                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-3719
                                     ___________

United States of America,                   *
                                            *
             Appellee,                      *
                                            *
      v.                                    * Appeal from the United States
                                            * District Court for the Southern
Cody Jeremiah Hutzell,                      * District of Iowa.
                                            *
             Appellant.                     *

                                    ___________

                            Submitted: March 14, 2000

                                 Filed: July 5, 2000
                                     ___________

Before FAGG and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BENNETT,1
      Chief District Judge.
                            ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Six months before Congress enacted 18 U.S.C. § 922(g)(9), which makes it
unlawful for anyone "who has been convicted in any court of a misdemeanor crime of
domestic violence, to ... possess ... any firearm," Cody Hutzell pleaded guilty to a state
charge of "domestic abuse assault," a misdemeanor. More than two years later, during

      1
      The Honorable Mark W. Bennett, Chief United States District Judge for the
Northern District of Iowa, sitting by designation.
an argument with his girlfriend, Mr. Hutzell fired a gun and was subsequently charged
with violating § 922(g)(9). Mr. Hutzell entered a conditional guilty plea to the charge,
and moved to dismiss the indictment. The district court2 denied the motion.

        On appeal from the district court's refusal to dismiss the indictment, Mr. Hutzell
maintains that his conviction was improper, first, because he personally was unaware
of § 922(g)(9) at the time of the argument with his girlfriend and, further, because no
one could be presumed to have had notice that the conduct described in the statute was
in fact unlawful. He challenges as well the district court's refusal to grant a downward
departure at sentencing. We affirm the district court in all respects.

                                           I.
       The government asserts that 18 U.S.C. § 924(a)(2), which provides the penalties
for those who "knowingly" violate § 922(g), requires it to prove only that Mr. Hutzell
knew of the facts constituting the offense, not that he knew that it was illegal for him
to possess a gun. We can find no fault with the government's proposed construction
of the statute. See Bryan v. United States, 524 U.S. 184, 192-93 (1998). As we held
in United States v. Farrell, 69 F.3d 891, 893 (8th Cir. 1995), cert. denied, 516 U.S.
1181 (1996), § 924(a)(2) does not "require knowledge of the law nor an intent to
violate it."

      The government's exclusive focus on statutory language, however, fails to
address Mr. Hutzell's primary argument, namely, that neither he nor anyone else could
be presumed to have had notice that the conduct described in the statute was in fact
unlawful, as the fifth amendment's due process clause requires before the government
may prosecute for that conduct. Mr. Hutzell contends that there is nothing intuitively
unlawful about the conduct that § 922(g)(9) proscribes, and therefore that his


      2
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

                                           -2-
conviction for a misdemeanor involving domestic violence did not give him notice that
his ability to own a gun might be subject to restrictions after such a conviction.

       Mr. Hutzell acknowledges, as he must, that his position is in direct conflict with
the "common maxim, familiar to all minds, that ignorance of the law will not excuse
any person, either civilly or criminally," Barlow v. United States, 32 U.S. 404, 411
(1834), but asserts that the Supreme Court's decision in Lambert v. California, 355
U.S. 225 (1957), provides in his case an exception to the rule. We agree that our
decision must be guided by the principles set forth in Lambert, but we do not think that
Mr. Hutzell is in a position similar to the one in which the defendant in Lambert found
herself.

       Lambert, 355 U.S. at 226, involved a Los Angeles city ordinance that imposed
criminal penalties on felons who remained in the city for more than five days without
registering with the police. The Supreme Court held that the defendant's conviction
violated the due process clause of the fourteenth amendment because the city failed to
establish that the defendant, who had resided in Los Angeles for more than seven years,
had any notice that her "wholly passive" conduct (staying in Los Angeles for more than
five days without registering) could result in criminal prosecution.

       Lambert carves out a very limited exception to the general rule that ignorance
of the law is no excuse. The Lambert principle applies, for instance, only to
prohibitions on activities that are not per se blameworthy. See generally United States
v. Freed, 401 U.S. 601, 608 (1971); see also United States v. Meade, 175 F.3d 215,
225-26 (1st Cir. 1999), and United States v. Engler, 806 F.2d 425, 435 (3d Cir. 1986),
cert. denied, 481 U.S. 1019 (1987). Even assuming that this requirement is met here,
Lambert is nevertheless unavailing to Mr. Hutzell if his lack of awareness of the
prohibition was objectively unreasonable. See Lambert, 355 U.S. at 229, holding that
"proof of the probability of ... knowledge [of the prohibition's content] and subsequent


                                           -3-
failure to comply are necessary before a conviction under the [applicable law] can
stand."

       The district court observed (correctly, we believe) that an individual's domestic
violence conviction should itself put that person on notice that subsequent possession
of a gun might well be subject to regulation. See generally United States v. Mitchell,
209 F.3d 319, 323-24 (4th Cir. 2000). We also agree with the observation in United
States v. Beavers, 206 F.3d 706, 710 (6th Cir. 2000), cert. denied, 120 S. Ct. 1989
(2000), that "it should not surprise anyone that the government has enacted legislation
in an attempt to limit the means by which persons who have a history of domestic
violence might cause harm in the future." Although an individual's right to bear arms
is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-79 (1939),
the possession of a gun, especially by anyone who has been convicted of a violent
crime, is nevertheless a highly regulated activity, and everyone knows it.

        No one can reasonably claim, we think, to be unaware of the current level of
concern about domestic violence; it is the subject of daily news reports and other media
attention. There is evidence, in addition, that § 922(g)(9) was the subject of
considerable public scrutiny and discussion both before and after its enactment. At any
rate, in the present social circumstances, we believe that it is simply disingenuous for
Mr. Hutzell to claim that his conviction under § 922(g)(9) involved the kind of unfair
surprise that the fifth amendment prohibits.

                                          II.
       At sentencing, Mr. Hutzell moved for a downward departure from the applicable
federal guidelines range on the ground that he had no reason to believe that his conduct
constituted a crime. His contention was that his alleged lack of notice left him with an
"incomplete defense" analogous to the "imperfect defenses" that are sometimes present
when a defendant pleads coercion or duress as a defense. Such circumstances may be
the basis for a downward departure. See U.S.S.G. § 5K2.12 (policy statement).

                                          -4-
       Assuming, without deciding, that the proposed analogy is apt, we see no abuse
of discretion in the district court's refusal to depart. See Koon v. United States, 518
U.S. 81, 100 (1996). It was well within the district court's discretion to decide that
there was nothing about the facts of this case that take it outside the heartland of
§ 922(g)(9) cases. Indeed, the present case appears to us to be entirely run-of-the-mill.
Nothing about the circumstances of Mr. Hutzell's offense afforded him less notice than
any other offender would have had with respect to the lawfulness of the conduct in
question. Mr. Hutzell's case is by definition, therefore, not outside the heartland of
such offenses.

                                         III.
      For the foregoing reasons, we affirm the judgment of the district court.

BENNETT, Chief District Judge, dissenting.

