     10-3773
     United States v. Decastro
 1
 2                       UNITED STATES COURT OF APPEALS
 3
 4                           FOR THE SECOND CIRCUIT
 5
 6                               August Term, 2011
 7
 8
 9      (Argued: November 30, 2011            Decided: June 1, 2012)
10
11                               Docket No. 10-3773
12
13   - - - - - - - - - - - - - - - - - - - -x
14
15   UNITED STATES OF AMERICA,
16
17                     Appellee,
18
19               - v.-
20
21   ANGEL DECASTRO,
22
23                     Defendant-Appellant.
24
25   - - - - - - - - - - - - - - - - - - - -x
26

27         Before:           JACOBS, Chief Judge, HALL and LYNCH,
28                           Circuit Judges.
29
30         Defendant was convicted of transporting into his state

31   of residence a firearm acquired in another state in

32   violation of 18 U.S.C. § 922(a)(3).        He appeals on the

33   ground that § 922(a)(3) violates his Second Amendment right

34   to keep and bear arms.        He argues: [1] that § 922(a)(3) is

35   unconstitutional on its face; and [2] that, in combination

36   with New York’s licensing scheme, the prohibition on the
1    transportation into New York of a firearm purchased in

2    another state made it virtually impossible for him to obtain

3    a handgun for self-defense.    For the following reasons, the

4    judgment of the district court is affirmed.    Judge Hall

5    concurs by separate opinion.

 6                                 COLLEEN P. CASSIDY, Federal
 7                                 Defenders of New York, Inc., New
 8                                 York, NY, for
 9                                 Appellant.
10
11                                 BRIAN A. JACOBS (BRENT S. WIBLE,
12                                 on the brief), Assistant United
13                                 States Attorney, for PREET
14                                 BHARARA, United States Attorney,
15                                 Southern District of New York,
16                                 New York, NY, for
17                                 Appellee.
18
19   DENNIS JACOBS, Chief Judge:
20
21       Following a bench trial on stipulated facts in the

22   United States District Court for the Southern District of

23   New York (Patterson, J.), Angel Decastro was convicted of

24   transporting into his state of residence a firearm acquired

25   in another state in violation of 18 U.S.C. § 922(a)(3).

26   Decastro appeals on the ground that § 922(a)(3) violates his

27   Second Amendment right to keep and bear arms.    He argues:

28   [1] that § 922(a)(3) is unconstitutional on its face; and

29   [2] that, in combination with New York’s licensing scheme,

30   the prohibition on the transportation into New York of a

                                    2
1    firearm purchased in another state made it virtually

2    impossible for him to obtain a handgun for self-defense.

3    For the following reasons, the judgment of the district

4    court is affirmed.

5

6                             BACKGROUND

7        In 2002, Angel Decastro moved from Florida to New York

8    to help run his step-father’s dry cleaning business.     In

9    July 2004, an encounter between Decastro and a customer

10   escalated into a gang confrontation.   Police arrested

11   Decastro and the customer, but all charges were dropped.

12   Decastro feared retaliation, and on the recommendation of a

13   New York police detective, requested a handgun license

14   application from the New York Police Department (“NYPD”).

15   He did not submit an application because (he maintains) he

16   was told by an NYPD desk officer that there was “no way” his

17   application would be approved.

18       Decastro, who was licensed to own a handgun in Florida,

19   purchased firearms from a gun dealer on a visit there in

20   February 2005: a Taurus model PT92 pistol (“the Taurus

21   Pistol”) and a Glock nine-millimeter handgun.   In connection

22   with the purchase, Decastro was required to sign Form 4473


                                  3
1    of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

2    On it he falsely gave Florida rather than New York as his

3    state of residence.   Decastro left the Glock handgun in

4    Florida but transported the Taurus Pistol home to New York,

5    where he kept it at the dry-cleaning business for

6    protection.

7        The Decastro family sold the dry-cleaning business in

8    May 2005; in February 2006, Decastro moved to Florida.

9    Before leaving New York, Decastro gave the Taurus Pistol to

10   a relative in the Bronx.   Decastro planned to transport it

11   back to Florida in a few months’ time.

