Fraternal Order of Police v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 1999 Decided April 16, 1999

No. 97-5304

Fraternal Order of Police,

Appellant

v.

United States of America,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 97cv00145)

Robert M. Loeb, Attorney, U.S. Department of Justice,

argued the cause on rehearing for appellee. With him on the

briefs were Frank W. Hunger, Assistant Attorney General,

Wilma A. Lewis, U.S. Attorney, and Mark B. Stern, Attor-

ney, U.S. Department of Justice.

William J. Friedman, IV, argued the cause and filed the

answer brief on rehearing for appellant.

Donna F. Edwards was on the brief for amicus curiae The

National Network to End Domestic Violence.

Before: Williams, Ginsburg and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: In Moldea v. New York Times

Co., 22 F.3d 310, 311 (D.C. Cir. 1994), at the outset of an

opinion in which a panel on petition for rehearing abandoned

its initial view, we quoted Justice Frankfurter's remark,

"Wisdom too often never comes, and so one ought not to

reject it merely because it comes late." Henslee v. Union

Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949)

(Frankfurter, J., dissenting). It still seems good advice.

I.Background

In Fraternal Order of Police v. United States, 152 F.3d 998

(D.C. Cir. 1998) ("FOP I"), this panel addressed two provi-

sions of the 1996 amendments to the Gun Control Act of 1968,

18 U.S.C. s 921 et seq. The first was s 922(g)(9), which adds

domestic violence misdemeanants--"any person who has been

convicted in any court of a misdemeanor crime of domestic

violence"--to the list of those for whom it is unlawful to

possess a firearm "in or affecting interstate commerce" or to

receive a firearm that has been shipped in interstate or

foreign commerce. Besides covering additional persons, Con-

gress also amended a pre-existing exemption, s 925(a)(1),

which nullified the Gun Control Act's disabilities for "any

firearm ... issued for the use of ... any State or any

department, agency, or political subdivision thereof"; Con-

gress excluded the newly covered persons from the section's

benefits. Thus, domestic violence misdemeanants, unique

among persons forbidden to possess guns under the Act, are

not allowed to possess even government-issued firearms.

The Fraternal Order of Police challenged the amendments

on a variety of grounds, including the equal protection ele-

ment of the Fifth Amendment's due process clause. See

Bolling v. Sharpe, 347 U.S. 497, 500 (1954). We found such a

violation, holding that the amendments failed "rational basis"

review because of their harsher treatment of domestic vio-

lence misdemeanants as compared to domestic violence fel-

ons. See id. at 1002-03.

The United States petitioned for rehearing on two grounds:

that FOP had not properly raised an argument based on the

irrationality of the relative treatment of misdemeanants and

felons, and that we were incorrect to find the difference

irrational. We granted the petition, and requested briefing

and heard oral argument on both points. See Fraternal

Order of Police v. United States, 159 F.3d 1362 (1998).

We now determine that although it was likely improvident

to address the felon-misdemeanant equal protection question

in our original opinion, it has now become appropriate to do

so. We also reverse our previous position and hold that the

challenged provisions do satisfy rational basis review. This

requires us to reach FOP's other arguments: that s 922(g)(9)

violates due process by burdening the fundamental right to

bear arms, that it is beyond Congress's power under the

commerce clause, and that it violates the Tenth Amendment.

We reject all these claims.

II.Waiver of the felon-misdemeanant claim.

Although the felon-misdemeanant distinction was never the

focus of FOP's arguments, the Order did raise it twice in this

litigation: orally before the district court at the combined

summary judgment/preliminary injunction hearing and in its

reply brief here. After advancing FOP's principal equal

protection argument--that it was irrational to focus on do-

mestic violence misdemeanants to the exclusion of other

misdemeanants--FOP's counsel said:

The other strangeness about it is that, if you are convict-

ed of a felony, you are a convicted serial killer ... you

can be rearmed, or if you somehow become a police

officer after your conviction, you can keep your gun,

because you're a convicted felon. Fine. The exemption

section still obtains with respect to felonies.

So what's the rationality of, not only looking at one kind

of misdemeanor instead of all violent misdemeanors, but

leaving every felon able to be a law enforcement officer

and carry a weapon in the public interest? I mean the

States may regulate that, but the Federal government

isn't.

So if you looked just at the Federal enactment, it's

irrational to say that convicted felons can be police

officers and carry weapons, and people convicted of one

kind of misdemeanor cannot.

