Jefferson Schrader v. Eric Holder, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2012 Decided January 11, 2013

No. 11-5352

JEFFERSON WAYNE SCHRADER AND SECOND AMENDMENT

FOUNDATION, INC.,

APPELLANTS

v.

ERIC H. HOLDER, JR., ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01736)

Alan Gura argued the cause for appellants. With him on

the briefs was Thomas M. Huff.

Anisha S. Dasgupta, Attorney, U.S. Department of

Justice, argued the cause for appellees. With her on the brief

were Stuart F. Delery, Acting Assistant Attorney General,

Ronald C. Machen, Jr., U.S. Attorney, Michael S. Raab,

Attorney, and Jane M. Lyons and R. Craig Lawrence,

Assistant U.S. Attorneys.

Before: TATEL, Circuit Judge, and WILLIAMS and

RANDOLPH, Senior Circuit Judges.

2

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Due to a conviction some forty

years ago for common-law misdemeanor assault and battery

for which he served no jail time, plaintiff Jefferson Wayne

Schrader, now a sixty-four-year-old veteran, is, by virtue of

18 U.S.C. § 922(g)(1), barred for life from ever possessing a

firearm. Together with the Second Amendment Foundation,

Schrader contends that section 922(g)(1) is inapplicable to

common-law misdemeanants as a class and, alternatively, that

application of the statute to this class of individuals violates

the Second Amendment. Because we find plaintiffs’ statutory

argument unpersuasive and see no constitutional infirmity in

applying section 922(g)(1) to common-law misdemeanants,

we affirm the district court’s dismissal of the complaint.

I.

Enacted in its current form in 1968, section 922(g)(1) of

Title 18 of the United States Code prohibits firearm

possession by persons convicted of “a crime punishable by

imprisonment for a term exceeding one year.” 18 U.S.C.

§ 922(g)(1). Section 921(a)(20)(B), however, exempts “any

State offense classified by the laws of the State as a

misdemeanor and punishable by a term of imprisonment of

two years or less.” 18 U.S.C. § 921(a)(20)(B). This case

concerns the application of these provisions to convictions for

common-law misdemeanors that carry no statutory maximum

term of imprisonment.

Section 922(g)(1)’s prohibition on firearm possession

applies, with some exceptions not relevant here, for life. The

statute, however, contains a “safety valve” that permits

individuals to apply to the Attorney General for restoration of

their firearms rights. Logan v. United States, 552 U.S. 23, 28

n.1 (2007). Specifically, section 925(c) provides that the

3

Attorney General may grant such individuals relief “if it is

established to his satisfaction that the circumstances regarding

the disability, and the applicant’s record and reputation, are

such that the applicant will not be likely to act in a manner

dangerous to public safety and that the granting of the relief

would not be contrary to the public interest.” 18 U.S.C.

§ 925(c). But since 1992, “Congress has repeatedly barred the

Attorney General from using appropriated funds to investigate

or act upon relief applications,” leaving the provision

“inoperative.” Logan, 552 U.S. at 28 n.1 (internal quotation

marks and alterations omitted); see also United States v.

Bean, 537 U.S. 71, 74–75 (2002).

In 1968, while walking down the street in Annapolis,

Maryland, plaintiff Jefferson Wayne Schrader, then twenty

years old and serving in the United States Navy, encountered

a member of a street gang who, according to the complaint,

had assaulted him a week or two earlier. Second Am. Compl.

¶¶ 9–10; see also Wagener v. SBC Pension Benefit Plan-Non

Bargained Program, 407 F.3d 395, 397 (D.C. Cir. 2005)

(explaining that, in reviewing district court’s grant of motion

to dismiss, the court must assume that facts alleged in the

complaint are true). “A dispute broke out between the two, in

the course of which Schrader punched his assailant.” Second

Am. Compl. ¶ 10. As a result, Schrader was convicted of

common-law misdemeanor assault and battery in a Maryland

court and fined $100. Id. ¶ 11. The court imposed no jail time.

Id. Schrader went on to complete a tour in Vietnam and

received an honorable discharge from the Navy. Id. ¶ 12.

Except for a single traffic violation, he has had no other

encounter with the law. Id.

