                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


KIRK C. FISHER,                            No. 14-16514
                  Plaintiff-Appellant,
                                              D.C. No.
                  v.                       1:11-cv-00589-
                                             ACK-BMK
LOUIS KEALOHA, as an individual
and in his official capacity as
Honolulu Chief of Police; CITY AND           OPINION
COUNTY OF HONOLULU,
                Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Hawaii
      Alan C. Kay, Senior District Judge, Presiding

        Argued and submitted February 21, 2017
                  Honolulu, Hawaii

                       Filed May 5, 2017

     Before: Alex Kozinski, Michael Daly Hawkins,
           and Carlos T. Bea, Circuit Judges.

                Per Curiam Opinion;
            Concurrence by Judge Kozinski
2                       FISHER V. KEALOHA

                            SUMMARY*


                             Civil Rights

    The panel affirmed the district court’s summary judgment
in an action challenging the constitutionality of section 134-7
of the Hawaii Revised Statues, which prohibit plaintiff from
owning or possessing firearms because of his 1997 state law
conviction for harassment.

    The panel determined that although plaintiff stated that he
challenged only section 134-7 of the Hawaii Revised Statute,
that statute, in relevant part, merely incorporated federal law.
Analyzing the federal statutes, the panel rejected plaintiff’s
contention that 18 U.S.C. § 922(g)(9) was unconstitutional as
applied to him. The panel first held that plaintiff’s argument
that his harassment conviction occurred many years ago, and
that he has not committed any other crimes since that time,
was not meaningfully distinguishable from the argument that
this court rejected in United States v. Chovan, 735 F.3d 1127,
1136 (9th Cir. 2013).

    The panel also rejected plaintiff’s argument that section
922(g)(9) is unconstitutional as applied to him because
Hawaii law provides for only one of the four restoration
mechanisms listed in section 921(a)(33)(B)(ii): gubernatorial
pardon. The panel held that although this argument was not
foreclosed by Chovan, plaintiff conceded that he had not
applied for a gubernatorial pardon for his 1997 conviction.
Thus, the panel concluded that plaintiff failed to avail himself

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    FISHER V. KEALOHA                       3

of the one restoration mechanism that was available to him
under Hawaii law, and therefore he was in no position to
argue that Hawaii’s restoration mechanisms were
constitutionally insufficient.

    Ruminating, Judge Kozinksi stated that Hawaii’s
procedure for restoring Second Amendment rights by way of
a gubernatorial pardon was notably slender and vested
unbridled discretion in a government official. Judge Kozinski
stated that while plaintiff’s case did not require a review of
Hawaii’s restoration procedure, other cases will raise the
issue.


                        COUNSEL

Te-Hina Te-Moana Ickes (argued), Law Offices of Te-Hina
Ickes, Honolulu, Hawaii; Donald L. Wilkerson, Law Office
of Donald L. Wilkerson ALC, Honolulu, Hawaii; Alan
Alexander Beck, Law Offices of Alan Beck, San Diego,
California; for Plaintiff-Appellant.

Curtis E. Sherwood (argued) and Sarah T. Casken, Deputies
Corporation Counsel; Donna Y.L. Leong, Corporation
Counsel; Department of the Corporation Counsel, Honolulu,
Hawaii; for Defendants-Appellees.

Kimberly Tsumoto Guidry and Marissa H. Luning,
Department of the Attorney General, Honolulu, Hawaii, for
Amicus Curiae State of Hawaii.

Andrew E. Siegel, Covington & Burling LLP, Washington,
D.C., for Amicus Curiae Brady Center to Prevent Gun
Violence.
4                   FISHER V. KEALOHA

                         OPINION

PER CURIAM:

    Kirk Fisher appeals the district court’s adverse grant of
summary judgment on the issue of whether section 134-7 of
the Hawaii Revised Statutes constitutionally prohibits him
from owning or possessing firearms because of his 1997
conviction for “harassment” in violation of section 711-1106
of the Hawaii Revised Statutes. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.

                     BACKGROUND

    A resident of Hawaii and former owner of firearms,
Fisher was convicted in 1997 of “harass[ing]” his wife and
daughter in violation of section 711-1106 of the Hawaii
Revised Statutes. Following that conviction, Fisher was
placed on probation and surrendered his firearms to the
Honolulu Police Department (“HPD”) in compliance with a
state-court order. After completing his probation, Fisher
requested the return of his firearms. The state court granted
his request on the condition that there were no outstanding
orders or circumstances that otherwise prohibited his
possession of firearms under Hawaii or federal law. HPD
then returned Fisher’s firearms.