12       In July 2006, a Bronx woman reported to the NYPD that

13   she had found the Taurus Pistol in her closet along with

14   other items that belonged to her common-law husband (who was

15   a relative of Decastro).   A police search of the closet

16   yielded the Taurus Pistol as well as two other guns,

17   handcuffs, masks, and fake police shields.

18       Decastro was subsequently indicted for violating 18

19   U.S.C. § 922(a)(3).   That statute (subject to certain

20   exceptions not applicable here1) prohibits anyone other than

          1
            The statute does not apply to: [1] firearms acquired
     by inheritance outside the owner’s state of residence,
     provided that it is lawful for the owner to purchase or
     possess a firearm in her home state, 18 U.S.C.
                                   4
1    a licensed importer, manufacturer, dealer or collector from

2    transporting into his state of residence a firearm purchased

3    or obtained outside that state.   Decastro moved to dismiss

4    the indictment on the ground that it violated his Second

5    Amendment right to possess a gun for self-defense.   He

6    argued that § 922(a)(3) was facially unconstitutional under

7    District of Columbia v. Heller, 554 U.S. 570 (2008), and

8    that New York City’s restrictive licensing requirements were

9    tantamount to a ban.   In support, Decastro submitted a chart

10   showing that few applications for pistol licenses were

11   received and issued by New York City in the period 2004-

12   2006.   For residential-premises handgun licenses, an average

13   of 858 new applications were submitted annually and an

14   average of 620 licenses were issued; for business-premises

15   licenses, an average of 59 new applications were submitted




     § 922(a)(3)(A), [2] rifles and shotguns acquired outside of
     the purchaser’s state of residence, provided that the
     transaction is conducted in person and in compliance with
     the legal conditions of sale in both the purchaser’s home
     state and the state in which the seller’s place of business
     is located, id. § 922(a)(3)(B), (b)(3)(A), [3] firearms
     loaned or rented for temporary use for lawful sporting
     purposes, id. § 922(a)(3)(B), (b)(3)(B), or [4] the
     transportation of a firearm acquired in any state prior to
     the effective date of the statute, id. § 922(a)(3)(C).
                                   5
1    annually and an average of 50 licenses were issued.2

2        The district court declined to dismiss the indictment.

3    Inferring from the NYPD statistics that there is a high

4    grant rate for handgun licenses in New York City, the court

5    rejected Decastro’s argument that he was effectively forced

6    to violate § 922(a)(3) by traveling outside the state in

7    order to secure a handgun for self-defense.   The court did

8    not address Decastro’s argument that § 922(a)(3) is

9    unconstitutional on its face.

10       At the bench trial, the parties stipulated to the

11   following facts:

12       [1] Decastro had never been a licensed importer,

13            manufacturer, dealer or collector of firearms;

14       [2] From at least 2002 through February 2006, Decastro

15            resided in New York, not Florida;

16       [3] In April 2005, Decastro purchased the Taurus

17            Pistol from a firearms dealer in Florida;

18       [4] After purchasing it in April 2005 but prior to


          2
            The number of licenses issued for business premises
     in 2006 exceeded the number of new applications received
     that year, which suggests that licenses were not necessarily
     issued in the year they were applied for, or that the number
     of licenses issued includes license renewals that are not
     considered “new applications,” or both. In any event, this
     does not affect our analysis.
                                     6
1             February 2006--while he resided in New York--

2             Decastro knowingly and willfully transported the

3             Taurus Pistol from Florida to New York, and gave

4             it to a resident of the Bronx;

5        [5] Decastro never applied for and was not issued a

6             license to possess a firearm in New York, and when

7             he transported the pistol from Florida to New York

8             he knew that his conduct was unlawful.

9        The district court found Decastro guilty on the sole

10   count of the indictment and sentenced him to two years of

11   probation (and imposed a mandatory $100 special assessment).

