PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 09-2211
_____________
UNITED STATES OF AMERICA
v.
JAMES FRANCIS BARTON, JR.,
Appellant
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 07-cr-00376)
District Judge: Honorable Alan N. Bloch
_______________
Submitted Under Third Circuit LAR 34.1(a)
October 21, 2010
Before: HARDIMAN, GREENAWAY, JR. and NYGAARD,
Circuit Judges.
(Filed: March 4, 2011)
Robert L. Eberhardt
Charles A. Eberle
Laura S. Irwin
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219-0000
Attorneys for Appellee
David B. Chontos
Chontos & Chontos
561 Beulah Road
Turtle Creek, PA 15145-0000
Attorneys for Appellant
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OPINION OF THE COURT
______________
HARDIMAN, Circuit Judge.
James Barton pleaded guilty to two counts of being a
felon in possession of a firearm and ammunition, in violation of
18 U.S.C. § 922(g)(1). In doing so, he reserved the right to
argue on appeal that these convictions violate his Second
Amendment right to keep and bear arms. Because we hold that
18 U.S.C. § 922(g)(1) is constitutional both on its face and as
applied to Barton, we will affirm.
I
2
On April 20, 2007, a confidential police informant paid
Barton $300 for an Iver Johnson 32-caliber revolver loaded with
five rounds of ammunition and a box containing 44 rounds of
ammunition. The serial number on the firearm had been drilled
out, rendering it indecipherable. Based on the information
provided by the confidential informant, the police obtained a
warrant to search Barton’s residence. The search uncovered
seven pistols, five rifles, three shotguns, and various types of
ammunition.
Barton was indicted on two counts of violating 18 U.S.C.
§ 922(g)(1) for being a felon in possession of a firearm and
ammunition.1 It is undisputed that Barton had prior felony
convictions for possession of cocaine with intent to distribute
and for receipt of a stolen firearm. Barton moved to dismiss the
indictment, arguing that 18 U.S.C. § 922(g)(1) violated his
fundamental right to “use arms in defense of hearth and home,”
recognized by the Supreme Court in District of Columbia v.
Heller, 554 U.S. 570, 635 (2008), as the “core” principle
embodied in the Second Amendment. Id. at 630.
The District Court denied Barton’s motion to dismiss,
relying on the Supreme Court’s statement in Heller that certain
“longstanding” statutes restricting the Second Amendment right
to bear arms, such as those prohibiting gun possession by felons,
1
18 U.S.C. § 922(g)(1) states, in relevant part: “It shall
be unlawful for any person . . . who has been convicted in any
court of, a crime punishable by imprisonment for a term
exceeding one year . . . 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.”
3
are “presumptively lawful.” See id. at 626-27 n.26. Finding
that such dispossession statutes cannot be both “presumptively
lawful” and facially unconstitutional, the District Court refused
to read Heller to invalidate this prohibition.
Following the District Court’s denial of his motion to
dismiss, Barton entered conditional guilty pleas to both charges.
The District Court sentenced Barton to 51 months in prison,
followed by three years of supervised release. Barton filed this
timely appeal.
II
The District Court had jurisdiction over Barton’s
indictment and sentence pursuant to 18 U.S.C. § 3231. We
have jurisdiction over the appeal under 28 U.S.C. § 1291, and
exercise plenary review over Barton’s constitutional challenge.
United States v. Fullmer, 584 F.3d 132, 151 (3d Cir. 2009).
A
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 held that
the Second Amendment confers an individual the right to keep
and bear arms that is not conditioned on service in a militia. 554
U.S. at 595. At the “core” of the Second Amendment is the
right of “law-abiding, responsible citizens to use arms in defense
of hearth and home.” Id. at 635 (holding that a District of
Columbia ordinance, which created an “absolute prohibition of
handguns held and used for self-defense in the home,” could not
withstand any level of “scrutiny that [the Court] has applied to
enumerated Constitutional rights”). See also McDonald v. City
of Chicago, 130 S. Ct. 3020, 3042 (2010) (“right to keep and
4
bear arms [is] among those fundamental rights necessary to our
system of ordered liberty”).