According to the complaint, “[o]n or about November 11,

2008, Schrader’s companion attempted to purchase him a

shotgun as a gift,” and some two months later, “Schrader

4

ordered a handgun from his local firearms dealer, which he

would keep for self-defense.” Id. ¶ 14. Both transactions

“resulted in . . . denial decision[s] by the FBI when the

National Instant Criminal Background Check (‘NICS’)

computer system indicated that Mr. Schrader is prohibited

under federal law from purchasing firearms.” Id. ¶ 15. The

FBI later “advised Schrader that the shotgun transaction was

rejected pursuant to 18 U.S.C. § 922(g)(1) on the basis of his

1968 Maryland misdemeanor assault conviction.” Id. ¶ 16. In

a letter to Schrader, the FBI explained that he had “been

matched with the following federally prohibitive criteria

under Title 18, United States Code, Sections 921(a)(20) and

922(g)(1): A person who has been convicted in any court of a

crime punishable by imprisonment for a term exceeding one

year or any state offense classified by the state as a

misdemeanor and . . . punishable by a term of imprisonment

of more than two years.”

At the time of Schrader’s conviction, “[t]he common law

crimes of assault and battery [in Maryland] had no statutory

penalty.” Robinson v. State, 728 A.2d 698, 702 n.6 (Md.

1999). Although Maryland later codified these offenses, see

Md. Code Ann., Crim. Law §§ 3-201, 3-202, 3-203, when

Schrader was convicted “[t]he maximum term of

imprisonment [for these offenses] was ordinarily limited only

by the prohibition against cruel and unusual punishment

contained in the Eighth Amendment to the United States

Constitution and Articles 16 and 25 of the Maryland

Declaration of Rights,” Robinson, 728 A.2d at 702 n.6. As the

FBI explained in a declaration filed in the district court,

because “[a]t the time of Schrader’s 1968 assault conviction,

Maryland law did not set a maximum sentence for

misdemeanor assault,” the FBI “determined that the

conviction triggered 18 U.S.C. § 921(a)(20) and 18 U.S.C.

§ 922(g)(1), which prohibit firearm possession by an

5

individual convicted of a state offense classified by the state

as a misdemeanor that is punishable by a term of

imprisonment of more than two years.”

Schrader and the Second Amendment Foundation—an

organization that conducts “education, research, publishing

and legal action focusing on the Constitutional right to

privately own and possess firearms, and the consequences of

gun control,” Second Am. Compl. ¶ 2—sued the Attorney

General and the FBI in the United States District Court for the

District of Columbia, raising two claims. The first is statutory.

Plaintiffs argued that Schrader’s “conviction for misdemeanor

assault cannot be the basis for a firearms disability under 18

U.S.C. § 922(g)(1), because Schrader was not actually

sentenced to a term of imprisonment exceeding two years.”

Id. ¶ 19. Plaintiffs further alleged that “Maryland’s failure to

codify a statutory penalty for a simple common law

misdemeanor does not create a firearms disability under

federal law for conviction of such common law misdemeanor

offense.” Id. Second, presenting an as-applied constitutional

claim, plaintiffs asserted that “barring possession of firearms

by individuals on account of simple common-law

misdemeanor offenses carrying no statutory penalties . . .

violates the Second Amendment right to keep and bear arms.”

Id. ¶ 22. Plaintiffs sought “[i]njunctive relief commanding

Defendants to withdraw their record pertaining to Plaintiff

Schrader from NICS” and an order enjoining defendants

“from enforcing 18 U.S.C. § 922(g)(1) on the basis of simple

common-law misdemeanor offenses carrying no statutory

penalties.” Id. Prayer for Relief ¶¶ 1-2.

The government moved to dismiss pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, and

plaintiffs cross-moved for summary judgment. The district

court, concluding that plaintiffs had failed to state either a

6

statutory or constitutional claim for relief, granted the motion

to dismiss and denied the cross-motion for summary

judgment. With respect to the statutory claim, the district

court rejected plaintiffs’ argument that Schrader’s actual

sentence of less than two years’ imprisonment was

dispositive, noting that “only the possibility of punishment of

more than two years for a misdemeanor matters for purposes

of § 922(g)(1).” Schrader v. Holder, 831 F. Supp. 2d 304, 310

n.4 (D.D.C. 2011). Thus, the district court found Schrader’s

offense ineligible for the misdemeanor exception for offenses

“punishable by a term of imprisonment of two years or less,”

18 U.S.C. § 921(a)(20)(B), because the absence of a statutory

maximum punishment meant that the Maryland court could

have sentenced Schrader to more than two years’

imprisonment, Schrader, 831 F. Supp. 2d at 310. Finally, the

district court rejected plaintiffs’ argument that “uncodified

common-law offenses are not ‘punishable’ by any particular

statutory criteria and, therefore, do not fall within the purview

of § 922(g) at all.” Id. at 309.

