                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4284


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

SAMUEL ROBERT HOSFORD,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00550-DKC-1)


Argued:   September 23, 2016                 Decided:   December 6, 2016


Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit
Judges.


Affirmed by published opinion.    Chief Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Diaz joined.


ARGUED:    Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Dana Jill Brusca,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.    ON BRIEF:    James Wyda, Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
GREGORY, Chief Judge:

       In 2013, Mr. Samuel Hosford was indicted under 18 U.S.C.

§ 922 for unlicensed dealing in firearms and conspiracy to deal

firearms without a license.              He moved to dismiss the indictment

on constitutional grounds.               Specifically, he argued that the

indictment     violated       his    Second    Amendment     right    to   engage    in

intrastate firearm sales between non-prohibited persons; the Due

Process Clause of the Fifth Amendment for vagueness; and the

Commerce     Clause.      The       district   court    denied    his   motion,     and

Hosford timely appealed.

       “We   review    the     district       court’s   factual      findings   on   a

motion to dismiss an indictment for clear error, but we review

its legal conclusions de novo.”                  United States v. Perry, 757

F.3d    166,   171     (4th     Cir.    2014)     (quoting     United      States    v.

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005)).                     We hold that the

prohibition against unlicensed firearm dealing comports with the

Second and Fifth Amendments both facially and as applied.                       It is

also a valid exercise of congressional power under the Commerce

Clause.      Accordingly, we affirm the district court’s denial of

Hosford’s motion to dismiss his indictment.




                                           2
                                                I.

     Hosford, a resident of Montgomery County, Maryland, sold

firearms to an individual he met in a public parking lot five

times    over    the   course       of    two-and-a-half          months.        He   had    no

reason     to    believe       that       the        individual     was     a    prohibited

purchaser,      but    he    also    took       no    measures    to   ensure     that      the

individual      was    a    valid     purchaser.          Unbeknownst       to    him,      the

individual was an undercover officer.                      Hosford was arrested and

indicted       for    one    count       of     conspiracy       and   five      counts      of

unlicensed firearm dealing.

     According to the facts agreed to in his conditional plea

agreement, Hosford conspired with another man, Henry Parrott, to

sell firearms.          Parrott purchased firearms from gun shows and

delivered them to Hosford.                Hosford then sold these firearms to

the undercover officer.                  Over five transactions, Hosford sold

the officer eight guns and intended to sell another four guns

before he was arrested.

     Hosford moved to dismiss his indictment as unconstitutional

under    the    Second      Amendment,        Due     Process     Clause    of   the   Fifth

Amendment, and Commerce Clause.                       The district court held that

the indictment was constitutional.                     Hosford then pleaded guilty,

conditioned on the outcome of this appeal about the statute’s

constitutionality.

                                                3
                                                 II.

     Hosford was indicted under the Gun Control Act of 1968, 18

U.S.C.   § 921        et    seq.,        which   prohibits         individuals       without    a

license from regularly selling, for the predominant purpose of

gaining profit, firearms that are not part of their personal

collection       or     for    their        hobby.          Because       Hosford’s        motion

challenges       on        Second        Amendment      and    vagueness        grounds      the

constitutionality of this prohibition, we first more carefully

review   the     statutes           at    issue,       as   well    as    the   burdens       and

responsibilities they trigger.

     18 U.S.C. § 922 forbids anyone “except a licensed importer,

licensed    manufacturer,            or     licensed        dealer,      to   engage    in    the

business of importing, manufacturing, or dealing in firearms.”

18 U.S.C. § 922(a)(1)(A).

     18 U.S.C. § 921 lays out the relevant definitions for this

prohibition.          A dealer is, in relevant part, “any person engaged

in the business of selling firearms at wholesale or retail.”                                   18

U.S.C. § 921(11)(A).                 A licensed dealer is a dealer who has

obtained     a    federal           license      to     commercially          buy    and     sell

firearms.        Id.          And    under       clarifying        statutory        definitions

passed in 1986, “[e]ngaged in the business” means “a person who

devotes time, attention, and labor to dealing in firearms as a

regular course of trade or business with the principal objective

                                                  4
of livelihood and profit through the repetitive purchase and

resale of firearms.”               18 U.S.C. § 921(21)(C); see also Firearm

Owners Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986).

