United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 1999 Decided April 16, 1999
No. 97-5304
Fraternal Order of Police,
Appellant
v.
United States of America,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00145)
Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause on rehearing for appellee. With him on the
briefs were Frank W. Hunger, Assistant Attorney General,
Wilma A. Lewis, U.S. Attorney, and Mark B. Stern, Attor-
ney, U.S. Department of Justice.
William J. Friedman, IV, argued the cause and filed the
answer brief on rehearing for appellant.
Donna F. Edwards was on the brief for amicus curiae The
National Network to End Domestic Violence.
Before: Williams, Ginsburg and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: In Moldea v. New York Times
Co., 22 F.3d 310, 311 (D.C. Cir. 1994), at the outset of an
opinion in which a panel on petition for rehearing abandoned
its initial view, we quoted Justice Frankfurter's remark,
"Wisdom too often never comes, and so one ought not to
reject it merely because it comes late." Henslee v. Union
Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949)
(Frankfurter, J., dissenting). It still seems good advice.
I.Background
In Fraternal Order of Police v. United States, 152 F.3d 998
(D.C. Cir. 1998) ("FOP I"), this panel addressed two provi-
sions of the 1996 amendments to the Gun Control Act of 1968,
18 U.S.C. s 921 et seq. The first was s 922(g)(9), which adds
domestic violence misdemeanants--"any person who has been
convicted in any court of a misdemeanor crime of domestic
violence"--to the list of those for whom it is unlawful to
possess a firearm "in or affecting interstate commerce" or to
receive a firearm that has been shipped in interstate or
foreign commerce. Besides covering additional persons, Con-
gress also amended a pre-existing exemption, s 925(a)(1),
which nullified the Gun Control Act's disabilities for "any
firearm ... issued for the use of ... any State or any
department, agency, or political subdivision thereof"; Con-
gress excluded the newly covered persons from the section's
benefits. Thus, domestic violence misdemeanants, unique
among persons forbidden to possess guns under the Act, are
not allowed to possess even government-issued firearms.
The Fraternal Order of Police challenged the amendments
on a variety of grounds, including the equal protection ele-
ment of the Fifth Amendment's due process clause. See
Bolling v. Sharpe, 347 U.S. 497, 500 (1954). We found such a
violation, holding that the amendments failed "rational basis"
review because of their harsher treatment of domestic vio-
lence misdemeanants as compared to domestic violence fel-
ons. See id. at 1002-03.
The United States petitioned for rehearing on two grounds:
that FOP had not properly raised an argument based on the
irrationality of the relative treatment of misdemeanants and
felons, and that we were incorrect to find the difference
irrational. We granted the petition, and requested briefing
and heard oral argument on both points. See Fraternal
Order of Police v. United States, 159 F.3d 1362 (1998).
We now determine that although it was likely improvident
to address the felon-misdemeanant equal protection question
in our original opinion, it has now become appropriate to do
so. We also reverse our previous position and hold that the
challenged provisions do satisfy rational basis review. This
requires us to reach FOP's other arguments: that s 922(g)(9)
violates due process by burdening the fundamental right to
bear arms, that it is beyond Congress's power under the
commerce clause, and that it violates the Tenth Amendment.
We reject all these claims.
II.Waiver of the felon-misdemeanant claim.
Although the felon-misdemeanant distinction was never the
focus of FOP's arguments, the Order did raise it twice in this
litigation: orally before the district court at the combined
summary judgment/preliminary injunction hearing and in its
reply brief here. After advancing FOP's principal equal
protection argument--that it was irrational to focus on do-
mestic violence misdemeanants to the exclusion of other
misdemeanants--FOP's counsel said:
The other strangeness about it is that, if you are convict-
ed of a felony, you are a convicted serial killer ... you
can be rearmed, or if you somehow become a police
officer after your conviction, you can keep your gun,
because you're a convicted felon. Fine. The exemption
section still obtains with respect to felonies.
So what's the rationality of, not only looking at one kind
of misdemeanor instead of all violent misdemeanors, but
leaving every felon able to be a law enforcement officer
and carry a weapon in the public interest? I mean the
States may regulate that, but the Federal government
isn't.
So if you looked just at the Federal enactment, it's
irrational to say that convicted felons can be police
officers and carry weapons, and people convicted of one
kind of misdemeanor cannot.
March 7, 1997 Hr'g Tr. at 50-51. Neither the government
nor the district court addressed the misdemeanant-felon dis-
tinction.
