                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2529
                         ___________________________

                              United States of America,

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                  Alonzo L. Adams,

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: September 22, 2017
                              Filed: January 29, 2019
                                  ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       A grand jury charged Alonzo Adams with unlawful possession of a firearm as
a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). After the district
court1 denied his motion to dismiss the indictment, Adams conditionally pleaded

      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting a report and recommendation of the Honorable John
guilty. On appeal, Adams argues that the district court erred by denying his motion,
because § 922(g)(1) as applied to him is unconstitutional under the Second
Amendment. Adams, however, failed even to address one element of his as-applied
challenge in the district court, and he therefore forfeited his claim. There was no
plain error in denying the motion to dismiss, so we affirm.

       Adams’s instant conviction arose from a traffic stop in Kansas City, Missouri,
in July 2014. Police officers pulled him over for failure to stop at a stop sign. After
Adams told police that he was driving to meet his probation officer, the officers asked
to search the vehicle. Adams consented to the search, and police discovered a
handgun on the floor board under the driver’s seat. Adams denied that the handgun
belonged to him, but lab analysis found his DNA on the trigger and magazine.

        A grand jury charged him with unlawful possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Adams had sustained a prior
felony conviction in Missouri for carrying a concealed weapon. Adams moved to
dismiss the indictment on the ground that § 922(g)(1) is unconstitutional as applied
to him. Adams argued that District of Columbia v. Heller, 554 U.S. 570 (2008), did
not categorically exclude “non-violent felons” from Second Amendment protection.
And he asserted that a conviction for carrying a concealed weapon is a non-violent
felony. He then urged that § 922(g)(1) is unconstitutional as applied to him, because
a permanent ban on firearms possession by a “non-violent felon” is not narrowly
tailored to the government’s interest in public safety, so the prohibition did not satisfy
strict scrutiny. The district court denied the motion on the ground that § 922(g)(1)
serves an important governmental objective and satisfies intermediate scrutiny as
applied to Adams.




T. Maughmer, United States Magistrate Judge for the Western District of Missouri.

                                           -2-
      Adams then pleaded guilty, and the district court sentenced him to 21 months’
imprisonment with three years of supervised release. As part of the plea agreement,
Adams reserved the right to appeal the district court’s denial of his motion to dismiss.

       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. “[T]he Second Amendment protects the right
to keep and bear arms for the purpose of self-defense.” McDonald v. City of Chicago,
561 U.S. 742, 749-50 (2010). But “[l]ike most rights, the right secured by the Second
Amendment is not unlimited.” Heller, 554 U.S. at 626. The Court in Heller said that
“nothing in [its] 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. These regulatory measures are “presumptively lawful.” Id. at 627 n.26;
accord McDonald, 561 U.S. at 786 (plurality opinion).

       After Heller and McDonald, we rejected a facial challenge to § 922(g)(1)’s
felon-in-possession ban. See United States v. Joos, 638 F.3d 581, 586 (8th Cir.
2011). But we have yet to address squarely whether § 922(g)(1) is susceptible to as-
applied challenges. See United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014).
An as-applied challenge asks the reviewing court to declare the disputed statute
unconstitutional “on the facts of the particular case.” Sanjour v. EPA, 56 F.3d 85, 92
n.10 (D.C. Cir. 1995). The as-applied challenger “does not contend that a law is
unconstitutional as written but that its application to a particular person under
particular circumstances deprived that person of a constitutional right.” United States
v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010). At a minimum, to succeed on an as-
applied challenge, Adams must establish (1) that the Second Amendment protects his
particular conduct, and (2) that his prior felony conviction is insufficient to justify the
challenged regulation of Second Amendment rights.

                                           -3-
       Adams forfeited his claim by failing even to address the first point in the
district court. Because Adams transported the handgun out of sight under his driver’s
seat, Adams must show that the Second Amendment protects a right to carry a
weapon concealed in a vehicle. Yet Adams never advanced this contention, and the
district court could have denied his motion based on this deficiency alone. Adams
simply assumed the existence of a constitutional right to carry a concealed weapon
in a vehicle and argued only that his particular felony conviction could not justify a
lifetime ban on possession. For the first time on appeal, Adams contends that the
Second Amendment protects a right to carry a concealed firearm outside the home.
To obtain relief on a forfeited claim, however, Adams must show that the district
court made an obvious error that affected substantial rights and seriously affected the
fairness, integrity, or reputation of the judicial proceedings. United States v. Olano,
507 U.S. 725, 734-36 (1993). An asserted legal error does not meet this standard if
the proposition is “subject to reasonable dispute.” Puckett v. United States, 556 U.S.
129, 135 (2009).

