                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1558
                         ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                              Darren Kyle Stepp-Zafft,

                       lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                             Submitted: April 9, 2018
                               Filed: May 11, 2018
                                  [Unpublished]
                                  ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

PER CURIAM.

      Darren Kyle Stepp-Zafft was convicted at trial on three counts of possession
of unregistered firearms, in violation of 26 U.S.C. §§ 5861(d) and 5871. The district
court1 sentenced him to a total of thirty-seven months’ imprisonment. Stepp-Zafft
appeals his convictions, arguing for the first time on appeal that the registration
requirements are unconstitutional. We conclude that there is no plain error
warranting relief, and we therefore affirm.

      The prosecution arose from the execution of a search warrant at Stepp-Zafft’s
apartment in Sioux Falls, South Dakota. Law enforcement officers discovered
numerous firearms, grenade bodies, fuses, black powder, empty carbon dioxide pellet
gun cylinders, and what appeared to be two homemade silencers fashioned out of oil
and fuel filters. A search of the National Firearms Registration and Transfer Record
revealed that some of these items were not registered to Stepp-Zafft, as required by
26 U.S.C. § 5861(d). A grand jury charged Stepp-Zafft with three counts of
possession of unregistered firearms—namely, five short-barreled rifles, nine
destructive devices, and two silencers.

       At trial, agents described the items seized from Stepp-Zafft’s apartment. All
five of the unregistered short-barreled rifles had been modified from their original
design. Two had been modified with barrels shorter than sixteen inches. The other
three were originally designed and sold as pistols, but they had been converted into
short-barreled rifles with the addition of a shoulder stock. Stepp-Zafft testified that
the firearms belonged to his mother and that she had modified them. He also claimed
that the objects charged as unregistered silencers were merely homemade “solvent
traps” used for cleaning guns. The jury found Stepp-Zafft guilty on all three counts.

     On appeal, Stepp-Zafft contends that the registration requirement
unconstitutionally infringes on a Second Amendment right to possess the short-


      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, imposed sentence. The Honorable Lawrence L. Piersol presided
over Stepp-Zafft’s trial.

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barreled rifles and homemade silencers found in his apartment. He also argues that
Congress lacked authority to enact the registration statute. Stepp-Zafft did not raise
these arguments in a pretrial motion to dismiss the indictment, see Fed. R. Crim. P.
12(b)(3)(B), or at any other time in the district court. We have said that a party must
show “good cause” to raise an alleged defect in the indictment for the first time on
appeal, see United States v. Anderson, 783 F.3d 727, 741 (8th Cir. 2015), but the
government does not raise that point and concedes instead that we should review for
plain error. Under that rubric, Stepp-Zafft must show an error that is “clear or
obvious, rather than subject to reasonable dispute,” Puckett v. United States, 556 U.S.
129, 135 (2009), and must demonstrate that the error affected his substantial rights
and seriously affected the fairness, integrity, or reputation of the judicial proceedings.
See United States v. Olano, 507 U.S. 725, 734-36 (1993).

        Stepp-Zafft first argues that 26 U.S.C. § 5861(d) unconstitutionally burdens a
Second Amendment right to possess short-barreled rifles and silencers. In District
of Columbia v. Heller, 554 U.S. 570 (2008), the Court explained that the Second
Amendment right to keep and bear arms extends to weapons that are in “common
use” and “typically possessed by law-abiding citizens for lawful purposes” like self-
defense. Id. at 624-25. Stepp-Zafft claims that short-barreled rifles are in common
use for lawful purposes, but he cites no authority in support of that view. Heller said
that there is no Second Amendment right to possess a short-barreled shotgun, 554
U.S. at 624; see also United States v. Miller, 307 U.S. 174, 178 (1939), and a plurality
of the Court previously observed in a different context that a short-barreled rifle is a
“concealable weapon” that is “likely to be used for criminal purposes.” United States
v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992) (plurality opinion). Other
courts have seen no constitutional distinction between short-barreled shotguns and
rifles in the wake of Heller. See, e.g., United States v. Gilbert, 286 F. App’x 383, 386
(9th Cir. 2008); United States v. Cox, 235 F. Supp. 3d 1221, 1227 (D. Kan. 2017);
United States v. Gonzales, No. 2:10-cr-00967, 2011 WL 5288727, at *6 (D. Utah
Nov. 2, 2011). The question is not presented for de novo review in this case, so we

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need not agree or disagree with these decisions of other courts, but Stepp-Zafft’s
constitutional claim is at least subject to reasonable dispute. The district court did not
make an obvious error by failing to dismiss the charge sua sponte.

       Stepp-Zafft also contends that the Second Amendment guarantees a right to
possess unregistered silencers. He cites no supporting authority, however, and some
courts after Heller have rejected his position on the ground that silencers are not
typically possessed by law-abiding citizens for lawful purposes. See United States
v. McCartney, 357 F. App’x 73, 76 (9th Cir. 2009); Cox, 235 F. Supp. 3d at 1227;
United States v. Perkins, No. 4:08CR3064, 2008 WL 4372821, at *4 (D. Neb. Sept.
23, 2008). Stepp-Zafft argues on appeal that silencers are used lawfully for target
practice and for collection as exotic weapons. He reasons that the large number of
registered silencers shows that most people use them for harmless activities. But
because he did not raise this challenge in the district court, the parties did not present
evidence on the purposes and common uses of silencers. Again, the constitutional
question is not presented for de novo review here, but the claim is at least subject to
reasonable dispute in light of existing authorities and the undeveloped record in this
case. The district court did not commit a plain error by declining to dismiss the
charge on its own motion.

       Stepp-Zafft next asserts that Congress lacked authority to enact the registration
statute under either the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, or the Taxing
Clause, U.S. Const. art. I, § 8, cl. 1. We have held, however, that Congress properly
enacted the statute under the taxing power. United States v. Hall, 171 F.3d 1133,
1142 (8th Cir. 1999). Stepp-Zafft complains that the registration statute serves no
legitimate revenue-raising purpose, and is thus beyond the taxing power, because the
statute does not permit a “mere possessor” to register a firearm and pay the requisite
tax. But Hall rejected this precise argument, concluding that the statute is “in aid of
a revenue purpose,” id. (quoting Sonzinsky v. United States, 300 U.S. 506, 513
(1937)), because it helps the government to identify the maker liable for the tax, and

                                           -4-
encourages makers of firearms to register them and to pay the relevant tax so that
potential purchasers can lawfully accept them. Stepp-Zafft also suggests that NFIB
v. Sebelius, 567 U.S. 519 (2012), narrowed Congress’s taxing power and superseded
Hall. But NFIB upheld an Act of Congress based on the taxing power, id. at 574, and
nothing in that decision obviously undermines our relevant precedent. The district
court therefore committed no plain error.

      The judgment of the district court is affirmed.
                     ______________________________




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