’s constitutional challenges de novo. Enacted as part of the
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108
Stat. 1796, § 922(g)(8) makes it unlawful for any person:
who is subject to a court order that –
(A) was issued after a hearing of which such person received actual
notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an
intimate partner2 of such person or child of such intimate partner or
person, or engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to
the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened
use of physical force against such intimate partner or child that would
reasonably be expected to cause bodily injury[,]
...
to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
2
“The term ‘intimate partner’ means, with respect to a person, the spouse of the
person, a former spouse of the person, an individual who is a parent of a child of the
person, and an individual who cohabitates or has cohabited with the person.” 18
U.S.C. § 921(a)(32).
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A.
We first consider Bena’s argument that “§ 922(g)(8) impermissibly infringes
on an individual’s Second Amendment right to bear arms and is therefore facially
unconstitutional.” To succeed on this facial challenge, Bena “must establish that no
set of circumstances exists under which [§ 922(g)(8)] would be valid.” United States
v. Salerno, 481 U.S. 739, 745 (1987); see also United States v. Seay, 620 F.3d 919,
922 (8th Cir. 2010).
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.” In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme
Court held that “the Second Amendment protects the right to keep and bear arms for
the purpose of self-defense,” and that a “law that banned the possession of handguns
in the home” was therefore unconstitutional. McDonald v. City of Chicago, 130 S.
Ct. 3020, 3026 (2010). But the Court cautioned that “[l]ike most rights, the right
secured by the Second Amendment is not unlimited,” and that “nothing in [the]
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 on the commercial sale of arms.” Heller, 554 U.S. at 626-27. The Court
noted that it “identif[ied] these presumptively lawful regulatory measures only as
examples” and that the “list does not purport to be exhaustive.” Id. at 627 n.26; see
also McDonald, 130 S. Ct. at 3047 (plurality opinion).
The analytical basis for the presumptive constitutionality of these regulatory
measures was not thoroughly explained, but we know at least that “statutory
prohibitions on the possession of weapons by some persons are proper,” and
“exclusions need not mirror limits that were on the books in 1791.” United States v.
Skoien, 614 F.3d 638, 640-41 (7th Cir. 2010) (en banc). The first federal felon-in-
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possession law was not enacted until 1938, when it applied to those convicted of
violent felonies, and the prohibition was extended to all felons in 1961. See id. at
640. Federal law first proscribed the possession of firearms by the mentally ill in
1968. See id. at 641. In United States v. Seay, 620 F.3d 919, this court rejected a
Second Amendment challenge to § 922(g)(3), which restricts firearm possession by
any person “who is an unlawful user of or addicted to any controlled substance.”
Although the prohibition was not enacted until 1968, see Gun Control Act of 1968,
Pub. L. No. 90-618, § 102, 82 Stat. 1213, 1220-21, this court observed that Congress
sought to “keep firearms out of the possession of drug abusers, a dangerous class of
individuals,” and concluded that § 922(g)(3) was “the type of ‘longstanding
prohibition[] on the possession of firearms’ that Heller declared presumptively
lawful.” Seay, 620 F.3d at 925.
It seems most likely that the Supreme Court viewed the regulatory measures
listed in Heller as presumptively lawful because they do not infringe on the Second
Amendment right. See United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010).
The Court explained that “it has always been widely understood that the Second
Amendment . . . codified a pre-existing right,” 554 U.S. at 592, and the opinion of the
District of Columbia Circuit affirmed in Heller observed that the pre-existing right
“was subject to restrictions at common law.” Parker v. District of Columbia, 478
F.3d 370, 399 (D.C. Cir. 2007). On that view, a restriction such as prohibiting the
possession of firearms by violent felons does not “impair the core conduct upon
which the right was premised.” Id. That the Supreme Court contemplated such a
historical justification for the presumptively lawful regulations is indicated by the
Court’s reference to the “historical tradition” that supported a related limitation on
the types of weapons protected by the Second Amendment, 554 U.S. at 627, and by
the Court’s assurance that it would “expound upon the historical justifications for the
exceptions” mentioned, including categories of prohibited persons, if and when those
exceptions come before the Court. Id. at 635 (emphasis added).
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Heller characterized the Second Amendment as guaranteeing “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” Id.
(emphasis added). Scholarship suggests historical support for a common-law
tradition that permits restrictions directed at citizens who are not law-abiding and
responsible. The Court’s discussion is consistent with the view that in “classical
republican philosophy, the concept of a right to arms was inextricably and
multifariously tied to that of the ‘virtuous citizen,’” such that “the right to arms does
not preclude laws disarming the unvirtuous (i.e. criminals) or those who, like children
or the mentally unbalanced, are deemed incapable of virtue.” Don B. Kates, Jr., The
Second Amendment: A Dialogue, Law & Comtemp. Probs., Winter 1986, at 146
(1986); see also Don B. Kates & Clayton E. Kramer, Second Amendment Limitations
and Criminological Considerations, 60 Hastings L.J. 1339, 1359 & n. 120 (2009);
Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev.