And   “with    the    principal          objective          of   livelihood      and        profit”

means   that   the        intent    of    the        sale    “is   predominantly            one   of

obtaining livelihood and pecuniary gain,” as opposed to other

intents   like    decreasing         or    increasing            one’s    personal          firearm

collection.          18     U.S.C.       § 921(22).              But     these    definitions

explicitly exempt anyone “who makes occasional sales, exchanges,

or    purchases      of    firearms       for    the        enhancement     of     a    personal

collection or for a hobby, or who sells all or part of his

personal collection of firearms.”                     18 U.S.C. § 921(21)(C).

       To obtain a license, a prospective firearms dealer must

submit an application, be at least twenty-one years old, pay a

fee, and establish lawful premises for selling firearms.                                          18

U.S.C. § 923(a), (d).              If the applicant fulfills these steps and

is    otherwise      legally       able     to       possess,         transport,       and    ship

firearms, the application must be approved.                            18 U.S.C. § 923(d).

       Licensed      dealers       are    subject           to   regulations       that      those

conducting personal sales are not.                           For example, the Attorney

General may require licensed dealers to maintain importation,

production,      shipment,         and    other       kinds      of    records,        18    U.S.C.

§ 923(g)(1)(A), and may inspect a dealer’s inventory or records

                                                 5
without      reasonable      cause      for       a    warrant,     subject         to    other

limitations, 18 U.S.C. § 923(g)(1)(B).



                                          III.

       We first review Hosford’s Second Amendment challenges.                                “A

well regulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear Arms, shall

not be infringed.”           U.S. Const. amend. II.                 For centuries, the

Second Amendment received minimal judicial interpretation.

       Then,     in   District     of   Columbia           v.   Heller,       554   U.S.    570

(2008), the Supreme Court determined that the Second Amendment

protects       an     individual     “right           of   law-abiding,         responsible

citizens to use arms in defense of hearth and home.”                                     Id. at

635.    The Court held unconstitutional the District of Columbia’s

ban on possession of handguns in the home and its requirement

that   all     firearms      in   the   home          be   stored   in    a    manner      that

rendered them inoperable for immediate self-defense.                            Id.

       But the Court underscored that Heller was not meant “to

clarify    the      entire   field”     of    Second        Amendment     jurisprudence.

Id.    It further emphasized that Heller should not “be taken to

cast doubt on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as schools and

                                              6
government       buildings,     or     laws    imposing        conditions     and

qualifications on the commercial sale of arms.”                 Id. at 626-27.

In a footnote, the Court identified these kinds of prohibitions

as “presumptively lawful regulatory measures.”             Id. at 627 n.26.

       Since   Heller,    courts     have   endeavored    to    establish    what

conduct the Second Amendment protects and what burdens on that

conduct are constitutionally justifiable.                The Fourth Circuit

has    adopted     a    two-pronged     inquiry    for     Second     Amendment

challenges.      First, the court must ask “whether the challenged

law imposes a burden on conduct falling within the scope of the

Second Amendment’s guarantee.”              United States v. Chester, 628

F.3d    673,   680     (4th   Cir.    2010)   (quoting    United    States     v.

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)).                  If it does not,

then the law comports with the Second Amendment.                    But if the

challenged regulation does burden conduct within the scope of

the Second Amendment as historically understood, the court must

apply “an appropriate form of means-end scrutiny.”               Id. at 680.

       Against this backdrop, Hosford raises both facial and as-

applied Second Amendment challenges to the prohibition against

unlicensed firearm dealing.          We consider each in turn.

                                       A.

       We first examine Hosford’s facial challenge.              To succeed in

a facial constitutional challenge, a movant “must establish that

                                        7
no set of circumstances exists under which the Act would be

valid.”       United States v. Salerno, 481 U.S. 739, 745 (1987).

Because      of    this   stringent       standard,     a    facial     challenge     is

perhaps “the most difficult challenge to mount successfully.”