Although the individual right to keep and bear arms is
fundamental, it is “not unlimited,” id. at 676, and certain
“longstanding prohibitions on the possession of firearms” are
“presumptively lawful,” id. at 626-27 n.26. These include:
“prohibitions on the possession of firearms by felons and the
mentally ill, laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, [and] laws
imposing conditions and qualifications on the commercial sale of
arms.” Id. at 626-27. As reaffirmed by the Supreme Court in
McDonald v. City of Chicago, this list of “presumptively
lawful” regulations reflects the historical understanding “from
Blackstone through the 19th-century cases . . . that the [right
protected in the Second Amendment] was not a right to keep
and carry any weapon whatsoever in any manner whatsoever
and for whatever purpose.” Heller, 554 U.S. at 626.
Accordingly, Heller’s list of permissible regulations “does not
purport to be exhaustive.” Id. at 627 n.26.
Barton argues that the Supreme Court’s discussion of the
presumptive lawfulness of felon gun dispossession statutes is
mere dicta, as it “could have been deleted without seriously
impairing the analytical foundations of the holding—that, being
peripheral, may not have received the full and careful
consideration of the court that uttered it.” McDonald v. Master
Fin. Inc., 205 F.3d 606, 612 (3d Cir. 2000) (quoting Sarnoff v.
Am. Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)).
This argument is not without force, as three of our sister courts
of appeals have characterized the “presumptively lawful”
language in Heller as dicta. See United States v. Scroggins,
599 F.3d 433, 451 (5th Cir. 2010); United States v. McCane,
573 F.3d 1037, 1047 (10th Cir. 2009) (Tymkovich, J.,
5
concurring); United States v. Skoien, 614 F.3d 638, 640 (7th
Cir. 2010) (en banc). Even so, these courts relied on the Heller
“dicta” to reaffirm the constitutionality of § 922(g)(1). See
Skoein, 614 F.3d at 639; Scroggins, 599 F.3d at 451; McCane,
573 F.3d at 1047. Moreover, two circuit courts of appeals have
recognized that “[t]o the extent that this portion of Heller limits
the Court’s opinion to possession of firearms by law-abiding and
qualified individuals, it is not dicta.” United States v. Rozier,
598 F.3d 768, 771 n.6 (11th Cir. 2010); see also United States
v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (“Courts often
limit the scope of their holdings, and such limitations are integral
to those holdings.”).
We agree with the Second and Ninth Circuits that
Heller’s list of “presumptively lawful” regulations is not dicta.
As we understand Heller, its instruction to the District of
Columbia to “permit [Heller] to register his handgun [and to]
issue him a license to carry it in the home,” was not
unconditional. See Heller, 554 U.S. at 647. Rather, it was
made expressly contingent upon a determination that Heller was
not “disqualified from the exercise of Second Amendment
rights.” Id. The District of Columbia could comply with the
Supreme Court’s holding either: (1) by finding that Heller was
“disqualified from the exercise of Second Amendment rights”
under a “presumptively lawful” regulation (such as a felon
dispossession statute); or (2) by registering Heller’s handgun
and allowing him to keep it operable in his home. Id.
Accordingly, the Supreme Court’s discussion in Heller of the
categorical exceptions to the Second Amendment was not
abstract and hypothetical; it was outcome-determinative. As
6
such, we are bound by it. See Connecticut v. Doehr, 501 U.S.
1, 30 (1991).2
B
To prevail on his facial challenge, Barton must
“establish[] that no set of circumstances exists under which . . .
[§ 922(g)(1)] would be valid, i.e., that the law is
unconstitutional in all of its applications.” Wash. State Grange
v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)
(internal citations and quotations marks omitted).3 The
2
Barton cites two opinions—an unpublished Fourth
Circuit opinion and a vacated Seventh Circuit opinion—for the
proposition that courts may not rely exclusively on Heller’s list
of “presumptively lawful” regulations to justify categorical
exclusions to the Second Amendment. See United States v.
Chester, 367 F. App’x 392, 399 (4th Cir. 2010); United States
v. Skoien, 587 F.3d 803 (7th Cir. 2009), rev’d en banc, 614
F.3d 638 (2010). Barton’s reliance on these cases is misplaced.
