Fourth Circuit Proves Infertile Ground for Heller Expansion

By Stuart Berman
Guest contributor

In its 2008 decision in District of Columbia v. Heller[1], the Supreme Court revolutionized Second Amendment jurisprudence by holding unconstitutional the District of Columbia’s ban on possession of handguns in the home, as well as its requirement that all firearms in the home be stored in a manner that rendered them inoperable for immediate self‑defense. When the Court subsequently held in McDonald v. City of Chicago[2] that the Second Amendment applied to state and local governments, some observers predicted a string of decisions invalidating firearms prohibitions. Because the five states in the Fourth Circuit are home to a large population of firearms owners, and several of those states have loosened gun restrictions and even permitted “open carry” of weapons, firearms advocates had reason to hope the Fourth Circuit might to take the lead in reading Heller expansively. As a recent decision demonstrates, however, those hopes have not been fulfilled.

The Fourth Circuit has instead heeded the Supreme Court’s cautionary language in Heller that it was not seeking “to clarify the entire field” of Second Amendment jurisprudence and not calling into question “presumptively lawful regulatory measures” prohibiting the possession of firearms by convicted felons and the mentally ill or in school zones and government buildings, or laws regulating commercial firearms sales. In 2011, the Fourth Circuit rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(9), which prohibits a person who has been convicted of a misdemeanor crime of domestic violence from possessing a firearm.[3] In 2012, the court rejected a challenge to the adjacent subsection, 18 U.S.C. § 922(g)(8), which prohibits certain persons subject to domestic-violence-related restraining orders from possessing firearms.[4] The same year, the court rejected Second Amendment challenges to 18 U.S.C. § 922(g)(1), which contains one of the most commonly used federal criminal prohibitions — that preventing possession of firearms by convicted felons,[5] even persons convicted of non‑violent felonies.[6] Subsequent decisions dismissed challenges to the firearms-possession prohibition in 18 U.S.C. § 922(g)(5) for individuals in the United States illegally,[7] and to 18 U.S.C. § 922(g)(3), which prohibits possession of a firearm while being a user of or addicted to a controlled substance.[8]

Now the Fourth Circuit has upheld another important subsection of the same statute, the prohibition set forth in 18 U.S.C. § 922(a) against unlicensed dealing in firearms. The unanimous panel opinion in United States v. Hosford, No. 15‑4284 (4th Cir. Dec. 6, 2016), is notable both for its wide-ranging source materials — Judge Gregory cites five different law review articles — and for its forceful reaffirmation of the value of federal firearms-licensing requirements.

Samuel Hosford fell victim to a simple sting operation. During a two-and-a-half-month period, Hosford obtained firearms from a supplier who got them at gun shows. He then sold eight firearms on five occasions to an individual he met in a public parking lot. The buyer was an undercover law enforcement officer, and Hosford was under arrest.

Hosford was charged with one count of conspiracy and five counts of unlicensed firearm dealing. Hosford moved to dismiss, arguing that the statute criminalizing unlicensed commercial firearms sales violated the Second Amendment both facially and as applied, was void for vagueness, and exceeded Congress’s Commerce Clause authority. After the district court denied the motion, Hosford entered a conditional guilty plea under Fed. R. Crim. P. 11(a)(2) and appealed to the Fourth Circuit.

Writing for Judges Wilkinson and Diaz, Chief Judge Gregory began by laying out the key statutes: 18 U.S.C. § 922(a)(1)(A), which makes it a felony for anyone “except a licensed imported, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms”; the definitions in 18 U.S.C. § 921; and the licensing requirements in 18 U.S.C. § 923, which make obtaining a license relatively easy but also grant the government authority to search a licensed dealer’s inventory or records without a warrant, subject to other limitations. The court then applied the Fourth Circuit’s two-part test governing Second Amendment challenges: (1) does the challenged law burden conduct within the scope of the amendment’s guarantees; and (2) if so, does the provision survive an appropriate level of scrutiny. The court made short shrift of Hosford’s facial challenge to the statute, finding that the prohibition on the unlicensed commercial sale of firearms was precisely the type of regulation deemed “presumptively lawful” in Heller. The statute was facially constitutional because it only covered the commercial sale of firearms, imposed a mere condition or qualification that could be easily met, and was longstanding – dating back to the Federal Firearms Act of 1938.