461, 480-81 (1995); cf. Adam Winkler, Heller’s Catch-22, 56 UCLA L. Rev. 1551,
1563 n.67 (2009). In the 1760s, Blackstone explained that English subjects enjoyed
a right to have arms for their defense, “suitable to their condition and degree” and
“under due restrictions.” 1 William Blackstone, Commentaries *139. This right and
others, he recounted, were subject to “necessary restraints,” viewed as “gentle and
moderate,” and designed to prevent “what would be pernicious either to ourselves or
our fellow citizens.” Id. at *140. Proposals from the Founding period reflect a
similar understanding of the pre-existing right to bear arms. A proposal of Samuel
Adams at the Massachusetts Ratifying Convention would have forbidden Congress
to prevent “the people of the United States, who are peaceable citizens, from keeping
their own arms.” Journal of Convention: Wednesday February 6, 1788, reprinted in
Debates and Proceedings in the Convention of the Commonwealth of Massachusetts
Held in the Year 1788, at 86 (Boston, William White 1856) (emphasis added).
Pennsylvania delegates in 1787 similarly proposed a constitutional provision stating
that “no law shall be passed for disarming the people or any of them unless for crimes
committed, or real danger of public injury from individuals.” The Address and
Reasons of Dissent of the Minority of the Convention of Pennsylvania to their
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Constituents, reprinted in Bernard Schwartz, 2 The Bill of Rights: A Documentary
History 662, 665 (1971) (emphasis added). See generally C. Kevin Marshall, Why
Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695 (2009).
At least some applications of § 922(g)(8), therefore, “promote the
government’s interest in public safety consistent with our common law tradition.”
Parker, 478 F.3d at 399. Congress enacted § 922(g)(8) in light of evidence that
domestic violence presents a pervasive problem in American society. See Antonia
C. Novello et al., From the Surgeon General, US Public Health Service: A Medical
Response to Domestic Violence, 267 JAMA 3132 (1992) (“Domestic Violence may
touch as many as one fourth of all American families.”), cited in H.R. Rep. No. 103-
395, at 25 (1993). That firearms cause injury or death in domestic situations has been
established by empirical studies that are catalogued in opinion such as Skoien, 614
F.3d at 643-44, and United States v. Reese, 627 F.3d 792, 802-03 (10th Cir. 2010).
See also United States v. Hayes, 555 U.S. 415, 427 (2009) (“Firearms and domestic
strife are a potentially deadly combination nationwide.”).
Insofar as § 922(g)(8) prohibits possession of firearms by those who are found
to represent “a credible threat to the physical safety of [an] intimate partner or child,”
18 U.S.C. § 922(g)(8)(C)(i), it is consistent with a common-law tradition that the right
to bear arms is limited to peaceable or virtuous citizens. Although persons restricted
by § 922(g)(8) need not have been convicted of an offense involving domestic
violence, this statute—like prohibitions on the possession of firearms by violent
felons and the mentally ill—is focused on a threat presented by a specific category
of presumptively dangerous individuals. The prohibition, moreover, need not apply
in perpetuity, but only so long as a person is “subject to” a qualifying court order. In
Iowa, the order terminates at the conclusion of a criminal case, or after a prescribed
period if the action results in a conviction or deferred judgment and the defendant
ceases to pose a danger to the victim. See Iowa Code §§ 664A.3.3, 664A.5, 664A.8;
State v. Cramer, No. 09-0957, 2010 WL 2925127, at *6 (Iowa Ct. App. July 28,
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2010) (unpublished). On a facial challenge, we conclude that the Second Amendment
does not preclude this type of regulatory measure. Cf. Reese, 627 F.3d at 802-04 &
n.4 (applying intermediate and strict levels of means-end scrutiny, and concluding
that § 922(g)(8) passes constitutional muster); United States v. Lippman, 369 F.3d
1039, 1044 (8th Cir. 2004); Nelson Lund, The Ends of Second Amendment
Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4
Tex. Rev. L. & Pol. 157, 189 (1999) (“[A] strong case can be made for upholding that
part of § 922(g)(8) that imposes a firearms disability on person who are under a
domestic violence restraining order because a court has found that they represent a
credible threat to the physical safety of their domestic partner or child.”).
The text of § 922(g)(8) also extends the prohibition on firearm possession to
persons subject to a court order that merely “prohibits the use, attempted use, or
threatened use of physical force against [an] intimate partner or child that would
reasonably be expected to cause bodily injury.” 18 U.S.C. § 922(g)(8)(C)(ii). As
such, the plain language may permit restriction even where there has been no judicial
finding of dangerousness. The Fifth Circuit thought Congress must have “proceeded
on the assumption that the laws of the several states were such that court orders,
issued after notice and hearing, should not embrace the prohibitions of paragraph
(C)(ii) unless such either were not contested or evidence credited by the court
reflected a real threat or danger of injury to the protected party by the party enjoined.”