12   This appeal followed.

13

14                            DISCUSSION

15       On appeal, Decastro challenges the constitutionality of

16   18 U.S.C. § 922(a)(3) on two grounds: [1] it is facially

17   unconstitutional because it impermissibly burdens the right

18   to keep and bear arms guaranteed by the Second Amendment;

19   and [2] when combined with New York’s licensing scheme, the

20   prohibition on the transportation into New York of a firearm

21   purchased in another state made it practically impossible

22   for him to secure a handgun for self-defense.   The district


                                  7
1    court confined its analysis to the second argument; on

2    appeal Decastro focuses principally on the first.

3        As to each argument, our review is de novo.     See United

4    States v. Pettus, 303 F.3d 480, 483 (2d Cir. 2002).

5

6                                   I

7        When “a defendant has already been convicted for

8    specific conduct under the challenged law,” a court

9    considering a facial challenge to a criminal statute must

10   “‘examine the complainant’s conduct before analyzing other

11   hypothetical applications.’”   United States v. Farhane, 634

12   F.3d 127, 139 (2d Cir. 2011) (quoting Vill. of Hoffman

13   Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 495

14   (1982)).   We are guided by “‘the principle that a person to

15   whom a statute may constitutionally be applied will not be

16   heard to challenge that statute on the ground that it may

17   conceivably be applied unconstitutionally to others, in

18   other situations not before the Court.’”   Parker v. Levy,

19   417 U.S. 733, 759 (1974) (quoting Broadrick v. Oklahoma, 413

20   U.S. 601, 610 (1973)).   It follows that a defendant who

21   fails to demonstrate that a challenged law is

22   unconstitutional as applied to him has “necessarily fail[ed]


                                    8
1    to state a facial challenge, which requires [him] to

2    establish that no set of circumstances exists under which

3    the statute would be valid.”        Diaz v. Paterson, 547 F.3d 88,

4    101 (2d Cir. 2008) (internal quotation marks and brackets

5    omitted).   Since Decastro has already been convicted under

6    § 922(a)(3), the first step in our consideration of his

7    facial challenge is to assess the burden, if any, that the

8    statute has imposed on Decastro himself.

9

10                                  II

11                                  A.

12       Decastro’s first argument with respect to the

13   unconstitutionality of § 922(a)(3) as applied to him focuses

14   on the interplay between New York state licensing laws and

15   federal firearms law.   Decastro argues that because the

16   restrictive licensing scheme in his home state effectively

17   compelled him to go elsewhere to get a handgun, § 922(a)(3)

18   prevented him from exercising his Second Amendment right to

19   possess a handgun for self-defense.

20       The premise of Decastro’s argument is that New York’s

21   licensing scheme is itself constitutionally defective; his

22   argument is therefore tantamount to a challenge to that


                                     9
1    scheme.   However, because Decastro failed to apply for a gun

2    license in New York, he lacks standing to challenge the

3    licensing laws of the state.   “As a general matter, to

4    establish standing to challenge an allegedly

5    unconstitutional policy, a plaintiff must submit to the

6    challenged policy.”   Jackson-Bey v. Hanslmaier, 115 F.3d

7    1091, 1096 (2d Cir. 1997); see also Allen v. Wright, 468

8    U.S. 737, 746, 755 (1984) (holding that parents lacked

9    standing to challenge the tax-exempt status of allegedly

10   racially discriminatory private schools to which their

11   children had not applied); Moose Lodge No. 107 v. Irvis, 407

12   U.S. 163, 166-68 (1972) (holding that an African American

13   lacked standing to challenge the discriminatory membership

14   policy of a club to which he never applied).   Failure to

15   apply for a license would not preclude Decastro’s challenge

16   if he made a “substantial showing” that submitting an

17   application “would have been futile.”   Jackson-Bey, 115 F.3d

18   at 1096; cf. Bach v. Pataki, 408 F.3d 75, 82-83 (2d cir.

19   2005) (holding that plaintiff’s challenge to New York’s gun

20   licensing laws applicable to non-residents was justiciable

21   despite his failure to apply for a license because he was

22   statutorily ineligible for a license and therefore



                                    10
1    submitting an application would have been a “futile gesture”

2    (internal quotation marks omitted)).   But the only evidence

3    Decastro offers to show futility is the hearsay statement of

4    an unidentified police desk officer who had no apparent

5    connection to the licensing process, and whose view is

6    incompatible with the NYPD report that Decastro submitted to

7    the district court showing that roughly 2/3 to 3/4 of

8    handgun license applications during the period in question

9    were granted.   Although the absolute number of handgun

10   licenses granted has historically been small, so has the

11   number of applications received.    Decastro has adduced no

12   evidence that the low volume of license applications is

13   itself a product of the futility of the application process.