FOP's oral argument on the felon-misdemeanant distinction
was enough to satisfy the general requirement that an issue
on appeal be raised in the trial court. The government
complains that it lost any "opportunity to make a record as to
the relevant facts and legal arguments" because of FOP's
timing in raising the issue below. Gov't Reh'g Br. at 4. But
the government did not, as it could have, seek to submit a
post-argument brief or supplemental affidavits on the felon-
misdemeanant question. See Fed. R. Civ. P. 56(e) ("The
court may permit [summary judgment] affidavits to be sup-
plemented or opposed by depositions, answers to interrogato-
ries, or further affidavits."). Furthermore, the issue present-
ed is essentially a legal one, and the government has not
identified in its rehearing petition or briefs any type of factual
evidence it would have introduced if given the opportunity.
In any event, the District Court for the District of Colum-
bia regularly considers arguments raised for the first time at
oral argument in deciding dispositive motions. See Joslin Co.
v. Robinson Broadcasting Corp., 977 F. Supp. 491, 493
(D.D.C. 1997) (motion to dismiss); Jones v. WMATA, 1997
WL 198114, No. Civ. A. 95-2300-LFO, at *1 n.1 (D.D.C. April
10, 1997) (summary judgment); Richardson v. National Rifle
Ass'n, 871 F. Supp. 499, 501 (D.D.C. 1994) (summary judg-
ment). If the felon-misdemeanant issue had been properly
briefed on appeal, it would have been proper for us to address
it.
But FOP failed to raise the issue in its opening brief on
appeal. Although two passages in that brief might be read in
isolation as related to the felon-misdemeanant equal protec-
tion argument, context makes clear that neither one actually
did so. The first vague allusion was merely ancillary to
FOP's commerce clause argument, see FOP Br. at 34-35, and
the second, though vague, plainly related solely to FOP's
claim of irrational discrimination among misdemeanants, see
FOP Br. 39-40. Unsurprisingly, the government did not
address the felon-misdemeanant distinction in its brief.
FOP's reply brief, however, did raise it, saying, albeit in the
context of its commerce clause argument, that "[t]his limited
elimination of a long-standing exception is irrational....
Permitting a person convicted of a felony on a domestic
partner to benefit from the exception but not a person
convicted of a misdemeanor on a domestic partner serves no
legitimate goal." FOP Reply Br. at 16.
Normally, because of the likely unfairness to parties and
risk of improvident decisions, we would refuse to consider an
argument that an appellant failed to raise before its reply
brief. See, e.g., Doolin Sec. Sav. Bank v. OTS, 156 F.3d 190,
191 (D.C. Cir. 1998); McBride v. Merrell Dow & Pharms.,
Inc., 800 F.2d 1208, 1210-11 (D.C. Cir. 1986). Here, however,
the felon-misdemeanant issue was raised energetically by the
court at oral argument (perhaps because, although defectively
raised, it appeared comparatively straightforward), but the
government, though responding on the merits, made no men-
tion of FOP's waiver of the issue. Oral Arg. Tr. at 35-39.
Accordingly, we think it was within the court's discretion to
treat the government as having waived the waiver. See
United States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.
1994) (en banc); cf. Ochran v. United States, 117 F.3d 495,
503 (11th Cir. 1997) (weighing "prejudice to the parties" and
"interest of justice" in determining whether to treat govern-
ment as having waived appellant's failure to raise argument
below).
That of course is not to say that affirmative exercise of the
discretion was wise. We have already telegraphed that with
the more complete briefing we see the issue as coming out the
other way. In retrospect, it may well have been imprudent to
address the merits on so thin an argumentative record.
Now, however, both parties have weighed in on the issue in
considerable detail. The court has worked through it not
once but twice. So there is no special risk of reaching an
improvident decision; and, as the government has had (and
taken) the opportunity to respond, the most important re-
spect in which reaching the issue might have been "unfair" is
also absent. One might also think it "unfair" in a relevant
sense to be faced with the risk of losing a case on the basis of
an argument that one's adversary failed to raise in the time
and space allotted. But that seems weak here, as the govern-
ment shares some of the responsibility for our having missed
the procedural objection initially.
Thus, there is no bar to resolving the felon-misdemeanant
issue at this stage. In addition, there is an affirmative reason
for doing so: judicial economy. This panel's prior opinion
highlighted the felon-misdemeanant issue; it will surely be
raised again soon. The costs of now going forward being
modest, and the potential benefit being at least the norm for
any judicial decision, it makes little sense to drop the issue.