        When should ignorance of the law be an excuse from criminal liability? John
Selden remarked, “Ignorance of the law excuses no man; not that all men know the
law, but because it is an excuse every man will plead, and no man can tell how to
confute him.” TABLE TALK-LAW 61 (3d ed. 1716). Yet, I believe that, in some
cases—and more particularly, in the case now before this court—the Fifth Amendment
right to due process requires that ignorance of the law stand as an excuse. Furthermore,
I believe that the narrow recognition of the “ignorance of the law defense” by the
United States Supreme Court demonstrates that, even though every man may plead
ignorance of the law, unwarranted claims to that defense can be confuted.

       By dissenting from the majority opinion, I do not mean to suggest that I condone
Mr. Hutzell’s conduct in any way. I find that Mr. Hutzell’s conduct in wielding a
firearm during a domestic dispute was egregious, plainly criminal conduct and that such
conduct should have led Mr. Hutzell to expect serious consequences. I do not agree,
however, that due process permits one of those consequences to be Mr. Hutzell’s

                                           -5-
conviction under 18 U.S.C. § 922(g)(9) and imprisonment under 18 U.S.C. § 924(a)(2)
for possession of a firearm after he had been convicted of a misdemeanor offense of
domestic violence. I dissent from the majority opinion, because I conclude that, to
satisfy due process, it is not enough for the government to prove that a defendant
charged with “knowingly violating” 18 U.S.C. § 922(g)(9) had knowledge of his
conduct, or even had knowledge that his conduct at the time of the offense was in some
way illegal or subject to government scrutiny. Instead, I conclude that due process
requires that the government prove that the defendant knew or should have known of
the requirements of § 922(g)(9) and, despite such knowledge, failed to conform his
conduct to the law. There is no such proof in Mr. Hutzell’s case.

                            I. STATUTORY INTERPRETATION
                               A. The Language Of The Statute
       Section 922(g)(9) of Title 18, under which Mr. Hutzell was convicted, states no
mens rea requirement at all; instead, it merely prohibits certain conduct, as follows:
“It shall be unlawful for any person . . . who has been convicted in any court of a
misdemeanor crime of domestic violence . . . to . . . possess in or affecting commerce,
any firearm or ammunition[.]” 18 U.S.C. § 922(g)(9). The mens rea requirement for
a violation of § 922(g)(9) is stated in a separate “penalty provision,” § 924(a)(2). See
United States v. Farrell, 69 F.3d 891, 893 (8th Cir. 1995), cert. denied, 516 U.S. 1181
(1996). That provision states the following: “Whoever knowingly violates
subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned
not more than 10 years, or both.” 18 U.S.C. § 924(a)(2) (emphasis added). It would
seem that the plain language of § 924(a)(2)—which establishes penalties only for a
person who “knowingly violates” § 922(g)(9)—requires proof that the defendant knew
that the conduct proscribed by § 922(g)(9) is illegal before the defendant can be
convicted of violating § 922(g)(9).

       That is not, however, the interpretation given to these statutes by the district
court. Rather, the district court concluded that proof of Mr. Hutzell’s knowledge or

                                             -6-
awareness of the facts supporting his indictment was sufficient to establish a “knowing
violation” of § 922(g)(9), and I must perforce agree that the district court’s
interpretation is in accord with precedent of this circuit.

                               B. Eighth Circuit Precedent
       This court has interpreted “knowing violation” requirements as requiring only
knowledge of acts constituting the offense, not knowledge of the law, in several recent
decisions. For example, in United States v. Sinskey, 119 F.3d 712 (8th Cir. 1997),
which construed provisions of the Clean Water Act (CWA) establishing criminal
penalties for one who “knowingly violates” certain provisions, the court observed that
“‘knowingly’ normally means acting with an awareness of one’s actions.” Sinskey, 119
F.3d at 716. The court explained, “In construing other statutes with similar language
and structure, that is, statutes in which one provision punishes the ‘knowing violation’
of another provision that defines the illegal conduct, we have repeatedly held that the
word ‘knowingly’ modifies the acts constituting the underlying offense.” Id. at 715
(citing Farrell, 69 F.3d at 893, and United States v. Hern, 926 F.2d 764, 766-69 (8th
Cir. 1991)). The court therefore concluded that a “knowing violation” of 33 U.S.C.
§ 1319(c)(2)(A) of the CWA requires only knowledge of the underlying conduct. Id.
at 715-16. Precisely the same situation obtains here: One provision, § 924(a)(2),
punishes the “knowing violation” of another provision that defines the illegal conduct,
§ 922(g)(9). Thus, I am constrained to agree that the word “knowingly” in the context
at issue here modifies the acts constituting the underlying offense. See Sinskey, 119
F.3d at 715.

       Furthermore, in Farrell, 69 F.3d at 893, upon which the decision in Sinskey
relied, this court interpreted the same “knowing violation” provision at issue here, 18
U.S.C. § 924(a)(2), albeit in relation to conduct proscribed by § 922(o). See Farrell,
69 F.3d at 893. This court recognized the “plausibility” of a “plain language” argument
that § 924(a)(2) requires knowledge that proscribed conduct is illegal, but nevertheless
concluded that the “knowingly violates” language of § 924(a)(2) must be “read into”

                                          -7-
the provisions of § 922 that define offenses, so that “knowingly” modifies only the
underlying conduct. Farrell, 69 F.3d at 893. Therefore, the court concluded that
§§ 922 and 924 “do not require knowledge of the law nor an intent to violate it,” but
only knowledge of the conduct constituting the offense. Id. In Farrell, the defendant
attempted to distinguish statutes prohibiting “knowing violations” from the statute at
issue in United States v. Udofot, 711 F.2d 831, 836 (8th Cir.), cert. denied, 464 U.S.
896 (1983), on the ground that “knowingly” in the statute at issue in Udofot plainly
modified the conduct element, “delivery” of a firearm, whereas “knowingly” in
§ 924(a)(2) instead modifies “violates.” See Farrell, 69 F.3d at 893. I also find this
difference in the “plain language” of the two kinds of provisions to be an appealing
basis for distinguishing Udofot, but I am bound by the conclusion of the court in Farrell
that, notwithstanding these differences, neither kind of “knowledge” provision requires
knowledge of the law. See Farrell, 69 F.3d at 893.

       In the earlier of the cases relied upon in Sinskey, United States v. Hern, 926 F.2d
764 (8th Cir. 1991), this court interpreted “knowing violation” provisions of two other
subsections of § 924, §§ 924(a)(1) and (a)(3). The court arrived at the same conclusion
as to these two subsections later reached by the courts in Sinskey and Farrell
concerning statutes with “knowing violation” requirements, that is, that knowledge of
the law was not required. See Hern, 926 F.2d at 766-69. Thus, under the law of this
circuit, the district court below correctly concluded that the “knowing violation”
language of the statutes under which Mr. Hutzell was convicted will not support a
“knowledge of the law” requirement for a conviction.