The statute at issue in Chester and Skoein—a prohibition on
gun possession by misdemeanor domestic violence offenders—
was not included in Heller’s list of permissible regulations. See
Chester, 367 F. App’x at 393; Skoien, 587 F.3d at 804. Not
surprisingly, therefore, these courts were forced to look beyond
the language in Heller to find that domestic violence offenders
were not protected by the Second Amendment. Here, no such
inquiry is necessary, because § 922(g)(1) is one of Heller’s
enumerated exceptions.
3
Because we do not recognize an “overbreadth”
doctrine outside the limited context of the First Amendment,
Schall v. Martin, 467 U.S. 253, 268 n.18 (1984), Barton cannot
raise a successful facial challenge to § 922(g)(1) by simply
7
Supreme Court has twice stated that felon gun dispossession
statutes are “presumptively lawful.” See Heller, 554 U.S. at
626-27 n.26; McDonald, 130 S. Ct. at 3047. A “lawful”
prohibition regulates conduct “fall[ing outside] the scope of the
Second Amendment’s guarantee.” See United States v.
Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010) (finding this
interpretation a “better reading, based on the text and structure
of Heller,” than one that would require “lawful” regulations to
satisfy every level of constitutional scrutiny).4
In sum, because Heller requires that we “presume,”
under most circumstances, that felon dispossession statutes
regulate conduct which is unprotected by the Second
Amendment, Barton’s facial challenge must fail. Accord
Rozier, 598 F.3d at 770-71; Vongxay, 594 F.3d at 1114-18;
McCane, 573 F.3d at 1047; United States v. Anderson, 559
showing that the statute operates unconstitutionally under some
sets of circumstances.
4
In Marzzarella, we faced a “novel” regulation—namely,
a ban on the possession of a firearm with a “removed,
obliterated, or altered” serial number. 614 F.3d at 93. Unlike
the “presumptively lawful” prohibitions listed in Heller, 18
U.S.C. § 922(k) was neither “derived from historical
regulations,” id., nor addressed conduct “with a heightened
capability to cause damage,” id. at 95. Accordingly, we could
not determine with certainty whether the act of owning an
unmarked weapon fell within or outside the Second
Amendment’s protections. Id. We nevertheless upheld the
constitutionality of the statute, finding, under the second step of
Heller’s two-part inquiry, that 18 U.S.C. § 922(k) satisfies both
intermediate and strict scrutiny. Id. at 101.
8
F.3d 348, 352 & n.6 (5th Cir.), cert. denied, 129 S. Ct. 2814
(2009).
C
Having rejected Barton’s facial challenge, we turn to his
claim that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to
him. As the Government concedes, Heller’s statement
regarding the presumptive validity of felon gun dispossession
statutes does not foreclose Barton’s as-applied challenge. By
describing the felon disarmament ban as “presumptively” lawful,
Heller, 554 U.S. at 626-27 n.26, the Supreme Court implied
that the presumption may be rebutted.
Heller does not catalogue the facts we must consider
when reviewing a felon’s as-applied challenge. Rather, the
Supreme Court has noted that it will “expound upon the
historical justifications for exceptions [it] mentioned if and when
those exceptions come before [it].” Id. at 635. Thus, to
evaluate Barton’s as-applied challenge, we look to the historical
pedigree of 18 U.S.C. § 922(g) to determine whether the
traditional justifications underlying the statute support a finding
of permanent disability in this case.
The first federal statute disqualifying felons from
possessing firearms was enacted in 1938. Federal Firearms Act
(FFA), ch. 850, § 1(6), 52 Stat. 1250, 1251 (1938). In enacting
the statute, “Congress sought to rule broadly -- to keep guns out
of the hands of those who have demonstrated that they may not
be trusted to possess a firearm without becoming a threat to
society.” Scarborough v. United States, 431 U.S. 563, 572
(1977) (internal citations and quotation marks omitted).