       It is not plain or obvious that the Second Amendment protects Adams’s
conduct. There is at least reasonable dispute about whether the Second Amendment
protects a right to carry a concealed weapon in a vehicle. The Supreme Court has
described laws prohibiting concealed carry as a “well-recognized exception[]” to the
right to keep and bear arms. Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).
Heller cautioned that its holding did not recognize “a right to keep and carry any
weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S.
at 626. As an example, the Court observed that “the majority of the 19th-century
courts to consider the question held that prohibitions on carrying concealed weapons
were lawful under the Second Amendment or state analogues.” Id. Relying on these
decisions, one circuit has concluded that the Second Amendment does not protect a
right to concealed carry. See Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir.
2016) (en banc), cert. denied, 137 S. Ct. 1995 (2017).



                                         -4-
       The history of prohibitions on concealed carry extends to the carrying of
concealed weapons during travel. Even before cars and trucks, the Tennessee
Supreme Court held that carrying a “navy six [pistol] in a scabbard hung to the horn
of [a defendant’s] saddle” was grounds to convict the defendant for unlawfully
carrying a pistol “that can be carried lawfully only openly in the hands.” Barton v.
State, 66 Tenn. 105, 105-06 (Tenn. 1874). Similarly, the Alabama Supreme Court
affirmed the conviction of a defendant who concealed a pistol in a handbasket that
the defendant carried with him on a train car. Diffey v. State, 5 So. 576, 576 (Ala.
1889). After the advent of automobiles, the Court of Appeals for the District of
Columbia upheld a conviction for carrying a concealed weapon under a vehicle seat.
The court approved a jury instruction that said the governing statute applied if the
defendant “had a pistol concealed in the automobile, though not on his person, but
within his reach.” Brown v. United States, 30 F.2d 474, 475 (D.C. Cir. 1929).

       Several courts have discerned a meaningful distinction between open and
concealed carrying in a vehicle. A California court emphasized that a concealed carry
statute did not “prohibit the carrying of a firearm in a vehicle unless it be concealed,”
and concluded that a firearm could be carried openly inside the vehicle without
violating the concealed carry law. People v. Frost, 12 P.2d 1096, 1097 (Cal. App.
Dep’t Super. Ct. 1932). On the other hand, carrying a firearm under a floor mat on
the driver’s side of a truck violates the California law on carrying a concealed weapon
in a vehicle. People v. Ellison, 128 Cal. Rptr. 3d 245, 248-51 (Cal. Ct. App. 2011).
Kentucky courts have ruled that a firearm carried inside the center console was
concealed and violated Kentucky’s concealed carry law, see Mohammad v.
Commonwealth, 202 S.W.3d 589, 590-91 (Ky. 2006), while a firearm placed on top
of the center console was not concealed and did not violate the statute. See Pulley v.
Commonwealth, 481 S.W.3d 520, 525 (Ky. Ct. App. 2016); see also Ensor v. State,
403 So. 2d 349, 354-55 (Fla. 1981); State v. Pettit, 252 N.E.2d 325, 327-28 (Ohio Ct.
App. 1969); Shipley v. State, 220 A.2d 585, 588-89 (Md. 1966); State v. Bordeaux,
337 S.W.2d 47, 49 (Mo. 1960).

                                          -5-
       To be sure, some have urged that concealed carrying of firearms is protected
under the Second Amendment when the State forbids open carrying, on the view that
it would be unconstitutional to prohibit all forms of bearing arms outside the home.
See Peruta, 824 F.3d at 950-51 (Callahan, J., dissenting); Peruta v. Cty. of San Diego,
742 F.3d 1144, 1172-73 (9th Cir. 2014), vacated and reh’g en banc granted, 781 F.3d
1106 (9th Cir. 2015). Missouri, however, has no general ban on open carrying of
firearms, see Mo. Rev. Stat. § 21.750.3 (Cumulative Supp. 2013), and Adams has
directed us to no local law or ordinance that prohibited him from carrying a firearm
openly in his vehicle.