    More than ten years later, Fisher applied for a permit to
acquire an additional firearm. In response, HPD not only
denied Fisher’s application but also informed him that he was
prohibited from owning and possessing firearms altogether
because of his 1997 conviction. HPD ordered Fisher to
surrender or otherwise lawfully dispose of all firearms that he
owned or possessed at that time. Fisher transferred
                        FISHER V. KEALOHA                              5

ownership of his firearms to his wife and sued HPD in federal
district court.

    Fisher sought monetary and injunctive relief against the
City and County of Honolulu and HPD’s Chief of Police,
Louis Kealoha. Fisher alleged that he is qualified to own and
possess firearms under Hawaii law and that HPD’s denial of
his permit application and its order to surrender his existing
firearms violated his Second Amendment rights. The
defendants moved for summary judgment, arguing that
Fisher’s 1997 harassment conviction constitutes a conviction
for a “misdemeanor crime of domestic violence” such that
both federal and Hawaii law prohibit Fisher from possessing
firearms.1 See 18 U.S.C. § 922(g)(9); Haw. Rev. Stat. § 134-
7(a). The district court agreed and granted summary
judgment to the defendants on all claims. The district court
also exercised its discretion to consider additional
constitutional arguments that Fisher raised during the
summary judgment proceedings, but determined that applying
section 134-7 of the Hawaii Revised Statutes to Fisher did not
violate the Second Amendment.



    1
       Earlier in the proceedings, the district court granted preliminary
relief to Fisher based on its determination that Fisher’s harassment
conviction did not constitute a crime of domestic violence. After the
Supreme Court’s decision United States v. Castleman, 134 S. Ct. 1405,
1410 (2014), the defendants filed a new motion for summary judgment,
and relying on Castleman, the district court determined that Fisher’s
conviction did, in fact, constitute a crime of domestic violence. On
appeal, Fisher no longer contests that the harassment offense underlying
his 1997 conviction qualifies categorically as a “misdemeanor crime of
domestic violence.” Therefore, we will assume that Fisher is a person
convicted of a “misdemeanor crime of domestic violence” within the
meaning of 18 U.S.C. § 922(g)(9).
6                   FISHER V. KEALOHA

                STANDARD OF REVIEW

    We review de novo a district court’s grant of summary
judgment. Universal Health Servs., Inc. v. Thompson,
363 F.3d 1013, 1019 (9th Cir. 2004). Because the material
facts are not in dispute, we consider only whether the district
court correctly applied the law. See id. We may affirm on
any basis supported by the record. Satey v. JPMorgan Chase
& Co., 521 F.3d 1087, 1091 (9th Cir. 2008).

                       DISCUSSION

    This appeal involves the interaction of three statutory
provisions: (1) section 134-7(a) of the Hawaii Revised
Statutes, which prohibits a person from owning or possessing
firearms if that person is prohibited from possessing firearms
under federal law; (2) 18 U.S.C. § 922(g)(9), which prohibits
the possession of firearms by persons convicted of any
“misdemeanor crime of domestic violence”; and
(3) 18 U.S.C. § 921(a)(33)(B)(ii), which provides that a
person “shall not be considered to have been convicted of [a
misdemeanor crime of domestic violence] . . . if the
conviction has been expunged or set aside, or is an offense for
which the person has been pardoned or has had civil rights
restored.” Although Fisher states that he challenges only
section 134-7, that statute, in relevant part, merely
incorporates federal law. Consequently, much of his
argument (and our analysis) focuses on the latter federal
statutes.

   Fisher’s argument proceeds in two parts. First, he
contends that, as a matter of statutory construction, section
922(g)(9) applies only in states where each of the
mechanisms listed in section 921(a)(33)(B)(ii) (expungement,
                      FISHER V. KEALOHA                          7

set-aside, pardon, and civil rights restoration) are available to
restore Second Amendment rights. Second, he contends that
even if the statute itself does not require the availability of all
listed mechanisms, Hawaii’s application of section
922(g)(9)’s prohibition to Fisher is unconstitutional without
them.

    A. Interpretation of 18 U.S.C. § 921(a)(33)(B)(ii).

    The issue of statutory construction presented in this case
is easily resolved. As we have said, section 922(g)(9)
provides that “[i]t shall be unlawful for any person . . . who
has been convicted in any court of a misdemeanor crime of
domestic violence” to possess firearms.             18 U.S.C.
§ 922(g)(9). A person “shall not be considered to have been
convicted of a [misdemeanor crime of domestic violence] . . .
if the conviction has been expunged or set aside, or is an
offense for which the person has been pardoned or has had
civil rights restored . . . unless the pardon, expungement, or
restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms.” Id.
§ 921(a)(33)(B)(ii).