In rejecting plaintiffs’ constitutional claim, the district

court relied on the Supreme Court’s observation in District of

Columbia v. Heller, 554 U.S. 570 (2008), that “ ‘the right

secured by the Second Amendment is not unlimited,’ ” as

well as the Court’s inclusion of “ ‘longstanding prohibitions

on the possession of firearms by felons’ ” within a list of

“ ‘presumptively lawful regulatory measures.’ ” Schrader,

831 F. Supp. 2d at 311–12 (quoting Heller, 554 U.S. at 626–

27 & n.26) (emphasis omitted). The district court found “no

constitutional impediment” to including common-law

misdemeanants like Schrader within the federal firearms ban.

Id. at 312.

Plaintiffs appeal, reiterating the statutory and

constitutional claims raised in the district court. We consider

7

each in turn, reviewing de novo the district court’s dismissal

of the complaint. Hettinga v. United States, 677 F.3d 471, 476

(D.C. Cir. 2012) (per curiam).

II.

Recall the statutory language at issue. Section 922(g)(1)

prohibits firearm possession by persons convicted of “a crime

punishable by imprisonment for a term exceeding one year.”

18 U.S.C. § 922(g)(1). Section 921(a)(20)(B) exempts “any

State offense classified by the laws of the State as a

misdemeanor and punishable by a term of imprisonment of

two years or less.” Id. § 921(a)(20)(B).

As an initial matter, plaintiffs no longer appear to be

arguing, as they did in their complaint, that section

921(a)(20)(B) exempts Schrader’s offense from the federal

firearms ban “because Schrader was not actually sentenced to

a term of imprisonment exceeding two years.” Second Am.

Compl. ¶ 19. Indeed, other courts of appeals have uniformly

rejected the argument that the actual sentence imposed is

controlling for purposes of triggering the federal firearms ban.

See, e.g., United States v. Coleman, 158 F.3d 199, 203–04

(4th Cir. 1998) (en banc); United States v. Horodner, 993

F.2d 191, 194 (9th Cir. 1993).

Instead, plaintiffs argue more broadly that section

922(g)(1) is inapplicable to common-law offenses because

such offenses “are not ‘punishable by’ any particular statutory

criteria.” Appellants’ Br. 17. Given the nature of common-law

offenses, this argument fails. Although the category of

“common-law offenses” is rather broad, varying widely from

state to state, when Congress enacted section 922(g)(1) in

1968, many common-law crimes involved quite violent

behavior. In Maryland, for example, attempted rape and

attempted murder were common-law misdemeanors that

8

carried no statutory maximum sentence. See Hardy v. State,

482 A.2d 474, 476–77 (Md. 1984); Glass v. State, 329 A.2d

109, 112 (Md. Ct. Spec. App. 1974). The offense for which

Schrader was convicted—common-law assault and battery—

provides another example. Before Maryland codified the

crime of common-law assault in 1996, the offense included all

forms of assault with the exception of certain narrow

categories of statutory aggravated assaults that were defined

as felonies. See Walker v. State, 452 A.2d 1234, 1247 & n.11

(Md. Ct. Spec. App. 1982). As a result, the offense

“embrace[d] an almost infinite variety of fact patterns.”

Simms v. State, 421 A.2d 957, 965 (Md. 1980). Many of these

fact patterns involved serious, violent conduct, and many

offenders received sentences of ten or twenty years’

imprisonment. See Thomas v. State, 634 A.2d 1, 8 & nn. 3, 4

(Md. 1993) (collecting cases). In one case, for example, a

defendant was sentenced to fifteen years for common-law

assault where he forced a man “into a car, stabbed him twice

in the neck and three times in the chest, dragged him out of

the car and left him bleeding in a street gutter.” Sutton v.