                                   C. Other Circuits
      1.     Majority decisions
      Indeed, the district court’s interpretation of the “knowing violation” language of
§ 924(a)(2) is in accord with every majority opinion of a Circuit Court of Appeals to
address the application of that language to offenses under either § 922(g)(9) or the
comparable provision in § 922(g)(8), which prohibits possession of a firearm by a

                                           -8-
person who is subject to a domestic violence restraining order. See 18 U.S.C.
§ 922(g)(8). Every such decision has concluded that a conviction does not require
proof that the defendant knew or should have known of the requirements of the law.
See United States v. Mitchell, 209 F.3d 319, 322 (4th Cir. 2000) (rejecting a statutory
interpretation argument for a “knowledge of the law” requirement for a violation of
§ 922(g)(9), based on the language of § 924(a)(2), because such a requirement was not
in accord with Bryan v. United States, 524 U.S. 184, 192 (1998)), petition for cert.
filed (June 7, 2000) (No. 99-9895); United States v. Beavers, 206 F.3d 706, 708 (6th
Cir. 2000) (considering the meaning of a “knowing violation” of § 922(g)(9), noting
that, “[i]n an analogous context, other circuits have held that the term ‘knowingly’ only
requires that the accused know that he possessed a firearm”), cert. denied, ___ U.S.
___, 120 S. Ct. 1989 (2000); United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir.)
(contrasting “willfully” and “knowingly” to conclude that a “knowing violation” of
§ 922(g)(8) under § 924(a)(2) “does not include a requirement that the defendant be
aware of the illegality of his conduct”), cert. denied, 527 U.S. 1029 (1999).

       2.     The Wilson dissent
       Similarly, I regret that I cannot embrace wholeheartedly Chief Judge Posner’s
conclusion, in his dissenting opinion in United States v. Wilson, 159 F.3d 280 (7th Cir.
1998), cert. denied, 527 U.S. 1024 (1999), that “there is enough room in the statutory
language to [impose a knowledge of the law requirement] without having to trundle out
the heavy artillery of constitutional law.” Wilson, 159 F.3d at 293 (Posner, C.J.,
dissenting). Chief Judge Posner concluded that the “knowing violation” language of
§ 924(a)(2) should be interpreted “to require the government to prove that the violator
[of § 922(g)(8)] knew he was committing a crime,” because “[t]his is the standard
device by which the courts have avoided having to explore the outer boundaries of the
constitutional requirement of fair notice of potential criminal liability.” Id. at 293.
Chief Judge Posner’s dissent is the principal authority upon which Hutzell relies.




                                           -9-
       One difficulty with Chief Judge Posner’s analysis is that, in two of the cases on
which he relied, Ratzlaf v. United States, 510 U.S. 135 (1994), and Cheek v. United
States, 498 U.S. 192 (1991), the language of the statutes the Supreme Court held
required knowledge of the law required proof of a “willful” violation, not simply a
“knowing” one. See Ratzlaf, 510 U.S. at 136 (interpreting “willfully violating”
language in 31 U.S.C. § 5322, the penalty provision for 31 U.S.C. § 5324, which
prohibits illegal structuring of cash transactions exceeding $10,000); Cheek, 498 U.S.
at 193-94 (interpreting “willfully attempts” to evade income taxes under 26 U.S.C.
§ 7201 and “willfully fails” to file a tax return under 26 U.S.C. § 7203). Only Liparota
v. United States, 471 U.S. 419 (1985), involved a “knowingly” requirement, but there,
the “knowingly” requirement was stated in the statute defining the offense, not in a
separate penalty provision establishing penalties for “knowing violations” of the
substantive offense statute. See Liparota, 471 U.S. at 423-24. The Court in Liparota
interpreted the “knowingly” requirement, in light of the text and structure of the statute
and companion provisions, to apply to both knowledge of conduct and knowledge of
the law. See id. at 423-25; see also Bryan, 524 U.S. at 193 n.15 (stating that in
Liparota the Court had “concluded that both the term ‘knowing’ in § 2024(c) and the
term ‘knowingly’ in § 2024(b)(1) of Title 7 literally referred to knowledge of the law
as well as knowledge of the relevant facts”). Therefore, in my view, none of the
Supreme Court precedents upon which Chief Judge Posner relied supports a statutory
interpretation of a “knowing violation” requirement in § 924(a)(2) for a § 922(g)
offense as requiring “knowledge of the law.”

       Moreover, as noted above, a knowledge of the law requirement based on
statutory interpretation of “knowing violation” language cannot stand in the face of
precedent of this circuit interpreting identical language. See Sinskey, 119 F.3d at 715-
16; Farrell, 69 F.3d at 893; Hern, 926 F.2d at 766-69. Nor can it stand in the face of
recent interpretation by the Supreme Court of a “knowingly” requirement. In Bryan
v. United States, 524 U.S. 184 (1998), the Supreme Court explained,


                                           -10-
             [T]he term “knowingly” does not necessarily have any
             reference to a culpable state of mind or to knowledge of the
             law. As Justice Jackson correctly observed, “the knowledge
             requisite to knowing violation of a statute is factual
             knowledge as distinguished from knowledge of the law.”
             Thus, in United States v. Bailey, 444 U.S. 394, 100 S. Ct.
             624, 62 L. Ed. 2d 575 (1980), we held that the prosecution
             fulfills its burden of proving a knowing violation of the
             escape statute “if it demonstrates that an escapee knew his
             actions would result in his leaving physical confinement
             without permission.” Id., at 408, 100 S. Ct., at 634. And in
             Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128
             L. Ed. 2d 608 (1994), we held that a charge that the
             defendant’s possession of an unregistered machinegun was
             unlawful required proof “that he knew the weapon he
             possessed had the characteristics that brought it within the
             statutory definition of a machinegun.” Id., at 602, 114 S.
             Ct., at 1795. It was not, however, necessary to prove that
             the defendant knew that his possession was unlawful. See
             Rogers v. United States, 522 U.S. 252, ___, 118 S. Ct. 673,
             674-676, 139 L. Ed. 2d 686 (1998). Thus, unless the text of
             the statute dictates a different result, the term “knowingly”
             merely requires proof of knowledge of the facts that
             constitute the offense.

Bryan, 524 U.S. at 192 (emphasis added) (footnotes omitted).

                      D. Conclusion On Statutory Interpretation
       In light of these precedents, Congress cannot be construed to have intended that
the “knowing violation” language of § 924(a)(2), in relation to a violation of § 922(g)
offense, was meant to impose a “knowledge of the law” requirement. Consequently,
I cannot adopt the statutory interpretation argument of Chief Judge Posner in Wilson,
or otherwise conclude, as a matter of statutory interpretation, that a “knowing
violation” of § 922(g)(9) requires knowledge of the law. Thus far I agree with the
majority’s disposition of Hutzell’s appeal.