    The plain language of these statutory provisions makes
clear that section 921(a)(33)(B)(ii) creates exceptions to
section 922(g)(9)’s general prohibition, rather than
preconditions to its application. Cases interpreting 18 U.S.C.
§ 921(a)(20), a similar provision which exempts felons from
section 922(g)(1)’s prohibition on firearm possession on the
same four grounds, have reached the same conclusion. See
Beecham v. United States, 511 U.S. 368, 373 (1994)
(rejecting the assumption “that Congress intended felons
convicted by all jurisdictions to have access to all the
procedures (pardon, expungement, set-aside, and civil rights
8                   FISHER V. KEALOHA

restoration) specified in [section 921(a)(20)]”); Logan v.
United States, 552 U.S. 23, 35–36 (2007) (noting that
sections 921(a)(20) and 921(a)(33)(B)(ii) are “corresponding”
and interpreting them in parallel for that reason). Therefore,
as a matter of statutory construction, the unavailability of a
procedure for either expungement, set-aside, pardon, or civil
rights restoration does not remove Fisher from the ambit of
section 922(g)(9)’s prohibition or, by extension, Hawaii
Revised Statute section 134-7(a)’s prohibition.

    B. Second Amendment Challenge.

    The constitutional question implicated in this case, on the
other hand, is harder than it seems. To determine whether a
law impermissibly infringes Second Amendment rights, we
must ask whether the challenged law burdens conduct
protected by the Second Amendment, and if so, we apply a
level of scrutiny that corresponds to the nature and degree of
the burden. United States v. Chovan, 735 F.3d 1127, 1136
(9th Cir. 2013).

    We have previously determined that section 922(g)(9)
burdens conduct protected by the Second Amendment and
upheld its constitutionality, facially and as-applied, under
intermediate scrutiny. Id. at 1137–42. Chovan considered,
among other things, whether section 922(g)(9) could be
constitutionally applied to a defendant based on a fifteen-
year-old domestic violence misdemeanor conviction. Id. at
1141–42. We recognized that keeping firearms out of the
hands of domestic abusers is an important government
interest and noted the high rate of recidivism for domestic
abusers and the number and likelihood of domestic violence
deaths involving the use of a firearm. Id. at 1140.
                         FISHER V. KEALOHA                                9

     We also rejected Chovan’s argument that section
922(g)(9) could not constitutionally apply to him because he
had committed no further acts of domestic violence in the
fifteen years following his conviction. Id. at 1141–42. Even
assuming that Chovan had committed no such acts, we
explained, Chovan had failed to adduce sufficient evidence:
(1) contradicting the government’s evidence regarding the
high rate of domestic violence recidivism; and (2) showing
that a domestic abuser who has not re-offended after fifteen
years is unlikely to do so again. Id. Thus, under intermediate
scrutiny, the statute addressed a substantial governmental
interest and was tailored sufficiently to satisfy intermediate
scrutiny. Id. at 1142.

    Here, Fisher argues that section 922(g)(9) is
unconstitutional as applied to him for two reasons. First,
Fisher argues, his harassment conviction occurred many years
ago, and he has not committed any other crimes since that
time. This argument is not meaningfully distinguishable from
the one that we rejected in Chovan, and we reject it here as
well. See id. at 1141–42.

     Second, Fisher argues that section 922(g)(9) is
unconstitutional as applied to him because Hawaii law
provides for only one of the four restoration mechanisms
listed in section 921(a)(33)(B)(ii): gubernatorial pardon.
Though this second argument is not foreclosed by Chovan,2

    2
      The defendants argue that our decision in Chovan forecloses this
argument as well. Unlike Fisher, however, Chovan never argued that
section 922(g)(9) was unconstitutional as applied to him because
California (Chovan’s state of conviction) provided too few of the
restoration mechanisms listed in section 921(a)(33)(B)(ii). See Chovan,
735 F.3d at 1137–42. Indeed, in Chovan, we applied “intermediate” rather
than “strict” judicial scrutiny in part because section 922(g)(9)’s “burden”
10                       FISHER V. KEALOHA

we decline to address it here. Fisher concedes that he has not
applied for a gubernatorial pardon for his 1997 conviction.
Thus, Fisher has failed to avail himself of the one restoration
mechanism that is available to him under Hawaii law, and he
is in no position to argue that Hawaii’s restoration
mechanisms are constitutionally insufficient. See In re
Coleman, 560 F.3d 1000, 1005 (9th Cir. 2009) (“Where a
dispute hangs on future contingencies that may or may not
occur, it may be too impermissibly speculative to present a
justiciable controversy.” (internal quotation marks and
citations omitted)).