Id.     And while courts generally engage in the above-mentioned

two-pronged analysis for facial Second Amendment challenges, our

precedent         simplifies    that      analysis     for   prohibitions          deemed

“presumptively lawful” in Heller.

       In United States v. Moore, 666 F.3d 313 (4th Cir. 2012),

this Court found the federal prohibition against possession of

firearms      by     felons     facially      constitutional       because     it     was

identified in Heller as presumptively lawful.                         Id. at 318-19.

According to this Court, the Supreme Court’s identification of

“longstanding        prohibitions        on   the   possession     of    firearms     by

felons”      as    presumptively        lawful    “streamlined”       the   otherwise-

applicable two-pronged analysis.                  Id. at 317-18.      “It is unclear

to     us    whether      Heller    was       suggesting      that      ‘longstanding

prohibitions’ such as these . . . were historically understood

to be valid limitations on the right to bear arms or did not

violate the Second Amendment for some other reason.”                        Id. at 318

(quoting Chester, 628 F.3d at 679); see also Marzzarella, 614

F.3d    at   91.       But     either    reasoning     demonstrated         that    these

presumptively lawful prohibitions were facially constitutional,

                                              8
because they could be constitutionally applied.                    Moore, 666 F.3d

at 318-19.

      The     same     reasoning      applies     here.          Hosford’s        facial

challenge fails if the prohibition against unlicensed firearm

dealing is the type of regulation deemed “presumptively lawful”

in Heller.         There may be debate as to whether the Supreme Court

called presumptively lawful all “laws imposing conditions and

qualifications        on    the     commercial    sale      of   arms,”      or    only

“longstanding . . . laws imposing conditions and qualifications

on the commercial sale of arms.”                 Heller, 554 U.S. at 626-27.

But   we    need    not    parse    that   language     here:      the   prohibition

against unlicensed firearm dealing is a longstanding condition

or qualification on the commercial sale of arms and is thus

facially constitutional.

      First, the regulation covers only the commercial sale of

firearms.      It affects only those who regularly sell firearms,

not owned for personal use, in the course of trade or business

for the principal purpose of profit.                  It explicitly excludes the

vast majority of noncommercial sales, such as sales from one’s

own personal collection, sales meant to enhance one’s hobby, and

infrequent sales or exchanges.

      Second,       the     regulation      imposes     a   mere     condition       or

qualification.             Though     framed     as     a   prohibition       against

                                           9
unlicensed firearm dealing, the law is in fact a requirement

that those who engage in the commercial sale of firearms obtain

a license.         A prospective dealer who wishes to obtain a license

need only submit an application, be at least twenty-one years

old,    pay    a    fee,    and       establish        lawful        premises    for   selling

firearms.          18 U.S.C. § 923(a), (d).                    Neither the application

procedure       nor   the       fee    are    so       prohibitive       as   to   turn    this

condition or qualification into a functional prohibition.                                   Cf.

Ill. Ass’n of Firearms Retailers v. City of Chicago, 961 F.

Supp.     2d   928,    938-939         (N.D.      Ill.       2014)    (finding     that    city

ordinances      allowing        firearm      sales       and      transfers     only    outside

city    limits      were    a    functional            ban   on    firearm      acquisition);

Teixeira v. County of Alameda, 822 F.3d 1047 (9th Cir. 2016)

(noting that if no unincorporated area of county qualifies under

zoning requirement that firearm retailers must be 500 feet from

certain establishments, zoning requirement may be functional ban

on firearm stores).

       And     lastly,     this       prohibition        against       unlicensed      firearm

dealing is longstanding.                    Federal appellate courts have only

recently begun to establish how old a firearm regulation must be

to   be   longstanding.               And    no    court       has    previously       examined

whether the prohibition at issue here is longstanding.                                    But a

review of similar cases establishes that the prohibition against

                                                  10
unlicensed       firearm       dealing   is    of    similar      age    to    other

longstanding firearm regulations, and is thus also longstanding.