14   He has therefore not made the substantial showing of

15   futility necessary to excuse his failure to apply for a

16   handgun license in New York.

17

18                                  B.

19       Having concluded that Decastro is in no position to

20   challenge the constitutionality of § 922(a)(3) based on the

21   asserted effects of New York’s licensing scheme, we now

22   consider Decastro’s argument that § 922(a)(3) is, by its own


                                    11
1    terms, unconstitutional because it infringes the core Second

2    Amendment right of law-abiding citizens to possess firearms

3    for self-defense.   Decastro maintains that the statute

4    should be subject to strict scrutiny or (at minimum)

5    intermediate scrutiny, and that it cannot withstand review

6    under either standard.

7        We hold that heightened scrutiny is appropriate only as

8    to those regulations that substantially burden the Second

9    Amendment.   Because § 922(a)(3) only minimally affects the

10   ability to acquire a firearm, it is not subject to any form

11   of heightened scrutiny.   (We therefore need not decide the

12   level of scrutiny applicable to laws that do impose such a

13   burden.)3

14




          3
            We also need not decide whether certain firearm laws
     might regulate conduct that is entirely unprotected by the
     Second Amendment, whether because of the type of weapon
     involved, the status of the person claiming the right, or
     where the right is sought to be exercised. See Ezell v.
     City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011);
     United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.
     2010), cert. denied, 131 S. Ct. 2476 (2011); United States
     v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States
     v. Marzzarella, 614 F.3d 85, 89-91 (3d Cir. 2010), cert.
     denied, 131 S. Ct. 958 (2011); cf. Heller v. District of
     Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011).
                                   12
1                                  1.

2          The Second Amendment provides: “A well regulated

3    Militia, being necessary to the security of a free State,

4    the right of the people to keep and bear Arms, shall not be

5    infringed.”   U.S. Const. amend. II.   In District of Columbia

6    v. Heller, the Supreme Court held that the Second Amendment

7    codified a pre-existing “individual right to possess and

8    carry weapons in case of confrontation.”   554 U.S. at 592.

9    In emphasizing the need for self-defense, the Court relied

10   on the historical record and the meaning of the text of the

11   Second Amendment at the time of ratification.   The Court

12   declined to announce the precise standard of review

13   applicable to laws that infringe the Second Amendment right

14   because the laws at issue (by which the District of Columbia

15   categorically banned handguns, and required that all other

16   firearms be kept inoperable) would be unconstitutional

17   “[u]nder any of the standards of scrutiny that we have

18   applied to enumerated constitutional rights.”   Id. at 628-

19   29.   At the same time, Heller disclaims any reading that

20   calls into question (among other things) “laws forbidding

21   the carrying of firearms in sensitive places such as schools

22   and government buildings, or laws imposing conditions and


                                   13
1    qualifications on the commercial sale of arms.”   Id. at 626-

2    27; see also McDonald v. City of Chicago, 130 S. Ct. 3020,

3    3047 (2010) (reiterating Heller’s assurances that the

4    decision “did not cast doubt on such longstanding regulatory

5    measures”).4   Although the Court did not expand on why these

6    two classes of restrictions would be permissible, the

7    natural explanation is that time, place and manner

8    restrictions may not significantly impair the right to

9    possess a firearm for self-defense, and may impose no

10   appreciable burden on Second Amendment rights.