Maryland, 886 F.2d 708, 709 (4th Cir. 1989) (en banc). As

one Maryland court explained:

[S]tatutory assaults have not preempted the field of

all serious and aggravated assaults. Our Legislature

has cut out of the herd for special treatment four

assaults where the aggravating factor is a special

mens rea or specific intent. This by no means

exhausts the category of more grievous and

blameworthy assaults. The aggravating factor in a

particular case might well be the modality of an

assault, and not its mens rea—assault with a deadly

weapon, assault by poison . . ., assault by bomb. . . .

Even where . . . there simply has been no specific

intent, a brutal beating that leaves its victim blinded,

9

crippled, disfigured, in a wheelchair for life, in a

psychiatric ward for life, is severely aggravated. . . .

Maryland has not dealt with this form of aggravation

legislatively but has left it to the discretion of

common law sentencing.

Walker, 452 A.2d at 1247–48; see also Simms, 421 A.2d at

965 (“Some ‘simple assaults’ may involve more brutal or

heinous conduct than may be present in other cases falling

within one of the statutory aggravated assaults.”).

Significantly, moreover, the earliest version of the federal

firearms ban, which applied to certain “crime[s] of violence,”

specifically included among such crimes “assault with a

dangerous weapon,” Federal Firearms Act, ch. 850,

§§ 1(6), 2(f), 52 Stat. 1250, 1250-51 (1938)—a crime that

Maryland, at the time of section 922(g)(1)’s enactment,

punished as a common-law misdemeanor, see Walker, 452

A.2d at 1248 (noting that Maryland punished assault with a

deadly weapon as a common-law misdemeanor rather than as

a statutory offense). We doubt very much that when Congress

expanded the firearms prohibition to cover, as the statute now

does, all individuals convicted of a “crime punishable by

imprisonment for a term exceeding one year,” see An Act to

Strengthen the Federal Firearms Act, Pub. L. No. 87-342, § 2,

75. Stat. 757, 757 (1961), it intended to exclude all common-

law offenses, even those that previously fell within the ambit

of the federal firearms ban.

Plaintiffs’ argument also runs counter to the common-

sense meaning of the term “punishable,” which refers to any

punishment capable of being imposed, not necessarily a

punishment specified by statute. See Webster’s Third New

International Dictionary 1843 (1993) (defining “punishable”

as “deserving of, or liable to, punishment: capable of being

10

punished by law or right”). Because common-law offenses

carry no statutory maximum term of imprisonment, they are

capable of being punished by a term of imprisonment

exceeding one year and thus fall within section 922(g)(1)’s

purview. And because such offenses are also capable of being

punished by more than two years’ imprisonment, they are

ineligible for section 921(a)(20)(B)’s misdemeanor exception.

The sparse case law interpreting the term “punishable” in

the context of uncodified common-law offenses reinforces our

conclusion that the term refers to the maximum potential

punishment a court can impose, whether or not set by statute.

In United States v. Coleman, 158 F.3d 199 (4th Cir. 1998) (en

banc), the defendant argued that his Maryland conviction for

common-law misdemeanor assault should not trigger the

Armed Career Criminal Act sentence enhancement which,

like section 922(g)(1), turns on whether a predicate conviction

qualifies as a “crime punishable by imprisonment for a term

exceeding one year.” See 18 U.S.C. § 924(e)(1), (e)(2)(B).

The defendant asserted that “because he actually received a

sentence of 18 months imprisonment, . . . his conviction

should fit within the [section 921(a)(20)(B)] misdemeanor

exclusion.” Coleman, 158 F.3d at 203. In rejecting this

argument, the Fourth Circuit, sitting en banc, overruled an

earlier panel opinion which had held that, for convictions of

common-law simple assault in Maryland, “the actual sentence

imposed should control whether or not a conviction for such a

crime should be” deemed an offense “punishable by

imprisonment for a term exceeding one year.” United States v.