       The Third Circuit found New Jersey’s permit requirement for

possessing handguns “longstanding”; New Jersey established its

permit requirement in 1966 and first required permits for only

concealable handguns in 1924.            Drake v. Filko, 724 F.3d 426, 432

(3d Cir. 2013).         The D.C. Circuit noted that the U.S. Supreme

Court found prohibitions on the possession of firearms by felons

to   be    longstanding    “although      states     did   not   start   to    enact

th[ose prohibitions] until the early 20th century.”                      Heller v.

District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011); see

also C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32

Harv. J.L. & Pub. Pol’y 695, 708 (2009) (noting that bans on

possession of firearms by felons not passed in any state other

than      New   York   until    1923,    and   not    passed     in   states    with

constitutional right-to-arms provisions until 1925).                      And the

D.C. Circuit found that Washington, D.C.’s handgun-registration

requirement, first passed in 1975, was longstanding, even though

some states first regulated the possession of handguns in 1927

or 1932, and those laws required less of the purchaser.                          See

Heller, 670 F.3d at 1254; see also, e.g., 47 Stat. 650, 652

(1932) (requiring purchasers of pistols in District of Columbia



                                         11
to   give     seller    basic    personal         identifying    information);      1927

Haw. Sess. Laws 209, 211 (same).

       Licensing requirements for dealers have been around for as

long as these laws, if not longer.                   The federal government first

required dealers to obtain licenses in 1938, nearly eighty years

ago.       Federal Firearms Act, Pub. L. No. 75-785, 52 Stat. 1250,

1250 (1938) (repealed 1968) (replaced with Gun Control Act of

1968, Pub. L. 90-618, 82 Stat. 1213).                   And some states required

licenses for dealers even earlier. 1                 Thus, the federal progenitor

of   the     law   at   issue    was   passed       decades     before    the   handgun-

licensing requirements examined by the Third Circuit and D.C.

Circuit.       And licensing requirements on dealers have existed at

least as long as regulations on the possession of handguns.

       For    these     reasons,       the    prohibition        against    unlicensed

firearm dealing is a longstanding condition or qualification on

the commercial sale of firearms.                   As a result, Hosford’s facial

Second Amendment challenge fails.

                                             B.

       Even if a statute is facially constitutional, “the phrase

‘presumptively          lawful     regulatory          measures’         suggests   the


       1
       See, e.g., 47 Stat. 650, 652 (1932) (District of Columbia
established licensing requirement in 1932); 1927 Haw. Sess. Laws
209, 211 (Hawaii established licensing requirement in 1927).


                                             12
possibility that one or more of these ‘longstanding’ regulations

‘could     be     unconstitutional        in    the   face    of    an    as-applied

challenge.”       Chester, 628 F.3d at 679 (quoting United States v.

Williams, 616 F.3d 685, 692 (7th Cir. 2010)).                     We thus now turn

to Hosford’s as-applied challenge.

     As stated above, this Court has established a two-pronged

analysis        for    Second    Amendment        challenges:        “whether     the

challenged law imposes a burden on conduct falling within the

scope of the Second Amendment’s guarantee,” and if so, whether

the challenged law survives “an appropriate form of means-end

scrutiny.”        Chester, 628 F.3d at 680.             But even when applying

this analysis, we are at liberty to assume that a challenged

statute burdens conduct protected by the Second Amendment and

focus     instead        on   whether     the     burden     is    constitutionally

justifiable.          Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir.

2013) (“[W]e are not obliged to impart a definitive ruling at

the first step of the Chester inquiry.                And indeed, we and other

courts of appeals have sometimes deemed it prudent to instead

resolve post-Heller challenges to firearm prohibitions at the

second     step”).            Because     we    can    resolve      the    statute’s

constitutionality on the inquiry’s second prong, we also find it

prudent    in     this    case   to     assume,    without    holding,     that   the



                                           13
federal prohibition against unlicensed firearm dealing burdens

conduct protected by the Second Amendment.

                                               1.

       We first must determine what level of scrutiny applies.

The right to bear arms, after all, “is not unlimited.”                            Heller,

554    U.S.   at   626.          Even    as     historically      and     traditionally

understood, law-abiding citizens do not have the “right to keep

and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose.”         Id.

