Robert Harley v. Robert Wilkinson

988 F.3d 766

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 22, 2021
• Docket: 19-1632
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1632

ROBERT TIMOTHY HARLEY,

Plaintiff - Appellant,

v.

ROBERT M. WILKINSON, Acting Attorney General of the United States; REGINA LOMBARDO, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:18-cv-00396-TSE-IDD)

Argued: September 10, 2020 Decided: February 22, 2021

Before KEENAN, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the majority opinion, in which Judge Wynn joined. Judge Wynn wrote a concurring opinion. Judge Richardson wrote a dissenting opinion.

ARGUED: Marvin David Miller, LAW OFFICE OF MARVIN D. MILLER, Alexandria, Virginia, for Appellant. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Patrick G. Nemeroff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.

2 BARBARA MILANO KEENAN, Circuit Judge:

In 1993, Robert Harley (Harley) was convicted of misdemeanor assault and battery

of a family member, in violation of Virginia Code § 18.2-57.2. As a result of this

conviction, he is prohibited for life under 18 U.S.C. § 922(g)(9) from possessing a firearm

unless he obtains a pardon or an expungement of his conviction. Harley filed this action

seeking a declaration that Section 922(g)(9) is unconstitutional as applied to him. He

argues that he no longer should be subject to the prohibition because he has demonstrated

good behavior during the 27 years since his conviction.

The district court granted summary judgment to the defendants, the United States

Attorney General and the Director of the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (collectively, the defendants), concluding that the prohibition in

Section 922(g)(9) satisfies intermediate scrutiny as applied to Harley. After assuming

without deciding that domestic violence misdemeanants retain some level of Second

Amendment protection, the district court held that Section 922(g)(9) provides a reasonable

fit for the governmental objective of protecting families from gun violence caused by

convicted domestic abusers.

Upon our review, we agree with the district court and hold that 18 U.S.C.

§ 922(g)(9) is constitutional as applied to Harley. In reaching this conclusion, we adopt

the approach of our sister circuits and decline to read into the statute an exception for good

behavior or for the passage of time.

3 I.

In reviewing the district court’s award of summary judgment to the defendants, we

state the facts and draw all reasonable inferences in the light most favorable to Harley, the

nonmoving party. Smith v. Collins, 964 F.3d 266, 274 (4th Cir. 2020). After graduating

from high school in 1980, Harley joined the Fairfax County Department of Public Works

(the County) as an unskilled laborer. Throughout his thirty-year career with the County,

Harley was promoted numerous times, eventually rising to the rank of Industrial Electrician

II. He also earned three advanced job-related certifications during his tenure. After retiring

from the County, Harley began his own business as a licensed electrician.

In addition to his employment with the County, Harley served for decades as a

volunteer firefighter and an emergency medical technician. He ultimately became the fire

captain for the Dale City Volunteer Fire Department. Harley also was a member of the

Department’s board of directors. He won numerous awards for service related to his work

as a volunteer firefighter.

In 1993, Harley pleaded guilty to misdemeanor assault and battery of a family

member, in violation of Virginia Code § 18.2-57.2, based on an altercation he had with his

then-wife. In an affidavit admitted into evidence in the present case, Harley’s ex-wife

stated that she continued a “friendly relationship” with Harley after the incident, and that

they are “still friends to this day.” Harley has not been convicted of any other crimes since

the 1993 conviction. However, as noted above, Harley remains prohibited under 18 U.S.C.

§ 922(g)(9) from possessing a firearm based on that conviction.

4 Harley filed the present suit asserting that 18 U.S.C. § 922(g)(9) violates his Second

Amendment rights and is unconstitutional as applied to him. In his complaint, Harley

sought a declaratory judgment and an injunction prohibiting the government from

enforcing Section 922(g)(9) against him.

After considering the parties’ evidence and arguments, the district court granted the

defendants’ summary judgment motion, holding that Section 922(g)(9) is constitutional as

applied to Harley. The court concluded that the statute satisfied the constitutional test for

intermediate scrutiny, and that Harley’s conviction qualified as a “misdemeanor crime of

domestic violence” within the meaning of that statutory term. Harley appealed from the

district court’s judgment.

II.

Initially, we make two observations that inform our analysis in this case. First, we

note that Harley does not challenge the fact of his conviction under Virginia Code § 18.2-

57.2. Second, we emphasize that Harley does not contest the district court’s conclusion

that his conviction under Virginia Code § 18.2-57.2 qualifies as a misdemeanor crime of

domestic violence for purposes of Sections 922(g)(9) and 921(a)(33)(A). Accordingly, we

reject Harley’s invitation to reweigh the facts underlying his prior Virginia conviction.

We review de novo the district court’s decision granting summary judgment.

Calloway v. Lokey, 948 F.3d 194, 201 (4th Cir. 2020); see also United States v. Gibert, 677

F.3d 613, 618 (4th Cir. 2012) (“We review de novo a challenge to the constitutionality of

a federal statute.”). A party is entitled to summary judgment if “there is no genuine dispute

5 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

Section 922(g)(9) prohibits individuals previously convicted of a “misdemeanor

crime of domestic violence,” as defined in 18 U.S.C. § 921(a)(33)(A), from possessing a

firearm. As an initial matter, we observe that Harley does not challenge on appeal the

district court’s determination that his Virginia conviction qualifies under Section 922(g)(9)

as a “misdemeanor crime of domestic violence.” Instead, Harley argues that the district

court improperly conducted its as-applied analysis under the Second Amendment because

the court failed to consider Harley’s personal history following his conviction. He

contends that his individual characteristics, namely, the long passage of time since his

misdemeanor conviction and his exemplary life in the many years since his conviction,

render Section 922(g)(9) unconstitutional as applied to him.

In response, the defendants contend that under our decision in United States v.

Staten, 666 F.3d 154 (4th Cir. 2011), the district court properly rejected Harley’s as-applied

challenge. According to the defendants, Harley’s challenge is foreclosed because we held

in Staten that Section 922(g)(9) survives intermediate scrutiny by providing a reasonable

fit to meet a substantial governmental interest. We agree with the defendants’ argument.

Like our sister circuits, we apply a two-prong approach in considering as-applied

Second Amendment challenges. United States v. Chester, 628 F.3d 673, 680-83 (4th Cir.

2010); see also United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United States

v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Chovan, 735 F.3d 1127,

1137 (9th Cir. 2013); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d

6 1318, 1322 (11th Cir. 2015); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 685-

86 (6th Cir. 2016) (en banc); United States v. Jimenez, 895 F.3d 228, 232 (2d Cir. 2018);

Medina v. Whitaker, 913 F.3d 152, 156 (D.C. Cir. 2019); Kanter v. Barr, 919 F.3d 437,

441-42 (7th Cir. 2019). Under the first prong of this approach, we address whether the

challenged regulation “burdens or regulates conduct that comes within the scope of the

Second Amendment.” Chester, 628 F.3d at 680. If the challenged regulation satisfies this

first prong, or if we assume without deciding that the regulation meets this requirement,

we turn to perform under our second prong a “means-end” review, in which we consider

the regulation under the appropriate level of constitutional scrutiny. Id.