March 7, 1997 Hr'g Tr. at 50-51. Neither the government

nor the district court addressed the misdemeanant-felon dis-

tinction.

FOP's oral argument on the felon-misdemeanant distinction

was enough to satisfy the general requirement that an issue

on appeal be raised in the trial court. The government

complains that it lost any "opportunity to make a record as to

the relevant facts and legal arguments" because of FOP's

timing in raising the issue below. Gov't Reh'g Br. at 4. But

the government did not, as it could have, seek to submit a

post-argument brief or supplemental affidavits on the felon-

misdemeanant question. See Fed. R. Civ. P. 56(e) ("The

court may permit [summary judgment] affidavits to be sup-

plemented or opposed by depositions, answers to interrogato-

ries, or further affidavits."). Furthermore, the issue present-

ed is essentially a legal one, and the government has not

identified in its rehearing petition or briefs any type of factual

evidence it would have introduced if given the opportunity.

In any event, the District Court for the District of Colum-

bia regularly considers arguments raised for the first time at

oral argument in deciding dispositive motions. See Joslin Co.

v. Robinson Broadcasting Corp., 977 F. Supp. 491, 493

(D.D.C. 1997) (motion to dismiss); Jones v. WMATA, 1997

WL 198114, No. Civ. A. 95-2300-LFO, at *1 n.1 (D.D.C. April

10, 1997) (summary judgment); Richardson v. National Rifle

Ass'n, 871 F. Supp. 499, 501 (D.D.C. 1994) (summary judg-

ment). If the felon-misdemeanant issue had been properly

briefed on appeal, it would have been proper for us to address

it.

But FOP failed to raise the issue in its opening brief on

appeal. Although two passages in that brief might be read in

isolation as related to the felon-misdemeanant equal protec-

tion argument, context makes clear that neither one actually

did so. The first vague allusion was merely ancillary to

FOP's commerce clause argument, see FOP Br. at 34-35, and

the second, though vague, plainly related solely to FOP's

claim of irrational discrimination among misdemeanants, see

FOP Br. 39-40. Unsurprisingly, the government did not

address the felon-misdemeanant distinction in its brief.

FOP's reply brief, however, did raise it, saying, albeit in the

context of its commerce clause argument, that "[t]his limited

elimination of a long-standing exception is irrational....

Permitting a person convicted of a felony on a domestic

partner to benefit from the exception but not a person

convicted of a misdemeanor on a domestic partner serves no

legitimate goal." FOP Reply Br. at 16.

Normally, because of the likely unfairness to parties and

risk of improvident decisions, we would refuse to consider an

argument that an appellant failed to raise before its reply

brief. See, e.g., Doolin Sec. Sav. Bank v. OTS, 156 F.3d 190,

191 (D.C. Cir. 1998); McBride v. Merrell Dow & Pharms.,

Inc., 800 F.2d 1208, 1210-11 (D.C. Cir. 1986). Here, however,

the felon-misdemeanant issue was raised energetically by the

court at oral argument (perhaps because, although defectively

raised, it appeared comparatively straightforward), but the

government, though responding on the merits, made no men-

tion of FOP's waiver of the issue. Oral Arg. Tr. at 35-39.

Accordingly, we think it was within the court's discretion to

treat the government as having waived the waiver. See

United States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.

1994) (en banc); cf. Ochran v. United States, 117 F.3d 495,

503 (11th Cir. 1997) (weighing "prejudice to the parties" and

"interest of justice" in determining whether to treat govern-

ment as having waived appellant's failure to raise argument

below).

That of course is not to say that affirmative exercise of the

discretion was wise. We have already telegraphed that with

the more complete briefing we see the issue as coming out the

other way. In retrospect, it may well have been imprudent to

address the merits on so thin an argumentative record.

Now, however, both parties have weighed in on the issue in

considerable detail. The court has worked through it not

once but twice. So there is no special risk of reaching an

improvident decision; and, as the government has had (and

taken) the opportunity to respond, the most important re-

spect in which reaching the issue might have been "unfair" is

also absent. One might also think it "unfair" in a relevant

sense to be faced with the risk of losing a case on the basis of

an argument that one's adversary failed to raise in the time

and space allotted. But that seems weak here, as the govern-

ment shares some of the responsibility for our having missed

the procedural objection initially.