       In United States v. Masciandaro, 638 F.3d 458 (4th Cir.

2011),    this     Court    held        that        laws   burdening    “core”    Second

Amendment     conduct      receive      strict        scrutiny,   while    less    severe

burdens receive only intermediate scrutiny.                        Id. at 471.        We

noted     that     core     Second        Amendment          conduct     includes     the

“fundamental right to possess firearms for self-defense within

the home.        But a considerable degree of uncertainty remains as

to the scope of that right beyond the home . . . .”                        Id. at 467.

“[A]s we move outside the home, firearm rights have always been

more    limited,    because       public       safety      interests    often    outweigh

individual interests in self defense.”                     Id. at 470.     Thus, “less

severe burdens on the right, laws that merely regulate rather

than restrict, and laws that do not implicate the central self-



                                               14
defense   concern        of       the    Second    Amendment,           may    be    more     easily

justified.”       Id. at 470 (quoting Chester, 628 F.3d at 682).

       Here, even assuming that the prohibition implicates conduct

protected    by    the    Second          Amendment,          the    prohibition        does    not

touch on the Second Amendment’s core protections.                                     Individuals

remain free to possess firearms for self-defense.                                     Individuals

also    remain     free       to        purchase       or     sell      firearms       owned     for

personal,     self-defensive               use.         The       law     merely      imposes      a

licensing requirement on those who wish to profit by regularly

selling     firearms      outside           of     their       personal        collection;        it

serves,     not     as        a     prohibition,            but      as    a    condition        or

qualification.            The       law,     therefore,           regulates          rather     than

restricts, addresses only conduct occurring outside the home,

and does not touch on self-defense concerns.                              It is thus subject

to intermediate scrutiny.

                                                  2.

       To satisfy intermediate scrutiny, the government must show

that    “there     is     a       ‘reasonable          fit’     between        the     challenged

regulation and a ‘substantial’ government objective.”                                    Chester,

628 F.3d at 683 (quoting Bd. of Trs. of State Univ. of N.Y. v.

Fox, 492 U.S. 469, 480 (1989)).

       The government enacted the prohibition against unlicensed

firearm   dealing,        alongside          myriad         other    firearm         regulations,

                                                  15
because       “the        ease       with       which     firearms        could     be     obtained

contributed significantly to the prevalence of lawlessness and

violent       crime       in    the    United       States.”            Huddleston       v.     United

States, 415 U.S. 814, 824 (1974) (citing S. Rep. No. 90-1097, at

2198    (1968)).           The       government’s         interest        is,   therefore,         “to

c[ur]b crime by keeping ‘firearms out of the hands of those not

legally       entitled          to    possess       them     because       of     age,     criminal

background, or incompetency.’”                      Id.

       Such interests in public safety and preventing crime are

indisputably substantial governmental interests.                                   See Woollard,

712    F.3d    at     877.           The    question      then     is    whether        there    is   a

reasonable          fit        between       the     prohibition          against        unlicensed

firearm dealing and the government’s objectives.

       The requirement that firearm dealers——those who regularly

engage in the business of selling firearms——obtain licenses is a

crucial part of the federal firearm regulatory scheme.                                     Licensed

dealers       are         subject          to     more     stringent        regulations            and

governmental         oversight             than    private    sellers.            See    18     U.S.C.

§ 923(g)(1).               By        subjecting          firearm        dealers      to       routine

inspections, which require neither a warrant nor probable cause,

the government has more opportunities to ensure compliance with

laws that have demonstrated effects on reducing gun violence.



                                                    16
        For example, prohibiting those under a restraining order

for domestic violence from possessing firearms correlates to a

statistically              significant      decrease              in        intimate       partner

homicides.        See Elizabeth R. Vigdor & James A. Mercy, Do Laws

Restricting Access to Firearms By Domestic Violence Offenders

Prevent    Intimate           Partner     Homicide?,         30    Eval.       Rev.       313,   332

(2006).     And restricting these individuals’ access to firearms

by prohibiting their purchase of firearms, rather than merely

their possession, is significantly more effective.                                  Id. at 333.