Although 18 U.S.C. § 922(g) was meant to “keep
firearms out of the hands of presumptively ‘risky people,’”
9
United States v. Bass, 404 U.S. 336, 345 (1971), Congress did
not bar non-violent felons from possessing guns until 1961. See
An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-
342, 75 Stat. 757 (1961). For nearly a quarter century, §
922(g)(1) had a “narrower basis for a disability, limited to those
convicted of a ‘crime of violence.’” Kevin Marshall, Why Can’t
Martha Stewart Have a Gun?, 32 HARV. J. L. & PUB. POL’Y
695, 698 (2009). “Crimes of violence” were commonly
understood to include only those offenses “ordinarily committed
with the aid of firearms.” Id. at 702. Prior to 1923, at least
seven state legislatures had adopted bans on the carrying of
concealed weapons by violent offenders. Id. at 702, 707-09
(citing HANDBOOK OF THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS AND PROCEEDINGS OF
THE THIRTY-FIFTH ANNUAL MEETING 862-63 (1925)); see also
State v. Hogan, 58 N.E. 572, 574-75 (Ohio 1900) (holding that
a state law banning “tramps,” or roaming beggars, from
carrying firearms protected “every honest man, woman and
child” from the threat of theft, robbery, and murder).
Debates from the Pennsylvania, Massachusetts and New
Hampshire ratifying conventions, which were considered
“highly influential” by the Supreme Court in Heller, 554 U.S. at
604, also confirm that the common law right to keep and bear
arms did not extend to those who were likely to commit violent
offenses. For instance, when Anti-Federalist delegates at the
Pennsylvania ratifying convention proposed in December 1787
that the Constitution include a right to keep and bear arms, they
excluded from this right those who had committed crimes and
those who posed a “real . . . danger of public injury.” BERNARD
SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY
665 (1971). And as Samuel Adams urged at the Massachusetts
ratifying convention, the Second Amendment should “be never
construed . . . to prevent the people of the United States who are
10
peaceable citizens, from keeping their own arms.” Id. at 674-
75 (emphasis added); see also id. at 674-75 (describing a
proposal at the New Hampshire ratifying convention, which
would have ensured that Congress “never disarm any Citizen
unless such as are or have been in Actual Rebellion”); Robert E.
Shallope, The Armed Citizen in the Early Republic, 49 LAW &
CONTEMP. PROBS. 125, 130 (1986) (citing Seventeenth Century
English sources for the proposition that arms should only be
placed in the hands of those interested in preserving the “publick
Peace”).
To raise a successful as-applied challenge, Barton must
present facts about himself and his background that distinguish
his circumstances from those of persons historically barred from
Second Amendment protections. For instance, a felon
convicted of a minor, non-violent crime might show that he is no
more dangerous than a typical law-abiding citizen. Similarly, a
court might find that a felon whose crime of conviction is
decades-old poses no continuing threat to society. The North
Carolina Supreme Court did just that in Britt v. State, 681
S.E.2d 320 (N.C. 2009), finding that a felon convicted in 1979
of one count of possession of a controlled substance with intent
to distribute had a constitutional right to keep and bear arms, at
least as that right is understood under the North Carolina
Constitution. Id. at 323.
Unlike the defendant in Britt, Barton fails to develop the
factual basis for his as-applied challenge. Barton does not argue
that his predicate offenses make him no more likely than the
typical citizen to commit a crime of violence, nor could he have
done so persuasively in light of the facts of his case. Courts
have held in a number of contexts that offenses relating to drug
trafficking and receiving stolen weapons are closely related to
violent crime. See, e.g., United States v. Dean, 59 F.3d 1479,
11
1490 (5th Cir. 1995) (“We have observed repeatedly that
firearms are the tools of the trade of those involved in illegal
drug activity.”); United States v. Mobley, 956 F.2d 450, 454 (3d
Cir. 1992) (“The Commission promulgated U.S.S.G. §
2K2.1(b)(2) on the premise that ‘stolen firearms are used
disproportionately in the commission of crimes.’”) (citing
U.S.S.G. § 2K2.1(b)(2), commentary). Moreover, the record
indicates that Barton has not been rehabilitated, as he recently
admitted to selling a firearm with an obliterated serial number to
a confidential police informant. Because Barton has failed to
demonstrate that his circumstances place him outside the
intended scope of § 922(g)(1), we find no error in the District
Court’s dismissal of his as-applied challenge.