Here, under the first prong, we will assume without deciding that domestic violence

misdemeanants are entitled to some degree of Second Amendment protection. Staten, 666

F.3d at 160-61. Therefore, we proceed to the second prong of the analysis, in which we

apply intermediate scrutiny to consider Harley’s challenge to Section 922(g)(9). Id. at 161;

Chester, 628 F.3d at 683. Under the standard of intermediate scrutiny, the government

bears the burden of establishing a reasonable fit between the challenged law and a

substantial governmental objective. Staten, 666 F.3d at 161. A statute may meet this

standard despite being overinclusive in nature. Id. at 167.

Our analysis in this case is governed directly by our decision in Staten, in which we

rejected an as-applied Second Amendment challenge to Section 922(g)(9). Staten, 666

F.3d at 168. There, relying on extensive social science research presented by the

government, we concluded that the government had established that:

7 (1) domestic violence is a serious problem in the United States; (2) the rate of recidivism among domestic violence misdemeanants is substantial; (3) the use of firearms in connection with domestic violence is all too common; (4) the use of firearms in connection with domestic violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide.

Id. at 167. Based on this record, we concluded that Section 922(g)(9) survived intermediate

scrutiny. Id. at 168. We explained that despite the possibly overinclusive “net cast” by

Section 922(g), the evidence showed “a reasonable fit” between the statute and the

substantial governmental objective of reducing domestic gun violence. Id. at 167. In

reaching this conclusion, we emphasized that the fit between the statutory prohibition and

the governmental interest need only be a reasonable fit, not a perfect one. Id. at 162.

Moreover, in making this determination, we did not consider any individual characteristics

of the person raising the as-applied challenge but focused entirely on the statute itself and

the evidence addressing statutory purpose and fit.

In accord with our analysis in Staten, we decline Harley’s request that we review

his individual characteristics as part of our consideration of his as-applied challenge to

Section 922(g)(9). Harley’s suggested approach is fundamentally flawed because it

effectively would create an exception to the statute that does not exist. The statute imposes

a flat prohibition, with no reference to individual circumstances occurring after the

disqualifying conviction. Despite its power to do so, Congress did not provide a sunset

clause or a good behavior exception to the statute. See Stimmel v. Sessions, 879 F.3d 198,

211 (6th Cir. 2018) (citing Chovan, 735 F.3d at 1141-42).

8 We also observe that the definition of “misdemeanor crime of domestic violence”

applicable in Section 922(g)(9) narrowly defines the category of prohibited individuals, by

requiring that the underlying conviction have “as an element, the use or attempted use of

physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). The definition of a “misdemeanor crime

of domestic violence” also requires that the conviction have been secured through a jury

trial with counsel, or after an intelligent waiver of a defendant’s constitutional rights. Id.

§ 921(a)(33)(B). And the statute provides that the firearm prohibition no longer applies,

with some exceptions, if the domestic violence misdemeanor conviction “has been

expunged or set aside” or if “the person has been pardoned or has had civil rights restored.”

Id. § 921(a)(33)(B)(ii). These requirements demonstrate Congress’ ability and willingness

to place limitations on a statutory prohibition. Thus, we will not depart from the text of

the statutory scheme to create by judicial fiat an exception to Section 922(g)(9).

When enacting Section 922(g)(9), Congress expressed grave concerns that the risk

of escalating violence by domestic violence misdemeanants would be increased by their

having access to firearms. In the context of “million[s of] acts of domestic violence, and

hundreds of deaths from domestic violence, each year,” Section 922(g)(9) was designed to

help reduce the incidence of deaths caused by acts of domestic violence. United States v.

Castleman, 572 U.S. 157, 159-60 (2014). Because many domestic violence offenses fail

to qualify under the felon in possession prohibition in Section 922(g)(1), Section 922(g)(9)

was enacted to “close a dangerous loophole.” Id. at 160 (citation and alteration omitted).

As noted above, a statutory provision can be constitutional under intermediate scrutiny

despite its potentially overinclusive nature. Staten, 666 F.3d at 167. Thus, although

9 Harley’s post-conviction life may suggest that he is not a high risk for engaging in

assaultive conduct toward a family or household member, this fact merely would render

the reach of the statute overinclusive, not unconstitutional.

Our conclusion is not altered by Harley’s reliance on dicta in two of our prior

decisions discussing the review of individual characteristics in as-applied challenges.

Notably, in both those cases, we rejected as-applied challenges to Section 922(g)(1)

seeking consideration of individual characteristics, emphasizing the rarity of such potential

consideration. United States v. Moore, 666 F.3d 313, 319-20 (4th Cir. 2012); United States

v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012). For example, in Moore we prefaced our

discussion of evaluating individual characteristics with a warning that such a framework

was merely a “theoretical” possibility. 666 F.3d at 320. And in Smoot, we noted that any

review of individual characteristics in an as-applied challenge to Section 922(g)(1) would

require factual circumstances outside the “realm of ordinary challenges.” 690 F.3d at 221

(citation omitted).

Moreover, our dicta in Moore and Smoot, that individual circumstances may be

relevant in rare cases involving as-applied challenges to Section 922(g)(1), has limited

relevance in the context of Section 922(g)(9). In contrast to the single crime identified in

Section 922(g)(9), which requires “as an element, the use or attempted use of physical

force, or the threatened use of a deadly weapon,” 18 U.S.C. § 921(a)(33)(A)(ii), the

language of Section 922(g)(1) broadly prohibits individuals convicted of “a crime

punishable by imprisonment for a term exceeding one year” from possessing a firearm. Id.