Thus, there is no bar to resolving the felon-misdemeanant

issue at this stage. In addition, there is an affirmative reason

for doing so: judicial economy. This panel's prior opinion

highlighted the felon-misdemeanant issue; it will surely be

raised again soon. The costs of now going forward being

modest, and the potential benefit being at least the norm for

any judicial decision, it makes little sense to drop the issue.

III.The rationality of the felon/misdemeanant distinction

The analysis of standing on this issue is unchanged from

our prior opinion. 152 F.3d at 1001-02. On the merits, it is

plain that ss 922(g)(9) and 925(a)(1) impose a harsher sanc-

tion on domestic violence misdemeanants than on felons.

Whereas gun possession by persons convicted of a crime

punishable by at least one year of imprisonment is subject to

s 925(a)(1)'s exemption for government-issued firearms, gun

possession by domestic violence misdemeanants is not. See

ss 922(g)(1) & (9), 925(a)(1).

Such domestic violence misdemeanants are not a suspect

class for equal protection analysis, and we assume for the

purposes of this section that the regulation does not infringe

a fundamental right. (In section IV we address and reject

the contention that s 922(g)(9) has been shown on this record

to infringe such a right.) Thus, the classification "must be

upheld against equal protection challenge if there is any

reasonably conceivable state of facts that could provide a

rational basis for the classification." FCC v. Beach Commu-

nications, Inc., 508 U.S. 307, 313 (1993).

Treating misdemeanants more harshly than felons seems

irrational in the conventional sense of that term. After all,

"what is uniform and undisputed is that the presence of some

aggravating circumstance (or perhaps the absence of a miti-

gating one) is necessary to establish a felony." FOP I, 152

F.3d at 1003. In the standard equal protection case the

legislature is fully entitled to weigh one characteristic more

heavily than another, even though the balance may seem

baffling to the court. But here Congress has incorporated a

set of classifications made by state legislators who clearly

regarded the felons' conduct as calling for greater severity

than the misdemeanants'--whether because of moral oppro-

brium, risk to society, or whatever criteria may have guided

their judgment. Yet Congress inverted this adopted classifi-

cation, imposing a lesser disability on the felons, whom the

state legislators had singled out for more severe treatment.

Thus the usual proposition that Congress is entitled to ad-

dress a problem "one step at a time" is not self-evidently

applicable. See id.

But on reflection it appears to us not unreasonable for

Congress to believe that existing laws and practices adequate-

ly deal with the problem of issuance of official firearms to

felons but not to domestic violence misdemeanants--ade-

quately at least in the sense of explaining how Congress

might have found that as to felons the net benefit of federal

prohibition (and non-exemption) fell below the net benefit of

prohibition and non-exemption as to misdemeanants. Al-

though state laws do not uniformly ban felons from possess-

ing guns, as we observed in FOP I, see 152 F.3d at 1003,

nonlegal restrictions such as formal and informal hiring prac-

tices may, as the government argues, prevent felons from

being issued firearms covered by s 925(a)(1) in a large mea-

sure of the remaining cases. In the absence of evidence

negating these propositions, they indicate that there is a

reasonably "conceivable state of facts" under which it is

rational to believe that the felon problem makes a weaker

claim to federal involvement than the misdemeanant one.

When the government is faced with a practical determination

like this one, we are obliged to accept "rough," even "illogi-

cal," solutions with an "imperfect fit between means and

ends." See Heller v. Doe, 509 U.S. 312, 321 (1993).

We note that federal criminal prohibitions in areas tradi-

tionally left to the states always entail costs--such as loss of

state capacity to experiment (and of others to learn from the

experiments), some atrophy of state authority, and loss of the

nuance possible where regulation is by governmental institu-

tions closer to the local scene. Thus Congress's self-

limitation here may reflect a legitimate accommodation of the

inherent interest in minimizing the scope of potentially intru-

sive federal legislation. This parallels our observation in

Blount v. SEC, 61 F.3d 938, 946 (D.C. Cir. 1995), on the

functions of underinclusiveness analysis in the First Amend-

ment realm. It addresses whether the proffered state inter-

est actually underlies the disputed law; once that is estab-

lished, there is no occasion for any inquiry into whether some

broader restriction on speech would more effectively advance

the specified set of legislative aims.

We leave for another day the complex interpretive issues

posed by the statutory provision relieving an offender of the

disability where the underlying conviction has been expunged

or set aside, or the offender pardoned, or where civil rights

that have been revoked are restored. See 18 U.S.C.

s 921(a)(33)(B)(ii); FOP I, 152 F.3d at 1003-04. The possible

anomalies noted in our earlier opinion and in those of other

courts have not been addressed in the briefs and their impact

would appear to turn on a detailed analysis of applicable state

law and its interaction with federal law.