                                         -11-
                    II. CONSTITUTIONAL REQUIREMENTS
      Instead, I believe that the battle over whether or not the government was required
to prove that Mr. Hutzell knew or should have known that the law prohibited his
possession of a firearm after a misdemeanor conviction for domestic violence must be
fought on due process grounds. While I must reject the dissenting opinion in Wilson
as supporting a statutory interpretation that § 922(g) offenses require proof that the
defendant knew or should have known of the prohibitions of the statute, I can embrace
much of the reasoning of Chief Judge Posner’s dissent as supporting the argument that
due process requires proof that the defendant knew or should have known of the
prohibitions of § 922(g)(9). Even then, I do not rely exclusively on the dissent in
Wilson, because I find that the basis for a due process requirement of knowledge of the
law was set forth in the United States Supreme Court’s decision in Lambert v.
California, 355 U.S. 225 (1957). I therefore turn to my reading of Lambert and its
progeny.

                             A. Lambert And Its Progeny
       1.     The Lambert decision
       In Lambert, the Court considered the requirements for conviction of a person
under a Los Angeles Municipal Code provision that made it unlawful for “any
convicted person,” elsewhere defined as a person convicted of a felony or an offense
punishable as a felony in California, to be or remain in Los Angeles for a period of
more than five days without registering with the Chief of Police. Id. at 226. During a
seven-year period of residence in Los Angeles, the appellant was convicted of a felony
offense, but only some years after that conviction, while still a resident of Los Angeles,
was she charged with and convicted of failing to register, following her arrest on
suspicion of another offense. Id. The appellant asserted that her conviction violated
her right to due process of law under the United States Constitution. Id. at 227. The
Supreme Court considered whether the appellant’s due process rights had been violated
where the appellant, like Mr. Hutzell, had no actual knowledge of her duty to comply


                                           -12-
with the law in question, and where there was no showing of the probability of such
knowledge. Id.

        In the majority opinion in Lambert, written by Justice Douglas, the Court
rejected the contention that a “vicious will” is necessary to constitute a crime, and
further acknowledged that “[t]he rule that ‘ignorance of the law will not excuse’ . . . is
deep in our law.” Id. at 228. Nevertheless, the Court recognized that “due process
places some limits” on the exercise of governmental police powers in defining offenses.
Id. at 228.

       More specifically, the Court was persuaded that due process limits had been
passed where the conduct of the person who ran afoul of the law had been “wholly
passive—mere failure to register,” because such conduct “is unlike the commission of
acts, or the failure to act under circumstances that should alert the doer to the
consequences of his deed.” Id. The Court reasoned as follows:

             Engrained in our concept of due process is the requirement
             of notice. Notice is sometimes essential so that the citizen
             has the chance to defend charges. Notice is required before
             property interests are disturbed, before assessments are
             made, before penalties are assessed. Notice is required in
             a myriad of situations where a penalty or forfeiture might be
             suffered for mere failure to act. Recent cases illustrating the
             point . . . involved only property interests in civil litigation.
             But the principle is equally appropriate where a person,
             wholly passive and unaware of any wrongdoing, is brought
             to the bar of justice for condemnation in a criminal case.

Lambert, 355 U.S. at 228 (internal citations omitted). The Court in Lambert was
persuaded to recognize a due process exception to the maxim that “ignorance of the
law will not excuse” by the fact that violation of the registration law in question was
“unaccompanied by any activity whatever, mere presence in the city being the test.

                                           -13-
Moreover, circumstances which might move one to inquire as to the necessity of
registration are completely lacking,” and the appellant was given no opportunity to
register upon first becoming aware of her duty to register. Id. at 229. The Court
concluded as follows:

             We believe that actual knowledge of the duty to register or
             proof of the probability of such knowledge and subsequent
             failure to comply are necessary before a conviction under
             the ordinance can stand. As Holmes wrote in The Common
             Law, ‘A law which punished conduct which would not be
             blameworthy in the average member of the community
             would be too severe for that community to bear.’ Id., at 50.
             Its severity lies in the absence of an opportunity either to
             avoid the consequences of the law or to defend any
             prosecution brought under it. Where a person did not know
             of the duty to register and where there was no proof of the
             probability of such knowledge, he may not be convicted
             consistently with due process. Were it otherwise, the evil
             would be as great as it is when the law is written in print too
             fine to read or in a language foreign to the community.

Lambert, 355 U.S. at 229-30.

        Thus, Lambert establishes the following prerequisites for a “due process”
exception to the rule that ignorance of the law is no excuse: (1) the conduct of the
person who runs afoul of the law must be “wholly passive”; and (2) there must be an
“absence of circumstances that should alert the doer to the consequences of his deed.”
Id. at 228; compare United States v. Weiler, 458 F.2d 474, 478 (3d Cir. 1972) (“The
Lambert decision rested on three factors: (1) the crime was one of omission, not
commission, (2) the situation to which the ordinance addressed itself was not such as
might move one to inquire as to the applicable law and (3) the purpose of the statute
was solely to compile a list which might assist law enforcement agencies.”). If these
prerequisites are satisfied, the Court held that, to satisfy due process, “actual


                                          -14-
knowledge of the [requirements of the law] or proof of the probability of such
knowledge and subsequent failure to comply are necessary before a conviction under
the ordinance can stand.” Lambert, 355 U.S. at 229.

       2.     The Freed decision
       Justice Douglas, the author of the majority opinion in Lambert, subsequently
rejected application of the “Lambert exception” to a statute prohibiting the unregistered
possession of hand grenades in United States v. Freed, 401 U.S. 601 (1971). Thus,
Freed is instructive on the scope of the “Lambert exception.” In Freed, Justice
Douglas distinguished Lambert as follows:

             Being in Los Angeles was not per se blameworthy. The
             mere failure to register, we held, was quite “unlike the
             commission of acts, or the failure to act under circumstances
             that should alert the doer to the consequences of his deed.”
             [Lambert, 355 U.S.] at 228, 78 S. Ct., at 243. The fact that
             the ordinance was a convenient law enforcement technique
             did not save it. . . .
                    The present case is [not] in the category . . . of
             Lambert. . . . This is a regulatory measure in the interest of
             the public safety, which may well be premised on the theory
             that one would hardly be surprised to learn that possession
             of hand grenades is not an innocent act. They are highly
             dangerous offensive weapons, no less dangerous than the
             narcotics involved in United States v. Balint, 258 U.S. 250,
             254, 42 S. Ct. 301, 303, 66 L. Ed. 2d 604, where a
             defendant was convicted of sale of narcotics against his
             claim that he did not know the drugs were covered by a
             federal act. We say with Chief Justice Taft in that case:
                           “It is very evident from reading of it that the
                    emphasis of the section is in securing a close
                    supervision of the business of dealing in these
                    dangerous drugs by the taxing officers of the
                    Government and that it merely uses a criminal penalty

                                          -15-
                    to secure recorded evidence of the disposition of such
                    drugs as a means of taxing and restraining the traffic.
                    Its manifest purpose is to require every person
                    dealing in drugs to ascertain at his peril whether that
                    which he sells comes within the inhibition of the
                    statute, and if he sells the inhibited drug in ignorance
                    of its character, to penalize him. Congress weighed
                    the possible injustice of subjecting the innocent seller
                    to a penalty against the evil of exposing innocent
                    purchasers to danger from the drug, and concluded
                    that the latter was the result preferably to be
                    avoided.” Id., at 253-254, 42 S. Ct., at 302-303.

