In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3160
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN HOLDEN,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:22-CR-30 RLM-MGG — Robert L. Miller, Jr., Judge.
____________________
ARGUED JUNE 1, 2023 — DECIDED JUNE 16, 2023
____________________
Before EASTERBROOK, WOOD, and PRYOR, Circuit Judges.
EASTERBROOK, Circuit Judge. “Our legal system provides
methods for challenging the Government’s right to ask ques-
tions—lying is not one of them. A citizen may decline to an-
swer the question, or answer it honestly, but he cannot with
impunity knowingly and willfully answer with a falsehood.”
Bryson v. United States,
396 U.S. 64, 72 (1969), reaffirmed in
2 No. 22-3160
Lachance v. Erickson,
522 U.S. 262 (1998). That principle decides
this appeal.
When John Holden sought to buy a firearm in August
2021, he had to complete ATF Form 4473. Among the ques-
tions was whether he was then “under indictment or infor-
mation” for any crime punishable by imprisonment for a year
or more. He answered “no,” but that answer was false.
Holden had been accused of ba_ering a public safety official,
in violation of
Ind. Code §35-42-2-1(c)(1), (e)(2).
In August 2022 Holden pleaded guilty to violating
18
U.S.C. §922(a)(6), which makes it a crime
knowingly to make any false or fictitious oral or wriLen statement
… intended or likely to deceive [an] importer, manufacturer,
dealer, or collector with respect to any fact material to the lawful-
ness of the sale or other disposition of [a] firearm or ammunition
under the provisions of this chapter[.]
He sought to withdraw the plea in order to contend that
18
U.S.C. §922(n), which makes it a crime to purchase or receive
a firearm while under indictment for a felony, violates the Sec-
ond Amendment as understood in New York State Rifle & Pistol
Association, Inc. v. Bruen,
142 S. Ct. 2111 (2022). The district
judge granted this motion and dismissed the indictment, rul-
ing that §922(n) is invalid.
2022 U.S. Dist. LEXIS 212835 (N.D.
Ind. Oct. 31, 2022). The United States has appealed.
Holden had been charged by information, while §922(n)
uses the word “indictment.” The parties and the district court
treat these words as equivalent, and we do so too.
The main problem with the district court’s approach is
that Holden was not charged with violating §922(n). He was
charged with making a false statement to a firearms dealer, in
violation of §922(a)(6). A false statement “intended or likely
No. 22-3160 3
to deceive [a licensed dealer] with respect to any fact material
to the lawfulness of the sale or other disposition of [a] firearm
or ammunition under the provisions of this chapter” is for-
bidden. A false statement is material if it has “a natural ten-
dency to influence, or be capable of influencing, the decision
of the decisionmaking body to which it was addressed.”
United States v. Gaudin,
515 U.S. 506, 509 (1995) (cleaned up).
An honest statement about a pending indictment would be
material under that standard. A truthful statement would
have led the dealer to refuse to sell Holden a gun.
Holden does not contend, and the district court did not
find, that there is any constitutional problem with §922(a)(6).
Congress is entitled to require would-be purchasers to pro-
vide information—their names, addresses, Social Security
numbers, criminal histories, and so on. We may assume that
the Second Amendment would prevent enforcement of a stat-
ute saying, for example, that “anyone whose surname starts
with the le_er H is forbidden to possess a firearm.” But that
would not prevent Congress from demanding purchasers’
real names. So too with Social Security numbers: the Consti-
tution may block the federal government from limiting gun
ownership to people who have Social Security numbers, but
it would not interfere with the use of such numbers to iden-
tify, and perhaps check the criminal history of, people who do
have them. The power to collect accurate information is of a
different character—and stands on a firmer footing—than the
power to prohibit particular people from owning guns.
Many decisions of the Supreme Court hold that false state-
ments may be punished even when the government is not en-
titled to demand answers—when, for example, compelling a
truthful statement would incriminate the speaker. See, e.g.,
4 No. 22-3160
United States v. Kapp,
302 U.S. 214, 218 (1937); Dennis v. United
States,
384 U.S. 855, 866–67 (1966); United States v. Knox,
396
U.S. 77, 79 (1969). The word “material” in §922(a)(6) does not
create a privilege to lie, when the answer is material to a stat-
ute, whether or not that statute has an independent constitu-
tional problem.
Holden does not deny that his statement was “material”
in the sense that it affected the dealer’s willingness to sell him
a gun. He maintains, rather, that it was not material “to the
lawfulness of the sale”, because §922(n) must be treated as if
it had never been enacted. Yet neither the Supreme Court nor
any court of appeals has deemed §922(n) void. Someone who
wants a court to take such a step should file a declaratory-
judgment action rather than tell a lie in an effort to evade de-
tection that the sale would violate the statute.
Nor is it likely that §922(n) would be held invalid across
the board. The Supreme Court has told us that, except with
respect to a law invalid in every possible application (or sub-
stantially overbroad with respect to speech), a statute’s con-
stitutionality must be assessed as applied. See United States v.
Stevens,
559 U.S. 460, 472–73 (2010); United States v. Salerno,
481 U.S. 739, 745 (1987).
Governments may keep firearms out of the hands of dan-
gerous people who are apt to misuse them. Bruen, 142 S. Ct.
at 2131 (Second Amendment protects “law-abiding, responsi-
ble citizens”), 2148–50 (discussing surety laws), 2162 (Ka-
vanaugh, J., concurring). Even if some applications of §922(n)
would flunk the constitutional standard (say, someone under
indictment for an antitrust offense), others might illustrate the
sort of person who cannot be trusted with guns (say, someone
under indictment for using violence against a domestic
No. 22-3160 5
partner). People cannot engage in self help by telling lies to
avoid the inquiry whether §922(n) may properly apply to
them; they must tell the truth and seek judicial relief on the
ground that §922(n) would be invalid with respect to them, in
particular. Indeed, one might think that the very act of lying
to obtain a firearm implies a risk that the weapon will be mis-
used.
This is not the proceeding, however, in which to adjudi-
cate a contention that any particular application of §922(n) vi-
olates the Second Amendment. Our discussion is designed to
show that the statute’s status remains unresolved.
Suppose the Supreme Court were to hold §922(n) invalid
in all of its applications (that is, “on its face”). Section 922(a)(6)
speaks of facts material to “this chapter” of the Criminal
Code. Knowledge that the applicant is under indictment
might lead the dealer or federal official to check just what the
charge is. Suppose the check reveals that the applicant is an
alien charged with unlawful reentry after a removal order.
That would forbid a sale under
18 U.S.C. §922(g)(5). See
United States v. Meza-Rodriguez,
798 F.3d 664 (7th Cir. 2015). A
check might reveal that the applicant is a fugitive, barred by
§922(g)(2). It might reveal a conviction that blocks ownership
under §922(g)(1). (For example, the indictment might charge
a person with possessing a gun despite a prior conviction for
a violent crime.) And given the lag between filing a form and
the transfer of the gun, some would-be purchasers who are
indicted by the first date may be convicted by the second; an
honest answer would allow that possibility to be checked.
For these reasons, a truthful answer to the question “are
you under indictment?” can be material to the propriety of a
firearms sale, whether or not all possible applications of
6 No. 22-3160
§922(n) comport with the Second Amendment. It follows that
the district court’s judgment must be reversed and the crimi-
nal charge against Holden reinstated.
