U.S. v. Barton

• Decision Date: 04 March 2011
• Docket Number: No. 09–2211.,09–2211.
• Citation: 633 F.3d 168
• Parties: UNITED STATES of Americav.James Francis BARTON, Jr., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

633 F.3d 168

UNITED STATES of America

v.James Francis BARTON, Jr., Appellant.

No. 09–2211.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit

LAR 34.1(a) Oct. 21, 2010.

Filed: March 4, 2011.

Robert L. Eberhardt, Charles A. Eberle, Laura S. Irwin, Office of the United States Attorney, Pittsburgh, PA, Attorneys for Appellee.David B. Chontos, Chontos & Chontos, Turtle Creek, PA, Attorneys for Appellant.Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

James Barton pleaded guilty to two counts of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). In doing so, he reserved the right to argue on appeal that these convictions violate his Second Amendment right to keep and bear arms. Because we hold that 18 U.S.C. § 922(g)(1) is constitutional both on its face and as applied to Barton, we will affirm.

I

On April 20, 2007, a confidential police informant paid Barton $300 for an Iver Johnson 32–caliber revolver loaded with five rounds of ammunition and a box containing 44 rounds of ammunition. The serial number on the firearm had been drilled out, rendering it indecipherable. Based on the information provided by the confidential informant, the police obtained a warrant to search Barton's residence. The search uncovered seven pistols, five rifles, three shotguns, and various types of ammunition.

Barton was indicted on two counts of violating 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm and ammunition.¹ It is undisputed that Barton had prior felony convictions for possession of cocaine with intent to distribute and for receipt of a stolen firearm. Barton moved to dismiss the indictment, arguing that 18 U.S.C. § 922(g)(1) violated his fundamental right to “use arms in defense of hearth and home,” recognized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), as the “core” principle embodied in the Second Amendment. Id. at 630, 128 S.Ct. 2783.

The District Court denied Barton's motion to dismiss, relying on the Supreme Court's statement in Heller that certain “longstanding” statutes restricting the Second Amendment right to bear arms, such as those prohibiting gun possession by felons, are “presumptively lawful.” See id. at 626–27 n. 26, 128 S.Ct. 2783. Finding that such dispossession statutes cannot be both “presumptively lawful” and facially unconstitutional, the District Court refused to read Heller to invalidate this prohibition.

Following the District Court's denial of his motion to dismiss, Barton entered conditional guilty pleas to both charges. The District Court sentenced Barton to 51 months in prison, followed by three years of supervised release. Barton filed this timely appeal.

II

The District Court had jurisdiction over Barton's indictment and sentence pursuant to 18 U.S.C. § 3231. We have jurisdiction over the appeal under 28 U.S.C. § 1291, and exercise plenary review over Barton's constitutional challenge. United States v. Fullmer, 584 F.3d 132, 151 (3d Cir.2009).

A

The Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In Heller, the Supreme Court held that the Second Amendment confers an individual the right to keep and bear arms that is not conditioned on service in a militia. 554 U.S. at 595, 128 S.Ct. 2783. At the “core” of the Second Amendment is the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635, 128 S.Ct. 2783 (holding that a District of Columbia ordinance, which created an “absolute prohibition of handguns held and used for self-defense in the home,” could not withstand any level of “scrutiny that [the Court] has applied to enumerated Constitutional rights”). See also McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3042, 177 L.Ed.2d 894 (2010) (“right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered liberty”).

Although the individual right to keep and bear arms is fundamental, it is “not unlimited,” id. at 676, 128 S.Ct. 2783, and certain “longstanding prohibitions on the possession of firearms” are “presumptively lawful,” id. at 626–27 n. 26, 128 S.Ct. 2783. These include: “prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626–27, 128 S.Ct. 2783. As reaffirmed by the Supreme Court in McDonald v. City of Chicago, this list of “presumptively lawful” regulations reflects the historical understanding “from Blackstone through the 19th-century cases ... that the [right protected in the Second Amendment] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626, 128 S.Ct. 2783. Accordingly, Heller's list of permissible regulations “does not purport to be exhaustive.” Id. at 627 n. 26, 128 S.Ct. 2783.