Freed, 401 U.S. at 609-10.

       3.     Qualifications for the “Lambert exception”
       Reading Lambert and Freed together, it is apparent that a due process or
“Lambert exception” to the rule that ignorance of the law is no excuse depends upon
the following interrelated requirements: The defendant’s conduct must not only be (1)
“wholly passive,” see Lambert, 355 U.S. at 228, but also (2) must “not [be] per se
blameworthy,” see Freed, 401 U.S. at 609, and there must be (3) an “absence of
circumstances that should alert the doer to the consequences of his deed,” see Lambert,
355 U.S. at 228; furthermore, (4) the “injustice” to the defendant of disposing of a
“knowledge of the law” requirement must not be outweighed by the benefit to the
person the law is meant to protect, see Freed, 401 U.S. at 610 (quoting Balint, 258
U.S. at 253-54). Only in such a narrowly circumscribed situation, then, does due
process require proof of the defendant’s “actual knowledge of the [requirements of the
law] or proof of the probability of such knowledge and subsequent failure to
comply . . . before a conviction under the ordinance can stand.” Lambert, 355 U.S. at
229.




                                          -16-
                        B. Section 922(g)(9) And Due Process
      Are these requirements met by the statute at issue here? I admit that section
922(g)(9) is not a “registration law,” like the ordinance at issue in Lambert, but the due
process requirement of “knowledge of the law” articulated in Lambert seems to me to
be applicable to this statute. Consideration of § 922(g)(9) in light of the qualifications
for application of the “Lambert exception” will demonstrate the reasons for this
conclusion.

       1.      “Passive conduct”
       First, I must sort out what “conduct” of the defendant is pertinent to the first
qualification for the “Lambert exception,” the “passive conduct” requirement. To my
mind, the fact that the conviction that brought Mr. Hutzell within the purview of
§ 922(g)(9) preceded the enactment of the statute robs the prior act of domestic
violence of any significance under the Lambert “passive conduct” test. See Lambert,
355 U.S. at 228 (due process required knowledge of the law where the defendant’s
conduct was “wholly passive”). The Court in Lambert never suggested that the
defendant’s felony conviction—the conviction that established her obligation to register
under the ordinance in question—was somehow “non-passive” conduct that barred her
claim of a due process violation. Nor did the Court consider the “passivity” or lack
thereof of the criminal conduct that brought Lambert’s failure to register to the attention
of the Los Angeles police. Rather, the Court’s focus in Lambert was on whether the
ordinance defining the offense required any conduct on the part of the defendant, noting
that a violation of the registration law was “unaccompanied by any activity whatever,
mere presence in the city being the test.” Lambert, 355 U.S. at 229. Thus, the proper
focus here, to determine whether or not Mr. Hutzell’s conduct was “passive” within the
meaning of the “Lambert exception,” is not on the circumstances that brought Mr.
Hutzell within the purview of § 922(g)(9), nor is it on the circumstances in which it was
discovered that Mr. Hutzell possessed a firearm. The proper focus is instead whether
the “test” for a violation of § 922(g)(9) is “unaccompanied by any activity whatever.”
Id.

                                           -17-
       Section 922(g)(9) defines an offense in terms of the defendant’s “possession”
of a firearm—not, for example, active conduct such as “use,” “acquisition,” or
“transportation” of a firearm—after conviction of a misdemeanor domestic abuse
offense. See 18 U.S.C. § 922(g)(9). In other words, “mere possession” of a firearm
after conviction of a domestic violence offense, the “test” under § 922(g)(9), is
“unaccompanied by any activity whatever,” and such “mere possession” is therefore
just as passive as “mere presence in the city” after a felony conviction. Cf. Lambert,
355 U.S. at 229. Consequently, the conduct defining the offense under § 922(g)(9)
should be deemed to be “passive” under Lambert. Id.

       2.    “Not per se blameworthy” conduct
       Furthermore, it certainly cannot be said that, in American society, being in
possession of a firearm is “per se blameworthy.” See Freed, 401 U.S. at 609. Rather,
unlike possession of hand grenades, the prevalence of firearm possession is such that
one would “be surprised to learn that possession of [firearms] is not an innocent act.”
Freed, 401 U.S. at 609; see also Staples, 511 U.S. at 610 (“[T]here is a long tradition
of widespread lawful gun ownership by private individuals in this country.”).
Admittedly, like hand grenades, firearms can be used as “highly dangerous offensive
weapons.” Freed, 401 U.S. at 609. However, that is perhaps the only use for hand
grenades, whereas it is far from the only, or usual, use for firearms in American society.

      3.    Notice from circumstances
      There is also an “absence of circumstances that should alert the doer to the
consequences of his deed” in this case. See Lambert, 355 U.S. at 228. I believe that
Mr. Hutzell’s continued possession of a firearm from a time when such possession was
legal to a time when it was suddenly forbidden, without notice that his status as a
person able to possess firearms had changed, did not constitute “circumstances which
might move one to inquire as to the necessity of” conforming to new regulations.
Lambert, 355 U.S. at 229. In contrast, I would suggest that acquisition of a firearm
after a domestic violence conviction is a “circumstanc[e] which might move one to

                                           -18-
inquire as to the necessity of” conforming to firearms laws, see id., because acquisition
of a firearm would bring one into renewed contact with registration and permit
requirements for firearms. Similarly, transportation of a firearm across state lines may
give rise to such a duty to inquire, at least if one has been convicted of, or indicted for,
a serious offense, see Weiler, 458 F.2d at 478 (intentional transportation of a firearm
across state lines by one convicted of, or indicted for, a serious crime is conduct that,
by its nature, suggests the possibility of government regulation), although even
transportation across state lines by one never convicted of or indicted for a felony may
not suggest the possibility of government regulation.

       Nor can the passage of § 922(g)(9) or “the present social circumstances,” as
asserted by the majority, constitute circumstances that would put a person on notice of
the statute’s prohibitions and potential applicability to him or her. This argument is
based on the legal fiction—rarely supported by real-life experience—that mere passage
of a law, or even public controversy at the time of its passage, provides notice of the
law’s existence or scope. Rather, the law in question here is so obscure that not only
are most of the people to whom it might be applicable unaware of its existence, most
state-court judges, those most involved in administration of domestic abuse statutes,
appear to be unaware of it, and routinely fail to advise persons convicted of domestic
abuse or subject to domestic abuse restraining orders of their potential liability for
firearm possession under federal law. See Wilson, 159 F.3d at 294 (Posner, C.J.,
dissenting) (criticizing the Department of Justice for taking no steps to publicize
§ 922(g)(8) to state-court judges so that they could include appropriate warning
language in domestic violence restraining orders) & id. at 295 (state-court judges would
likely have welcomed advice to include warnings about § 922(g)(8) in their restraining
orders, as such warnings would give their own orders “added teeth”).