11       Throughout, Heller identifies the constitutional

12   infirmity in the District of Columbia laws in terms of the

13   burden on the ability of D.C. residents to possess firearms

14   for self-defense.   The Court emphasized that the handgun ban

15   prohibited the “most popular weapon chosen by Americans for

16   self-defense in the home,” id. at 629, that the mandate to

17   disable all firearms “makes it impossible for citizens to

          4
            In addition to these time, place and manner
     restrictions, the “presumptively lawful regulatory measures”
     cited by the Court included “longstanding prohibitions on
     the possession of firearms by felons and the mentally ill.”
     Heller, 554 U.S. at 626, 627 n.26. The Court also noted
     that the Second Amendment right does not encompass all
     weapons, but only those “typically possessed by law-abiding
     citizens for lawful purposes” and thus does not include the
     right to possess “dangerous and unusual weapons.” Id. at
     625, 627 (internal quotation marks omitted).
                                   14
1    use them for the core lawful purpose of self-defense and is

2    hence unconstitutional,” id. at 630 (emphasis added), and

3    that “[f]ew laws in the history of our Nation have come

4    close to the severe restriction of the District’s handgun

5    ban,” id. at 629.

6        The Court emphasized the practical impact of a

7    challenged regulation on the ability of citizens to possess

8    and use guns for the core lawful purpose of self-defense.

9    That emphasis is implicitly justified (in the opinion) by

10   the history of the Amendment as a response to measures taken

11   by English kings, including George III, to disarm the

12   citizenry, see id. at 592-95, and is reinforced by the

13   grounds used by the majority to distinguish the founding-era

14   laws cited by the dissent.   Thus the majority distinguished

15   18th-century laws regulating the storage of excess

16   gunpowder, id. at 632, and the laws of colonial cities

17   regulating time, place and manner for the discharge of

18   firearms (as on public streets and taverns or on New Year’s

19   Eve), id. at 632-33.   Such colonial laws did not much burden

20   self-defense and had a minimal deterrent effect on the

21   exercise of Second Amendment rights.




                                   15
1        Given Heller’s emphasis on the weight of the burden

2    imposed by the D.C. gun laws, we do not read the case to

3    mandate that any marginal, incremental or even appreciable

4    restraint on the right to keep and bear arms be subject to

5    heightened scrutiny.   Rather, heightened scrutiny is

6    triggered only by those restrictions that (like the complete

7    prohibition on handguns struck down in Heller) operate as a

8    substantial burden on the ability of law-abiding citizens to

9    possess and use a firearm for self-defense (or for other

10   lawful purposes).   This approach finds support, to varying

11   degrees, in other Circuits.   See Nordyke v. King, 644 F.3d

12   776, 786 (9th Cir.) (“[O]nly regulations which substantially

13   burden the right to keep and to bear arms trigger heightened

14   scrutiny under the Second Amendment.”), reh’g in banc

15   granted, 664 F.3d 774 (9th Cir. 2011); see also Heller v.

16   District of Columbia, 670 F.3d 1244, 1253, 1260 (D.C. Cir.

17   2011) (laws that have only a “de minimis” effect on the

18   right to bear arms or that do not “meaningfully affect

19   individual self-defense” do not impinge on the Second

20   Amendment right and therefore do not warrant heightened

21   scrutiny (internal quotation marks omitted)); cf. Ezell v.

22   City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011) (holding



                                   16
1    that “a severe burden on the core Second Amendment right of

2    armed self-defense will require an extremely strong public-

3    interest justification and a close fit between the

4    government’s means and its end” but that “laws restricting

5    activity lying closer to the margins of the Second Amendment

6    right, laws that merely regulate rather than restrict, and

7    modest burdens on the right may be more easily justified”);

8    United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir.)

9    (endorsing a sliding scale approach to determining the level

10   of scrutiny applicable to laws that burden Second Amendment

11   rights depending in part on “the extent to which [Second

12   Amendment] interests are burdened by government

13   regulation”), cert. denied, 132 S. Ct. 756 (2011); United

14   States v. Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010)

15   (suggesting that a “de minimis” burden on the right to keep

16   arms for self-defense might not warrant heightened

17   scrutiny), cert. denied, 131 S. Ct. 958 (2011).

18       Reserving heightened scrutiny for regulations that

19   burden the Second Amendment right substantially is not

20   inconsistent with the classification of that right as

21   fundamental to our scheme of ordered liberty in McDonald v.




