Jorge Medina v. Matthew Whitaker , 913 F.3d 152 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2018 Decided January 18, 2019
No. 17-5248
JORGE L. MEDINA,
APPELLANT
v.
MATTHEW G. WHITAKER,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01718)
Alan Gura argued the cause for appellant. With him on
the briefs was Jason D. Wright.
Patrick G. Nemeroff, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Jessie K. Liu, U.S. Attorney, and Mark B. Stern and
Michael S. Raab, Attorneys.
Before: ROGERS and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Jorge Medina was
convicted of falsifying his income on mortgage applications
twenty-seven years ago. Now, as a convicted felon, he is
prohibited from owning firearms by federal law. He argues
that the application of this law to him violates the Second
Amendment because he poses no heightened risk of gun
violence. Because we conclude that felons are not among the
law-abiding, responsible citizens entitled to the protections of
the Second Amendment, we reject his contention and affirm
the district court’s dismissal order.
I. Factual Background
In 1990, Medina committed a felony. He grossly
misrepresented his income on a mortgage finance application
to qualify for a $30,000 loan from the First Federal Bank of
California. He was referred for criminal prosecution by the
bank. He cooperated with the investigation, confessed to his
crime, and pled guilty in 1991 to a felony count of making a
false statement to a lending institution in violation of 18
U.S.C. § 1014. Although his crime was punishable by up to
thirty years in prison, Medina was sentenced to only three
years of probation, home detention for sixty days, and a fine.
At the recommendation of the U.S. Attorney, the U.S.
Probation Officer, and members of the community, Medina’s
probation was terminated after only one year.
In the mid-1990s, Medina had another run-in with the
law. In 1994 and 1995, he applied for resident hunting
licenses in the state of Wyoming, while not actually residing
in that state. He claims that the false statements were
predicated on a misunderstanding about the residency
requirements. Nevertheless, in 1996, he pled guilty to three
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misdemeanor counts of making a false statement on a game
license application in violation of Wyo. Stat. Ann. § 23-3-403
(1989). The crime was classified as a misdemeanor and was
punishable by a fine and six months’ imprisonment. Wyo.
Stat. Ann. § 23-6-202(a)(v) (1981). Medina was sentenced to
an eight-year hunting license revocation and a fine.
Medina has no further criminal record since his 1996
conviction. He owns a successful business, supports a family,
and engages in philanthropy. His rehabilitation has been
recognized by several important institutions. The California
real estate licensing board has continued to license him
following his 1991 conviction. The government of Canada
restored his right to enter the country in 2009. Even the victim
of Medina’s false statement, the First Federal Bank of
California, recognized his trustworthiness in 2005 by
extending him a $1,000,000 line of credit.
Notwithstanding his past misdeeds, Medina wants to own
a firearm for self-defense and recreation. He cannot do so,
however, because his 1991 felony conviction bars him from
possessing firearms under federal law.
II. Legal Background
Since 1968, anyone convicted of “a crime punishable by
imprisonment for a term exceeding one year” is prohibited
from owning firearms for life under 18 U.S.C. § 922(g)(1).
Exempted from this prohibition are those convicted of
antitrust violations, those convicted of state misdemeanors
with a maximum term of imprisonment of two years or less,
and those whose convictions have been pardoned or
expunged. 18 U.S.C. § 921(a)(20). Although the prohibition
applies for life, the statute allows the Attorney General to
restore firearm rights to those deemed not “likely to act in a
manner dangerous to public safety.” 18 U.S.C. § 925(c). This
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remedy has been unavailable since 1992, however, because
Congress has prohibited the Attorney General from using
public funds to investigate relief applications. To justify this
decision, Congress cited the difficulty of the task and the fact
that a wrong decision could result in “devastating
consequences.” S. Rep. No. 102-353 (1992).