      Nor do I believe that Mr. Hutzell’s subsequent assault on his wife can constitute
circumstances that would provide such notice of potential illegality as to obviate
application of the “Lambert exception.” Indeed, I believe that Lambert—at least

                                            -19-
tacitly—rejects such bootstrapping. In Lambert, the defendant was charged with
violating the registration ordinance after she was arrested on suspicion of another
offense. Lambert, 355 U.S. at 226. Neither the majority nor the dissenters in Lambert
suggested that the defendant’s subsequent criminal conduct eliminated due process
concerns, i.e., somehow made the defendant aware of the probability of a criminal
sanction for failure to register or eliminated the need for such an awareness.

        4.     The balance of injustices
        Finally, Freed requires that the “injustice” to the defendant of disposing of a
“knowledge of the law” requirement must not be outweighed by the benefit to the
person the law is meant to protect. See Freed, 401 U.S. at 610 (quoting Balint, 258
U.S. at 253-54). I acknowledge—and support—the rationale for barring persons
convicted of domestic violence offenses from possessing firearms. See, e.g., United
States v. Meade, 175 F.3d 215, 226 (1st Cir. 1999) (“The dangerous propensities of
persons with a history of domestic abuse are no secret, and the possibility of tragic
encounters has been too often realized.”). Nevertheless, unlike the situation in Freed,
I do not believe that the balance of injustices can eliminate a due process requirement
of “knowledge of the law” in the case of continued possession of a firearm after a
conviction of a domestic violence offense: Here, the lack of knowledge on the part of
a person who runs afoul of § 922(g)(9) is not outweighed by any benefit to the person
the law is meant to protect, because, in such circumstances, § 922(g)(9) has done
nothing to prevent “evils” to the person the statute is meant to protect. Compare
Freed, 401 U.S. at 610 (“‘Congress weighed the injustice of subjecting an innocent
seller to a penalty against the evil of exposing innocent purchasers to danger from the
drug and concluded that the latter was the result preferably to be avoided.’”) (quoting
Balint, 258 U.S. at 254). Thus, the salutary purpose of § 922(g)(9)—taking firearms
out of the hands of convicted domestic abusers—cannot be served in the absence of
notice to the persons who come within the scope of the statute that their continued
possession of firearms is prohibited. Accord Wilson, 159 F.3d at 294 (Posner, C.J.,
dissenting) (criticizing the Department of Justice for taking no steps to publicize

                                         -20-
§ 922(g)(8) to state-court judges so that they could include appropriate warning
language in domestic violence restraining orders) & id. at 295 (state-court judges would
likely have welcomed advice to include warnings about § 922(g)(8) in their restraining
orders, as such warnings would give their own orders “added teeth”). In the absence
of a “knowledge of the law” requirement, conviction of a § 922(g)(9) offense is merely
a prosecutorial “bonus,” or “slam-dunk” conviction that provides an add-on or
substitute penalty, but does nothing to eliminate the serious danger armed domestic
abusers undoubtedly can pose to their domestic partners.

        5.     Summary
        I conclude that prohibited possession of a firearm under § 922(g)(9)—at least in
Mr. Hutzell’s case—is “unaccompanied by any activity whatever,” mere possession
of a firearm after conviction of a domestic violence offense being the test. Cf. Lambert,
355 U.S. at 229. “Mere possession” of a firearm after conviction of a misdemeanor
domestic violence offense is just as passive as “mere presence in the city” after a felony
conviction, and therefore would be deemed to be “passive” under Lambert.
Furthermore, such firearm possession is “not per se blameworthy,” see id.; Freed, 401
U.S. at 609, because “there is a long tradition of widespread lawful gun ownership by
private individuals in this country.” See Staples, 511 U.S. at 610. Because neither
possession of a firearm nor prior conviction of a domestic violence offense by the
possessor of a firearm suggests otherwise, there is an “absence of circumstances that
should alert the doer” that his possession of a firearm may be subject to government
regulation or scrutiny. See Lambert, 355 U.S. at 228. Finally, the “injustice” to the
defendant of disposing of a “knowledge of the law” requirement for the offense defined
by § 922(g)(9) is not outweighed by the benefit to the person the law is meant to
protect. See Freed, 401 U.S. at 610 (quoting Balint, 258 U.S. at 253-54). In these
narrowly circumscribed conditions, as contemplated by Lambert and Freed, I conclude
that due process does require proof of the defendant’s “actual knowledge of the
[prohibitions of § 922(g)(9)] or proof of the probability of such knowledge and


                                           -21-
subsequent failure to comply . . . before a conviction under [§ 922(g)(9)] can stand.”
Lambert, 355 U.S. at 229.

                       C. Viability of The “Lambert Exception”
       I recognize that Lambert has not enjoyed wide-ranging application. Indeed, the
majority decision in Lambert was described by three of the four dissenting justices in
unprepossessing terms as a decision destined to be “an isolated deviation from the
strong current of precedents—a derelict on the waters of the law.” Lambert, 355 U.S.
at 232 (Frankfurter, J., joined by Harlan, J., and Whittaker, J., dissenting). I also
acknowledge that the district court’s rejection of the “Lambert exception” for offenses
under § 922(g)(9)—that is, rejection of a due process requirement that the government
prove that the defendant knew or should have known of the prohibitions of
§ 922(g)(9)—is in keeping with every majority decision of a Circuit Court of Appeals
to address the question, as to either § 922(g)(9), the statute now before this court, or
its companion provision, § 922(g)(8). See Mitchell, 209 F.3d at 323-24 (§ 922(g)(9));
Beavers, 206 F.3d at 708-10 (§ 922(g)(9)); United States Reddick, 203 F.3d 767, 769-
771 (10th Cir. 2000) (§ 922(g)(8)); United States v. Baker, 197 F.3d 211, 216-17 &
218-220 (6th Cir. 1999) (§ 922(g)(8)), cert. denied, ___ U.S. ___, 120 S. Ct. 1262
(2000); United States v. Meade, 175 F.3d 215, 225-226 (1st Cir. 1999) (although the
defendant was charged with violating both § 922(g)(8) and § 922(g)(9), the comparable
due process challenge was leveled only against § 922(g)(8)); Bostic, 168 F.3d at 722
(§ 922(g)(8)); Wilson, 159 F.3d at 289 (§ 922(g)(8)). Although this list is impressive,
I do not find that the decisions listed are ultimately persuasive.

      1.     Rejection based on actual knowledge of the statutory prohibition
      I have no quibble at all with any decision upholding the conviction of a defendant
who had actual knowledge of the proscription in 18 U.S.C. § 922(g)(9), or the related
provision, § 922(g)(8). See, e.g., Baker, 197 F.3d at 219 (the defendant received
adequate notice of the requirements of § 922(g)(8), because “[e]ach of the domestic
violence protection orders entered against him featured a bold print warning that he

                                          -22-
could not lawfully possess firearms”). In such a case, due process has clearly been
satisfied, because the defendant was aware of the prohibitions of the pertinent law, and
still failed to conform his conduct to it. Cf. Bryan v. United States, 524 U.S. 184, 196
(1998) (concluding that “[t]he danger of convicting individuals engaged in apparently
innocent activity . . . is not present [where the defendant] knew that his conduct was
unlawful”).