Finally, we reaffirm the determination in our original opin-

ion that a special focus on domestic violence misdemeanants,

as opposed to other misdemeanants, was not irrational under

the norms of equal protection jurisprudence. See id. at 1002-

03.

IV.Other constitutional claims

A.Standing

In FOP I we found that FOP members who are chief law

enforcement officers ("CLEOs") would have Article III stand-

ing to challenge ss 922(g)(9) and 925(a)(1): the provisions

injure the CLEOs because they prevent them from using

officers affected by the ban in situations requiring firearms,

and the injury is redressable by this court. FOP I, 152 F.3d

at 1001-02. Further, FOP satisfied the standards of Hunt v.

Washington State Apple Advertising Comm'n, 432 U.S. 333,

343 (1977), for Article III standing--(1) CLEOs are among

FOP's members, (2) the challenge is germane to its purpose,

and (3) the CLEOs' participation as individuals is not neces-

sary for disposition of the case--at least as to those claims for

which the complaining CLEOs also have prudential standing.

In FOP I we raised the question whether a deficiency in

prudential standing on the part of members would translate,

for the association, into a deficiency in Article III standing or

into one in prudential standing. 152 F.3d at 1001 n.1. As we

found prudential standing for the CLEOs on the equal pro-

tection claim, in the end we didn't need to resolve the issue.

But the analysis we used for prudential standing for the

CLEOs depended on the claim's being one of equal protec-

tion, and so is unavailable for the issues now before us.

It is, however, permissible to reject a claim on the merits

without having explicitly resolved the prudential standing

issue. For one reason, as the Court has explained, overlap

between the merits and prudential standing is sometimes so

great as to make any distinction artificial. Steel Co. v.

Citizens for a Better Env., 523 U.S. 83, 118 S. Ct. 1003, 1013-

14 n.2 (1998). See also George E. Warren Corp. v. EPA, 164

F.3d 676 (D.C. Cir. 1999). But we may proceed along this

line only if our answer to the question left open in FOP I is

that a failure in members' prudential standing constitutes

only a failure in prudential standing for the association.

As we suggested in FOP I would be the case, that is our

answer. Cases have treated the first Washington Apple

requirement (that a member have standing) as entirely con-

stitutional, see, e.g., United Food & Comm'l Workers v.

Brown Group, 517 U.S. 544, 554-56 (1996), but those cases

did not confront the significance of a member's having consti-

tutional but not prudential standing. Basically the first crite-

rion appears simply to look through the associational veil to

the member's interest; the second (germaneness to the asso-

ciation's purposes) aims at assuring proper representative-

ness and is thus needed to establish requisite adversariness,

and the third (absence of any need to have the members

before the court) meets certain convenience considerations.

Id. Because the association functions only as a transparency

in relation to the requirement of a member's standing, we

think the normal (qualified) excusability of addressing pru-

dential standing is passed through to the association. Ac-

cordingly, we move on to the merits.

B. Merits

SubstantiveDue Process; Second Amendment

FOP argues that s 922(g)(9) violates the substantive due

process guarantee of the Fifth Amendment by "unnecessarily

and irrationally burdening important individual interests in

possession of a firearm in the public interest, in serving the

communit[y], and in pursuing an established career." FOP

Br. at 36. The second interest has clearly not attained the

status of a fundamental right. As to the third, it is true that

if government action against a particular person "precludes"

him from pursuing his profession, that action can infringe a

"liberty interest"; if so, the predicate procedures must satisfy

due process requirements. See Kartseva v. Department of

State, 37 F.3d 1524, 1529-30 (D.C. Cir. 1994). But FOP's

claim is that s 922(g)(9) violates "substantive" due process;

yet it has failed to develop either a factual record or the legal

standard for evaluating whether s 922(g)(9) burdens the lib-

erty interest so deeply as to require even justification. Ac-

cordingly we turn directly to the claim arising from the

Second Amendment.

First we note that on appeal FOP also raises an indepen-

dent Second Amendment claim. But as it did not do so in the

district court1 we do not address it in that form. We must

confess, however, that we are mystified by the decision to

advance a substantive due process claim based on an explicit

Second Amendment right in preference to a simple assertion

of the explicit right itself. It is not apparent how a claim

might be strengthened by being tucked into the catch-all of

substantive due process.