In 2008—forty years after the enactment of this statute—
the Supreme Court issued its decision in District of Columbia
v. Heller, which clarified that the Second Amendment
protects the right of individual Americans to keep and bear
firearms for self-defense. 554 U.S. 570, 595 (2008). This
right, like other fundamental rights, is not unlimited in scope.
In Heller, and again in McDonald v. City of Chicago, the
Court explained that the recognition of an individual right to
bear firearms does not “cast doubt on longstanding
prohibitions on the possession of firearms by felons.” Heller,
554 U.S. at 626; McDonald, 561 U.S. 742, 786 (2010). The
practice of barring convicted felons from possessing firearms
is a “presumptively lawful regulatory measure[].” Heller, 554
U.S. at 627 n.26.
Notwithstanding the Supreme Court’s statements
concerning felon disarmament, the constitutionality of
§ 922(g)(1) has been challenged several times. Litigation has
taken the form of both facial challenges to the statute and
challenges to the law’s application in particular
circumstances. Facial challenges to the statute’s
constitutionality have failed in every circuit to have
considered the issue. United States v. Bogle, 717 F.3d 281 (2d
Cir. 2013) (per curiam); United States v. Barton, 633 F.3d
168, 175 (3d Cir. 2011) (overruled on other grounds by
Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016));
United States v. Moore, 666 F.3d 313, 318 (4th Cir. 2012);
United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011);
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United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir.
2011); United States v. Rozier, 598 F.3d 768, 770–71 (11th
Cir. 2010); United States v. Williams, 616 F.3d 685, 692 (7th
Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1115
(9th Cir. 2010); United States v. McCane, 573 F.3d 1037,
1047 (10th Cir. 2009); United States v. Anderson, 559 F.3d
348, 352 (5th Cir. 2009).
As-applied challenges have fared only marginally better,
and no circuit has held the law unconstitutional as applied to a
convicted felon. The Ninth Circuit takes the view that “felons
are categorically different from the individuals who have a
fundamental right to bear arms.” Vongxay, 594 F.3d at 1115.
Four other circuits have, in a similar vein, also rejected as-
applied challenges by convicted felons. See Hamilton v.
Pallozzi, 848 F.3d 614, 626–27 (4th Cir. 2017), cert. denied,
138 S. Ct. 500 (2017); United States v. Rozier, 598 F.3d 768,
770–71 (11th Cir. 2010); United States v. Scroggins, 599 F.3d
433, 451 (5th Cir. 2010); In re United States, 578 F.3d 1195,
1200 (10th Cir. 2009). The Seventh and Eighth Circuits, while
leaving open the possibility of a successful felon as-applied
challenge, have yet to uphold one. See United States v.
Woolsey, 759 F.3d 905, 909 (8th Cir. 2014); United States v.
Williams, 616 F.3d 685, 693–94 (7th Cir. 2010).
Only one court has held § 922(g)(1) unconstitutional in
any of its applications. In Binderup v. Attorney General, the
Third Circuit, en banc, considered the application of the law
to two misdemeanants and issued a well-reasoned opinion,
concurrence, and dissent that illustrates the various
viewpoints in this debate. 836 F.3d 336 (3d Cir. 2016), cert.
denied, 137 S. Ct. 2323 (2017). The court ultimately
concluded that the law was unconstitutional as applied, but
split sharply on the reasoning. The narrowest ground
supporting the judgment held that those who commit serious
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crimes forfeit their Second Amendment right to arms. Id. at
349. It further held that the “passage of time or evidence of
rehabilitation” could not restore the lost right; only the
seriousness of the crime was relevant to determine if a
convicted criminal fell outside the scope of the Second
Amendment. Id. at 349–50. Applying this reasoning, the
misdemeanor crimes at issue in that case were not sufficiently
serious to warrant disarmament. Id. at 353. In a concurrence
to the judgment, five judges disagreed with the seriousness
test and took the view “that non-dangerous persons convicted
of offenses unassociated with violence may rebut the
presumed constitutionality of § 922(g)(1) on an as-applied
basis.” Id. at 357–58. (Hardiman, J., concurring in the
judgment). Finally, seven judges dissented from the judgment
and would have rejected the as-applied challenge to
§ 922(g)(1). Although they agreed that the proper focus was
on the seriousness of the crime, they were satisfied that
crimes encompassed by the statute were sufficiently serious to
warrant disarmament. Id. at 381 (Fuentes, J., dissenting from
the judgment).