§ 922(g)(1). Thus, the prohibition in Section 922(g)(1) encompasses an innumerable range

10 of possible convictions and conduct, including some that potentially could exceed the

statutory purpose of Section 922. In contrast, it would be an extremely rare case, if any, in

which the framework “theoretically” envisioned by Moore and Smoot could be found

appropriate in an as-applied challenge to Section 922(g)(9), in which the use or attempted

use of physical force, or the threatened use of a deadly weapon, supporting the underlying

conviction is manifestly related to the statutory prohibition. 1

For these reasons, we adopt the approach of our sister circuits and decline to read

into Section 922(g)(9) an exception for good behavior or for the passage of time following

a disqualifying conviction for a misdemeanor crime of domestic violence. See Chovan,

735 F.3d at 1142; Stimmel, 879 F.3d at 210-11; see also Binderup v. Att’y Gen., 836 F.3d

336, 349 (3d Cir. 2016) (en banc) (rejecting a passage of time exception for the felon in

possession of a firearm prohibition in Section 922(g)(1)). Congress, not the courts, must

decide whether exceptions for good behavior or the passage of time should be added to

Section 922(g)(9). Thus, while we commend Harley’s apparently model life after his

1 Harley’s heavy reliance on United States v. Hosford, 843 F.3d 161 (4th Cir. 2016), is unavailing. Hosford involved facial and as-applied challenges to 18 U.S.C. § 922(a)(1)(A), which prohibits “any person . . . except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” § 922(a)(1)(A) (emphasis added); see Hosford, 843 F.3d at 165. In rejecting the as-applied challenge, we determined that the challenger’s individual circumstances fit within the statutory purpose of the prohibition. Hosford, 843 F.3d at 169–70. Such an approach is inapplicable here. Section 922(a)(1)(A)’s prohibition applies to nearly the entire population, thus encompassing a larger portion of the population than Section 922(g)(1), making its easily distinguishable from the narrow prohibition in Section 922(g)(9). And even if the decision in Hosford were applicable, Harley has failed to distinguish his individual circumstances from Section 922(g)(9)’s statutory purpose.

11 conviction, the question whether to restore his ability to obtain a firearm is a matter of

public policy entrusted solely to Congress. 2 Or, as noted, he may seek a pardon or

expungement under Virginia law—the avenues for relief that Congress has already

provided in the statute.

We therefore hold that the district court did not err in granting summary judgment

to the defendants, and that Section 922(g)(9) is constitutional as applied to Harley.

Accordingly, we affirm the district court’s judgment.

AFFIRMED

2 Harley also argues that the district court improperly relied on social science studies presented by the defendants, because those studies purportedly contain disputed material facts. This argument lacks merit, however, because while Harley disputes the relevance of those studies to his individual circumstances, he does not challenge the conclusions reached in the studies or the methodology used. See Angell v. Chesapeake & Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980) (holding the application of undisputed facts is a matter of law properly decided by courts). Additionally, the social science studies were relevant to the government’s burden of demonstrating a substantial governmental interest. See Staten, 666 F.3d at 163-67; United States v. Skoien, 614 F.3d 638, 643-44 (7th Cir. 2010) (en banc). Therefore, we reject Harley’s challenge to the district court’s consideration of the social science evidence.

12 WYNN, Circuit Judge, concurring:

I concur entirely in the well-reasoned majority opinion. I write separately to note

my disagreement with my dissenting colleague’s view, which would effectively gut the

statute, according with neither its plain language nor legislative intent.

My dissenting colleague would effectively read into § 922(g)(9) an exception for

domestic violence convictions that are not, in his view, “serious” enough. But doing so

would unjustifiably subvert the intent of Congress, as made clear in the plain language of

the statute: “It shall be unlawful for any person . . . who has been convicted in any court of

a misdemeanor crime of domestic violence,” to engage in certain firearm-related activity.

18 U.S.C. § 922(g)(9). The statute defines “misdemeanor crime of domestic violence.” Id.

§ 921(a)(33). And that definition provides specific exceptions. Id. § 921(a)(33)(B). While

the definition narrows the scope of the statute to a particular group of domestic violence

misdemeanants, none of the statutory exceptions pertains to how “serious” the underlying

domestic violence offense was.

That should not be surprising. After all, it is self-evident on the face of the statute

that Congress wished to single out domestic violence convictions, regardless of how

“serious” those convictions are. The statute already covers those “who ha[ve] been

convicted in any court of[] a crime punishable by imprisonment for a term exceeding one

year”—that is, those who have been convicted of crimes generally considered more

“serious.” Id. § 922(g)(1). The only misdemeanants covered by the statute are those

convicted of crimes of domestic violence.

13 That distinction represents Congress’s policy judgment. And, as we have held, that

was Congress’s prerogative. United States v. Staten, 666 F.3d 154, 163–67 (4th Cir. 2011).

Underlying Congress’s decision to single out domestic violence misdemeanors are the

“sobering” realities that “[d]omestic violence often escalates in severity over time,” “the

presence of a firearm increases the likelihood that it will escalate to homicide,” and “many

perpetrators of domestic violence are convicted only of misdemeanors.” United States v.

Castleman, 572 U.S. 157, 160 (2014).

My dissenting colleague brushes aside our precedent approving of the

constitutionality of this measure with a puzzling reference to the Supreme Court’s decision

in Castleman. Dissenting Opinion at 31 (“Now that the Supreme Court has mandated a

broader scope for § 922(g)(9), Staten cannot control the outcome of Harley’s challenge.”).

But my colleague gets the matter precisely backwards. The Supreme Court’s decision in

Castleman only serves to highlight why § 922(g)(9) is constitutional, even as applied to

those domestic violence misdemeanants whose misdemeanors some may deem not to be

“serious.”

As the Supreme Court explained, “‘[d]omestic violence’ is not merely a type of

‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’

in a nondomestic context.” Castleman, 572 U.S. at 165. But even otherwise innocuous acts,

in the particular context of domestic violence, can “accumulat[e] . . . over time,” thereby

“subject[ing] one intimate partner to the other’s control.” Id. at 166. For that reason, the

Court went on, “[i]f a seemingly minor act . . . draws the attention of authorities and leads

to a successful prosecution for a misdemeanor offense”—which, all too often, is a big

14 “if”—“it does not offend common sense or the English language to characterize the

resulting conviction as a ‘misdemeanor crime of domestic violence.’” Id.

The Court also pointed to the text of the statute, noting that other statutory

provisions “show that when Congress wished to define ‘domestic violence’ as a type of

‘violence’ simpliciter, it knew how to do so. That it did not do so here suggests, if anything,

that it did not mean to.” Id. at 166 n.6. Therefore, the Court noted, Congress has the option

“to define ‘domestic violence’—where it wants to—as requiring violent force.” Id.

It is hard to see how all of this supports the dissent’s view. The Supreme Court

plainly interpreted the statute to cover all enumerated domestic violence misdemeanors—

not just those for “serious” offenses—and concluded that this was Congress’s intent.

Moreover, it is hard to fathom why the Supreme Court would have given the statute a

meaning in Castleman that it believed to be unconstitutional without engaging with the

constitutional concerns raised, albeit in passing, by the defendant in that case.

