United States v. Booker

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

-8-
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).

-13-
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.

-16-
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").

-26-
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,

-28-
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)).

-29-
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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