Schultheis, 486 F.2d 1331, 1332, 1335 (4th Cir. 1973). The

court instead defined “punishable” in relation to the maximum

potential punishment a defendant could receive. “While a

Maryland conviction for common-law assault is classified as a

misdemeanor,” the court explained, “the offense carries no

maximum punishment; the only limits on punishment are the

11

Cruel and Unusual Punishment Clauses of the Maryland and

United States Constitutions. As such, a Maryland common-

law assault clearly is punishable by more than two years

imprisonment . . . .” Coleman, 158 F.3d at 203 (internal

quotation marks and citation omitted). Rejecting the argument

that the absence of statutory sentencing criteria compelled a

different reading of the statute, the court explained that “[t]he

plain wording of the statute applies equally when the potential

term of imprisonment is established by the common law and

limited only by the prohibition on cruel and unusual

punishments as when the range of possible terms of

imprisonment is determined by a statute.” Id. at 204.

Plaintiffs insist that their interpretation of the statute is

“compelled by the federal scheme’s structural reliance on the

judgment of the convicting jurisdiction’s legislature”

regarding the seriousness of an offense. Appellants’ Br. 19.

According to plaintiffs, because “[t]he State chooses how

harshly to punish its own crimes, and Congress defers to the

wisdom of that localized judgment,” to permit the federal

firearms ban “to encompass state common law crimes for

which no legislative judgment has been expressed would

grant the federal government a power that has been statutorily

entrusted to the States.” Appellants’ Br. 20. As the district

court pointed out, however, “the choice of a State legislature

to rely on judicial discretion at sentencing on certain common

law misdemeanors represents a legislative choice just as the

adoption of a statute would.” Schrader, 831 F. Supp. 2d at

310. With respect to common-law assaults, for example,

Maryland courts have observed that the State, through its

legislature, decided to “trust[] the wide discretion of the

common law sentencing provisions to deal appropriately

with” the broad range of “severely aggravated assaults” that

were at the time uncodified in Maryland. Walker, 452 A.2d at

1248. We see no basis for thinking that Maryland, having left

12

such sentencing to the discretion of common-law judges, had

somehow signaled its view that these offenses were

insufficiently serious to trigger the federal firearms ban.

“Rather than trying to list by statute every circumstance that

might make an assault more ‘grievous and blameworthy,’ ”

the Fourth Circuit has explained, “Maryland wisely left

common law assault in place and trusted its trial judges to

fashion an appropriate punishment within constitutional

limits.” Sutton, 886 F.2d at 711. Indeed, when codifying the

offense in 1996, Maryland demonstrated the seriousness with

which it views common-law assaults by authorizing

imprisonment of up to twenty-five years for felony First

Degree Assault and up to ten years for misdemeanor Second

Degree Assault. Md. Code Ann., Crim. Law §§ 3-202, 3-203.

Next, plaintiffs claim that “[s]ection 922’s overarching

design reveals no intent to impose a blanket firearms ban on

common law misdemeanants.” Appellants’ Br. 22. In support,

plaintiffs point out that Congress subjected a specific category

of misdemeanor convictions to the federal firearms ban when

it enacted the 1996 Lautenberg Amendment to the Gun

Control Act of 1968, which prohibits firearm possession by

any person convicted of “a misdemeanor crime of domestic

violence.” Omnibus Consolidated Appropriations Act of

1997, Pub. L. No. 104-208, § 658, 110 Stat. 3009, 3009-371

to -372 (1996). According to plaintiffs, “Congress’s explicit

reference to this special category of misdemeanor convictions

shows that when it wants to reach beyond traditional felonies,

it does so clearly.” Appellants’ Br. 23. But Congress did reach

beyond felonies when it enacted section 921(a)(20)(B), which

expressly provides that certain State misdemeanors—those

punishable by more than two years’ imprisonment—fall

within the scope of section 922(g)(1). Plaintiffs’ argument,

then, boils down to the proposition that common-law

misdemeanors should be viewed differently from other State

13

misdemeanors punishable by more than two years’

imprisonment. This contention, however, flows not from any

insight gleaned from the statute, but rather from plaintiffs’

flawed belief that all common-law offenses are trivial.

Finally, plaintiffs argue that the canon of constitutional

avoidance requires us to adopt an alternative construction of

the term “punishable by” that would exclude common-law

misdemeanants from section 922(g)(1)’s purview. See

Northwest Austin Municipal Utility District No. One v.