In any event, the claim obviously requires us to consider

the Second Amendment right, on which the Supreme Court's

guidance has been notoriously scant. The government argues

that FOP's claim fails because FOP has not "alleg[ed], much

less prov[en], that section 922(g)(9) has any relationship to

the 'preservation or efficiency of a well regulated militia.' "

Gov't Br. at 35 (quoting United States v. Miller, 307 U.S. 174,

178 (1939)). Since Miller dealt with Congress's authority to

prohibit ownership of short-barreled shotguns, FOP could

have challenged the test's applicability by arguing that it

serves only to separate weapons covered by the amendment

from uncovered weapons. It did not do so, and we thus

assume the test's applicability.

But we are not altogether clear what kind of "relation-

ship"--or, to quote Miller more precisely, "reasonable rela-

tionship," id.--is called for here. This Miller test appears in

some sense to invert the commercial speech test, which

requires the government to show that legislation restricting

such speech bears a reasonable relationship to some "legiti-

mate" or "substantial" goal. See, e.g., City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 416 (1993); Board of

Trustees v. Fox, 492 U.S. 469, 480 (1989). We suppose Miller

__________

1 There FOP invoked the Second Amendment only as part of

arguments that s 922(g)(9) violates the Tenth Amendment and the

constitutional guarantees of substantive due process and equal

protection. See Hearing Trans. at 47, 52 (Tenth Amendment);

FOP Memo. in Support of Prel. Inj. at 15, 18 (equal protection and

substantive due process); FOP Resp. and Reply at 15-16 (Tenth

Amendment).

would be met by evidence supporting a finding that the

disputed rule would materially impair the effectiveness of a

militia, though perhaps some other showing could suffice.

We need not fix the exact form of the required relationship,

however, because FOP has presented no evidence on the

matter at all.

Instead FOP simply argues that, in "most" states, police

officers can be called into service as militia members. But

none of the nine states' provisions it cites appears to make

police officers any more susceptible to such service than

ordinary citizens (or in some cases, than males between the

ages of 17 and 45). In any event, s 922(g)(9) does not hinder

the militia service of all police officers, only of domestic

violence misdemeanants whose convictions have not been

expunged, etc. FOP never indicates how restrictions on the

latter, relevant class would have a material impact on the

militia.

TenthAmendment

FOP's Tenth Amendment challenge fails because

s 922(g)(9) does not force state officials to do anything affir-

mative to implement its bar on domestic violence misdemean-

ants' possession of firearms. The Amendment forbids the

federal government to "conscript[ ] the State's officers" to

"enforce a federal regulatory program," Printz v. United

States, 117 S. Ct. 2365, 2384 (1997), but FOP has presented

no evidence that s 922(g)(9) enacts any such conscription.

Although the Gun Control Act does not designate an agen-

cy responsible for enforcement of its criminal provisions, both

the contentions of the parties and undisputed record evidence

indicate that federal authorities, in particular the Bureau of

Alcohol, Tobacco, and Firearms ("ATF"), have such enforce-

ment responsibility for s 922(g)(9). See Memo in Support of

Plaintiff's Motion for a Preliminary Injunction, at 2; Gov't Br.

at 33; Nicholas M. Gess, Director, Office of Intergovernmen-

tal Affairs, Department of Justice, "Memorandum for All

Interested Law Enforcement Groups," Dec. 6, 1996, at 2. It

is true that ATF has made suggestions to state and local law

enforcement officials about how best to deal with employees

newly disqualified from carrying firearms. See, e.g., John W.

Magaw, Director, ATF, "Open Letter to All State and Local

Law Enforcement Officials," Nov. 26, 1996, at 2-3. But even

if these purported to require nonfederal authorities to em-

bark on active enforcement measures, they would evidently

represent a transgression of the Bureau's statutory authority

rather than dutiful implementation of an unconstitutional

statute. In fact, however, the Open Letter does not seem to

suggest even an implied claim of authority to compel local law

enforcement officials to take active measures. For employees

subject to the disability, it advises that "[i]f such person

refuses to relinquish the firearm ... , and your agency is

without authority to retain or seize the firearm ... , you

should contact the local ATF office." Id. at 3.