       In light of these authorities and the historical record to which we have been
directed, Adams’s contention that the Second Amendment protects a right to carry a
concealed weapon in a vehicle is at least subject to reasonable dispute. Therefore, his
as-applied challenge to § 922(g)(1) fails under the plain error standard. We disagree
with the view of the concurring opinion that an as-applied challenger need not even
show that he was engaged in constitutionally-protected conduct. Of course, the felon-
in-possession statute does not require the government to prove the manner in which
the defendant possessed a firearm. But a party who raises an as-applied constitutional
challenge to a statute must show that the statute as applied in the particular
circumstances of his case infringed on conduct that was constitutionally protected.
See Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973); United States v. Raines,
362 U.S. 17, 21-22 (1960). The overbreadth doctrine, under which a challenger may
rely on the rights of others in situations not before the court, applies only in the
limited context of the First Amendment. New York v. Ferber, 458 U.S. 747, 767-68
(1982). We need not address, therefore, whether Adams’s prior felony conviction
would have been sufficient to justify disqualifying him from enjoying rights
guaranteed under the Second Amendment.

      The judgment of the district court is affirmed.



                                         -6-
KELLY, Circuit Judge, concurring in the judgment.

       I agree that Adams’s conviction for violating 18 U.S.C. § 922(g)(1) should be
affirmed. I write separately because I disagree with how the court analyzes Adams’s
Second Amendment challenge. When presented with similar arguments, our sister
circuits have used a sensible, two-pronged approach to consider whether application
of § 922(g)(1) to a particular individual comports with the Constitution’s protection
of the right to keep and bear arms. Instead of following that sound approach, the
court focuses on a factual circumstance not before the district court and not addressed
by the parties: that Adams’s firearm was “concealed.” This fact, even if it were
supported by the record, would not be relevant to Adams’s conviction because
§ 922(g)(1) applies regardless of the manner in which the firearm is possessed. It
likewise should have no bearing on his ability to argue that his conviction under that
section is unconstitutional.

                                           I

       Section 922(g)(1) makes it unlawful for any person who has been convicted of
“a crime punishable by imprisonment for a term exceeding one year”2 to “possess in
or affecting commerce, any firearm or ammunition.” This offense has only three
elements: “(1) a prior felony conviction; (2) knowing possession of a firearm; and
(3) an interstate nexus.” United States v. Jones, 266 F.3d 804, 813 (8th Cir. 2001).
Adams asserts that the first element sweeps too broadly because it applies the ban to
individuals like himself who were convicted of nonviolent offenses, in violation of
the Second Amendment. Adams first raised this argument in a pretrial motion to
dismiss his indictment. After the district court rejected his challenge, Adams entered


      2
        The phrase “crime punishable by imprisonment for a term exceeding one year”
is defined to exclude violations of certain business regulations and certain state-law
misdemeanors. 18 U.S.C. § 921(a)(20).

                                         -7-
into a conditional guilty plea that preserved his right to renew his constitutional claim
on appeal.

        The court today concludes that Adams “forfeited” his Second Amendment
challenge from the start because he never addressed where the firearm was located
at the time he was pulled over. The court anchors its reasoning in a two-part test for
an as-applied constitutional challenge like Adams’s. A challenger must prove:
“(1) that the Second Amendment protects his particular conduct, and (2) that his prior
felony conviction is insufficient to justify the challenged regulation of Second
Amendment rights.” Supra at 3. The court then explains that Adams forfeited his
claim because he failed to address how one aspect of his “particular conduct”—the
location of the firearm—was constitutionally protected. Id. But the court cites no
authority for the proposition that the “particular conduct” relevant to Adams’s as-
applied challenge included the firearm’s location. There is thus no reason why
Adams would have known he needed to address this fact. Likewise, the government
has never argued that Adams’s firearm was concealed or that his failure to address its
location in his motion forfeited his right to challenge the constitutionality of his
conviction, thus limiting our review under the plain-error doctrine.

       The Supreme Court has cautioned that the “as-applied” label does not control
what a party must plead or prove. Citizens United v. Fed. Election Comm’n, 558 U.S.
310, 331 (2010); see Richard H. Fallon, Jr., As-Applied and Facial Challenges and
Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000). Ultimately, what matters
is that the remedy sought is properly “tailored to redress the plaintiff’s particular
injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Here, Adams’s “particular
injury” is his § 922(g)(1) conviction, and we should limit our analysis to the facts that
trigger that criminal sanction, i.e., the facts that the government needed to prove in
order to apply the statute to this case. There is no precedent requiring Adams to
prove that every aspect of his conduct was constitutionally protected.