In our 2013 Schrader v. Holder decision, we joined our
sister circuits in rejecting a categorical Second Amendment
challenge to § 922(g)(1). 704 F.3d 980, 989 (D.C. Cir. 2013).
In that case, Schrader was barred from possessing firearms
because of a forty-year-old, common-law misdemeanor
charge arising from a fistfight. Id. at 983. Although he was
only sentenced to a $100 fine, the misdemeanor carried no
maximum possible term of incarceration—triggering the
lifetime firearm prohibition under § 922(g)(1). Id. Schrader
argued that the statute violated the Second Amendment when
applied to misdemeanants such as himself because it deprived
law-abiding citizens of their right to bear arms. Id. at 984. To
resolve this claim, we applied the familiar two-step Second
Amendment analysis used by circuits throughout the country
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and adopted by this Court in Heller v. District of Columbia
(Heller II), 670 F.3d 1244 (D.C. Cir. 2011). The first step
requires us to consider whether the challenged law regulates
conduct “outside the Second Amendment’s protections.”
Schrader, 704 F.3d at 988–89. If so, our inquiry ends, and
only rational basis scrutiny applies. If the law regulates
activity protected by the Second Amendment, however, the
second step of the analysis shifts the burden to the
government to show that the regulation is “substantially
related to an important governmental objective.” Id. at 989.
Applying this test to Schrader’s claim, we found it
unnecessary to apply step one because the law survived
intermediate scrutiny even if it did regulate conduct within the
scope of the Amendment. Id. The government’s interest in
reducing crime was important and bore a substantial
relationship to prohibiting firearm ownership by “individuals
with prior criminal convictions.” Id. at 989–90.
Although we upheld the facial constitutionality of
§ 922(g)(1), we did not decide the constitutionality of the
statute as applied to Schrader individually. Id. at 991.
Schrader had not challenged the application of the statute to
himself, but rather to common-law misdemeanants as a class.
We noted in dicta that, had he brought an individual as-
applied challenge, the length of time between Schrader’s
minor misdemeanor and the intervening years of law-abiding
behavior would make us hesitant “to find Schrader outside the
class of law-abiding, responsible citizens whose possession of
firearms is, under Heller, protected by the Second
Amendment.” Id. (internal quotations omitted). Ultimately,
however, we declined to consider such an argument for the
first time on appeal. Id.
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III. Procedural Background
Seizing upon the dicta in Schrader, Medina challenges
the application of § 922(g)(1) to himself individually. He
argues that his responsible life for many years, the nonviolent
nature of his felony conviction, and the lack of evidence that
he poses a heightened risk of gun violence, all make the law
unconstitutional as applied to him. He sued the Attorney
General on August 24, 2016, to enjoin the enforcement of the
statute. Medina v. Sessions, 279 F. Supp. 3d 281 (D.D.C.
2017). The Government moved to dismiss.
The district court relied on our opinion in Schrader v.
Holder to grant the Government’s motion to dismiss under
Fed. R. Civ. P. 12(b)(6). Id. at 289. The court applied both
steps of the Schrader analysis. First, it held that Medina failed
the first step because convicted felons fall outside of the
Second Amendment’s protection. Id. It cited the decisions of
several other circuits in support of its conclusion that the
Founders would have considered a convicted felon like
Medina to be “unable to claim the right to bear a firearm.” Id.
at 289–91. Alternatively, the district court held that, even if
Medina did fall within the scope of the Second Amendment’s
protection, the law would survive the intermediate scrutiny
analysis required by the second step of Schrader. Id. at 291–
92. The government’s important interest in public safety was
substantially related to the law, and Congress was not limited
to “case-by-case exclusions of persons who have been shown
to be untrustworthy with weapons.” Id. at 291–92 (quoting
Schrader, 704 F.3d at 991). Therefore, the district court
granted the Government’s motion to dismiss. Medina timely
noticed this appeal.