III.The rationality of the felon/misdemeanant distinction
The analysis of standing on this issue is unchanged from
our prior opinion. 152 F.3d at 1001-02. On the merits, it is
plain that ss 922(g)(9) and 925(a)(1) impose a harsher sanc-
tion on domestic violence misdemeanants than on felons.
Whereas gun possession by persons convicted of a crime
punishable by at least one year of imprisonment is subject to
s 925(a)(1)'s exemption for government-issued firearms, gun
possession by domestic violence misdemeanants is not. See
ss 922(g)(1) & (9), 925(a)(1).
Such domestic violence misdemeanants are not a suspect
class for equal protection analysis, and we assume for the
purposes of this section that the regulation does not infringe
a fundamental right. (In section IV we address and reject
the contention that s 922(g)(9) has been shown on this record
to infringe such a right.) Thus, the classification "must be
upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification." FCC v. Beach Commu-
nications, Inc., 508 U.S. 307, 313 (1993).
Treating misdemeanants more harshly than felons seems
irrational in the conventional sense of that term. After all,
"what is uniform and undisputed is that the presence of some
aggravating circumstance (or perhaps the absence of a miti-
gating one) is necessary to establish a felony." FOP I, 152
F.3d at 1003. In the standard equal protection case the
legislature is fully entitled to weigh one characteristic more
heavily than another, even though the balance may seem
baffling to the court. But here Congress has incorporated a
set of classifications made by state legislators who clearly
regarded the felons' conduct as calling for greater severity
than the misdemeanants'--whether because of moral oppro-
brium, risk to society, or whatever criteria may have guided
their judgment. Yet Congress inverted this adopted classifi-
cation, imposing a lesser disability on the felons, whom the
state legislators had singled out for more severe treatment.
Thus the usual proposition that Congress is entitled to ad-
dress a problem "one step at a time" is not self-evidently
applicable. See id.
But on reflection it appears to us not unreasonable for
Congress to believe that existing laws and practices adequate-
ly deal with the problem of issuance of official firearms to
felons but not to domestic violence misdemeanants--ade-
quately at least in the sense of explaining how Congress
might have found that as to felons the net benefit of federal
prohibition (and non-exemption) fell below the net benefit of
prohibition and non-exemption as to misdemeanants. Al-
though state laws do not uniformly ban felons from possess-
ing guns, as we observed in FOP I, see 152 F.3d at 1003,
nonlegal restrictions such as formal and informal hiring prac-
tices may, as the government argues, prevent felons from
being issued firearms covered by s 925(a)(1) in a large mea-
sure of the remaining cases. In the absence of evidence
negating these propositions, they indicate that there is a
reasonably "conceivable state of facts" under which it is
rational to believe that the felon problem makes a weaker
claim to federal involvement than the misdemeanant one.
When the government is faced with a practical determination
like this one, we are obliged to accept "rough," even "illogi-
cal," solutions with an "imperfect fit between means and
ends." See Heller v. Doe, 509 U.S. 312, 321 (1993).
We note that federal criminal prohibitions in areas tradi-
tionally left to the states always entail costs--such as loss of
state capacity to experiment (and of others to learn from the
experiments), some atrophy of state authority, and loss of the
nuance possible where regulation is by governmental institu-
tions closer to the local scene. Thus Congress's self-
limitation here may reflect a legitimate accommodation of the
inherent interest in minimizing the scope of potentially intru-
sive federal legislation. This parallels our observation in
Blount v. SEC, 61 F.3d 938, 946 (D.C. Cir. 1995), on the
functions of underinclusiveness analysis in the First Amend-
ment realm. It addresses whether the proffered state inter-
est actually underlies the disputed law; once that is estab-
lished, there is no occasion for any inquiry into whether some
broader restriction on speech would more effectively advance
the specified set of legislative aims.
We leave for another day the complex interpretive issues
posed by the statutory provision relieving an offender of the
disability where the underlying conviction has been expunged
or set aside, or the offender pardoned, or where civil rights
that have been revoked are restored. See 18 U.S.C.
s 921(a)(33)(B)(ii); FOP I, 152 F.3d at 1003-04. The possible
anomalies noted in our earlier opinion and in those of other
courts have not been addressed in the briefs and their impact
would appear to turn on a detailed analysis of applicable state
law and its interaction with federal law.