                                  17
1    City of Chicago, 130 S. Ct. at 3036.5   A similar threshold

2    showing is needed to trigger heightened scrutiny of laws

3    alleged to infringe other fundamental constitutional rights.

4    The right to marry is fundamental, but “reasonable

5    regulations that do not significantly interfere with

6    decisions to enter into the marital relationship” are not

7    subject to the “rigorous scrutiny” that is applied to laws

8    that “interfere directly and substantially with the right to

9    marry.”   Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978).

10   The right to vote is fundamental, but “the rigorousness of

11   our inquiry into the propriety of a state election law

12   depends upon the extent to which a challenged regulation

13   burdens First and Fourteenth Amendment rights.”   Burdick v.

14   Takushi, 504 U.S. 428, 434 (1992); see also Rosario v.

15   Rockefeller, 410 U.S. 752, 757-60 (1973) (upholding a law

16   conditioning the right to vote in primaries, because the

17   restriction imposed a time limitation that was not “so

18   severe as itself to constitute an unconstitutionally onerous

19   burden on the petitioners’ exercise of the franchise”).


          5
            Nor is it inconsistent with language in Heller
     rejecting rational basis review for laws that infringe
     Second Amendment rights. See Heller, 554 U.S. at 628 n.27.
     In Heller, the Court was faced with restrictions that
     undoubtedly did impose a significant burden on core Second
     Amendment rights. It had no occasion to consider the
     appropriate standard of review for laws that only minimally
     impact such rights.
                                   18
1        The weight of the burden matters in assessing the

2    permissible bounds of regulation in other constitutional

3    contexts as well, such as takings, abortion, and free

4    speech.   See Lucas v. S.C. Coastal Council, 505 U.S. 1003,

5    1014-16 (1992) (only those regulations on property that go

6    “too far” require the payment of just compensation under the

7    Takings Clause (internal quotation marks omitted)); Stenberg

8    v. Carhart, 530 U.S. 914, 921 (2000) (prior to fetal

9    viability, a state may not enact laws that impose an “undue

10   burden” on a woman’s decision to terminate her pregnancy,

11   i.e., regulations that have “‘the purpose or effect of

12   placing a substantial obstacle in the path of a woman

13   seeking an abortion’” (quoting Planned Parenthood of Se. Pa.

14   v. Casey, 505 U.S. 833, 877 (1992)); Ward v. Rock Against

15   Racism, 491 U.S. 781, 791 (1989) (reasonable time, place or

16   manner restrictions are subject to lesser scrutiny as long

17   as they are content-neutral and preserve “ample alternative

18   channels for communication of the information” (internal

19   quotation marks omitted)).

20       In deciding whether a law substantially burdens Second

21   Amendment rights, it is therefore appropriate to consult

22   principles from other areas of constitutional law, including

23   the First Amendment (to which Heller adverted repeatedly).

                                   19
1    See Heller, 554 U.S. at 582, 595, 635 (analogizing to First

2    Amendment doctrine); see also Ezell, 651 F.3d at 702-04

3    (drawing parallels from the First Amendment context to

4    analyze Second Amendment claims); Marzzarella, 614 F.3d at

5    89 & n.4 (looking to the structure of the First Amendment

6    for guidance in evaluating Second Amendment challenges).     In

7    evaluating the reasonableness of content-neutral time, place

8    or manner regulations under the First Amendment, we ask

9    whether the challenged regulation “leave[s] open ample

10   alternative channels for communication of the information.”

11   Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293

12   (1984).   Regulation may “reduce to some degree the potential

13   audience for [one’s] speech” so long as “the remaining

14   avenues of communication are []adequate.”   Ward, 491 U.S. at

15   802.   By analogy, law that regulates the availability of

16   firearms is not a substantial burden on the right to keep

17   and bear arms if adequate alternatives remain for law-

18   abiding citizens to acquire a firearm for self-defense.     See

19   Nordyke, 644 F.3d at 787-88; see also Heller, 554 U.S. at

20   626-27 (identifying as presumptively lawful “laws imposing

21   conditions and qualifications on the commercial sale of

22   arms”).

23

                                   20
1                                   2.