Castleman also contradicts the dissent’s implication, based on limited legislative

history, that § 922(g)(9) was meant only to combat “serious” domestic violence. See

Dissenting Opinion at 24. In fact, as Castleman noted, “to the extent that legislative history

can aid in the interpretation of this statute,” it does not support the contention that

“Congress could not have intended for the provision to apply to acts involving minimal

force.” Castleman, 572 U.S. at 171; see also id. at 172 (“[N]othing about these Senators’

isolated references to severe domestic violence suggests that they would not have wanted

§ 922(g)(9) to apply to a misdemeanor assault conviction like Castleman’s.”). Rather, as

noted, Congress’s interest was in preventing any member of a defined subset of domestic

15 violence misdemeanants from possessing firearms, based on the risks that subset of

misdemeanants posed to others. The governmental interest is in preventing future harm,

and its method of doing so is by disarming individuals who have demonstrated a potential

to enact that future harm. The application to Harley is thus not “far outside [the law’s]

justification.” Dissenting Opinion at 24 n.5. In other words, as we concluded in Staten—

and conclude again today—Congress’s policy judgment in enacting § 922(g)(9) survives

intermediate scrutiny, even in the context of Harley’s as-applied challenge, given the

narrowness of the statutory provision. ∗

Further, adopting my dissenting colleague’s view would create a strange anomaly

in our case law. After all, this Court has already held that § 922(g)(1) may constitutionally

be applied to even nonviolent felons. United States v. Pruess, 703 F.3d 242, 247 (4th Cir.

2012); see also Hamilton v. Pallozzi, 848 F.3d 614, 623 (4th Cir. 2017) (upholding

Maryland laws “substantially similar” to § 922(g)(1) against an as-applied challenge by a

felon convicted of credit card fraud, credit card theft, and credit card forgery). It would be

a strange world indeed if we were to make exceptions to the firearm prohibition for some

domestic violence misdemeanants—whose crime is specifically enumerated in the statute

and by definition includes some level of violence—while rejecting challenges from those

with plainly nonviolent felony convictions.

∗ See Staten, 666 F.3d at 167 (“We recognize that the net cast by § 922(g)(9) may be somewhat over-inclusive given that every domestic violence misdemeanant would not necessarily misuse a firearm against a spouse . . . if permitted to possess one. However, this observation merely suggests that the fit is not perfect. Intermediate scrutiny does not require a perfect fit; rather only a reasonable one.”).

16 Finally, I note that the Supreme Court has (unanimously) indicated a concern with

courts engaging in analyses to determine whether individuals may safely possess firearms

after having lost their rights to do so. A federal statute, 18 U.S.C. 925(c), “permits the

Attorney General to grant relief from a firearms disability if ‘the applicant will not be likely

to act in a manner dangerous to public safety and . . . the granting of the relief would not

be contrary to the public interest.’” Stimmel v. Sessions, 879 F.3d 198, 211 (6th Cir. 2018)

(alteration in original) (quoting 18 U.S.C. 925(c)). But “Congress has withheld funding for

processing § 925(c) relief applications since 1992 after finding that reviewing applications

was a ‘very difficult and subjective task which could have devastating consequences for

innocent citizens if the wrong decision [wa]s made.’” Id. (alteration in original) (quoting

S. Rep. No. 102-353, at 19 (1992)).

Section 925(c) also permits judicial review where the Attorney General denies

relief. In United States v. Bean, 537 U.S. 71 (2002), the applicant argued that the Attorney

General’s failure to act on his application due to the lack of funding constituted a “denial,”

permitting judicial review.

The Supreme Court disagreed and concluded federal courts lack jurisdiction in the

absence of an “actual decision” by the Attorney General. Id. at 76. Further, and relevant to

this case, the Court emphasized that the Attorney General was to be “the primary

decisionmaker” because the evaluation necessitated by § 925(c) was one for which courts

were less competent than the executive branch:

Whether an applicant is “likely to act in a manner dangerous to public safety” presupposes an inquiry into that applicant’s background—a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a

17 neutral, wide-ranging investigation. Similarly, the “public interest” standard calls for an inherently policy-based decision best left in the hands of an agency. Id. at 77.

Here, Harley seeks to avoid the limitations of § 925(c) by pursuing an as-applied

challenge directly in federal court, arguing that his specific circumstances mean that §

922(g)(9) is unconstitutional as applied to him. The dissent would permit him to do that.

Respectfully, in my view, the statutory structure speaks for itself. Harley’s relief, if any,

lies in obtaining a pardon in Virginia or receiving relief from the Attorney General. 18

U.S.C. §§ 921(a)(33)(B)(ii), § 925(c). Those are the paths Congress has designated. And it

is within its constitutional rights to do so.

18 RICHARDSON, Circuit Judge, dissenting:

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 v. District of Columbia, the Supreme Court

turned to text, history, and tradition to conclude that the Amendment codified a preexisting

“individual right to keep and bear arms” but instructed that this right, like most rights, “is

not unlimited.” 554 U.S. 570, 595, 626 (2008). In this appeal, we review one legislative

effort at restricting who may keep and bear arms. Section 922(g)(9) permanently disarms

anyone convicted of a misdemeanor crime of domestic violence. Harley, having been

convicted nearly thirty years ago under Virginia law, falls under the plain language of the

statute. We ask only if the Second Amendment permits his statutory disarmament.

We do not face this challenge on a clean slate. For we have held that this prohibition

is subject to and generally valid under intermediate scrutiny. United States v. Staten, 666

F.3d 154 (4th Cir. 2011). Harley accepts this holding, agreeing that the prohibition is

generally constitutional. 1 Harley argues only that the prohibition cannot constitutionally

1 In United States v. Chester, we assumed that domestic-violence misdemeanants were covered by the Second Amendment in the face of historical ambiguity. 628 F.3d 673, 681 (4th Cir. 2010); see also Staten, 666 F.3d at 160. However, because those convicted of domestic violence misdemeanors were not “law-abiding” and thus outside the Second Amendment’s core protections, we held that intermediate scrutiny applied to § 922(g)(9). Chester, 628 F.3d at 683. We have also used this notion of “law-abiding” individuals to preclude illegal aliens from the scope of the Second Amendment entirely. United States v. Carpio-Leon, 701 F.3d 974, 979, 981 (4th Cir. 2012). But we have never defined what it means to be “law-abiding.” See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 689 (6th Cir. 2016). What we have made clear, however, is that “any person committing any crime [does not] automatically lose[] the protection of the Second Amendment”: some be applied to him because of his “individual circumstances.” The district court

categorically rejected this argument and the majority follows suit, accepting that no

circumstances could ever create constitutional concerns. I disagree. Under existing

Second Amendment precedent, this case should be sent back to the district court so it can

consider the particular circumstances of Harley’s conviction. 2

Second Amendment jurisprudence leaves much to be desired. 3 Even so, it permits

Harley to bring his challenge based on his circumstances. For a prohibition that is generally