FOP argues that s 922(g)(9) unconstitutionally restricts

states' power to determine police officers' "qualifications for

office," FOP Br. at 21, by prohibiting domestic violence

misdemeanants from holding law enforcement positions re-

quiring the use of firearms. But assuming that this consti-

tutes federal regulation of "core" areas of state sovereignty,

the Supreme Court no longer reads the Tenth Amendment as

forbidding such regulation, relegating to the political process

the states' protection from undue intrusion in this form. See

South Carolina v. Baker, 485 U.S. 505, 511 (1988); Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528, 550-54

(1985).

Even if the Tenth Amendment insulated some areas of

state activity from negative federal regulation, FOP's claim

would be overbroad. It may commonly be a side effect of

federal prohibitions to impair offenders' fitness for service as

a police officer. Showing up for work at some spot other

than a federal prison is a qualification for most state posi-

tions; federal incarceration intrudes inescapably. Of course

s 925(a)(1)'s exemption for state-issued weapons protects

states from this sort of peripheral interference as to all

persons barred by federal law from weapons possession other

than domestic violence misdemeanants, but the exemption's

existence does not establish it either as a constitutional right

or as a baseline for measuring claims under the Tenth

Amendment--or any other constitutional provision.

Commerce Clause

FOP argues that s 922(g)(9) is beyond Congress's power to

enact under the commerce clause. We join all the numbered

circuits2 in rejecting this argument because s 922(g)(9) con-

tains a "jurisdictional element": in any prosecution under the

provision for possession, the government must prove that the

defendant possessed the firearm "in or affecting commerce."

In United States v. Bass, 404 U.S. 336 (1971), the Supreme

Court confronted an ambiguity in a provision imposing penal-

ties on any felon who "receives, possesses, or transports in

commerce or affecting commerce ... any firearm." The

United States argued that the phrase "in commerce or affect-

ing commerce" qualified only "transports," while the defen-

dant contended that the commerce requirement applied to

"receives" and "possesses" as well. The Court resolved the

ambiguity in favor of the defendant and noted that that

disposition made it unnecessary to reach the question "wheth-

er, upon appropriate findings, Congress can constitutionally

punish the 'mere possession' of firearms." Bass, 404 U.S. at

339 n.4. Since the Court held that a qualification substantial-

ly identical to the one here made it unnecessary even to

consider whether the prohibition in question exceeded Con-

gress's power, the enactment here, as so qualified, must also

fall within Congress's authority.3 United States v. Lopez, 514

__________

2 See United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996);

United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1995); United

States v. Gateward, 84 F.3d 670, 672 (3d Cir. 1996); United States

v. Wells, 98 F.3d 808, 811 (4th Cir. 1996); United States v. Rawls,

85 F.3d 240, 242 (5th Cir. 1996); United States v. Turner, 77 F.3d

887, 889 (6th Cir. 1996); United States v. Lewis, 100 F.3d 49, 52

(7th Cir. 1996); United States v. Barry, 98 F.3d 373, 378 (8th Cir.

1996); United States v. Nguyen, 88 F.3d 812, 820-21 (9th Cir. 1996);

United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995); United

States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996).

3 18 U.S.C. s 922(d)(9), barring transfer of firearms to the

various proscribed persons, lacks any such explicit jurisdictional

U.S. 549 (1995), does not change the impact of Bass, for in

Lopez the Court explicitly noted that the law there held

unconstitutional contained "no jurisdictional element which

would ensure, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce." Id. at

561. See also United States v. Harrington, 108 F.3d 1460,

1465 (D.C. Cir. 1997), in which we found that the government

had presented enough evidence to satisfy the Hobbs Act

provision criminalizing robbery or extortion that "obstructs,

delays, or affects commerce," 18 U.S.C. s 1951(a), and made

clear that satisfaction of such a requirement would bring the

statute safely within the Congress's commerce clause authori-

ty.

Finally, to the extent that ATF missives on the subject may

be disregarding the jurisdictional element, see ATF, "Misde-

meanor Crime of Domestic Violence: Questions and An-

swers," Feb. 14, 1997, at 1 (saying that "law enforcement

officers and other Government officials who have been con-

victed of a disqualifying misdemeanor may not lawfully pos-

sess or receive firearms or ammunition for any purpose,

including performance of their official duties"), such commu-

nications pose an issue of agency excess of statutory authori-

ty, which here would be dispositive before any constitutional

issue would be reached.

* * *

The district court's order granting summary judgment for

the defendant is

Affirmed.

__________

hook, but FOP has not challenged that provision, as its counsel

conceded at oral argument on rehearing.