     Case: 17-30303      Document: 00514214706        Page: 1     Date Filed: 10/27/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                   No. 17-30303                                 FILED
                                 Summary Calendar                        October 27, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk


MALCOLM J. BEZET,

              Plaintiff−Appellant,

versus

UNITED STATES OF AMERICA,

              Defendant−Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:16-CV-2545




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

      Malcolm Bezet appeals the dismissal of his claims that certain provisions
of the Gun Control Act of 1968 (“GCA”) and National Firearms Act (“NFA”) are


      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
     Case: 17-30303      Document: 00514214706         Page: 2    Date Filed: 10/27/2017



                                      No. 17-30303
unconstitutional under the Second Amendment, the Tenth Amendment, and
the Necessary and Proper Clause. The district court concluded that Bezet
lacks standing to challenge 26 U.S.C. §§ 5811 and 5812 and has failed to state
a claim upon which relief can be granted as to 18 U.S.C. § 922(l), (o), and (r)
and 26 U.S.C. §§ 5821 and 5822. Finding no error, we affirm.

                                             I.
       Bezet wants to convert a semiautomatic pistol he lawfully owns into a
fully automatic, silenced rifle. He avers that he is prevented from doing so by
certain provisions of the GCA and NFA. He seeks a permanent injunction.

       Specifically, Bezet asserts that the following provisions of the GCA are
unconstitutional: Section 922(l), which bans the importation of firearms reg-
ulated under the GCA; § 922(r), which forbids assembling weapons from such
imported parts; and § 922(o), which prohibits transferring or possessing any
machinegun manufactured after the GCA’s enactment. Bezet alleges that the
following provisions of the NFA are unconstitutional: Section § 5811, which
taxes the transfer of firearms; § 5812, which establishes registration and appli-
cation requirements for transferring firearms; § 5821, which taxes the making
of firearms; and § 5822, 1 which establishes registration and application re-
quirements for making firearms.

       Bezet maintains that, to convert his pistol, he would need to register the
completed rifle with the Bureau of Alcohol, Tobacco, Firearms and Explosives,
pay a $200 tax on the parts, and use only American-made rather than imported




       1We are mindful that Bezet is proceeding pro se and that we should liberally construe
his arguments. See Davis v. Fernandez, 798 F.3d 290, 293 (5th Cir. 2015). As the district
court noted, although Bezet did not directly assert a cause of action challenging § 5822, we
assume he intended to bring such a claim insofar as he requested relief as to § 5822 in the
“prayer for relief” section of his complaint.
                                             2
    Case: 17-30303     Document: 00514214706     Page: 3    Date Filed: 10/27/2017



                                  No. 17-30303
parts. Even then, Bezet notes that he would be prohibited by the GCA from
converting the pistol into a fully automatic rifle. See § 922(o).

      The government moved to dismiss under Federal Rule of Civil Procedure
12(b)(1) and (6). The district court granted the motion and dismissed Bezet’s
claims as to §§ 5811 and 5812 under Rule 12(b)(1) for lack of standing and his
claims as to § 922(l), (o), and (r) and §§ 5821 and 5822 under Rule 12(b)(6) for
failing to state a claim upon which relief could be granted.

                                       II.
      We review de novo the dismissal of a complaint under Rule 12(b)(1)
and (6), applying the same standards used by the district court. See Ruiz v.
Brennan, 851 F.3d 464, 468 (5th Cir. 2017); Spotts v. United States, 613 F.3d
559, 565 (5th Cir. 2010). We address whether Bezet has standing to challenge
§§ 5811 and 5812. Then we examine whether he has stated a claim upon which
relief can be granted as to § 922(l), (o), and (r) and §§ 5821 and 5822.

                                       A.
      Rule 12(b)(1) allows a party to challenge the district court’s subject-
matter jurisdiction. Spotts, 613 F.3d at 565. Federal courts have jurisdiction
only over “cases” or “controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997).
One element of the case-or-controversy requirement is that Bezet must have
standing, which “focuses on whether the plaintiff is the proper party to bring
this suit.” Id. Bezet must show that (1) he suffered an injury in fact, which is
“a concrete and particularized invasion of a legally protected interest;” (2) his
“injury is traceable to the challenged action of the Government;” and (3) “it is
likely, rather than merely speculative, [that] the injury will be redressed by a
favorable decision.” Hollis v. Lynch, 827 F.3d 436, 441 (5th Cir. 2016) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).


