                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 15 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30344

              Plaintiff - Appellee,              D.C. No. 1:10-cr-30027-PA-5

  v.
                                                 MEMORANDUM*
LYNN ALLEN SCHRAG,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                            Submitted October 9, 2013**
                                Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       Lynn Schrag appeals the district court determination that he violated a

condition of his probation because his wife’s loaded pistol was on top of the

refrigerator in their home. Schrag claims that under the Second Amendment his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
right to have a firearm in his home for self defense may not be limited just because

he is a convicted felon. We affirm the district court’s rejection of Schrag’s claims.1

      We review de novo the constitutionality of a statute and constitutional

challenges to district court orders. United States v. Vongxay, 594 F.3d 1111, 1114

(9th Cir. 2010).

      Schrag’s claims are based on, and founder on, the Supreme Court’s opinion

in District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the Court held

that a citizen has an individual right to possess firearms in his or her home, but

further stated that “[l]ike most rights, the right secured by the Second Amendment

is not unlimited,” and “nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons.” Id. at 626; see

also McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (reiterating that

the Court’s opinion in Heller “did not cast doubt on such longstanding regulatory

measures as ‘prohibitions on the possession of firearms by felons’”). Accordingly,

the Supreme Court’s opinions rebut Schrag’s contention that his Second

Amendment rights may not be limited just because he is a felon.




      1
             Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
                                           2
      We are further constrained in considering Schrag’s argument by our opinion

in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010). Vongxay challenged

his conviction under 18 U.S.C. § 922(g)(1) for being a felon in possession of a

firearm. He argued that the he had a right under the Second Amendment as

construed by the Supreme Court in Heller to posses a gun and that the language in

Heller concerning certain long-standing restrictions on gun possession by felons

and others was non-binding dicta. Id. at 1115. We held that the language was not

dicta and that § 922(g)(1) was not unconstitutional. Id. As a three-judge panel we

are bound by Vongxay. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)

(en banc); Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012).

      We also reject Schrag’s argument that Oregon state cases provide him with a

right under the Oregon constitution to possess a firearm. See State v. Burney, 619

P.2d 1336, 1339 (Or. App. 1980) (noting that the “choice of evils” defense might

justify a felon’s “resort to a weapon which it would otherwise be unlawful for

[him] to possess”).

      Finally, we do not find Schrag’s objections to the application of the doctrine

of constructive possession to be well taken. Schrag cites no authorities that

support his argument, and we know of none. Moreover, the public safety interests

underlying the prohibition on felons possessing firearms would be compromised if


                                          3
felons could have actual access to firearms as long as they did not legally own the

firearms.

      The district court’s order denying Schrag’s motion to suppress and motion to

dismiss, and its order finding that Schrag violated the conditions of probation and

continuing community supervision are AFFIRMED.




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