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IV. Analysis
We review the dismissal of Medina’s complaint de novo.
Schrader, 704 F.3d at 984. On appeal, Medina reiterates the
constitutional arguments made below and contests both
prongs of the district court’s Schrader analysis. At step one,
he argues that the district court erred when it found him
outside the scope of the Second Amendment’s protections
because only those who are “dangerous” may be disarmed. He
asserts that the district court was incorrect to conclude that
“disregard for the law” was sufficient to justify disarmament.
Medina also argues the district court failed to conduct a
sufficiently individualized assessment of his crime, his life,
and his rehabilitation before deciding that he was not within
the scope of the Second Amendment. At step two, Medina
claims that the district court should not have applied
intermediate scrutiny at all. He argues that, once he shows
that he is not dangerous, an outright prohibition on his right to
possess firearms is indistinguishable from the ban struck
down in Heller and fails under any form of scrutiny.
A.
The district court concluded that Medina was not within
the scope of the Second Amendment because his commission
of a serious crime removes him from the category of “law-
abiding and responsible” citizens. Medina challenges this and
asserts that evidence of past “disregard for the law” is
insufficient to disarm him. In his view, the scope of the
Second Amendment only excludes dangerous individuals.
Since the government cannot show that he is particularly
dangerous, it offends the Second Amendment to bar him from
possessing firearms.
To resolve this question, we must look to tradition and
history. “Constitutional rights are enshrined with the scope
10
they were understood to have when the people adopted them.”
Heller, 554 U.S. at 634–35. We recall Justice Scalia’s
admonishment that “[h]istorical analysis can be difficult” and
that it involves “making nuanced judgments about which
evidence to consult and how to interpret it.” McDonald, 561
U.S. at 803–04 (Scalia, J., concurring). The Second
Amendment was ratified in 1791, so we look to the public
understanding of the right at that time to determine if a
convicted felon would fall outside the scope of its protection.
As a starting point, we consider felony crime as it would
have been understood at the time of the Founding. In 1769,
William Blackstone defined felony as “an offense which
occasions a total forfeiture of either lands, or goods, or both,
at the common law, and to which capital or other punishment
may be superadded, according to the degree of guilt.” 4
William Blackstone, Commentaries on the Laws of England
*95 (Harper ed. 1854). Felonies were so connected with
capital punishment that it was “hard to separate them.” Id. at
*98. Felony crimes in England at the time included crimes of
violence, such as murder and rape, but also included non-
violent offenses that we would recognize as felonies today,
such as counterfeiting currency, embezzlement, and desertion
from the army. Id. at *90-103. Capital punishment for felonies
was “ubiquit[ous]” in the late Eighteenth Century and was
“the standard penalty for all serious crimes.” See Baze v.
Rees, 553 U.S. 35, 94 (2008) (Thomas, J., concurring in the
judgment) (citing Stuart Banner, The Death Penalty: An
American History 23 (2002)). For example, at the time of the
Second Amendment’s ratification, nonviolent crimes such as
forgery and horse theft were capital offenses. E.g., Banner,
supra, at 18 (describing the escape attempts of men
condemned to die for forgery and horse theft in Georgia
between 1790 and 1805).
