U.S. v. Parker, No. 03-4119.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBriscoe
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dale PARKER, Defendant-Appellant.
Docket NumberNo. 03-4119.
Decision Date24 March 2004
362 F.3d 1279
UNITED STATES of America, Plaintiff-Appellee,
v.
Dale PARKER, Defendant-Appellant.
No. 03-4119.
United States Court of Appeals, Tenth Circuit.
March 24, 2004.

Page 1280

Submitted on the Briefs:*

Mary C. Corporon, Corporon & Williams, P.C., Salt Lake City, Utah, for the defendant-appellant.

Paul M. Warner, United States Attorney, and Diana Hagen, Assistant United States Attorney, Salt Lake City, Utah, for the plaintiff-appellee.

Before KELLY, McWILLIAMS and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.


Defendant Dale Parker was found guilty under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, of carrying a loaded firearm in a vehicle or on a public street, in violation of Utah Code Ann. § 76-10-505.1 He contends his conviction violates the Second and Tenth Amendments. We affirm as to Parker's Second Amendment claim, but dismiss his Tenth Amendment claim for lack of standing.

I.

The facts of this case are undisputed. On October 3, 2002, Parker drove his pickup truck onto the Dugway Proving Ground in Utah to perform civilian contract work. The front gate was located inside the Dugway Proving Ground, and warning signs posted at the front gate stated: "Warning U.S. Army boundary. All persons are

Page 1281

subject to all regulations. Persons and vehicles are subject to search upon entry into and exit from Dugway Proving Grounds and while within the boundary of this military reservation based upon probable cause or military necessity." App. at 8-9. As a result of a random search, Parker's pickup was stopped at the gate and searched by Specialist Jessie James Lynch. Lynch found a loaded .38 caliber revolver under the seat of Parker's pickup. Parker was detained at the gate and then transported to the military police department where he was interviewed. In Parker's sworn statement, he stated: "I forgot I had my revolver in my truck when I drove on the facility. Had I remembered, I would have declared it at the gate." Id. at 27.

Prior to trial, Parker filed a motion to dismiss the charge, claiming the ACA, as applied to him, violated his Second Amendment right to bear arms and that authority to regulate the right to bear arms is reserved to the states under the Tenth Amendment. The magistrate judge denied Parker's motion to dismiss and he was tried and found guilty by the magistrate. The court ordered Parker to pay a $90 fine and a $10 special assessment fee. Pursuant to 18 U.S.C. § 3402 and Federal Rule of Criminal Procedure 58(g)(2)(B), Parker appealed the magistrate's order of conviction to the district court. Upon request by the district court, Parker refiled his motion to dismiss, which was again denied.

II.

On appeal, Parker contends his prosecution pursuant to the ACA violates his right to keep and bear arms under the Second Amendment. He also contends the United States lacks constitutional authority to charge him in federal court with violating a state gun control statute because the Tenth Amendment reserves the right to regulate arms to the states. As these are constitutional challenges to a statute, we apply de novo review. See United States v. Morris, 247 F.3d 1080, 1085 (10th Cir. 2001).

Assimilative Crimes Act

We begin by briefly reviewing the purpose and text of the ACA. "The purpose of the ACA is to borrow state law to fill gaps in the federal criminal law that applies on federal enclaves." United States v. Adams, 140 F.3d 895, 896 (10th Cir.1998). The ACA thus provides "a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction." Id. (internal quotation omitted). To achieve these ends, the ACA states:

(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title ... is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State ... in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13(a). Section 7 of Title 18 defines the special maritime and territorial jurisdiction of the United States as including:

(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

18 U.S.C. § 7. As applied here, the ACA enabled the federal government to charge

Page 1282

Parker with a violation of Utah criminal law when that violation was committed on federal property.

Second Amendment

"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. amd. II. Whether a federal prosecution pursuant to the ACA for violating a state gun control statute violates an individual's Second Amendment rights is an issue of first impression.

Our analysis is guided by the Supreme Court's ruling in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In Miller, the defendants, unrestricted private citizens, were indicted for violating the National Firearms Act (Act), 26 U.S.C. § 1132(c)-(d) (1934) as a result of (1) transporting an unregistered double barrel 12-gauge shotgun in interstate commerce, and (2) not having in their possession a stamped written order permitting possession of the firearm. The defendants filed a motion to quash the indictment and alleged the Act was unconstitutional because it violated the Second Amendment. The district court agreed with the defendants and granted their motion. The Supreme Court reversed, holding:

In the absence of any evidence tending to show that possession or use of a "shot gun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

307 U.S. at 178, 59 S.Ct. 816. Miller has been interpreted by this court and other courts to hold that the Second Amendment does not guarantee an individual the right to keep and transport a firearm where there is no evidence that possession of that firearm was related to the preservation or efficiency of a well-regulated militia. See Lewis v. United States, 445 U.S. 55, 65 n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (citing Miller for proposition that "the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia");2 see also Silveira v. Lockyer, 312 F.3d 1052, 1061 (9th Cir.2003) (referring to Miller's implicit rejection of traditional individual rights position); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.1995) ("Since [Miller], the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right."); United States v. Toner, 728 F.2d 115, 128 (2d Cir.1984) (interpreting Miller to stand for rule that, absent reasonable relationship to preservation of well-regulated militia, there is no fundamental right to possess firearm); United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977) (analyzing Miller and concluding that "[t]o apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or

Page 1283

policy"); but see United States v. Emerson, 270 F.3d 203, 226 (5th Cir.2001) (reading Miller as indecisive and, at best, supporting an individual's right to bear arms).