The more interesting part of the opinion addressed Hosford’s as‑applied challenge. The court skipped the first part of the governing test by assuming (without holding) that the statute burdened Second Amendment conduct. It applied the standard set forth in a 2011 case that held that statutes affecting “core” Second Amendment protections receive strict scrutiny, while lesser burdens receive intermediate scrutiny.[9] The court determined that the licensing statute required only intermediate scrutiny — a “reasonable fit” between the challenged regulation and a “substantial” government objective — because individuals remain free to possess firearms for self‑defense and to buy and sell firearms for non‑commercial, personal, self‑defensive purposes. Then it found that the statute easily passed such scrutiny.

The court’s intermediate-scrutiny analysis is notable for two reasons. First, the court unambiguously endorsed the licensing requirement as a crucial part of a federal regulatory scheme that seeks to keep firearms out of the hands of certain persons, and specifically noted that warrant-less inspections of firearms dealers give the government “more opportunities to ensure compliance with laws that have demonstrated effects on reducing gun violence.” Slip op. at 16. To buttress this point, the court invoked academic literature in a manner not often seen in Fourth Circuit criminal cases:

For example, prohibiting those under a restraining order for domestic violence from possessing firearms correlates to a statistically significant decrease in intimate partner homicides. See Elizabeth R. Vigdor & James A. Mercy, Do Laws Restricting Access to Firearms By Domestic Violence Offenders Prevent Intimate Partner Homicide?, 30 Eval. Rev. 313, 332 (2006). And restricting these individuals’ access to firearms by prohibiting their purchase of firearms, rather than merely their possession, is significantly more effective. Id. at 333. Requiring sellers to conduct background checks, as licensed firearms dealers must do under federal law, also significantly reduces prohibited purchasers’ access to firearms. See Katherine A. Vittes et al., Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership, 19 Injury Prevention 26, 29 (2013). Indeed, of those studied, very few offenders purchased a weapon from a federal firearms dealer, in large part because of the background-check requirement. Id. at 30. Without a prohibition against the unlicensed dealing of firearms, individuals who regularly engage in the business of selling firearms for profit would have no incentive to obtain a license and subject themselves to those requirements.

Slip op. at 17. Judge Gregory (and his clerks, no doubt) undertook this deep dive into academic literature at their own initiative, as neither of these cited works was mentioned in the government’s brief. (Nor were the three other law journal articles cited elsewhere in the opinion.)

The court also made repeated use of Hosford’s admission, in the statement of facts presented at his guilty plea, that he took no measures to ensure that the purchaser was not prohibited from purchasing firearms (by reason of a felony conviction, domestic-violence-related restraining order, mental illness, etc.):

[I]n applying intermediate scrutiny, the government’s interests in the law generally also justify applying the law to Hosford. Hosford sold firearms on multiple occasions to an individual whom, as far as the record shows, he did not vet. He kept no record of the firearms he sold. He conducted no background check. He did not know whether the buyer was prohibited, and took no steps to ensure that the buyer could legally purchase firearms. His actions are the exact kind of unlicensed firearm dealing that Congress feared when passing the licensing requirement as an attempt to stymie the unregulated flow of firearms to prohibited purchasers. For these reasons, Hosford’s as‑applied Second Amendment challenge also fails.

Slip op. at 19‑20.[10]

It’s hard to see where Second Amendment challenges to the key federal criminal firearms statutes go from here. Since 2010, the Fourth Circuit has applied a consistent methodology to consistently uphold the most important subsections of 18 U.S.C. § 922(g). When appellants have petitioned the Supreme Court for writs of certiorari, they have been denied. Hosford suggests that, unless the Supreme Court reverses course to revisit and expand Heller, even the most creative defense counsel in federal firearms cases will have to look elsewhere in formulating their strategies.


[1] 554 U.S. 570 (2008).

[2] 561 U.S. 742 (2010).

[3] United States v. Staten, 666 F.3d 154 (4th Cir. 2011), cert. denied, 132 S.Ct. 1937 (2012).

[4] United States v. Chapman, 666 F.3d 220 (4th Cir. 2012)

[5] United States v. Moore, 666 F.3d 313 (4th Cir. 2012).

[6] United States v. Pruess, 703 F.3d 242 (4th Cir. 2012).

[7] United States v. Carpio­-Leon, 701 F.3d 974 (4th Cir. 2012), cert. denied, 134 S.Ct. 58 (2013).

[8] United States v. Carter, 750 F.3d 462 (4th Cir.), cert. denied, 135 S.Ct. 273 (2014).

[9] United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011).

[10] The final pages of the opinion give the back of the hand to Hosford’s vagueness and Commerce Clause challenges to § 921(a).


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