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Admittedly, the penalties for many felony crimes quickly
became less severe in the decades following American
independence and, by 1820, forfeiture had “virtually
disappeared in the United States.” Will Tress, Unintended
Collateral Consequences: Defining Felony in the Early
American Republic, 57 Clev. St. L. Rev. 461, 468, 473
(2009). Nevertheless, felonies were—and remain—the most
serious category of crime deemed by the legislature to reflect
“grave misjudgment and maladjustment.” Hamilton, 848 F.3d
at 626. With this perspective, it is difficult to conclude that
the public, in 1791, would have understood someone facing
death and estate forfeiture to be within the scope of those
entitled to possess arms.
Next, we consider whether historical evidence suggests
that only dangerous persons could be disarmed. None of the
sources cited by Medina compels this conclusion. In fact, one
source he cites, a 1787 proposal before the Pennsylvania
ratifying convention, supports precisely the opposite
understanding. The text of that proposal states: “no law shall
be passed for disarming the people or any of them unless for
crimes committed, or real danger of public injury from
individuals.” The Address and Reasons of Dissent of the
Minority of the Convention of the State of Pennsylvania to
their Constituents, reprinted in Bernard Schwartz, 2 The Bill
of Rights: A Documentary History 662, 665 (1971) (emphasis
added). The use of the word “or” indicates that criminals, in
addition to those who posed a “real danger” (such as the
mentally ill, perhaps), were proper subjects of disarmament.
Additionally, during the revolution, the states of
Massachusetts and Pennsylvania confiscated weapons
belonging to those who would not swear loyalty to the United
States. See United States v. Carpio-Leon, 701 F.3d 974, 980
(4th Cir. 2012) (citing Saul Cornell & Nathan DeDino, A Well
Regulated Right: The Early American Origins of Gun
12
Control, 73 Fordham L. Rev. 487, 506 (2004)). As these
examples show, the public in the founding era understood that
the right to bear arms could exclude at least some nonviolent
persons.
A number of other circuits have also considered this issue
and have concluded that history and tradition support the
disarmament of those who were not (or could not be) virtuous
members of the community. At least four circuits have
endorsed the view that “most scholars of the Second
Amendment agree that the right to bear arms was tied to the
concept of a virtuous citizenry and that, accordingly, the
government could disarm ‘unvirtuous citizens.’” United
States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010). See
also United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir.
2010); Binderup v. Attorney General, 836 F.3d 336, 348 (3d
Cir. 2016) 1; United States v. Carpio-Leon, 701 F.3d 974, 979
(4th Cir. 2012). The “virtuous citizen” theory is drawn from
“classical republican political philosophy” and stresses that
the “right to arms does not preclude laws disarming the
unvirtuous (i.e. criminals) or those who, like children or the
mentally imbalanced, are deemed incapable of virtue.” United
States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009) (quoting
Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 Tenn. L. Rev. 461, 480 (1995)). Several
circuits have relied on this theory to uphold the
constitutionality of modern laws banning the possession of
firearms by illegal aliens and juveniles—classes of people
who might otherwise show, on a case-by-case basis, that they
are not particularly dangerous. See Carpio-Leon, 701 F.3d at
979–81; Rene E., 583 F.3d at 15. In considering these
decisions, we recognize that there is “an ongoing debate
1
This rationale was supported by seven of the fifteen judges of the
en banc court. Binderup, 836 F.3d at 339.
13
among historians about the extent to which the right to bear
arms in the founding period turned on concerns about the
possessor’s virtue.” Rene E., 583 F.3d at 16. While we need
not accept this theory outright, its support among courts and
scholars serves as persuasive evidence that the scope of the
Second Amendment was understood to exclude more than just
individually identifiable dangerous individuals.
With few primary sources directly on point, we finally
consider the guidance from the Supreme Court in Heller.
Although the Court declined to “expound upon the historical
justifications” for felon firearm prohibitions, it described them
as “longstanding” and “presumptively lawful.” Heller, 554
U.S. at 626, 627 n.26, 635. Felonies encompass a wide variety
of non-violent offenses, and we see no reason to think that the
Court meant “dangerous individuals” when it used the word
felon.