       2.      Rejections based on constructive knowledge
       However, I am not convinced that the “Lambert exception” is evaded as easily
as the district court decision below or the consonant federal appellate decisions would
suggest, where the defendant has no actual knowledge of the prohibitions of
§ 922(g)(9). In this case, the district judge concluded that Mr. Hutzell was “not
prevent[ed] . . . from learning of the statute by other means after its enactment,” and
that, by engaging in conduct that resulted in his domestic violence conviction, he had
“removed himself from the class of ordinary citizens.” Other courts have shown similar
ingenuity in avoiding application of the “Lambert exception” to the rule that “ignorance
of the law will not excuse,” as cases rejecting application of the exception to
§ 922(g)(9) or § 922(g)(8) demonstrate. These decisions conclude that due process is
satisfied, and Lambert distinguished, because the defendant’s prior misdemeanor
domestic violence conviction, or imposition of a domestic violence restraining order
against him, removed him from the class of ordinary citizens sufficiently that he could
not reasonably expect to be free from regulation when possessing a firearm. See
Mitchell, 209 F.3d at 323-24; Beavers, 206 F.3d at 710; Reddick, 203 F.3d at 770;
Baker, 197 F.3d at 220; Meade, 175 F.3d at 225-26; Bostic, 168 F.3d at 722-23;
Wilson, 159 F.3d at 288-89.

       However, I believe that just because these decisions “repeated the mistake does
not transform error into truth, but illustrates the potential for future mischief that the
error entails.” Dickerson v. United States, ___ U.S. ___, ___, ___ S. Ct. ___, ___,
2000 WL 807223, *20 (June 26, 2000) (Scalia, J., joined by Thomas, J., dissenting).

                                           -23-
This is so, because the numerous decisions relying on the argument that past
misconduct provides adequate notice of the prohibition on firearm possession in
§ 922(g)(9) perpetuate a disingenuous legal fiction, which is deemed to gain “truth”
merely by repetition, but which is contrary to reality. As Chief Judge Posner observed,
“[A] reasonable opportunity [to know the law] doesn’t mean being able to go to the
local law library and read Title 18. It would be preposterous to suppose that someone
from [the defendant’s] milieu is able to take advantage of such an opportunity.”
Wilson, 159 F.3d at 295 (Posner, C.J., dissenting). Furthermore, it is unrealistic to
suppose that a person’s awareness that a past (or present) domestic assault is illegal
would make such a person aware that his possession of a firearm after a domestic
violence conviction was illegal or even subject to regulation. What such a person is
likely to understand is that his conduct toward his domestic partner is subject to
government scrutiny, not continued possession of a firearm. See id. (“The fact that the
restraining order contained no reference to guns may have lulled him into thinking that,
as long as he complied with the order and stayed away from his wife, he could carry
on as before.”).

       Moreover, as I explained above, in Section II.B.3, I believe that Lambert itself
forecloses bootstrapping of either a past or present incident of criminal conduct into an
awareness of the probability of regulation of otherwise lawful conduct, because in
Lambert, neither the defendant’s prior felony conviction nor the criminal conduct for
which she was arrested at the time that her failure to register was discovered was
considered by the Court as sufficient to put the defendant on notice of the probability
of a registration requirement. See Lambert, 355 U.S. at 225-26. Therefore, even in the
face of the overwhelming consistency with which courts have rejected the “Lambert
exception” as imposing a “knowledge of the law” requirement for § 922(g)(9) and
§ 922(g)(8) offenses, I maintain that due process requires “knowledge of the law”
before a defendant may be convicted of an offense under § 922(g)(9).




                                          -24-
       3.     The Bryan decision
       Although I believe that Lambert provides the basis for a due process requirement
of “knowledge of the law” in this case, I note that courts rejecting such a requirement
have often relied on Bryan v. United States, 524 U.S. 184 (1998). In Bryan, the
Supreme Court considered the circumstances in which a “willfulness” requirement had
been construed to require knowledge of the law, as opposed to a more general
knowledge of illegality or “evil-meaning mind.” See Bryan, 524 U.S. at 193-94. Thus,
Bryan considered a “knowledge of the law” requirement as a matter of statutory
interpretation—and furthermore, statutory interpretation of “willfulness” language not
present here—not whether due process imposed such a requirement. Nevertheless, I
feel bound to consider the applicability of a “Bryan exception” to the due process
argument raised by Mr. Hutzell, because other courts have so regularly considered
Bryan in this context.

            a.     The “Bryan exception”
      In Bryan, the court wrote,
            In certain cases involving willful violations of the tax laws,
            we have concluded that the jury must find that the defendant
            was aware of the specific provision of the tax code that he
            was charged with violating. See, e.g., Cheek v. United
            States, 498 U.S. 192, 201, 111 S. Ct. 604, 610, 112 L. Ed.
            2d 617 (1991). Similarly, in order to satisfy a willful
            violation in Ratzlaf, we concluded that the jury had to find
            that the defendant knew that his structuring of cash
            transactions to avoid a reporting requirement was unlawful.
            See 510 U.S., at 138, 149, 114 S. Ct., at 657-658, 663.
            Those cases, however, are readily distinguishable. Both the
            tax cases and Ratzlaf involved highly technical statutes that
            presented the danger of ensnaring individuals engaged in
            apparently innocent conduct. As a result, we held that these
            statutes “carv[e] out an exception to the traditional rule” that


                                          -25-
             ignorance of the law is no excuse and require that the
             defendant have knowledge of the law.

Bryan, 524 U.S. at 194-95 (emphasis added) (footnotes omitted). Although the Court
in Bryan identified circumstances qualifying for an exception to the rule that ignorance
of the law is no excuse, the Court did not find such circumstances existed in the case
then before it. Rather, the Court in Bryan found that “the willfulness requirement of
§ 924(a)(1)(D) does not carve out an exception to the traditional rule that ignorance of
the law is no excuse; knowledge that the conduct is unlawful is all that is required.”
Id. at 195-96. The Court reached this conclusion, because it reasoned that “[t]he
danger of convicting individuals engaged in apparently innocent activity that motivated
our decisions in the tax cases and Ratzlaf is not present here because the jury found that
this petitioner knew that his conduct was unlawful,” even if he did not know about the
statute that prohibited “willfully” dealing in firearms without a federal license. Id. at
196.

              b.     The dissent in Bryan
        The three dissenting justices in Bryan criticized the majority’s conclusion that
it is enough if the defendant knows, in a general way, that his conduct is unlawful,
rather than requiring proof that the defendant must be aware that the actus reus
punished by the statute—dealing in firearms without a federal license—is illegal. See
Bryan, 524 U.S. at 202 (Scalia, J., joined by Rehnquist, C.J., and Ginsburg, J.,
dissenting). They argued, “Once we stop focusing on the conduct the defendant is
actually charged with (i.e., selling guns without a license), [we] see no principled way
to determine what law the defendant must be conscious of violating.” Id. at 202-03.
The dissenters concluded that “it would be more reasonable to presume that, when
Congress makes ignorance of the law a defense to a criminal prohibition, it ordinarily
means ignorance of the unlawfulness of the specific conduct punished by that criminal
prohibition.” Id. at 203.