Drawing on Miller, we repeatedly have held that to prevail on a Second Amendment challenge, a party must show that possession of a firearm is in connection with participation in a "well-regulated" "state" "militia." See United States v. Haney, 264 F.3d 1161, 1165 (10th Cir.2001) (holding "that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia"); Oakes, 564 F.2d at 387 (stating "purpose of the second amendment ... was to preserve the effectiveness and assure the continuation of the state militia"). Applying this principle, in Haney we set out a four-part test a party must satisfy to establish a Second Amendment violation: "As a threshold matter, [a party] must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is `well regulated' by the state; (3) [guns of the type at issue] are used by that militia; and (4) his possession of the [the gun at issue] was reasonably connected to his militia service." 264 F.3d at 1165. See also United States v. Bayles, 310 F.3d 1302, 1307 (10th Cir.2002) (applying Haney to uphold federal law restricting a person subject to a domestic violence protective order from possessing a firearm); United States v. Graham, 305 F.3d 1094, 1106 (10th Cir.2002) (applying Haney to find law banning sale of explosive devices does not infringe upon person's Second Amendment rights). Unless Parker can satisfy these four criteria, he cannot prevail on his Second Amendment claim. Notably, Parker has presented no evidence tending to show that he meets any of the Haney criteria.

Although our prior opinion in Haney would guide us to an affirmance of...

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29 practice notes
  • Parker v. District of Columbia, No. 04-7041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 9, 2007
    ...present here, we had discretion to decide the case on the merits or on standing grounds. Id. at 767-68. 3. See United States v. Parker, 362 F.3d 1279, 1284 (10th Cir.2004); United States v. Price, 328 F.3d 958, 961 (7th Cir.2003); United States v. Emerson, 270 F.3d 203, 219 (5th Cir.2001); ......
  • U.S. v. Bond, No. 08-2677.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2009
    ...Vincent, 431 F.3d 25, 33-36 (1st Cir.2005), cert. denied, 548 U.S. 904, 126 S.Ct. 2968, 165 L.Ed.2d 951 (2006); United States v. Parker, 362 F.3d 1279, 1284-85 (10th Cir.2004), cert. denied, 543 U.S. 874, 125 S.Ct. 88, 160 L.Ed.2d 124 The Seventh Circuit Court stated most clearly the ration......
  • U.S. v. Lawrance, No. 08-6034.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2008
    ...20, 2007. 1 R. Doc. 13. Discussion In reviewing constitutional challenges to a statute, our review is de novo. United States v. Parker, 362 F.3d 1279, 1281 (10th Cir.2004) (Commerce Clause); see also United States v. Morris, 247 F.3d 1080, 1085 (10th Cir.2001) (same); Femedeer v. Haun, 227 ......
  • Dist. of Columbia v. Heller, No. 07–290.
    • United States
    • U.S. Supreme Court
    • June 26, 2008
    ...even after considering Emerson. See, e.g., United States v. Lippman, 369 F.3d 1039, 1043–1045 (C.A.8 2004); United States v. Parker, 362 F.3d 1279, 1282–1284 (C.A.10 2004); United States v. Jackubowski, 63 Fed.Appx. 959, 961 (C.A.7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F.3d ......
  • Request a trial to view additional results
29 cases
  • Parker v. District of Columbia, No. 04-7041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 9, 2007
    ...present here, we had discretion to decide the case on the merits or on standing grounds. Id. at 767-68. 3. See United States v. Parker, 362 F.3d 1279, 1284 (10th Cir.2004); United States v. Price, 328 F.3d 958, 961 (7th Cir.2003); United States v. Emerson, 270 F.3d 203, 219 (5th Cir.2001); ......
  • U.S. v. Bond, No. 08-2677.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2009
    ...Vincent, 431 F.3d 25, 33-36 (1st Cir.2005), cert. denied, 548 U.S. 904, 126 S.Ct. 2968, 165 L.Ed.2d 951 (2006); United States v. Parker, 362 F.3d 1279, 1284-85 (10th Cir.2004), cert. denied, 543 U.S. 874, 125 S.Ct. 88, 160 L.Ed.2d 124 The Seventh Circuit Court stated most clearly the ration......
  • U.S. v. Lawrance, No. 08-6034.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2008
    ...20, 2007. 1 R. Doc. 13. Discussion In reviewing constitutional challenges to a statute, our review is de novo. United States v. Parker, 362 F.3d 1279, 1281 (10th Cir.2004) (Commerce Clause); see also United States v. Morris, 247 F.3d 1080, 1085 (10th Cir.2001) (same); Femedeer v. Haun, 227 ......
  • Dist. of Columbia v. Heller, No. 07–290.
    • United States
    • U.S. Supreme Court
    • June 26, 2008
    ...even after considering Emerson. See, e.g., United States v. Lippman, 369 F.3d 1039, 1043–1045 (C.A.8 2004); United States v. Parker, 362 F.3d 1279, 1282–1284 (C.A.10 2004); United States v. Jackubowski, 63 Fed.Appx. 959, 961 (C.A.7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F.3d ......
  • Request a trial to view additional results

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