On balance, the historical evidence and the Supreme
Court’s discussion of felon disarmament laws leads us to
reject the argument that non-dangerous felons have a right to
bear arms. As a practical matter, this makes good sense.
Using an amorphous “dangerousness” standard to delineate
the scope of the Second Amendment would require the
government to make case-by-case predictive judgments
before barring the possession of weapons by convicted
criminals, illegal aliens, or perhaps even children. We do not
think the public, in ratifying the Second Amendment, would
have understood the right to be so expansive and limitless. At
its core, the Amendment protects the right of “law-abiding,
responsible citizens to use arms in defense of hearth and
home.” Heller, 554 U.S. at 635. Whether a certain crime
removes one from the category of “law-abiding and
responsible,” in some cases, may be a close question. For
example, the crime leading to the firearm prohibition in
14
Schrader—a misdemeanor arising from a fistfight—may be
open to debate. Those who commit felonies however, cannot
profit from our recognition of such borderline cases. For these
reasons, we hold that those convicted of felonies are not
among those entitled to possess arms. Accord Hamilton, 848
F.3d at 624.
B.
Having established that a felony conviction removes one
from the scope of the Second Amendment, Medina’s claim
presumptively fails at the first step of the Schrader analysis.
In his as-applied challenge, however, Medina argues that an
examination of his “present, complete character” places him
back within the class of “law-abiding, responsible citizens.”
We disagree.
We need not decide today if it is ever possible for a
convicted felon to show that he may still count as a “law-
abiding, responsible citizen.” To prevail on an as-applied
challenge, Medina would have to show facts about his
conviction that distinguishes him from other convicted felons
encompassed by the § 922(g)(1) prohibition. Medina has not
done so. He was convicted of felony fraud—a serious crime,
malum in se, that is punishable in every state. “American
courts have, without exception, included [fraud] within the
scope of moral turpitude.” Jordan v. De George, 341 U.S.
223, 229 (1951). Moreover, just a few years after the end of
his probation for his first crime, Medina was convicted of
three more counts of misdemeanor fraud. This disregard for
the basic laws and norms of our society is precisely what
differentiates a criminal from someone who is “law-abiding.”
To the extent that it may be possible for a felon to show that
his crime was so minor or regulatory that he did not forfeit his
right to bear arms by committing it, Medina has not done so.
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Nor can Medina’s present contributions to his
community, the passage of time, or evidence of his
rehabilitation un-ring the bell of his conviction. While these
and other considerations may play a role in some as-applied
challenges to firearm prohibitions, such as those brought by
misdemeanants or the mentally ill, we hold that for
unpardoned convicted felons such as Medina, they are not
relevant. Accord Hamilton, 848 F.3d at 626. When the
legislature designates a crime as a felony, it signals to the
world the highest degree of societal condemnation for the act,
a condemnation that a misdemeanor does not convey. The
commission of a felony often results in the lifelong forfeiture
of a number of rights, including the right to serve on a jury
and the fundamental right to vote. See, e.g., 28 U.S.C.
§ 1865(b)(5) (barring convicted felons from serving on a
federal jury); Richardson v. Ramirez, 418 U.S. 24, 56 (1974)
(upholding state felon disenfranchisement). A prohibition on
firearm ownership, like these other disabilities, is a reasonable
consequence of a felony conviction that the legislature is
entitled to impose without undertaking the painstaking case-
by-case assessment of a felon’s potential rehabilitation.
Because we conclude that convicted felons are excluded
from the scope of the Second Amendment, and that nothing
about Medina’s crime distinguishes him from other felons,
Medina’s claim fails. Because the claim fails at the first step
of the Schrader analysis, we need not reach the second step.
V. Conclusion
The Supreme Court said that laws barring the possession
of firearms by convicted felons are presumptively lawful. The
historical record and the decisions of other circuits reinforce
this. Medina has not presented evidence in this case that
16
overcomes this presumption. We therefore affirm the decision
of the district court.