Holder, 557 U.S. 193, 204, 207 (2009) (reading statute to

avoid deciding “serious constitutional questions”). As

explained below, however, section 922(g)(1)’s application to

common-law misdemeanants as a class creates no

constitutional problem that we need to avoid.

III.

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 “guarantee[s] the

individual right to possess and carry weapons in case of

confrontation,” and struck down District of Columbia laws

banning handgun possession in the home and requiring that

citizens keep their firearms in an inoperable condition. 554

U.S. at 592, 635. In doing so, the Court made clear that the

right guaranteed by the Second Amendment “is not

unlimited.” Id. at 626. “From Blackstone through the 19th-

century cases, commentators and courts routinely explained

that the right was not a right to keep and carry any weapon

whatsoever in any manner whatsoever and for whatever

purpose.” Id. Instead, 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. Although declining

14

to “undertake an exhaustive historical analysis . . . of the full

scope of the Second Amendment,” the Court made clear that

nothing in our opinion should be taken to cast doubt

on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive

places such as schools and government buildings, or

laws imposing conditions and qualifications on the

commercial sale of arms.

Id. at 626–27. The Court emphasized that it identified “these

presumptively lawful regulatory measures only as examples”

and that its list did “not purport to be exhaustive.” Id. at 627

n.26; see also McDonald v. City of Chicago, 130 S. Ct. 3020,

3047 (2010) (“We made it clear in Heller that our holding did

not cast doubt on such longstanding regulatory measures as

‘prohibitions on the possession of firearms by felons and the

mentally ill’ . . . . We repeat those assurances here.” (quoting

Heller, 554 U.S. at 626)).

After Heller, the District of Columbia adopted new gun

laws that were challenged in Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) (“Heller II”). There we

adopted, as have other circuits, a “two-step approach” to

analyzing Second Amendment challenges. Id. at 1252

(collecting cases). Given that “[u]nder Heller, . . . there are

certain types of firearms regulations that do not govern

conduct within the scope of the Amendment,” we first ask

whether the activity or offender subject to the challenged

regulation falls outside the Second Amendment’s protections.

Id. If the answer is yes, that appears to end the matter. Id. If

the answer is no, “then we go on to determine whether the

provision passes muster under the appropriate level of

constitutional scrutiny.” Id.

15

Courts of appeals have unanimously rejected Second

Amendment challenges to section 922(g)(1), typically relying

on the Supreme Court’s warning in Heller that nothing in its

opinion “should be taken to cast doubt on longstanding

prohibitions on the possession of firearms by felons.” Heller,

554 U.S. at 626; see United States v. Moore, 666 F.3d 313,

316–17 (4th Cir. 2012) (collecting cases). Seeking to

distinguish these cases, plaintiffs here argue that common-law

misdemeanants differ from felons and fall within the scope of

Second Amendment protection at the first step of the analysis.

Moreover, they assert, banning firearm possession by

common-law misdemeanants fails under the appropriate level

of constitutional scrutiny. The government disagrees on both

points. We need not resolve the first question, however,

because even if common-law misdemeanants fall within the

scope of the Second Amendment, the firearms ban imposed

on this class of individuals passes muster under the

appropriate level of constitutional scrutiny. See Heller II, 670

F.3d at 1261 (declining to resolve the scope inquiry “because

even assuming [the challenged regulations] do impinge upon

the right protected by the Second Amendment, we think

intermediate scrutiny is the appropriate standard of review

and the prohibitions survive that standard”).

“As with the First Amendment, the level of scrutiny

applicable under the Second Amendment surely ‘depends on

the nature of the conduct being regulated and the degree to

which the challenged law burdens the right.’ ” Id. at 1257

(quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir.

2010)). “That is, a regulation that imposes a substantial

burden upon the core right of self-defense protected by the

Second Amendment must have a strong justification, whereas

a regulation that imposes a less substantial burden should be

proportionately easier to justify.” Id. Plaintiffs urge us to

apply strict scrutiny, arguing that section 922(g)(1), by

16

completely disarming a class of individuals, places a

substantial burden on Second Amendment rights. In our view,

strict scrutiny is inappropriate. Although section 922(g)(1)’s

burden is certainly severe, it falls on individuals who cannot

be said to be exercising the core of the Second Amendment

right identified in Heller, i.e., “the right of law-abiding,

responsible citizens to use arms in defense of hearth and

home.” 554 U.S. at 635. Because common-law

misdemeanants as a class cannot be considered law-abiding

and responsible, supra at 7–9, we follow those “courts of

appeals [that] have generally applied intermediate scrutiny” in

considering challenges to “Congress’ effort under § 922(g) to

ban firearm possession by certain classes of non-law-abiding,

non-responsible persons who fall outside the Second

Amendment’s core protections.” United States v. Mahin, 668

F.3d 119, 123 (4th Cir. 2012) (collecting cases).