                                        3
    Case: 17-30303    Document: 00514214706     Page: 4   Date Filed: 10/27/2017



                                 No. 17-30303
      “At the pleading stage,” we “liberally” construe allegations of injury,
Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009), but the plaintiff bears
the “burden of proof that jurisdiction does in fact exist,” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). Bezet has failed to demonstrate that
he has standing to challenge §§ 5811 and 5812. As the district court correctly
noted, both deal exclusively with the transfer of firearms: Section 5811 levies
a tax on the transferor of a firearm, and § 5812 imposes registration require-
ments on the transferor of a firearm. Bezet has not alleged that he wishes to
transfer a firearm. Accordingly, he is not directly subject to those provisions
and suffers no immediate injury.

      Furthermore, any indirect injuries that Bezet may incur are insufficient
to establish standing. Regarding the first prong of injury-in-fact, he claims
that any taxes levied on the transferor will eventually be passed on to the
transferee, and he observes that § 5812 requires that a transferee be photo-
graphed and fingerprinted. But such allegations do not establish the “concrete
and particularized” injury of “a legally protected interest” that standing
requires. Defs. of Wildlife, 504 U.S. at 560. Rather, they are merely “additional
costs and logistical hurdles” that all citizens bear as ancillary to living under
a government. Lane v. Holder, 703 F.3d 668, 673 (4th Cir. 2012).

      Moreover, Bezet fails on the causality prong of standing. A plaintiff
wishing to challenge certification laws must generally exhaust his certification
options before suing in federal court. Westfall v. Miller, 77 F.3d 868, 872 (5th
Cir. 1996). Otherwise, his “inaction” caused his own injury. Id. Bezet chal-
lenges the registration requirements of § 5812 yet has made no attempt to com-
ply with them. Accordingly, “his inaction has caused any injury he has suf-
fered.” Id. And regarding § 8211, Bezet has not explained why the $200 tax
paid by the transferor of a firearm would necessarily be passed on to him. See

                                       4
    Case: 17-30303     Document: 00514214706     Page: 5   Date Filed: 10/27/2017



                                  No. 17-30303
San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996)
(noting multiple factors that affect the price of firearm sales). Accordingly, the
district court was correct in holding that Bezet lacks standing to challenge
§§ 5811 and 5812.

                                       B.
      We turn to whether Bezet has stated a claim as to § 922(l), (o), and (r)
and §§ 5821 and 5822. “To survive a Rule 12(b)(6) motion to dismiss,” the com-
plaint “must provide the plaintiff’s grounds for entitlement to relief.” Taylor
v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015). We accept all well-
pleaded factual allegations as true and review the constitutionality of a statute
de novo. See Hollis v. Lynch, 827 F.3d 436, 442 (5th Cir. 2016).

                                        1.
      Bezet claims that the NFA and GCA violate the Second Amendment. We
use a two-step inquiry. Id. at 447. First, we “determine whether the chal-
lenged law impinges upon a right protected by the Second Amendment.” Id.
(quoting Nat’l Rifle Ass’n of Am. Inc. v. Bureau of Alcohol, Tobacco, Firearms,
& Explosives, 700 F.3d 185, 194 (5th Cir. 2012) (“NRA”)). The Second Amend-
ment protects the ownership only of weapons that are “in common use at the
time.” Id. at 446 (quoting Heller, 554 U.S. at 627). Moreover, “longstanding,
presumptively regulatory measure[s]” likely implicate no Second Amendment
rights. Id. If no Second Amendment right is implicated, then the inquiry ends.
Id. at 447.