“persons who commit some offenses might nonetheless remain in the protected class of ‘law-abiding, responsible’ person[s].” Carpio-Leon, 701 F.3d at 981. Otherwise “the Government could make an end-run around the Second Amendment” through minor infractions, such as speeding. Binderup v. Att’y Gen., 836 F.3d 336, 350–51 (3d Cir. 2016) (making a similar argument in the context of defining felonies broadly to escape Second Amendment scrutiny). And if someone’s specific conviction did not remove them from the “law-abiding” core of the Second Amendment, then strict scrutiny would apply. See Chester, 628 F.3d at 683. But Harley does not claim that he remains a law-abiding person protected by the core of the Second Amendment after his conviction. 2 In no respect do I question the “sobering” realities of domestic violence or the deadliness that guns bring to this national crisis. United States v. Castleman, 572 U.S. 157, 159–60 (2014). 3 To be fair, some of the confusion stems from the Supreme Court’s puzzling guidance in Heller. On the one hand, the Court directed we look to text, history, and tradition to understand the Second Amendment. Yet the Court also instructed that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. at 626–27; see id. at 627 n.26 (describing these as examples of “presumptively lawful regulatory measures”). Even as dictum, this language casts a long shadow on lower courts. It is not readily apparent how felon-dispossession laws or bans on firearm possession by the mentally ill fit within the analytical framework Heller directs we apply. So rather than develop a cogent theory of the contours of the Second Amendment, we often focus on whether a given regulation falls within the scope of Heller’s list. Cf. United States v. McCane, 573 F.3d 1037, 1047–50 (10th Cir. 2009) (Tymkovich, J., concurring). 20 constitutional may well be unconstitutional when applied to a particular person whose

circumstances take him outside the ban’s justifications. See Hamilton v. Pallozzi, 848 F.3d

614, 626 n.11 (4th Cir. 2017); United States v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012).

An as-applied challenge is “based on a developed factual record and the application of a

statute to a specific person.” Educ. Media Co. at Va. Tech v. Insley, 731 F.3d 291, 298 n.5

(4th Cir. 2013) (emphasis added) (quoting Richmond Med. Ctr. for Women v. Herring, 570

F.3d 165, 172 (4th Cir. 2009) (en banc)). And a law that may be constitutional when

applied to one person may be unconstitutional as applied to another. See Ayotte v. Planned

Parenthood of N. New England, 546 U.S. 320, 329 (2006).

We have considered a plaintiff’s particular circumstances in an as-applied challenge

before. See United States v. Hosford, 843 F.3d 161, 169–70 (4th Cir. 2016). In Hosford,

we engaged in a fact-specific as-applied inquiry after finding a licensing scheme for

firearms dealers facially valid. Looking to Hosford’s particular circumstances, we found

that the law was constitutional as applied: “the government’s interests in the law generally

also justify applying the law to Hosford” since Hosford’s conduct in selling firearms

without background checks was exactly the problem Congress was trying to solve. Id. We

thus asked whether an otherwise valid law could constitutionally apply to Hosford’s own

circumstances based on the government’s interest. See Insley, 731 F.3d at 298 (“[T]he

state must justify the challenged regulation with regard to its impact on the plaintiffs.”).

Similarly, the Sixth Circuit remanded an as-applied challenge to the law disarming

the mentally ill because the government had not justified the restriction based on plaintiff’s

specific circumstances. Tyler, 837 F.3d at 686, 699. The Sixth Circuit agreed that the fit

21 did not need to be perfect, but “the amount of overreach must be reasonable, and it is the

government’s burden, not [the challenger’s], to prove that [the law’s] scope is in

proportion to the interest served.” Id. at 698 (internal quotation marks omitted).

This approach also applies to a First Amendment as-applied challenge. 4 For

example, in Insley we declared that an otherwise valid restriction on alcohol advertisements

in school newspapers violated the First Amendment as applied to a couple of college

papers. 731 F.3d at 294, 296, 302. As those particular papers had a majority of readers

over the age of 21, we found that the restrictions were too broad and failed to further a

legitimate government interest under intermediate scrutiny. Id. at 301.

We also should review a plaintiff’s particular circumstances where a disarmament

law hinges on state-law convictions. We have permitted such as-applied challenges to the

federal-felon-disarmament law (§ 922(g)(1)) because of its broad scope despite the law

being “presumptively valid” and Congress creating no exceptions to its sweep. See Smoot,

690 F.3d at 221; United States v. Moore, 666 F.3d 313, 319–20 (4th Cir. 2012). And

although we have never had a successful as-applied challenge to the felon-disarmament

law, we have acknowledged that the success of an as-applied challenge is “theoretically”

possible where a challenger’s “factual circumstances remove his challenge from the realm

of ordinary challenges.” Moore, 666 F.3d at 319–20; see United States v. Pruess, 703 F.3d

242, 245–47 (4th Cir. 2012) (rejecting challenge to the felon-disarmament law as applied

4 We often look to First Amendment law as a guidepost for Second Amendment claims. Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (en banc); Chester, 628 F.3d at 682. 22 to a plaintiff with a non-violent conviction after finding that more than twenty convictions

placed him outside the Second Amendment’s core).

The Third Circuit has largely adopted this approach for as-applied challenges to the

felon-disarmament law (§ 922(g)(1)). That court permitted plaintiffs to challenge the

constitutionality of applying the law based on their specific state convictions. Binderup,

836 F.3d at 350–53. After reviewing plaintiffs’ convictions, the court found that they were

not serious enough to remove plaintiffs from the Second Amendment’s protection in part

because the state convictions were labeled as misdemeanors and led to minor punishments,

showing that the convictions were not “serious.” Id. The court then found that the

government failed to meet its burden under intermediate scrutiny because it offered no

evidence “explaining why banning people like them (i.e., people who decades ago

committed similar misdemeanors) from possessing firearms promotes public safety” while

plaintiffs provided evidence of their low likelihood of future danger or recidivism. Id. at

353–56.

When we recently considered the felon-disarmament law (§ 922(g)(1)), we

favorably cited the analysis of Binderup and noted that a plaintiff’s particular facts may be

relevant for other disarmament laws. Hamilton, 848 F.3d at 625–26, 626 n.12. We rejected

an as-applied challenge for anyone convicted of a crime designated by the state as a felony.

But we did not reject considering particular facts in an as-applied challenge. In fact, we

recognized the felon-disarmament law might encompass a crime that state law does not

consider a felony but that falls within the federal definition (“a crime punishable by

imprisonment for a term exceeding one year,” § 922(g)(1)). And in that instance, a court

23 may conduct individualized scrutiny based on the particular circumstances of the offender.

See id. at 626 n.11. So where the state treats a conviction as a misdemeanor, like in

Binderup, we can look at specific facts underlying the conviction at issue, even for

intermediate scrutiny. And in doing so, we can see whether the government’s legitimate

interests are furthered by applying the law to the particular facts underlying plaintiff’s state

conviction.