Intermediate scrutiny requires the government to show

that disarming common-law misdemeanants is “ ‘substantially

related to an important governmental objective.’ ” Heller II,

670 F.3d at 1258 (quoting Clark v. Jeter, 486 U.S. 456, 461

(1988)). Section 922(g)(1) easily satisfies this standard.

First, the statute’s overarching objective is obviously

“important.” As the Supreme Court has explained, “[t]he

principal purpose of the federal gun control legislation . . .

was to curb crime by keeping firearms out of the hands of

those not legally entitled to possess them because of age,

criminal background, or incompetency.” Huddleston v. United

States, 415 U.S. 814, 824 (1974) (internal quotation marks

omitted); see also United States v. Yancey, 621 F.3d 681,

683–84 (7th Cir. 2010) (“Congress enacted the exclusions in

§ 922(g) to keep guns out of the hands of presumptively risky

people. The broad objective of § 922(g)—suppressing armed

violence—is without doubt an important one . . . .” (citations

17

omitted)). The Supreme Court has also made clear that this

“general interest in preventing crime is compelling.” United

States v. Salerno, 481 U.S. 739, 750 (1987).

Second, the government has carried its burden of

demonstrating a substantial relationship between this

important objective—crime prevention—and section

922(g)(1)’s firearms ban. Under intermediate scrutiny, “the fit

between the challenged regulation and the asserted objective

[need only] be reasonable, not perfect.” United States v.

Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010) (collecting

cases). In assessing this “fit,” we afford “substantial deference

to the predictive judgments of Congress.” Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665 (1994).

“In the context of firearm regulation, the legislature is ‘far

better equipped than the judiciary’ to make sensitive public

policy judgments (within constitutional limits) concerning the

dangers in carrying firearms and the manner to combat those

risks.” Kachalsky v. County of Westchester, 701 F.3d 81, 97

(2d Cir. 2012) (quoting Turner Broadcasting, 512 U.S. at

665). In enacting section 922(g)(1), Congress determined—

reasonably in our view—that in order to accomplish the goal

of preventing gun violence “firearms must be kept away from

persons, such as those convicted of serious crimes, who might

be expected to misuse them.” Dickerson v. New Banner

Institute, Inc., 460 U.S. 103, 119 (1983), superseded by

statute on other grounds, Firearms Owners’ Protection Act,

Pub. L. No. 99-308, 100 Stat. 449 (1986). Indeed, several

courts of appeals have held that section 922(g)’s exclusions

satisfy intermediate scrutiny, explaining that individuals with

prior criminal convictions for felonies or domestic violence

misdemeanors can reasonably be disarmed because such

individuals pose a heightened risk of future armed violence.

See, e.g., United States v. Booker, 644 F.3d 12, 25–26 (1st

Cir. 2011) (affirming section 922(g)(9)’s ban on firearm

18

possession by persons convicted of misdemeanor crime of

domestic violence); United States v. Williams, 616 F.3d 685,

692–93 (7th Cir. 2010) (affirming section 922(g)(1)’s ban on

firearm possession by convicted felon); see also Mahin, 668

F.3d at 123 (collecting cases).

Plaintiffs acknowledge that disarming felons and other

serious criminals bears a substantial relationship to the

prevention of gun violence. They emphasize, however, that

they challenge the constitutionality of section 922(g)(1) as

applied to common-law misdemeanants and insist that no

substantial fit exists between disarming such individuals and

preventing gun violence. But as explained above, at the time

of section 922(g)(1)’s enactment, common-law misdemeanors

included a wide variety of violent conduct, much of it quite

egregious. See supra at 7–9. And although the category of

common-law misdemeanors has since been narrowed through

codification, plaintiffs have offered no evidence that

individuals convicted of such offenses pose an insignificant

risk of future armed violence. To be sure, some common-law

misdemeanants, perhaps even Schrader, may well present no

such risk, but “Congress is not limited to case-by-case

exclusions of persons who have been shown to be

untrustworthy with weapons, nor need these limits be

established by evidence presented in court.” United States v.

Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc).

Accordingly, because disarmament of common-law

misdemeanants as a class is substantially related to the

important governmental objective of crime prevention, we

reject plaintiffs’ constitutional challenge.

IV.

At several points in their briefs, plaintiffs appear to go

beyond their argument that section 922(g)(1) is

19

unconstitutional as applied to common-law misdemeanants as

a class and claim that the statute is invalid as applied to

Schrader specifically. Were this argument properly before us,

Heller might well dictate a different outcome. According to

the complaint’s allegations, Schrader’s offense occurred over

forty years ago and involved only a fistfight. Second Am.

Compl. ¶ 10. Schrader received no jail time, served honorably

in Vietnam, and, except for a single traffic violation, has had

no encounter with the law since then. Id. ¶¶ 11–12. To the

extent that these allegations are true, we would hesitate to find

Schrader outside the class of “law-abiding, responsible

citizens” whose possession of firearms is, under Heller,

protected by the Second Amendment. Heller, 554 U.S. at 635.

But we need not wade into these waters because plaintiffs

never argued in the district court that section 922(g)(1) was

unconstitutional as applied to Schrader. See Jicarilla Apache

Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1117 (D.C.

Cir. 2010) (explaining that arguments not raised before the

district court are ordinarily waived). In their complaint,

plaintiffs frame their constitutional claim with reference to

common-law misdemeanants as a class, arguing that “barring

possession of firearms by individuals on account of simple

common-law misdemeanor offenses carrying no statutory

penalties” violates the Second Amendment. Second Am.

Compl. ¶ 22. Indeed, plaintiffs’ counsel conceded at oral

argument that an as-applied challenge with respect to

Schrader was not “specifically elucidated in the complaint.”

Oral Arg. Rec. 15:29–15:34. To be sure, the complaint seeks

some relief on behalf of Schrader specifically, i.e., withdrawal

of his record of conviction from the NICS. Second Am.

Compl. Prayer for Relief ¶ 1. But given that the injunctive

relief plaintiffs seek with respect to section 922(g)(1) is far

broader—an injunction barring the statute’s enforcement “on

the basis of simple common-law misdemeanor offenses

20

carrying no statutory penalties,” id. Prayer for Relief ¶ 2—and

given that plaintiffs raised no as-applied challenge with

respect to Schrader in their district court briefs, we view this

more specific claim as simply derivative of the broader claim

that the statute is unconstitutional as applied to common-law

misdemeanants as a class. And although plaintiffs referred to

the specific circumstances of Schrader’s offense, they did so

in the context of arguing that common-law misdemeanants as

a class can be expected to share Schrader’s sympathetic

characteristics.

Given this, we believe the wisest course of action is to

leave the resolution of these difficult constitutional questions

to a case where the issues are properly raised and fully

briefed. “[A]ppellate courts do not sit as self-directed boards

of legal inquiry and research, but essentially as arbiters of

legal questions presented and argued by the parties before

them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.

1983) (Scalia, J.). This fundamental principle of judicial

restraint is especially important where, as here, constitutional

issues are at stake. See Spector Motor Service, Inc. v.

McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one

doctrine more deeply rooted than any other in the process of

constitutional adjudication, it is that we ought not to pass on

questions of constitutionality . . . unless such adjudication is

unavoidable.”).

Leaving these questions for their proper day has an added

benefit: it gives Congress time to consider lifting the

prohibition on the use of appropriated funds for the

implementation of section 925(c), which, as explained above,

permits individuals to obtain relief from section 922(g)(1) by

demonstrating that they no longer pose a risk to public safety.

Without the relief authorized by section 925(c), the federal

firearms ban will remain vulnerable to a properly raised as-

21

applied constitutional challenge brought by an individual

who, despite a prior conviction, has become a “law-abiding,

responsible citizen[]” entitled to “use arms in defense of

hearth and home.” Heller, 554 U.S at 635.

For the foregoing reasons, we affirm the district court’s

dismissal of this action.

So ordered.