United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001); see also Lippman, 369
F.3d at 1044. Under Iowa law, for example, an order shall not issue unless a
magistrate finds that the “presence of or contact with the defendant poses a threat to
the safety of the alleged victim, persons residing with the alleged victim, or members
of the alleged victim’s family.” Iowa Code § 664A.3.1.b. Bena brings only a facial
challenge, and the state court in his case made a specific finding that he posed a threat
to the safety of another. We thus need not consider whether § 922(g)(8) would be
constitutional as applied to a person who is subject to an order that was entered
without evidence of dangerousness. See Eugene Volokh, Implementing the Right To
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Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. Rev. 1443, 1504-05 (2009); Lund, supra, 4 Tex. Rev. L. & Pol.
at 189-90.
B.
Bena next claims that § 922(g)(8) is unconstitutional as applied to him. He
argues his conviction violated his “Fifth and Sixth Amendment rights, as he was not
provided the assistance of counsel or provided a meaningful opportunity to
participate” in the underlying state proceeding.
Bena’s argument is an impermissible collateral attack on the predicate no-
contact order. In Lewis v. United States, 445 U.S. 55 (1980), the Supreme Court
considered whether an uncounseled state conviction obtained in violation of the Sixth
Amendment could serve as the predicate for a subsequent conviction under 18 U.S.C.
app. § 1202(a)(1) (1976), the predecessor to 18 U.S.C. § 922(g)(1).3 Id. at 56. The
Court answered this question in the affirmative, concluding that the statute did not
permit a collateral attack on the underlying conviction, and the Constitution did not
establish a right to make one. Id. at 65-67. The plain language of the statute did not
“suggest[] a congressional intent to limit its coverage to persons [whose convictions
are not subject to collateral attack].” Id. at 60 (second alteration in original) (internal
quotation omitted). The Court further explained that the Sixth Amendment did not
3
Lewis was convicted under section 1202(a)(1) of Title VII of the Omnibus
Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 236
(codified at 18 U.S.C. app. § 1202(a)(1) (1976)) (repealed 1986). That provision
made it unlawful for “[a]ny person who . . . has been convicted by a court of the
United States or of a State or any political subdivision thereof of a felony” to
“receive[], possess[], or transport[] in commerce or affecting commerce, after the date
of enactment of this Act, any firearm.” The substance of this provision is now
contained in § 922(g)(1). Cf. United States v. Elliott, 128 F.3d 671, 672 (8th Cir.
1997) (per curiam) (applying Lewis to a conviction under § 922(g)(1)).
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prohibit use of the uncounseled state conviction, because “[t]he federal gun
laws . . . focus not on reliability, but on the mere fact of conviction . . . , in order to
keep firearms away from potentially dangerous persons.” Id. at 67.
The rationale of Lewis applies to a conviction under § 922(g)(8). Like
§ 1202(a)(1) (and § 922(g)(1)), the text of § 922(g)(8) is not limited to persons whose
no-contact orders are not subject to collateral attack. See United States v. Hicks, 389
F.3d 514, 535 (5th Cir. 2004). Rather, § 922(g)(8)(A) sets forth the procedural
requirements for the underlying proceeding: the order must have been “issued after
a hearing of which [the defendant] received actual notice, and at which [the
defendant] had an opportunity to participate.” Bena was subject to a qualifying no-
contact order under § 922(g)(8), and that alone subjected him to the requirements of
that provision. See Hicks, 389 F.3d at 535; United States v. Baker, 197 F.3d 211,
216-17 (6th Cir. 1999). We therefore reject his Fifth and Sixth Amendment claims.
Accord United States v. DuBose, 598 F.3d 726, 732 (11th Cir. 2010) (per curiam)
(collecting cases).
Bena’s reliance on United States v. Belless, 338 F.3d 1063 (9th Cir. 2003), is
misplaced. In Belless, the Ninth Circuit considered a conviction under § 922(g)(9),
which forbids firearm possession by persons who have “been convicted in any court
of a misdemeanor crime of domestic violence.” The court held that the defendant’s
misdemeanor battery conviction could not serve as a predicate conviction, because
the defendant was not represented by counsel and did not knowingly and intelligently
waive his right to counsel. See id. at 1069. Belless was rooted in the text of the
statute: a person shall not be considered to have been convicted of a misdemeanor
crime of domestic violence for purposes of § 922(g)(9) unless he was “represented
by counsel in the case, or knowingly and intelligently waived the right to counsel in
the case.” 18 U.S.C. § 921(a)(33)(B)(i)(I). Section 922(g)(8) contains no such
requirement.
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* * *
The judgment of the district court is affirmed.
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