Requiring    sellers           to    conduct     background            checks,      as    licensed

firearms dealers must do under federal law, also significantly

reduces     prohibited              purchasers’       access           to    firearms.           See

Katherine        A.        Vittes    et   al.,       Legal     Status         and     Source     of

Offenders’ Firearms in States with the Least Stringent Criteria

for Gun Ownership, 19 Injury Prevention 26, 29 (2013).                                     Indeed,

of those studied, very few offenders purchased a weapon from a

federal     firearms           dealer,     in        large        part       because       of    the

background-check requirement.                  Id. at 30.              Without a prohibition

against    the        unlicensed       dealing       of   firearms,           individuals        who

regularly engage in the business of selling firearms for profit

would     have        no    incentive     to     obtain       a        license      and    subject

themselves to these requirements.



                                                17
       Despite Hosford’s protestations, this prohibition against

the unlicensed dealing of firearms is not “a broad prohibition,

applying      to         the      entire           law-abiding            population,        that

substantially burdens conduct that goes to the core of rights

secured under the Second Amendment.”                           Appellant Br. at 29.           Nor

does this prohibition impermissibly implicate “the right of a

non-prohibited person to engage in the private, intrastate sale

of   firearms      to     another      non-prohibited            person,”     even    assuming

such   a   right     is     countenanced           in    the     Second    Amendment’s       core

protections.         Appellant Br. at 12.                 Individuals are free to sell

firearms from their personal collection, to sell firearms only

occasionally, and to sell firearms commercially with a license.

This prohibition is a narrowly delineated, reasonable fit to

further    Congress’s          important       objectives            in   public   safety     and

crime prevention:              it affects only those select individuals who

regularly    sell       firearms       they        do    not    personally     own    in   their

collection    or      for      their    hobby,          for    the   principle     purpose    of

accruing    profit.             And    it     is    a    necessary        component     to    the

effectiveness of federal firearm regulations.

       Moreover,        nothing       about    Hosford’s          situation    changes       this

analysis as applied to him.                    Over the course of five separate

occasions,      he      sold    to     an   unknown           individual    nearly    a    dozen

firearms that he purchased hours before.                             A grand jury indicted

                                                   18
Hosford      for   the      unlawful,      regular         sale    of    firearms    for       the

principal purpose of profit, where the firearms were not part of

his personal collection or for his hobby.                           And Hosford does not

contest that his conduct violated the statute.

       Applying       the     federal      prohibition        to    Hosford      affects        no

“core”       constitutional            right,   so     applying         only    intermediate

scrutiny      remains       appropriate.             His    brief       possession    of       the

firearms he sold had no connection to the long-held right to

self-defense; he did not purchase or own them for that purpose.

His indictment does not implicate his right to keep firearms in

his home.          Indeed, any attempt to characterize Mr. Hosford’s

conduct as “core” Second Amendment conduct, thus deserving of

higher scrutiny, goes merely to whether Mr. Hosford was guilty

of   the     crime.         If    he    were    a    hobbyist,      sold       firearms    only

occasionally, or sold firearms from his personal collection, he

may argue——assuming he were even indicted——that his core Second

Amendment       conduct          was    implicated.           But       that    hypothetical

scenario is not at issue here.

       And    in   applying        intermediate        scrutiny,         the    government’s

interests in the law generally also justify applying the law to

Hosford.        Hosford       sold      firearms     on     multiple      occasions       to    an

individual whom, as far as the record shows, he did not vet.                                    He

kept   no     record     of      the    firearms      he    sold.         He    conducted      no

                                                19
background     check.        He   did   not    know    whether    the    buyer    was

prohibited, and took no steps to ensure that the buyer could

legally purchase firearms.              His actions are the exact kind of

unlicensed firearm dealing that Congress feared when passing the

licensing requirement as an attempt to stymie the unregulated

flow of firearms to prohibited purchasers.                  For these reasons,

Hosford’s as-applied Second Amendment challenge also fails.



                                         IV.