To frame Harley’s challenge to the law disarming domestic-violence

misdemeanants (§ 922(g)(9)), we must first explore the law’s justifications and scope. In

1996, Congress justified enacting § 922(g)(9) because existing laws disarming felons

“were not keeping firearms out of the hands of domestic abusers, because ‘many people

who engage in serious spousal or child abuse ultimately are not charged with or convicted

of felonies.’” United States v. Hayes, 555 U.S. 415, 426 (2009) (emphasis added) (quoting

142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)); United States v. Chovan,

735 F.3d 1127, 1140 (9th Cir. 2013) (noting that Congress was targeting those who

“demonstrated violence”). Thus, Congress sought to “close this dangerous loophole” and

prevent serious domestic-violence offenders from possessing firearms. Hayes, 555 U.S. at

426 (quoting 142 Cong. Rec. 22986). 5 To do so, § 922(g)(9) bans the possession of a gun

5 We do not cite this legislative history in order to interpret the statute and suggest that non-serious domestic violence offenses are not covered by the text. Rather, it serves to highlight the Government’s interest and the law’s fit. Staten, 666 F.3d at 161 (using legislative history to show the government’s interest in reducing domestic gun violence). When a law applies far outside its justification, constitutional concerns may be raised in as-applied constitutional challenges. We do not face a question about what Congress meant, for we all agree the text of the statute covers Harley. We ask instead whether that application is constitutional. 24 by an individual who has “been convicted in any court of a misdemeanor crime of domestic

violence.” And a “misdemeanor crime of domestic violence” includes (1) any state-law

misdemeanor that (2) “has, as an element, the use or attempted use of physical force, or the

threatened use of a deadly weapon” and that is (3) committed by a family member of the

victim. 18 U.S.C. § 921(a)(33)(A).

In Staten, we rejected one Second Amendment challenge to § 922(g)(9). 666 F.3d

at 167. Based on the law’s justification and supposed narrow scope, we rejected the claim

that § 922(g)(9) could not be constitutionally applied to Staten. 6 We found that the

government had established a reasonable fit between § 922(g)(9)’s “narrow” prohibitory

sweep and the government’s interest in “reducing domestic gun violence and keeping

firearms out of the hands of: (1) persons who have been convicted of a crime in which the

person used or attempted to use force capable of causing physical pain or injury” against

a family member “and (2) persons who have threatened the use of a deadly weapon against”

a family member. 666 F.3d at 167 (emphasis added). To establish this reasonable fit, the

government showed that: Domestic violence was a serious issue, recidivism rates were

high for domestic violence misdemeanants, firearms are too often used in connection with

6 The record reveals that Staten had at least three domestic-violence convictions, including one for repeatedly beating his second wife with a closed fist. See Joint Appendix 304–06, United States v. Staten, 666 F.3d 673 (No. 10-5318). Unsurprisingly, Staten never argued that the nature of those convictions (or his multiple other arrests for domestic- violence offenses and for violating protective orders, id.) mattered to his challenge. See Appellant Br. 6–7, 26–32, United States v. Staten, 666 F.3d 673 (No. 10-5318), Dkt. No. 17. And so we did not address the specifics of his prior conduct in rejecting his claims. 25 domestic violence, and firearms increase and are often connected to injuries and homicides

related to domestic violence. Id.

On first glance, the scope of § 922(g)(9)’s ban appears to be narrowly focused. But

as a result of recent Supreme Court decisions, it may now sweep beyond its design to

encompass conduct outside its original justifications in two meaningful ways. First, the

“use of physical force” that is a necessary element of a “misdemeanor crime of domestic

violence” includes any “offensive touching,” not just violent force. United States v.

Castleman, 572 U.S. 157, 162–63 (2014). Compare id., with Johnson v. United States, 559

U.S. 133, 140, 143 (2010) (holding that the “use of physical force” in § 924(e)(2)(B)(i)’s

definition of a “violent felony” requires “violent force”). Second, that offensive touching

need not be intentional, since the Supreme Court has held that § 922(g)(9) encompasses a

state crime requiring only reckless conduct. Voisine v. United States, 136 S. Ct. 2272, 2280

(2016).

This expanded scope is illustrated by the law Harley was convicted under, Virginia

Code § 18.2-57.2. A conviction under that Virginia law does not require the use of violent

force but may be satisfied with an “offensive touching.” United States v. White, 606 F.3d

144, 147–48 (4th Cir. 2010), abrogated on other grounds by Castleman, 527 U.S. at 167–

68. And it also criminalizes both the intentional use of force and the reckless use of force.

See Clark v. Commonwealth, 691 S.E.2d 786, 788–89 (Va. 2010) (stating that a common-

law definition of assault and battery applies to § 18.2-57.2); see also Trent v.

Commonwealth, No. 1844–03–02, 2004 WL 1243037, at *1 (Va. Ct. App. June 8, 2004)

(stating that Virginia law imputes an intent to do bodily harm to the defendant if he acts

26 with “reckless and wanton disregard of the lives and safety of others”); Morrison v.

Commonwealth, No. 2645-00-2, 2002 WL 663641, at *2 (Va. Ct. App. Apr. 23, 2002)

(finding that assault and battery includes acting “in a manner of reckless and wanton

disregard”). The breadth of Virginia Code § 18.2-57.2 does not remove Harley’s

conviction from the reach of § 922(g)(9)’s use-of-physical-force requirement now that the

Supreme Court has made clear that an “offensive touching” qualifies as “physical force”

and the non-intentional reckless use of that force suffices. Castleman, 572 U.S. at 162–63;

Voisine, 136 S. Ct. at 2280.

But these same broad interpretations of § 922(g)(9) create the potential to ensnare

individuals who fall outside the ban’s justifications and whose conduct may not

permanently deprive them of their individual right to possess a gun for self-defense.

Consider a wife spitting on her spouse or knocking him off an ATV through reckless

driving. Cf. Castleman, 572 U.S. at 165 n.5 (citing sources for the proposition that physical

forms of domestic violence “may include spitting” or “relatively minor assaults such as

painful pinching or squeezing”); White, 606 F.3d at 148 (noting that Virginia has long held

that battery may be accomplished by the slightest touch, including spitting (citing Hardy

v. Commonwealth, 58 Va. (17 Gratt.) 592, 601 (1867))); Davis v. Commonwealth, 143 S.E.

641, 643 (1928) (permitting battery conviction based on reckless driving). Those

examples, though it is perhaps fanciful to think that such conduct would be prosecuted,

would fall outside the type of serious abuse likely to lead to recidivism and firearm violence

that justified § 922(g)(9)’s lifetime firearm dispossession.

27 Harley’s own case—at least as alleged—is less clear but also highlights the statute’s

broad scope. Nearly thirty years ago, Harley paid a $75 fine after pleading guilty to a

misdemeanor domestic assault charge under Virginia Code § 18.2-57.2. As Harley alleges,

[t]he charge was based on a single, one off incident[:] Mr. Harley and his wife had an argument while she was inside a SUV and he was standing outside the vehicle. He stood on the running board and reached into the vehicle to turn it off, and she pushed him. He reached inside the vehicle to hold on and, in so doing, he grabbed her arm.