Finally, we reaffirm the determination in our original opin-
ion that a special focus on domestic violence misdemeanants,
as opposed to other misdemeanants, was not irrational under
the norms of equal protection jurisprudence. See id. at 1002-
03.
IV.Other constitutional claims
A.Standing
In FOP I we found that FOP members who are chief law
enforcement officers ("CLEOs") would have Article III stand-
ing to challenge ss 922(g)(9) and 925(a)(1): the provisions
injure the CLEOs because they prevent them from using
officers affected by the ban in situations requiring firearms,
and the injury is redressable by this court. FOP I, 152 F.3d
at 1001-02. Further, FOP satisfied the standards of Hunt v.
Washington State Apple Advertising Comm'n, 432 U.S. 333,
343 (1977), for Article III standing--(1) CLEOs are among
FOP's members, (2) the challenge is germane to its purpose,
and (3) the CLEOs' participation as individuals is not neces-
sary for disposition of the case--at least as to those claims for
which the complaining CLEOs also have prudential standing.
In FOP I we raised the question whether a deficiency in
prudential standing on the part of members would translate,
for the association, into a deficiency in Article III standing or
into one in prudential standing. 152 F.3d at 1001 n.1. As we
found prudential standing for the CLEOs on the equal pro-
tection claim, in the end we didn't need to resolve the issue.
But the analysis we used for prudential standing for the
CLEOs depended on the claim's being one of equal protec-
tion, and so is unavailable for the issues now before us.
It is, however, permissible to reject a claim on the merits
without having explicitly resolved the prudential standing
issue. For one reason, as the Court has explained, overlap
between the merits and prudential standing is sometimes so
great as to make any distinction artificial. Steel Co. v.
Citizens for a Better Env., 523 U.S. 83, 118 S. Ct. 1003, 1013-
14 n.2 (1998). See also George E. Warren Corp. v. EPA, 164
F.3d 676 (D.C. Cir. 1999). But we may proceed along this
line only if our answer to the question left open in FOP I is
that a failure in members' prudential standing constitutes
only a failure in prudential standing for the association.
As we suggested in FOP I would be the case, that is our
answer. Cases have treated the first Washington Apple
requirement (that a member have standing) as entirely con-
stitutional, see, e.g., United Food & Comm'l Workers v.
Brown Group, 517 U.S. 544, 554-56 (1996), but those cases
did not confront the significance of a member's having consti-
tutional but not prudential standing. Basically the first crite-
rion appears simply to look through the associational veil to
the member's interest; the second (germaneness to the asso-
ciation's purposes) aims at assuring proper representative-
ness and is thus needed to establish requisite adversariness,
and the third (absence of any need to have the members
before the court) meets certain convenience considerations.
Id. Because the association functions only as a transparency
in relation to the requirement of a member's standing, we
think the normal (qualified) excusability of addressing pru-
dential standing is passed through to the association. Ac-
cordingly, we move on to the merits.
B. Merits
SubstantiveDue Process; Second Amendment
FOP argues that s 922(g)(9) violates the substantive due
process guarantee of the Fifth Amendment by "unnecessarily
and irrationally burdening important individual interests in
possession of a firearm in the public interest, in serving the
communit[y], and in pursuing an established career." FOP
Br. at 36. The second interest has clearly not attained the
status of a fundamental right. As to the third, it is true that
if government action against a particular person "precludes"
him from pursuing his profession, that action can infringe a
"liberty interest"; if so, the predicate procedures must satisfy
due process requirements. See Kartseva v. Department of
State, 37 F.3d 1524, 1529-30 (D.C. Cir. 1994). But FOP's
claim is that s 922(g)(9) violates "substantive" due process;
yet it has failed to develop either a factual record or the legal
standard for evaluating whether s 922(g)(9) burdens the lib-
erty interest so deeply as to require even justification. Ac-
cordingly we turn directly to the claim arising from the
Second Amendment.
First we note that on appeal FOP also raises an indepen-
dent Second Amendment claim. But as it did not do so in the
district court1 we do not address it in that form. We must
confess, however, that we are mystified by the decision to
advance a substantive due process claim based on an explicit
Second Amendment right in preference to a simple assertion
of the explicit right itself. It is not apparent how a claim
might be strengthened by being tucked into the catch-all of
substantive due process.