      Hosford next argues that the federal prohibition against

unlicensed firearm dealing is void for vagueness, both facially

and   as    applied.    “[T]he     void-for-vagueness          doctrine    requires

that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.”             Kolender v. Lawson, 461 U.S. 352,

357 (1983).

      Yet    “[a]   plaintiff     who   engages    in   some     conduct   that   is

clearly proscribed cannot complain of the vagueness of the law

as applied to the conduct of others.”                   Holder v. Humanitarian

Law Project, 561 U.S. 1, 18-19 (2010) (quoting Vill. of Hoffman

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

(1982)).       Thus,    if    a   law    clearly      prohibits    a    defendant’s

                                         20
conduct,    the    defendant    cannot    challenge,    and    a   court   cannot

examine, whether the law may be vague for other hypothetical

defendants.       Because the prohibition against unlicensed firearm

dealing is not vague as applied to Hosford, both his as-applied

and facial challenges fail. 2

      In   1975,   this     Court   upheld    the   pre-1986,      less   specific

prohibition against unlicensed firearm dealing.                    United States

v. Huffman, 518 F.2d 80 (4th Cir. 1975) (per curiam). 3                    At the

time, the statute prohibited individuals from “engag[ing] in the

business    of    selling    firearms    or   ammunition      at   wholesale   or

retail,” but did not define what “business” meant.                    See id. at

81.   The defendant “engaged in more than a dozen transactions in

the course of a few months.              He frequently built firearms, or

had them rebuilt, and exchanged them for other weapons which he

subsequently sold or traded.             There was also evidence that he



      2Hosford argues that his facial vagueness challenge should
be heard even if the claim is not vague as applied to him,
because the statute may nonetheless “chill constitutionally-
protected activity.”    Appellant Br. at 40.    But his argument
confuses a due-process vagueness challenge with a First
Amendment overbreadth challenge.       Because Hosford has not
alleged an overbreadth claim, we decline to address it.
      3Hosford alleges that Huffman is not persuasive because it
was decided pre-Heller.       But Heller’s recognition of an
individual right to keep and bear arms has no bearing on whether
a statute is vague as a matter of due process.


                                         21
traded large quantities of military ammunition for firearms.”

Id.    This Court held that the statute was not vague as applied

to the defendant.         Id.

      Here, the prohibition against unlicensed firearm dealing is

much narrower and clearer:               it regulates only individuals who

regularly sell, for the principal purpose of accruing profit or

maintaining a livelihood, firearms that are not part of their

personal collection or for their hobby.                  And like the defendant

in Huffman, Hosford engaged in transactions that resulted in the

sale or attempted sale of a dozen weapons over the course of a

few months.       Indeed, Hosford’s conduct may be even more clearly

commercial than that of the defendant in Huffman.                     In Huffman,

the    defendant    both        traded   and    built   firearms,    which    could

possibly imply that he had a hobby; Hosford resold for profit

weapons he purchased a few hours earlier.                      Thus, applying the

narrower    and    more       clarifying   statute      to    Hosford’s   similarly

commercial sale of firearms is not unconstitutionally vague.

      Hosford argues that the statute is unclear as to whether

someone is a “dealer” or “collector,” and whether someone sells

the guns for profit or as a mere hobby.                      Appellant Br. at 48.

But statutes necessarily have some ambiguity, as no standard can

be    distilled    to     a     purely   objective,     completely    predictable

standard.     “[T]he law is full of instances where a man’s fate

                                           22
depends on his estimating rightly . . . some matter of degree.”

Johnson v. United States, 135 S. Ct. 2551, 2561 (2015) (quoting

Nash v. United States, 229 U.S. 373, 377 (1913)).                                And where, as

here, the statute clearly gave notice to Hosford that he ought

not to regularly sell firearms that he only purchased and resold

for profit——firearms not acquired for the purpose of a personal

collection         or    for    the    hobby    of   collecting          firearms——his       as-

applied      vagueness          challenge      fails.         As    a    result,       Hosford’s

facial challenge also fails.



                                               V.