J.A. 9. During the incident, there “was no punching, slapping, hitting, or violence.” Id.

While Harley and his wife later separated and divorced, they “remained on friendly and

amicable terms working collaboratively to successfully raise their children.” Id. Harley

provided an affidavit from his ex-wife supporting his version of the incident underlying his

conviction. J.A. 23–24.

The government, citing a police report, suggests that Harley’s actions were more

serious and perhaps not a lone incident. See Appellee Br. 3; J.A. 73. Maybe so. But the

district court ignored the conduct underlying the conviction, believing it was not germane,

and granted summary judgment for the government. In doing so, the court disregarded

Harley’s particular conviction. But the conduct underlying the conviction may create an

avenue for a successful as-applied challenge. Because this conduct was in dispute and

because we cannot resolve “genuine disputes of fact in favor of the party seeking summary

judgment,” Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (quoting Tolan v.

Cotton, 572 U.S. 650, 656 (2014)), the proper course for the district court was to deny the

government’s motion at this stage, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). It may of course be true that Harley shoved and struck his ex-wife as the

28 government alleges. But it may also be true that his conviction stemmed from a reckless

offensive touching as Harley contends. And if that is the case, then the district court should

consider in the first instance whether those actions are constitutionally sufficient to deprive

Harley of the right to keep and bear arms under the Second Amendment. 7

Yet the majority categorically determines that someone like Harley may not

challenge § 922(g)(9)’s prohibition based on individual circumstances taking them outside

the “realm of ordinary challenges.” Majority Op. 8-10 (quoting Smoot, 690 F.3d at 221).

Such a challenge is permissible, the majority notes, for felon-disarmament laws like

§ 922(g)(1). But the majority excludes § 922(g)(9) from such a challenge for three reasons:

7 As we recognized in Hamilton, how a sovereign state labels and treats a crime bears on whether one convicted of it may be constitutionally deprived of all Second Amendment rights. 848 F.3d at 626 & n.11. In Hamilton, we rejected the claim that § 922(g)(1) was unconstitutional as applied to an individual convicted of credit-card fraud, theft, and forgery—state-law felonies. Id. at 627–28. There is ongoing debate on whether felons have historically been disarmed because of the danger they pose to the public or because of their lack of virtue. See Binderup, 836 F.3d at 348–49 (stating that the right to bear arms is tied to virtuous citizenry); Folajtar v. Att’y Gen. U.S., 980 F.3d 897, 924 (3d Cir. 2020) (Bibas, J., dissenting) (stating that the right to bear arms is tied to dangerousness); Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (same). But either way, in analyzing the constitutionality of § 922(g)(1), we have afforded significant weight to the state’s belief of how dangerous or unvirtuous those convicted of particular crimes are. Hamilton, 848 F.3d at 626. In Hamilton, the state’s designation was so important to our reasoning that we held that an individual convicted of a law a state labels a felony cannot succeed in an as-applied challenge to § 922(g)(1). Id. at 625–26. Adhering to Hamilton, we should look to the state sovereigns in the context of § 922(g)(9). Unlike § 922(g)(1), we know the justification for disarming domestic-violence misdemeanants: to prevent serious domestic violence offenders from possessing guns and harming family members. See Hayes, 555 U.S. at 426. And along with the alleged circumstances of the offense, Harley alleges that he was punished with only a $75 fine (the maximum allowable punishment was imprisonment for less than a year and a fine of $2,500, see Va. Code Ann. §§ 18.2-57.2, -11) and was not prohibited by the Commonwealth from possessing a firearm.

29 (1) Staten forecloses an individualized as-applied challenge to § 922(g)(9); (2) § 922(g)(9)

has no enumerated exceptions; and (3) § 922(g)(9) is supposedly a narrow, uniform law.

But none of these reasons justify categorically foreclosing Harley’s as-applied challenge. 8

The majority’s reliance on Staten to categorically reject any consideration of

individualized circumstances in an as-applied challenge to a conviction under § 922(g)(9)

impermissibly overlooks the rationale of Staten. See Majority Op. 8. In Staten, we rejected

plaintiff’s as-applied challenge to § 922(g)(9). Applying intermediate scrutiny, we upheld

the law as a reasonable fit between reducing gun violence and the disarmament. Staten,

666 F.3d at 167. But we expressly relied on the supposed narrow scope of § 922(g)(9) in

doing so. At that time, we had held that § 922(g)(9) required “the use or attempted use of

force capable of causing physical pain or injury to another or the threatened use of a deadly

weapon [as] an element of the” disqualifying domestic-violence misdemeanor. Id. at 162.

The government had shown that there was a reasonable fit between reducing domestic gun

violence and keeping guns out of the hands of individuals convicted of those domestic-

violence misdemeanors. Id. at 167. As a result, any overbreadth of § 922(g)(9), as then

defined, “merely suggests that the fit is not perfect.” Id.

But in finding § 922(g)(9) was narrow and met the reasonable-fit standard, we relied

on White’s holding that “offensive touching” was excluded from § 922(g)(9)’s scope. See

8 Nor does reason indulge such a conclusion when one considers that the majority’s holding leaves us applying a more exacting constitutional analysis to § 922(g)(1), a presumptively lawful regulation under Heller, than to § 922(g)(9), a law which carries no such presumption. See Staten, 666 F.3d at 160 (stating § 922(g)(9) is not presumptively lawful under Heller). 30 Staten, 666 F.3d at 163 (“§ 922(g)(9) does not apply to persons convicted of a misdemeanor

for using or attempting to use force against a spouse which is incapable of causing physical

pain or injury to another, such as an offensive touching in a common law battery.” (citing

White, 606 F.3d at 153)). But Castleman overruled White and invalidated Staten’s premise

that § 922(g)(9) has a narrow scope. See United States v. Carthorne, 878 F.3d 458, 468

(4th Cir. 2017) (recognizing the abrogation of White). Now that the Supreme Court has

mandated a broader scope for § 922(g)(9), Staten cannot control the outcome of Harley’s

challenge.

Perhaps Staten would control if a hypothetical domestic-violence misdemeanant

was convicted of a crime requiring the intentional use of “force capable of causing physical

pain or injury.” Staten, 666 F.3d at 167. But, as a result of Castleman and Voisine, it has

little applicability to convictions that stem from a reckless offensive touching. It may turn

out that the government can show that Harley intentionally used the type of force that

Staten found that Congress could regulate. But Harley’s alleged conduct was merely

reckless offensive touching, and that was excluded from Staten’s analysis of § 922(g)(9).

And that is reason enough to consider Harley’s as-applied challenge.