                           CONCLUSION

    Because we affirm the district court’s decision on the
basis of Fisher’s as-applied challenge to section 134-7(a) of
the Hawaii Revised Statutes, we need not consider Fisher’s
remaining arguments regarding section 134-7(b).3 Nor do we



on Second Amendment rights was “lightened” by those mechanisms. Id
at 1138; see also id. at 1151 (Bea, J., concurring) (concluding that section
922(g)(9) was “narrowly tailored” to a “compelling” government interest
in part because of the restoration mechanisms listed in section
921(a)(33)(B)(ii)). Thus, we reject the defendants’ contention that
Chovan forecloses Fisher’s second argument here.
     3
       Section 134-7(b) of the Hawaii Revised Statutes provides that a
person may not “own, possess, or control any firearm” if the person “has
been convicted in [Hawaii] or elsewhere of having committed a felony, or
any crime of violence, or an illegal sale of any drug.” In his briefing,
Fisher argues that insofar as section 134-7(b) independently prohibits him
from possessing a firearm as a person convicted of a “crime of violence,”
that provision violates the Second Amendment, because it allows no
exceptions for expungement, set-aside, pardon, or the restoration of civil
rights. We do not reach Fisher’s challenge to section 134-7(b) because,
                      FISHER V. KEALOHA                           11

reach his due process argument regarding Hawaii’s
gubernatorial pardon process, which he raises for the first
time on appeal. See AlohaCare v. Haw. Dep’t of Human
Servs., 572 F.3d 740, 744 (9th Cir. 2009) (“Absent
exceptional circumstances, we generally will not consider
arguments raised for the first time on appeal.”).

    AFFIRMED.



KOZINSKI, Circuit Judge, ruminating:

    A state’s procedure for restoring Second Amendment
rights bears directly on the degree to which the state
encumbers those rights. See United States v. Chovan,
735 F.3d 1127, 1138 (9th Cir. 2013). Thus, despite
defendants’ and amici’s furious protestations to the contrary,
we must consider Hawaii’s available restoration procedures.
Our modern Second Amendment jurisprudence trains its
sights on the degree to which the state burdens the right and
whether that burden is tailored to the state’s goal. See Fyock
v. Sunnyvale, 779 F.3d 991, 998–1000 (9th Cir. 2015); see
also District of Columbia v. Heller, 554 U.S. 570, 628 n.27
(2008). Whether a state has a procedure for restoring Second
Amendment rights plainly affects both the weight of the
burden and our measure of its tailoring.

   Criminal punishment, of course, always involves the
deprivation of rights, but such deprivations can still raise
constitutional concerns. See, e.g., Turner v. Safley, 482 U.S.


as we have explained, we conclude that Fisher can constitutionally be
denied a firearms permit pursuant to section 134-7(a).
12                  FISHER V. KEALOHA

78 (1987) (marriage and speech); Hunter v. Underwood,
471 U.S. 222 (1985) (equal protection); Mayweathers v.
Newland, 258 F.3d 930 (9th Cir. 2001) (free exercise). The
extent of the deprivation matters. Most recently, for example,
federal courts have looked skeptically at lifelong restrictions
on sex offenders’ Internet access. See, e.g., Doe v.
Prosecutor, Marion Cty., 705 F.3d 694, 695 (7th Cir. 2013);
see also Packingham v. North Carolina, 137 S. Ct. 368
(2016) (mem.) (granting certiorari on a similar issue). While
restrictions on each right have their own distinctive
history—and restrictions on the Second Amendment are no
exception, see Heller, 554 U.S. at 626–28—it is unsurprising
that we might look askance at a state’s permanent restriction
on a misdemeanant’s right to bear arms.

    Hawaii’s procedure for restoring Second Amendment
rights is notably slender: The governor can pardon someone.
But gubernatorial clemency is without constraint; as
Blackstone put it, an executive’s mercy springs from “a court
of equity in his own breast.” 4 William Blackstone,
Commentaries *390. This unbounded discretion sits in
uneasy tension with how rights function. A right is a check
on state power, a check that loses its force when it exists at
the mercy of the state. Government whim is the last refuge
of a precarious right. And while Fisher’s case gives us no
occasion to seek better refuge, others will.

    In other contexts, we don’t let constitutional rights hinge
on unbounded discretion; the Supreme Court has told us, for
example, that “[t]he First Amendment prohibits the vesting of
such unbridled discretion in a government official.” Forsyth
County v. Nationalist Movement, 505 U.S. 123, 133 (1992).
Despite what some may continue to hope, the Supreme Court
seems unlikely to reconsider Heller. The time has come to
                   FISHER V. KEALOHA                   13

treat the Second Amendment as a real constitutional right.
It’s here to stay.