          Lastly,       Hosford       argues    that     the        prohibition         against

unlicensed firearm dealing is not a valid exercise of Congress’s

power under the Commerce Clause.                        The Commerce Clause allows

Congress to regulate (1) the channels of interstate commerce;

(2) the instrumentalities of interstate commerce, and persons or

things       in     interstate          commerce;       and        (3)    activities       that

“substantially affect” interstate commerce.                              Gonzales v. Raich,

545   U.S.     1,       16-17    (2005).       We    join     our       sister    circuits    in

holding that the prohibition against unlicensed firearm dealing

is    a    valid    exercise       of    Congress’s      power          under    the   Commerce

Clause.       See Mandina v. United States, 472 F.2d 1110 (8th Cir.



                                               23
1973); United States v. Hornbeck, 489 F.2d 1325 (7th Cir. 1973)

(per curiam).

      In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court

upheld the federal Controlled Substances Act’s application to

individuals who grew and consumed marijuana for personal use.

See id. at 7.          Those individuals cultivated their own marijuana

or received marijuana for free from caregivers.                         They did not

purchase       or    sell     marijuana     or     marijuana      products,       either

interstate or intrastate.            Id. at 7.

      Despite        the    intrastate     and    noncommercial        nature   of   the

activity,      the    Supreme      Court   held    that     it   had   a   substantial

effect     on       interstate       commerce.            The    individuals         were

cultivating,         for    themselves,     a    fungible    commodity      for    which

there was an established interstate market.                       Id. at 18.         The

purpose of the Controlled Substances Act was to “control the

supply and demand of controlled substances in both lawful and

unlawful drug markets.”              Id. at 19.       Congress had a “rational

basis for believing that leaving home-consumed marijuana outside

federal control would . . . affect price and market conditions.”

Id.      And    lastly,      the    growing      demand    for   marijuana      in    the

interstate market could draw in-state, homegrown marijuana into

the interstate market, thus frustrating Congress’s purposes if

left unregulated.           Id.

                                           24
       More    so    than    the      respondents      in    Gonzales,       Hosford——just

like similar individuals who would be indicted under this law——

engaged in commercial, inter-personal conduct.                         He purchased and

resold    firearms,      a     fungible      commodity       for    which    there    is   an

established interstate market, to unknown individuals.                              And like

the    market    for    marijuana,         Congress     has    a    rational     basis     to

believe       that    leaving        intrastate      firearm       markets    unregulated

would affect the interstate market or draw firearms purchased

intrastate       into       the      interstate      market.          Indeed,       research

indicates      that     firearms       found    illegally      in    one    state    may   be

traced back to legal purchases in other states.                             See Steven G.

Brandl & Meghan S. Stroshine, The Relationship Between Gun and

Gun Buyer Characteristics and Firearm Time-to-Crime, 22 Crim. J.

Pol’y Rev. 285, 287 (2011) (noting that all firearms begin on

legal     market);       Glenn        L.    Pierce      et     al.,    Research        Note,

Characteristics          and        Dynamics    of    Illegal       Firearms        Markets:

Implications for a Supply-Side Enforcement Strategy, 21 Just. Q.

391, 401 (2004) (finding that 35% of illegally possessed and

traced firearms originated from different state).                           And in cities

such    as    New    York      or    Boston,    where       firearm    regulations         are

strictest,      the     vast      majority     of    illegally      possessed       firearms

originated out of state.                   Brandl, supra at 289 (New York and

Boston have strict regulations); Pierce, supra at 401 (finding

                                               25
that, of firearms traced, 82.6% of firearms recovered in New

York originated out of state, and 66.4% of firearms recovered in

Boston    originated    out   of   state).        Leaving   the     intrastate,

commercial    sale      of    firearms       unregulated    would       frustrate

Congress’s   purpose     to   police    the   interstate    firearms      market.

For these reasons, the unlicensed dealing of firearms, even in

intrastate   sales,     implicates     interstate      commerce    and    may   be

constitutionally       regulated   by       Congress   under      the    Commerce

Clause.



                                       VI.

     For these reasons, the district court’s decision not to

dismiss Mr. Hosford’s indictment is

                                                                        AFFIRMED.




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