2        Applying those principles to Decastro’s challenge, we

3    conclude that § 922(a)(3) does not substantially burden his

4    right to keep and bear arms.   Section 922(a)(3) prohibits

5    the transportation into one’s state of residence of firearms

6    acquired outside the state; but it does nothing to keep

7    someone from purchasing a firearm in her home state, which

8    is presumptively the most convenient place to buy anything.

9    The evident purpose of the statute is to stop circumvention

10   of state laws regulating gun possession; it does so by

11   requiring state residents to comply with conditions of sale

12   and similar requirements in their home state.   See S. Rep.

13   No. 90-1097, at 50 (1968), reprinted in 1968 U.S.C.C.A.N.

14   2112, 2166 (concluding that the traffic of guns through mail

15   order common carriers and non-resident sources “is a means

16   which affords circumvention and contravention of State and

17   local laws governing the acquisition of [firearms]”).

18   Moreover, as interpreted by the Bureau of Alcohol, Tobacco,

19   Firearms and Explosives, § 922(a)(3) does not bar purchases

20   from an out-of-state supplier if the gun is first

21   transferred to a licensed gun dealer in the purchaser’s home

22   state.   See Bureau of Alcohol, Tobacco, Firearms and

23   Explosives, Frequently Asked Questions, available at

                                    21
1    http://www.atf.gov/firearms/faq/unlicensed-persons.html#out-

2    of-state-firearm.html (last visited on May 31, 2012).6    In

3    light of the ample alternative means of acquiring firearms

4    for self-defense purposes, § 922(a)(3) does not impose a

5    substantial burden on the exercise of Decastro’s Second

6    Amendment rights.

7

8                               III

9        Since § 922(a)(3) does not burden Decastro’s Second

10   Amendment rights in a way so substantial as to justify

11   heightened scrutiny, his facial challenge to the statute

12   must also fail.   In order to succeed in his facial challenge

13   to § 922(a)(3), Decastro would need to show that “no set of

14   circumstances exists under which the [statute] would be



          6
            Decastro has not advanced any argument that
     § 922(a)(3) makes it more costly to acquire a firearm (as by
     insulating local gun dealers from interstate competition, or
     because of increased transportation costs). In any event,
     within limits, that would not be a constitutional defect.
     See Casey, 505 U.S. at 874 (“The fact that a law which
     serves a valid purpose, one not designed to strike at the
     right itself, has the incidental effect of making it more
     difficult or more expensive to procure an abortion cannot be
     enough to invalidate it.”); Kovacs v. Cooper, 336 U.S. 77,
     88-89 (1949) (upholding a city ordinance prohibiting the use
     of sound trucks: “That more people may be more easily and
     cheaply reached by sound trucks, perhaps borrowed without
     cost from some zealous supporter, is not enough to call
     forth constitutional protection”).
                                      22
1    valid, i.e., that the law is unconstitutional in all of its

2    applications,” or at least that it lacks a “plainly

3    legitimate sweep.”    Wash. State Grange v. Wash. State

4    Republican Party, 552 U.S. 442, 449 (2008) (internal

5    quotation marks and citation omitted).    Because § 922(a)(3)

6    does not substantially burden the fundamental right to

7    obtain a firearm sufficient for self-defense, and attempts

8    only to assist states in the enforcement of their own gun

9    laws, it does not infringe the Second Amendment right to

10   keep and bear arms, and its sweep is therefore plainly

11   legitimate.7

12       The facial constitutionality of § 922(a)(3) is

13   unimpaired by the risk that some state laws governing the

14   sale of firearms may themselves be unconstitutional.