                                          -8-
       The government was not required to prove that Adams possessed a firearm in
a concealed manner because Congress did not make that an element of the felon-in-
possession offense. And § 922 contains no other general prohibition on carrying
concealed firearms. Thus, if Adams is correct and § 922(g)(1) cannot apply to him,
then his possession of the firearm—concealed or open—was not prohibited by federal
law. By focusing on the assertion that Adams carried a concealed firearm, the court
addresses a hypothetical as-applied challenge to a hypothetical concealed-carry
statute. Cf. Raines, 362 U.S. at 21 (holding that courts should “never . . . anticipate
a question of constitutional law in advance of the necessity of deciding it”). There
may not be, as the court explains, a protected right under the Second Amendment to
carry a concealed firearm. But this analysis merely suggests that Congress could pass
a concealed-carry statute without running afoul of the Second Amendment. It has
nothing to do with whether Adams can be prosecuted under § 922(g)(1) for being a
felon-in-possession, unless we “inva[de] . . . the legislative domain” by adding a
concealment requirement to the statute. Ayotte v. Planned Parenthood of N. New
Eng., 546 U.S. 320, 330 (2006) (quoting United States v. Nat’l Treasury Emps.
Union, 513 U.S. 454, 479 n.26 (1995)).

       Moreover, at the time it denied his motion to dismiss, the district court did not
have sufficient evidence to determine whether Adams’s conduct would have violated
a hypothetical concealed-carry statute. At that point, the only information before the
district court was the indictment and the facts that Adams conceded in his motion.
Neither the indictment nor the motion mentioned the location of the firearm or
whether the firearm was “concealed.” The only evidence in the record on this issue
comes from the plea agreement and the presentence report—both of which did not
exist until after Adams’s constitutional challenge was briefed, argued, and decided.
The indictment’s silence on the issue confirms that the location of the firearm was not
one of the “essential facts constituting the offense charged,” Fed. R. Crim. P. 7(c)(1),
making it immaterial to whether Adams could be convicted under § 922(g)(1).



                                          -9-
       In short, the court’s inquiry into other facts surrounding Adams’s offense is an
unnecessary diversion from the question that he asks us to decide. It also lacks the
benefit of briefing from the parties—before the district court and on appeal—which
only further counsels in favor of limiting our analysis to the facts necessary to prove
the statutory elements as written in § 922(g)(1). As discussed below, when faced
with similar challenges to this same statute, every circuit has done precisely that. I
would follow their example.

                                          II

       The Supreme Court has instructed that “the Second Amendment conferred an
individual right to keep and bear arms.” Heller, 554 U.S. at 595. That right, like the
First Amendment’s right to free speech, is “not unlimited.” Id. At the core of the
right recognized in Heller is “the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” Id. at 635. In particular, the Court noted that
its opinion should not “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. It
characterized these “presumptively lawful regulatory measures,” id. at 627 n.26, as
similar to recognized “exceptions” to the First Amendment’s
protections—“obscenity, libel, and disclosure of state secrets.” Id. at 635.

       Most circuits have adopted a two-part test for evaluating Second Amendment
cases following Heller. First, they “ask whether the challenged law imposes a burden
on conduct falling within the scope of the Second Amendment’s guarantee.” United
States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). If the law does, they “evaluate
the law under some form of means-end scrutiny.” Id.; accord Pena v. Lindley, 898
F.3d 969, 975 (9th Cir. 2018); United States v. Focia, 869 F.3d 1269, 1285 (11th Cir.
2017); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, &

                                         -10-
Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d
510, 518 (6th Cir. 2012); United States v. Carter, 669 F.3d 411, 416 (4th Cir. 2012);
Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City
of Chicago, 651 F.3d 684, 703 (7th Cir. 2011); United States v. Reese, 627 F.3d 792,
801 (10th Cir. 2010).

        Applying this framework, the first question is whether § 922(g)(1) burdens the
constitutional right as articulated in Heller. Due to Heller’s admonition that laws
forbidding the possession of firearms by those with prior felony convictions are
“presumptively lawful,” we have repeatedly rejected facial constitutional challenges
to § 922(g)(1). See, e.g., Woolsey, 759 F.3d at 909; Joos, 638 F.3d at 586. Although
this forecloses the argument that § 922(g)(1) is “unconstitutional in all or nearly all
of its applications,” United States v. Booker, 543 U.S. 220, 274 (2005), we have left
open the possibility that, as to some class of persons, § 922(g)(1) may be
unconstitutional, Woolsey, 759 F.3d at 909. In United States v. Brown, 436 F. App’x
725, 726 (8th Cir. 2011) (per curiam), we cited with approval the standard adopted
by the Third Circuit in United States v. Barton for as-applied challenges to this
statute:

      To raise a successful as-applied challenge, [a defendant] must present
      facts about himself and his background that distinguish his
      circumstances from those of persons historically barred from Second
      Amendment protections. For instance, a felon convicted of a minor,
      non-violent crime might show that he is no more dangerous than a
      typical law-abiding citizen. Similarly, a court might find that a felon
      whose crime of conviction is decades-old poses no continuing threat to
      society.