                                           -26-
              c.     Appellate applications of Bryan
       Every appellate decision rejecting a due process requirement of knowledge of
the law for violations of § 922(g)(9) or § 922(g)(8) has done so on the ground that the
defendant’s prior act of domestic violence deprived him of a “Bryan exception” by
removing him from the class of ordinary or innocent citizens. See Beavers, 209 F.3d
at 323-24; Reddick, 203 F.3d at 771; Baker, 197 F.3d at 220; Meade, 175 F.3d at 226;
Bostic, 168 F.3d at 722-23; Wilson, 159 F.3d at 288-89. I think these decisions
overreach the meaning of the majority decision in Bryan.

       In Bryan, the defendant’s knowledge of the illegality of the actus reus that
violated the specific statute under which he was charged—dealing in firearms without
a federal license—apparently was not required. See Bryan, 524 U.S. at 196; and
compare id. at 202 (Scalia, J., joined by Rehnquist, C.J., and Ginsburg, J., dissenting).
However, according to the majority, his conduct was not “innocent,” because he was
well aware that he was engaging in unlawful transactions in firearms. See id. at 189 &
n.8; see also id. at 195-96. As the majority observed, “Why else would he make use
of straw purchasers and assure them that he would shave the serial numbers off the
guns? Moreover, the street corner sales are not consistent with a good-faith belief in
the legality of the enterprise.” Id. at 189 n.8 (emphasis added). Thus, although one
wonders what result the majority would have reached in some of the scenarios raised
by the dissenters, see id. at 202 (knowledge of illegality premised only on double
parking, speeding, or sales in violation of city business licensing or sales tax
ordinances), the majority did not, as the minority suggests, rely on “a mens rea so
‘general’ that it is entirely divorced from the actus reus this statute was enacted to
punish.” Id. Rather, the mens rea that deprived the petitioner in Bryan of an
“apparently innocent activity” exception to the rule that ignorance of the law is no
excuse was his mens rea married to the criminal act of dealing in firearms, even if it
did not specifically relate to the actus reus of dealing in firearms without a federal
license. Id. at 195. In other words, although the petitioner in Bryan lacked knowledge
of the law that prohibited dealing in firearms without a federal license, he could not

                                          -27-
harbor “a good-faith belief in the legality of the enterprise” of dealing in firearms. Id.
at 189 n.8 (emphasis added).

              d.     Application of a “Bryan exception” to Hutzell
       Assuming that the “Bryan exception” states a due process standard—that is,
assuming that it states a due process requirement of “knowledge of the law” for
convictions under “highly technical statutes that presen[t] the danger of ensnaring
individuals engaged in apparently innocent conduct”—and construing such a standard
to be in accord with Lambert, a conviction under § 922(g)(9) (and presumably also
§ 922(g)(8), which is not now before this court) would fit these requirements. Although
§ 922(g)(9) is not “highly technical,” I would agree with Chief Judge Posner that it is
certainly obscure, which “comes to the same thing, as we know from Lambert.” See
Wilson, 159 F.3d at 295 (Posner, C.J., dissenting). Furthermore, it does “presen[t] the
danger of ensnaring individuals engaged in apparently innocent conduct,” because
possession of firearms in America is apparently innocent conduct. See, e.g., Staples,
511 U.S. at 610 (“[T]here is a long tradition of widespread lawful gun ownership by
private individuals in this country.”).

        The defendant’s prior conviction of a domestic violence offense, or even his
knowing involvement in domestic violence at the time that his unlawful possession of
a firearm was discovered, does not establish that “[t]he danger of convicting individuals
engaged in apparently innocent activity . . . is not present here” because no jury could
find “that this [defendant] knew that his conduct [of merely possessing a firearm] was
unlawful.” Bryan, 524 U.S. at 196. This is so, even though the defendant could not
reasonably suppose that his conduct in assaulting a domestic partner was lawful: The
mens rea for the domestic violence offense relates to a criminal act, but it does not
relate to the same operative facts giving rise to an offense under § 922(g)(9), that is, it
does not relate to the actus reus of possession of a firearm after a conviction of a
domestic violence offense. Thus, the defendant could still harbor “a good-faith belief
in the legality of the [firearm possession].” Id. at 189 n.8. Not even knowing use of

                                           -28-
the firearm during a domestic assault, in my view, would provide the requisite mens rea
for a knowing violation of § 922(g)(9), because the mens rea in that situation still
would go to knowledge that active use of a firearm against another person is or
probably is illegal, not to the actus reus of a § 922(g)(9) offense, which is mere passive
possession of the firearm after conviction of a misdemeanor domestic violence offense.

       4.     An exception without limits?
       Finally, I must consider whether recognizing the “Lambert exception” as
applicable to a conviction under § 922(g)(9), and therefore requiring proof of
“knowledge of the law” to obtain a conviction, would create an “ignorance of the law”
defense that “every man will plead, and no man can tell how to confute him.” SELDEN,
TABLE TALK-LAW at 61. Obviously, the defense will be unavailable to any person who
receives actual notice that his continued possession or acquisition of a firearm after a
misdemeanor conviction for domestic abuse is prohibited. See, e.g., Baker, 197 F.3d
at 219 (the defendant received adequate notice of the requirements of § 922(g)(8),
because “[e]ach of the domestic violence protection orders entered against him featured
a bold print warning that he could not lawfully possess firearms”). Furthermore, as I
read Lambert and Freed, the conditions under which a defense of ignorance of the law
would otherwise be available are so narrowly circumscribed, see supra at Section
II.A.3, that few defendants charged with a criminal offense would be warranted in
asserting such a defense.

                                 III. CONCLUSION
       I do not agree that Lambert is nothing more than a “derelict upon the waters of
the law,” although few other decisions have sailed in its course. Rather, Lambert
provides the narrow, reasoned exception that proves the rule that ignorance of the law
is (generally) no excuse. As to 18 U.S.C. § 922(g)(9), I believe that due process
requires us to sail the course charted in Lambert: Due process requires proof that the
defendant knew or reasonably should have known that his possession of a firearm after
a conviction for a misdemeanor crime of domestic violence was prohibited in order to

                                           -29-
sustain a conviction under § 922(g)(9). No such knowledge or probability of
knowledge was shown in Mr. Hutzell’s case. Therefore, I would hold that his
conviction should be overturned on due process grounds.

     A true copy.

           Attest:

              CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -30-