Barton argues that the Supreme Court's discussion of the presumptive lawfulness of felon gun dispossession statutes is mere dicta, as it “could have been deleted without seriously impairing the analytical foundations of the holding—that, being peripheral, may not have received the full and careful consideration of the court that uttered it.” McDonald v. Master Fin. Inc., 205 F.3d 606, 612 (3d Cir.2000) (quoting Sarnoff v. Am. Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir.1986)). This argument is not without force, as three of our sister courts of appeals have characterized the “presumptively lawful” language in Heller as dicta. See United States v. Scroggins, 599 F.3d 433, 451 (5th Cir.2010); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009) (Tymkovich, J., concurring); United States v. Skoien, 614 F.3d 638, 640 (7th Cir.2010) (en banc). Even so, these courts relied on the Heller “dicta” to reaffirm the constitutionality of § 922(g)(1). See Skoien, 614 F.3d at 639; Scroggins, 599 F.3d at 451; McCane, 573 F.3d at 1047. Moreover, two circuit courts of appeals have recognized that “[t]o the extent that this portion of Heller limits the Court's opinion to possession of firearms by law-abiding and qualified individuals, it is not dicta.” United States v. Rozier, 598 F.3d 768, 771 n. 6 (11th Cir.2010); see also United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir.2010) ( “Courts often limit the scope of their holdings, and such limitations are integral to those holdings.”).

We agree with the Second and Ninth Circuits that Heller's list of “presumptively lawful” regulations is not dicta. As we understand Heller, its instruction to the District of Columbia to “permit [Heller] to register his handgun [and to] issue him a license to carry it in the home,” was not unconditional. See Heller, 554 U.S. at 647, 128 S.Ct. 2783. Rather, it was made expressly contingent upon a determination that Heller was not “disqualified from the exercise of Second Amendment rights.” Id. The District of Columbia could comply with the Supreme Court's holding either: (1) by finding that Heller was “disqualified from the exercise of Second Amendment rights” under a “presumptively lawful” regulation (such as a felon dispossession statute); or (2) by registering Heller's handgun and allowing him to keep it operable in his home. Id. Accordingly, the Supreme Court's discussion in Heller of the categorical exceptions to the Second Amendment was not abstract and hypothetical; it was outcome-determinative. As such, we are bound by it. See Connecticut v. Doehr, 501 U.S. 1, 30, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991).²

B

To prevail on his facial challenge, Barton must “establish [ ] that no set of circumstances exists under which ... [§ 922(g)(1) ] would be valid, i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (internal citations and quotations marks omitted).³ The Supreme Court has twice stated that felon gun dispossession statutes are “presumptively lawful.” See Heller, 554 U.S. at 626–27 n. 26, 128 S.Ct. 2783; McDonald, 130 S.Ct. at 3047. A “lawful” prohibition regulates conduct “fall[ing outside] the scope of the Second Amendment's guarantee.” See United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir.2010) (finding this interpretation a “better reading, based on the text and structure of Heller,” than one that would require “lawful” regulations to satisfy every level of constitutional scrutiny).⁴

In sum, because Heller requires that we “presume,” under most circumstances, that felon dispossession statutes regulate conduct which is unprotected by the Second Amendment, Barton's facial challenge must fail. Accord Rozier, 598 F.3d at 770–71; Vongxay, 594 F.3d at 1114–18; McCane, 573 F.3d at 1047; United States v. Anderson, 559 F.3d 348, 352 & n. 6 (5th Cir.), cert. denied, ––– U.S. ––––, 129 S.Ct. 2814, 174 L.Ed.2d 308 (2009).

C

Having rejected Barton's facial challenge, we turn to his claim that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to him. As the Government concedes, Heller's statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton's as-applied challenge. By describing the felon disarmament ban as “presumptively” lawful, Heller, 554 U.S. at 626–27 n. 26, 128 S.Ct. 2783, the Supreme Court implied that the presumption may be rebutted.

Heller does not catalogue the facts we must consider when reviewing a felon's as-applied challenge. Rather, the Supreme Court has noted that it will “expound upon the historical justifications for exceptions [it] mentioned if and when those...