      If a Second Amendment right is implicated, “we proceed to the second
step[, which] is to determine whether to apply intermediate or strict scrutiny
to the law, and then to determine whether the law survives the proper level of
scrutiny.” Id. (internal quotations omitted). To identify which level of scrutiny


                                        5
    Case: 17-30303    Document: 00514214706     Page: 6   Date Filed: 10/27/2017



                                 No. 17-30303
applies, we look at whether the law burdens “the core of the Second Amend-
ment guarantee”—that is, the right to use firearms in defense of the home.
NRA, 700 F.3d at 205. And we examine “the degree to which the challenged
law burdens the right.” Id. at 194. If a core right is burdened, strict scrutiny
applies; less severe regulations on more peripheral rights trigger intermediate
scrutiny. Id.

                                       a.
      Bezet has failed to show that § 922(o) violates the Second Amendment.
Indeed, we upheld that very provision in Hollis, 827 F.3d at 451, as regulating
only firearms that fall outside the scope of the Second Amendment—i.e.,
machineguns. Because Bezet provides no reason to distinguish his case from
Hollis, he cannot show that § 922(o) violates the Second Amendment.

                                       b.
      For similar reasons, Bezet has failed to show that § 922(l) and (r) violate
the Second Amendment. The former prohibits the importation of firearms and
firearm parts; the latter makes it illegal to assemble certain semiautomatic
rifles or shotguns from such imported parts. As noted above, the Second
Amendment confers no right to possess a machinegun. Hollis, 827 F.3d at 451.
Thus, to the extent Bezet claims that § 922(l) and (r) are unconstitutional be-
cause they prohibit importing a machinegun or assembling a machinegun from
imported parts, his challenge must fail.

      The district court went further, noting that Bezet also claimed a desire
to obtain weapons that are part of the ordinary military equipment. We need
not discern how broadly that claim reaches or whether it sweeps in firearms
that are protected by the Second Amendment. That is because those provisions
satisfy the second prong of our inquiry, under which we determine whether to


                                       6
    Case: 17-30303    Document: 00514214706     Page: 7   Date Filed: 10/27/2017



                                 No. 17-30303
apply strict or intermediate scrutiny. Id. at 447. Because those subsections
regulate only the importation of firearms, they do not substantially burden the
core Second Amendment guarantee of acquiring firearms to protect one’s
hearth and home. See NRA, 700 F.3d at 205. Thus, they trigger only interme-
diate scrutiny—and, as the district court recognized, there is a “reasonable fit”
between these regulations and “important” government objectives, such as
cutting off weapons to criminals. Id. at 195.

                                       c.
      Our analysis for §§ 5821 and 5822 is much the same. Section 5821 taxes
the making of weapons such as machineguns and silencers, and § 5822 estab-
lishes registration and application requirements for making them. Again, we
need not decide whether, under a liberal construction of Bezet’s complaint, the
statutes burden his Second Amendment rights. Maybe he only seeks to make
a machinegun—in which case his challenge is squarely foreclosed by Hollis,
827 F.3d at 451. Or he may wish to make firearms that receive Second Amend-
ment protection and has rights that are burdened by the challenged provisions.
But even under this latter supposition, these laws survive the second step of
our Second Amendment analysis. As above, they do not substantially burden
a core Second Amendment right, so they trigger intermediate scrutiny. See
NRA, 700 F.3d at 205. And, as the district court correctly explained, there is
a reasonable fit between these relatively light burdens and the important
government objective of curbing gun violence. Accordingly, Bezet has failed to
show that any of the above provisions violate the Second Amendment.

                                       2.
      Bezet claims that the same provisions violate the Necessary and Proper
Clause. When “determining whether the Necessary and Proper Clause grants
Congress the legislative authority to enact a particular federal statute, we look
                                       7
     Case: 17-30303       Document: 00514214706          Page: 8     Date Filed: 10/27/2017



                                       No. 17-30303
to see whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power.” United States v.
Thompson, 811 F.3d 717, 724 (5th Cir.), cert. denied, 136 S. Ct. 2398 (2016).