15   Nothing on the face of § 922(a)(3) sanctions, compels, or

16   encourages state regulations that offend the Second

17   Amendment.     If the requisite interstate nexus exists,

18   Congress may enact laws (like § 922(a)(3)) designed to



          7
            While we hold that Section 922(a)(3) is not
     unconstitutional on its face, we do not rule out the
     possibility that, on a different set of facts, a defendant
     might be able to establish that the application of Section
     922(a)(3) to him would burden his right to keep and bear
     arms so substantially as to render the statute
     unconstitutional as applied.
                                     23
1    prevent the circumvention of state law, and in so doing may

2    indulge the presumption that the underlying state laws are

3    not unconstitutional.   See, e.g., 18 U.S.C. § 228(a)(1)

4    (making it a federal offense to willfully fail to pay a

5    support obligation with respect to a child living in another

6    state).   By the same token, courts have upheld federal laws

7    that curtail the possession of firearms by certain persons

8    based on state court adjudications.   See, e.g., United

9    States v. Reese, 627 F.3d 792, 802-04 (10th Cir. 2010)

10   (upholding against a Second Amendment challenge a federal

11   statute prohibiting possession of firearms by anyone subject

12   to certain restraining orders, and explaining that the

13   defendant could not collaterally attack the underlying

14   protective order in his federal prosecution), cert. denied,

15   131 S. Ct. 2476 (2011).   It may be that a “statute tolerates

16   different outcomes . . . in different states, but this is

17   true of all situations in which a firearms disability (or

18   any other adverse consequence) depends on state law.”

19   United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010)

20   (in banc), cert. denied, 131 S. Ct. 1674 (2011).   If an

21   injury is suffered as a result of the unconstitutional

22   application of a state law regulating the possession of

23   firearms, the proper challenge is one addressed to the state

                                   24
1    law.    See McDonald, 130 S. Ct. at 3026 (holding that the

2    Second Amendment applies to the states).

3           As Decastro observes, § 922(a)(3) has no exception for

4    the transportation of firearms purchased out-of-state by

5    someone who is licensed to possess a gun at home; but

6    Decastro is not in a position to raise such an overbreadth

7    exception.    Decastro did not have a license to own a firearm

8    in New York, nor did he apply for one.    Facial overbreadth

9    challenges are disfavored and permitted “in relatively few

10   settings, and, generally, on the strength of specific

11   reasons weighty enough to overcome [courts’] well-founded

12   reticence.”    Sabri v. United States, 541 U.S. 600, 609-10

13   (2004).    There is no overbreadth argument that Decastro can

14   make in the Second Amendment context.    See Masciandaro, 638

15   F.3d at 474 (rejecting defendant’s facial overbreadth

16   challenge because “a person . . . to whom a statute was

17   constitutionally applied, will not be heard to challenge

18   that statute on the ground that it may conceivably be

19   applied unconstitutionally to others, in other situations

20   not before the Court” (internal quotation marks omitted));

21   Skoien, 614 F.3d at 645 (“A person to whom a statute

22   properly applies can’t obtain relief based on arguments that

23   a differently situated person might present.”).

                                    25
1       For the reasons stated, Decastro’s facial challenge to

2   18 U.S.C. § 922(a)(3) fails.

3

4                            CONCLUSION

5       For the foregoing reasons, the judgment of the district

6   court is affirmed.




                                   26
 1   HALL, Circuit Judge, concurring:

 2          I fully concur in the result reached in the opinion. I write separately, however, to

 3   enunciate how I reach the determination that § 922 (a)(3) does not impose a substantial burden

 4   on the exercise of Decastro’s Second Amendment right.

 5          Had Decastro opted to utilize the lawful means by which he could have acquired a

 6   handgun in New York and done so, § 922 (a)(3) would have played no role in regulating that

 7   transaction. By the same token, § 922 (a)(3) by its terms did not preclude Decastro from

 8   acquiring the handgun in question from the Florida dealer because all that the federal statute

 9   effected were minor limitations on the channels through which that handgun was to be shipped

10   from Florida to New York. Even though acquisition is indeed often necessary to effectuate the

11   Second Amendment right to keep and bear arms, any limitations on Decastro’s acquisition were

12   those occasioned by his own refusal to comply with New York State’s requirements for

13   possessing a handgun, and the federal statute, therefore, played no demonstrable role in

14   precluding Decastro from purchasing a firearm in either state so as to exercise his Second

15   Amendment right. For these reasons, § 922 (a)(3), as applied, does not substantially burden

16   Decastro’s Second Amendment right to own a firearm in defense of his home and hearth. See

17   District of Columbia v. Heller, 554 U.S. 570, 635 (2008).




                                                     1