In any event, the claim obviously requires us to consider
the Second Amendment right, on which the Supreme Court's
guidance has been notoriously scant. The government argues
that FOP's claim fails because FOP has not "alleg[ed], much
less prov[en], that section 922(g)(9) has any relationship to
the 'preservation or efficiency of a well regulated militia.' "
Gov't Br. at 35 (quoting United States v. Miller, 307 U.S. 174,
178 (1939)). Since Miller dealt with Congress's authority to
prohibit ownership of short-barreled shotguns, FOP could
have challenged the test's applicability by arguing that it
serves only to separate weapons covered by the amendment
from uncovered weapons. It did not do so, and we thus
assume the test's applicability.
But we are not altogether clear what kind of "relation-
ship"--or, to quote Miller more precisely, "reasonable rela-
tionship," id.--is called for here. This Miller test appears in
some sense to invert the commercial speech test, which
requires the government to show that legislation restricting
such speech bears a reasonable relationship to some "legiti-
mate" or "substantial" goal. See, e.g., City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 416 (1993); Board of
Trustees v. Fox, 492 U.S. 469, 480 (1989). We suppose Miller
__________
1 There FOP invoked the Second Amendment only as part of
arguments that s 922(g)(9) violates the Tenth Amendment and the
constitutional guarantees of substantive due process and equal
protection. See Hearing Trans. at 47, 52 (Tenth Amendment);
FOP Memo. in Support of Prel. Inj. at 15, 18 (equal protection and
substantive due process); FOP Resp. and Reply at 15-16 (Tenth
Amendment).
would be met by evidence supporting a finding that the
disputed rule would materially impair the effectiveness of a
militia, though perhaps some other showing could suffice.
We need not fix the exact form of the required relationship,
however, because FOP has presented no evidence on the
matter at all.
Instead FOP simply argues that, in "most" states, police
officers can be called into service as militia members. But
none of the nine states' provisions it cites appears to make
police officers any more susceptible to such service than
ordinary citizens (or in some cases, than males between the
ages of 17 and 45). In any event, s 922(g)(9) does not hinder
the militia service of all police officers, only of domestic
violence misdemeanants whose convictions have not been
expunged, etc. FOP never indicates how restrictions on the
latter, relevant class would have a material impact on the
militia.
TenthAmendment
FOP's Tenth Amendment challenge fails because
s 922(g)(9) does not force state officials to do anything affir-
mative to implement its bar on domestic violence misdemean-
ants' possession of firearms. The Amendment forbids the
federal government to "conscript[ ] the State's officers" to
"enforce a federal regulatory program," Printz v. United
States, 117 S. Ct. 2365, 2384 (1997), but FOP has presented
no evidence that s 922(g)(9) enacts any such conscription.
Although the Gun Control Act does not designate an agen-
cy responsible for enforcement of its criminal provisions, both
the contentions of the parties and undisputed record evidence
indicate that federal authorities, in particular the Bureau of
Alcohol, Tobacco, and Firearms ("ATF"), have such enforce-
ment responsibility for s 922(g)(9). See Memo in Support of
Plaintiff's Motion for a Preliminary Injunction, at 2; Gov't Br.
at 33; Nicholas M. Gess, Director, Office of Intergovernmen-
tal Affairs, Department of Justice, "Memorandum for All
Interested Law Enforcement Groups," Dec. 6, 1996, at 2. It
is true that ATF has made suggestions to state and local law
enforcement officials about how best to deal with employees
newly disqualified from carrying firearms. See, e.g., John W.
Magaw, Director, ATF, "Open Letter to All State and Local
Law Enforcement Officials," Nov. 26, 1996, at 2-3. But even
if these purported to require nonfederal authorities to em-
bark on active enforcement measures, they would evidently
represent a transgression of the Bureau's statutory authority
rather than dutiful implementation of an unconstitutional
statute. In fact, however, the Open Letter does not seem to
suggest even an implied claim of authority to compel local law
enforcement officials to take active measures. For employees
subject to the disability, it advises that "[i]f such person
refuses to relinquish the firearm ... , and your agency is
without authority to retain or seize the firearm ... , you
should contact the local ATF office." Id. at 3.