Even so, the majority takes Staten to mean that an individualized consideration is

never warranted in an as-applied challenge to § 922(g)(9). 9 This overlooks not only our

9 The majority also states that even in a context where an individualized consideration is warranted, such consideration is only a “theoretical possibility.” Majority Op. 10. The majority mistakenly relies on Moore for this assertion. Moore says that theoretically, “a case might exist in which an as-applied Second Amendment challenge to § 922(g)(1) could succeed.” 666 F.3d at 320 (emphasis added). This addresses the rare success of challenges to § 922(g)(1), not how often we evaluate individual characteristics. 31 now-rejected interpretation of § 922(g)(9) but also the substance of Staten’s challenge.

Given Staten’s extensive record of criminal conduct, he never argued that his factual

circumstances or the nature of his convictions made the ban unconstitutional as applied to

him in particular. See supra, n.6. Instead, he argued that the law was unconstitutional as

applied to anyone convicted of misdemeanor crimes of domestic violence. Appellant Br.

6–7, 26–32, United States v. Staten, 666 F.3d 673 (No. 10-5318), Dkt. No. 17. Harley does

not challenge § 922(g)(9) without regard to his unique circumstances. Instead, he accepts

that § 922(g)(9) is generally constitutional, arguing only that it is unconstitutional when

applied to him, an individual convicted thirty years ago of a misdemeanor crime of

domestic violence allegedly based on a reckless offensive touching. Cf. Hamilton, 848

F.3d at 626 n.11. This fundamentally different challenge Harley raises cannot be controlled

by Staten’s rejection of that plaintiff’s claim. See Dahnke-Walker Milling Co. v.

Bondurant, 257 U.S. 282, 289 (1921) (“A statute may be invalid as applied to one state of

facts and yet valid as applied to another.”).

Nor is § 922(g)(9)’s lack of enumerated exceptions a reason to preclude an

individualized as-applied analysis. The majority believes that where a “statute imposes a

flat prohibition, with no reference to individual circumstances occurring after the

disqualifying crime,” no constitutional exceptions can be created. Majority Op. 8.

Nevertheless, the majority simultaneously notes that § 922(g)(1)—a statute that “imposes

a flat prohibition, with no reference to individual circumstances occurring after the

disqualifying crime”—is so broad that constitutional exceptions can be created. Id. at 9.

Assuredly, the lack of enumerated exceptions in a statute does not preclude the success of

32 a constitutional challenge based on one’s particular circumstances. Otherwise, as-applied

challenges would disappear, and this cannot be so. See United States v. Treasury Emps.,

513 U.S. 454, 477–78 (1995) (stating a strong preference for as-applied challenges); see

also Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing,

113 HARV. L. REV. 1321, 1328 (2000) (“As-applied challenges are the basic building

blocks of constitutional adjudication.”). In that world, individuals either fall within

exceptions enumerated in the statute or they do not, in which case there is no recourse for

potentially unconstitutional prohibitions. 10

The majority’s argument then retreats to its last defense: breadth. First, the breadth

of a statute is not dispositive in deciding whether individualized scrutiny is required. The

relevant question in an as-applied analysis is whether the law applies unconstitutionally in

only some factual circumstances. See Insley, 731 F.3d at 298 & n.5; Herring, 570 F.3d at

172. Of course, the broader a statute, the more likely it is that these challenges succeed,

but that does not mean that a narrower law is immune from attack. All that is needed for a

successful as-applied challenge is “one state of facts” where the statute applies

10 Judge Wynn asserts that an individual disarmed by statute may not turn to the Constitution because the executive is empowered to grant discretionary relief under 18 U.S.C. § 925(c), as discussed in United States v. Bean, 537 U.S. 71 (2002). First, the Concurrence itself notes that this discretionary relief is unavailable because of a lack of funding. Second, Bean dealt with administrative-law discretion and addressed no constitutional issues, much less blessed all federal-disarmament statutes as constitutional. 537 U.S. at 74-79. But even more to the point, I struggle to see how this discretionary power for an executive official to grant relief (or a state’s pardon power) eliminates the ability to bring a Second Amendment constitutional challenge.

33 unconstitutionally. Ayotte, 546 U.S. at 329. Congress’s specificity, or lack thereof, in

crafting laws cannot sidestep our judicial review. See id. 11

But even if the breadth of a statute could preclude any individualized scrutiny, we

now know that § 922(g)(9) covers sufficiently divergent conduct to warrant this

individualized consideration. The majority continues to insist that § 922(g)(9) is a narrow

and focused statute. See Majority Op. 8–9; cf. Staten, 666 F.3d at 162–63 (the “term

‘misdemeanor crime of domestic violence,’ as construed in White, 606 F.3d at 155, keeps

§ 922(g)(9)’s prohibitory sweep narrow”). But as already discussed, the Supreme Court’s

cases since Staten broadened the reach of § 922(g)(9) so that it covers an offender who

only recklessly caused an offensive touching.

Harley’s alleged individualized circumstances plausibly place him outside the realm

of ordinary challengers to § 922(g)(9). And Staten does not preclude his challenge given

11 The government’s reliance on United States v. Carter, 669 F.3d 411 (4th Cir. 2012), is no more availing. Carter argued that § 922(g)(3)’s bar on possessing a firearm while being an unlawful drug user or addict could not constitutionally be applied to him as a user of only marijuana. Carter, 669 F.3d at 417, 420. Noting that the government had failed to put forward any academic research or empirical studies to carry its burden of proving a reasonable fit between its interest in protecting the community from gun violence and § 922(g)(3), this Court vacated the district court’s judgment and remanded. Id. at 413, 418. But we did so only after addressing Carter’s particularized argument that a user of marijuana could not be disarmed because any risk associated with mixing drugs and guns is limited to dealers of drugs. Id. at 420. We found that many risks that apply to dealers of marijuana would apply to users as well: Risks, such as the “loss of self control” and the “need to deal with sellers of drugs and to enter black markets doing so[,] . . . along with heightened financial costs, might be shown to drive many users [of marijuana] to a life of crime.” Id. Far from holding that no individualized scrutiny was permitted under § 922(g)(3), we remanded for the government to produce evidence showing that disarming users of marijuana, a subset of those covered by § 922(g)(3), substantially furthered its interest in protecting the community from gun violence. Id. at 417–21. 34 the intervening Supreme Court directives and the different challenge presented there. Nor

does anything inherent in § 922(g)(9) preclude us from considering Harley’s individualized

circumstances in an as-applied challenge. So the district court should have considered

whether Harley’s circumstances permit permanently depriving him of the right to keep and

bear arms under the Second Amendment.

* * *

An individual falling within a statutory prohibition that can be constitutionally

applied to some may still challenge whether the prohibition can be constitutionally applied

to him. That fundamental principle should apply equally to the individual right enumerated

in the Second Amendment. Harley plausibly claims that § 922(g)(9) cannot be

constitutionally applied to him as an individual with a nearly thirty-year-old misdemeanor

conviction for recklessly causing an offensive touching. We should not categorically reject

that claim. Accordingly, I respectfully dissent.