As a fallback position, Barton maintains that even if his
prior offenses place him in a category of offenders society has
decided should “not be trusted to possess a firearm,”
Scarborough, 431 U.S. at 572, the government may not strip
him of his fundamental right to use a weapon for the purpose of
defending “hearth and home.” In support of this argument,
Barton cites the Supreme Court’s statement in Heller that the
right to use a weapon in self-defense is at the “core” of one’s
right to keep and bear arms. 554 U.S. at 570. Barton contends
that § 922(g)(1), like the ordinance struck down in Heller, is
unconstitutional to the extent that it restricts his fundamental
right to keep a weapon in his home for self-defense. See id.
Barton’s argument regarding defense of his home is
foreclosed by our decision in Marzzarella. There, we
recognized that a “felon arguably possesses just as strong an
interest in defending himself and his home as any law-abiding
individual.” 614 F.3d at 92. Nevertheless, we held that “a
felony conviction disqualifies an individual from asserting” his
fundamental right to “defense of hearth and home.” Id. In this
12
regard, the Second Amendment is not unique; felony
convictions trigger a number of disabilities, many of which
impact fundamental constitutional rights. See, e.g., McKune v.
Lile, 536 U.S. 24, 38 (2002) (“[L]awful conviction and
incarceration necessarily place limitations on the exercise of a
defendant’s privilege against self-incrimination.”); Jones v.
Helms, 452 U.S. 412, 419 (1981) (upholding restrictions on a
felon’s fundamental right to travel); Richardson v. Ramirez, 418
U.S. 24, 54-56 (1974) (upholding a state law disenfranchising
felons on the basis of criminal conviction); see also D.C. CODE
§ 49-401 (prohibiting felons from serving in a militia).
The federal felon gun dispossession statute, like the
disabilities noted above, does not depend on how or for what
reason the right is exercised. Rather, it focuses upon whom the
right was intended to protect. The language in Heller makes
this clear: the opinion does not refer to “regulations” on the
possession of firearms by felons and the mentally ill, but rather
to “prohibitions.” 554 U.S. at 626. A “prohibition” does more
than merely alter or restrain a person’s behavior; it is “an edict,
decree, or order which forbids, prevents, or excludes.”
OXFORD ENGLISH DICTIONARY (2d ed. 1989). Moreover, the
prohibition discussed in Heller is a broad one: a person may
“possess” any item over which he exercises “dominion and
control.” United States v. Garth, 188 F.3d 99, 112 (3d Cir.
1999) (quoting United States v. Blackston, 940 F.2d 877, 883
(3d Cir. 1991)). Thus, Heller forecloses any as-applied
challenge based on the manner in which a felon wishes to
exercise his Second Amendment rights.
Despite the breadth of this exclusion, denying felons the
right to possess firearms is entirely consistent with the purpose
of the Second Amendment to maintain “the security of a free
State.” U.S. CONST. amend. II. It is well-established that felons
13
are more likely to commit violent crimes than are other law-
abiding citizens. See, e.g., Bureau of Justice Statistics,
Recidivism of Prisoners Released in 1994 at 6 (2002) (finding
that within a population of 234,358 federal inmates released in
1994, the rates of arrest for homicides were 53 times the
national average). Moreover, felons forfeit other civil liberties,
including fundamental constitutional rights such as the right to
vote or to serve on a jury. For these reasons, we find persuasive
the Ninth Circuit’s conclusion that “felons are categorically
different from the individuals who have a fundamental right to
bear arms.” Vongxay, 594 F.3d at 1115.
III
The Supreme Court’s decisions in Heller and McDonald
compel the conclusion that 18 U.S.C. § 922(g)(1) is facially
constitutional. It is also constitutional as applied to Barton
because he has presented no facts distinguishing his
circumstances from those of other felons who are categorically
unprotected by the Second Amendment. For these reasons, we
will affirm the District Court’s judgment of conviction and
sentence.
14