                                              a.
       The district court properly concluded that § 922(l), (o), and (r) are ration-
ally related to implementing Congress’s power under the Commerce Clause.
To refute that finding, Bezet relies on United States v. Lopez, 514 U.S. 549,
558−59 (1995), which held that Congress could regulate only three types of
activity under the Commerce Clause: (1) the “channels of interstate com-
merce”; (2) the “instrumentalities of interstate commerce”; and (3) activities
with “substantial relation to interstate commerce.” The district court was cor-
rect, however, in concluding that each challenged provision falls within a Lopez
category.

       First, § 922(o) is a permissible exercise of the commerce power. United
States v. Knutson, 113 F.3d 27, 28 (5th Cir. 1997).                 The vast majority of
machinegun possessions involve the channels or instrumentalities of interstate
commerce, and the remainder have a substantial effect on interstate com-
merce. Id. at 29–30. Insofar as Bezet fails to distinguish Knutson, his chal-
lenge to § 922(o) as exceeding the scope of the Commerce Clause fails. 2

       Second, § 922(l) and (r) are plainly related to Congress’s power to “regu-
late commerce with foreign nations.” U.S. CONST. art. I, § 8, cl. 3. These stat-
utes ban the importation of firearms and ammunition unless authorized by the
Attorney General and prohibit assembling certain firearms from such



       2Although Bezet repeatedly attacks the reasoning and holding of Knutson, we are
bound to follow this circuit’s precedents. Moreover, every circuit to reach this issue has also
held that § 922(o) is a valid exercise of the commerce power. See United States v. Henry,
688 F.3d 637, 641 & n.4 (9th Cir. 2012) (collecting cases).
                                              8
     Case: 17-30303       Document: 00514214706         Page: 9    Date Filed: 10/27/2017



                                      No. 17-30303
imported parts. Such laws directly regulate foreign commerce and activities
with a substantial relation to foreign commerce. Thus, each challenged provi-
sion of the GCA falls within the commerce power.

                                             b.
       The district court was also correct in finding that §§ 5821 and 5822 are
rationally related to Congress’s taxing powers. See U.S. CONST. art. I, § 8, cl. 1.
Indeed, the Supreme Court upheld similar provisions of the NFA under the
taxing power in Sonzinsky v. United States, 300 U.S. 506, 514 (1937). And we
have repeatedly upheld other sections of the NFA as valid exercises of the
taxing power. See United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997);
United States v. Adroin, 19 F.3d 177, 180 (5th Cir. 1994). Though Bezet claims
that the NFA’s taxes and regulations are merely a pretext for a general police
power, his theories are unavailing.            A registration requirement—such as
§ 5822—is “part of the web of regulation aiding enforcement of the . . . tax
provision.” Gresham, 118 F.3d at 263. Because Bezet offers no other way to
distinguish the provisions upheld in Sonzinsky, Gresham, and Adroin, 3 his
challenge to §§ 5821 and 5822 fails.

                                             3.
       For the same reasons as discussed above, Bezet’s claims under the Tenth
Amendment are unavailing. “When Congress properly exercises its authority
under an enumerated constitutional power, the Tenth Amendment is not
implicated.” United States v. DeCay, 620 F.3d 534, 542 (5th Cir. 2010). As



       3 For the first time in his reply brief, Bezet attempts to distinguish Sonzinsky. Even
if his arguments were not waived, they cannot succeed. The fact that the defendant in
Sonzinsky was a firearms dealer does nothing to distinguish the case. And the fact that
§ 5822 imposes some regulations in addition to the taxes levied by § 5821 cannot help Bezet,
given that we have repeatedly upheld similar regulatory provisions as ancillary to the taxing
power. See Gresham, 118 F.3d at 262.
                                             9
   Case: 17-30303    Document: 00514214706    Page: 10   Date Filed: 10/27/2017



                               No. 17-30303
stated above, each provision that Bezet has standing to challenge was validly
enacted under the commerce power or the taxing power. Therefore, the district
court was correct to reject Bezet’s claims under the Tenth Amendment.

     In summary, Bezet lacks standing to challenge 26 U.S.C. §§ 5811 and
5812 and has failed to state a claim upon which relief can be granted as to
18 U.S.C. § 922(l), (o), and (r) and 26 U.S.C. §§ 5821 and 5822. The judgment
of dismissal is AFFIRMED.




                                     10