633 F.3d 168, 174 (3d Cir. 2011).




                                         -11-
       The language used in Barton suggested that individuals convicted of “non-
violent” felonies may be able to establish that they are not “dangerous” and thus
should not be entirely outside of the Second Amendment’s protections. However,
five years later, in a fractured opinion, the Third Circuit overruled Barton sitting en
banc. Binderup v. Attorney Gen., 836 F.3d 336, 349 (3d Cir. 2016) (en banc). In
Binderup, the controlling plurality opinion concluded that Heller recognized that the
right to bear arms may be nonexistent not just for “violent felons” but for “any person
who has committed a serious criminal offense, violent or nonviolent.” Id. at 348; see
also id. at 349 (“[A]nyone who commits a serious crime loses the right to keep and
bear arms . . . .”).

       Binderup comports with our conclusion that the Second Amendment reflects
“a common-law tradition that the right to bear arms is limited to peaceable or virtuous
citizens,” a group that would not include those with felony convictions. United States
v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011); accord United States v. Carpio-Leon,
701 F.3d 974, 979 (4th Cir. 2012) (“[T]he core right of the Second Amendment
protects law-abiding members of the political community . . . .”); United States v.
Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010) (per curiam) (“[M]ost 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.’” (quoting United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010))).
This is why we concluded that it was “most likely” that the “presumptively lawful”
regulatory measures listed in Heller, including prohibitions on possession of firearms
by those with felony convictions, simply “do not infringe on the Second Amendment
right.” Bena, 664 F.3d at 1183.

      We have previously affirmed convictions under § 922(g)(1) on a rationale
consistent with the conclusion that those convicted of felony offenses do not possess
Second Amendment rights—albeit at times in unpublished opinions. In United States
v. Hughley, we rejected an as-applied challenge to § 922(g)(1) brought by a defendant

                                         -12-
with nonviolent felony predicates. 691 F. App’x 278 (8th Cir. 2017) (per curiam),
cert. denied, 138 S. Ct. 983 (2018). We noted that the statute’s purpose clearly and
deliberately “reaches beyond felons who have proven themselves violent—that is,
those who have already committed violent felonies”—to cover all those convicted of
“serious crimes.” Id. at 279–80. Because the defendant in Hughley had multiple
nonviolent felony convictions, including one for possession of a concealed weapon,
we concluded that he had not shown that he was “no more dangerous than a typical
law-abiding citizen” entitled to Second Amendment protections. Id. at 279.

        In light of our decisions in Bena and Hughley, I would conclude that Adams’s
challenge fails at the first step of the Marzzarella framework. The Supreme Court’s
characterization of felon-in-possession statutes as akin to the First Amendment’s
historical “exceptions” for obscenity, libel, and disclosure of state secrets suggests
that it views those convicted of felonies as falling outside the scope of the Second
Amendment’s protections. See Medina v. Whitaker, No. 17-5248, 2019 WL 254691,
at *5 (D.C. Cir. Jan. 18, 2019) (“[T]hose convicted of felonies are not among those
entitled to possess arms.”); Binderup, 836 F.3d at 349 (opinion of Ambro, J.)
(“[P]ersons who have committed serious crimes forfeit the right to possess firearms
much the way they ‘forfeit other civil liberties, including fundamental constitutional
rights.’” (quoting Barton, 633 F.3d at 175)). The government therefore does not need
to justify the statute under some heightened form of means-ends scrutiny.
Admittedly, some have questioned whether such a historical exception truly existed.
See United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (“[I]t appears to us
that the historical data is not conclusive on the question of whether the founding era
understanding was that the Second Amendment did not apply to felons.”). But we
must respect the language used by the Supreme Court in Heller, as well as our own
prior opinions, regardless of whether it is controlling. See United States v. Bloom,
149 F.3d 649, 653 (7th Cir. 1998) (“The Supreme Court often articulates positions
through language that an unsympathetic audience might dismiss as dictum . . . and it
expects these formulations to be followed.”).

                                        -13-
      For these reasons, I concur that the district court’s judgment should be
affirmed.
                     ______________________________




                                     -14-