FOP argues that s 922(g)(9) unconstitutionally restricts
states' power to determine police officers' "qualifications for
office," FOP Br. at 21, by prohibiting domestic violence
misdemeanants from holding law enforcement positions re-
quiring the use of firearms. But assuming that this consti-
tutes federal regulation of "core" areas of state sovereignty,
the Supreme Court no longer reads the Tenth Amendment as
forbidding such regulation, relegating to the political process
the states' protection from undue intrusion in this form. See
South Carolina v. Baker, 485 U.S. 505, 511 (1988); Garcia v.
San Antonio Metro. Transit Auth., 469 U.S. 528, 550-54
(1985).
Even if the Tenth Amendment insulated some areas of
state activity from negative federal regulation, FOP's claim
would be overbroad. It may commonly be a side effect of
federal prohibitions to impair offenders' fitness for service as
a police officer. Showing up for work at some spot other
than a federal prison is a qualification for most state posi-
tions; federal incarceration intrudes inescapably. Of course
s 925(a)(1)'s exemption for state-issued weapons protects
states from this sort of peripheral interference as to all
persons barred by federal law from weapons possession other
than domestic violence misdemeanants, but the exemption's
existence does not establish it either as a constitutional right
or as a baseline for measuring claims under the Tenth
Amendment--or any other constitutional provision.
Commerce Clause
FOP argues that s 922(g)(9) is beyond Congress's power to
enact under the commerce clause. We join all the numbered
circuits2 in rejecting this argument because s 922(g)(9) con-
tains a "jurisdictional element": in any prosecution under the
provision for possession, the government must prove that the
defendant possessed the firearm "in or affecting commerce."
In United States v. Bass, 404 U.S. 336 (1971), the Supreme
Court confronted an ambiguity in a provision imposing penal-
ties on any felon who "receives, possesses, or transports in
commerce or affecting commerce ... any firearm." The
United States argued that the phrase "in commerce or affect-
ing commerce" qualified only "transports," while the defen-
dant contended that the commerce requirement applied to
"receives" and "possesses" as well. The Court resolved the
ambiguity in favor of the defendant and noted that that
disposition made it unnecessary to reach the question "wheth-
er, upon appropriate findings, Congress can constitutionally
punish the 'mere possession' of firearms." Bass, 404 U.S. at
339 n.4. Since the Court held that a qualification substantial-
ly identical to the one here made it unnecessary even to
consider whether the prohibition in question exceeded Con-
gress's power, the enactment here, as so qualified, must also
fall within Congress's authority.3 United States v. Lopez, 514
__________
2 See United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996);
United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1995); United
States v. Gateward, 84 F.3d 670, 672 (3d Cir. 1996); United States
v. Wells, 98 F.3d 808, 811 (4th Cir. 1996); United States v. Rawls,
85 F.3d 240, 242 (5th Cir. 1996); United States v. Turner, 77 F.3d
887, 889 (6th Cir. 1996); United States v. Lewis, 100 F.3d 49, 52
(7th Cir. 1996); United States v. Barry, 98 F.3d 373, 378 (8th Cir.
1996); United States v. Nguyen, 88 F.3d 812, 820-21 (9th Cir. 1996);
United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995); United
States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996).
3 18 U.S.C. s 922(d)(9), barring transfer of firearms to the
various proscribed persons, lacks any such explicit jurisdictional
U.S. 549 (1995), does not change the impact of Bass, for in
Lopez the Court explicitly noted that the law there held
unconstitutional contained "no jurisdictional element which
would ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce." Id. at
561. See also United States v. Harrington, 108 F.3d 1460,
1465 (D.C. Cir. 1997), in which we found that the government
had presented enough evidence to satisfy the Hobbs Act
provision criminalizing robbery or extortion that "obstructs,
delays, or affects commerce," 18 U.S.C. s 1951(a), and made
clear that satisfaction of such a requirement would bring the
statute safely within the Congress's commerce clause authori-
ty.
Finally, to the extent that ATF missives on the subject may
be disregarding the jurisdictional element, see ATF, "Misde-
meanor Crime of Domestic Violence: Questions and An-
swers," Feb. 14, 1997, at 1 (saying that "law enforcement
officers and other Government officials who have been con-
victed of a disqualifying misdemeanor may not lawfully pos-
sess or receive firearms or ammunition for any purpose,
including performance of their official duties"), such commu-
nications pose an issue of agency excess of statutory authori-
ty, which here would be dispositive before any constitutional
issue would be reached.
* * *
The district court's order granting summary judgment for
the defendant is
Affirmed.
__________
hook, but FOP has not challenged that provision, as its counsel
conceded at oral argument on rehearing.