No. 99-71
In the Supreme Court of the United States
JAMES H. KOSTMAYER, JR. AND ROBERT I. LAWSON,
PETITIONERS
v.
DEPARTMENT OF THE TREASURY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
MARK B. STERN
THOMAS M. BONDY
Attorneys
Department of Justice
Washington, DC 20530-0001
(202)514-2217
QUESTION PRESENTED
Section 922(g)(1) of Title 18 of the United States Code prohibits convicted
felons, such as petitioners, from possessing any firearm in or affecting
commerce. The question presented is whether that prohibition, as applied
to petitioners, violates the Second Amendment, the Ninth Amendment, or the
Commerce Clause.
In the Supreme Court of the United States
No. 99-71
JAMES H. KOSTMAYER, JR. AND ROBERT I. LAWSON,
PETITIONERS
v.
DEPARTMENT OF THE TREASURY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-2a) is unpublished, but
the decision is noted at 178 F.3d 1291 (Table). The decision of the district
court (Pet. App. 3a-5a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on April 9, 1999. The petition
for a writ of certiorari was filed on July 8, 1999. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Under 18 U.S.C. 922(g)(1), it is "unlawful for any person * * *
who has been convicted in any court of a crime punishable by imprisonment
for a term exceeding one year * * * [to] possess in or affecting commerce,
any firearm or ammunition." Section 925(c) authorizes the Director
of the Bureau of Alcohol, Tobacco and Firearms (ATF) to lift that prohibition
if, after an investigation, "it is established to his satisfaction
that the circumstances regarding the disability, and the applicant's record
and reputation, are such that the applicant will not be likely to act in
a manner dangerous to public safety and that the granting of the relief
would not be contrary to the public interest." 18 U.S.C. 925(c).
In each of the annual ATF appropriations bills enacted since 1992, however,
Congress has barred ATF from employing any appropriated funds "to investigate
or act upon applications for relief" under Section 925(c). E.g., Pub.
L. No. 105-277, 112 Stat. 2681, 2681-485 (1998).1 Concerned that an ATF
determination to grant relief "could have devastating consequences
for innocent citizens if the wrong decision is made," Congress has
concluded that ATF's scarce resources "would be better utilized"
on more pressing matters, such as suppressing violent crime. S. Rep. No.
106, 103d Cong., 1st Sess. 20 (1993); S. Rep. No. 353, 102d Cong., 2d Sess.
19-20 (1992); see also H.R. Rep. No. 183, 104th Cong., 1st Sess. 15 (1995).
2. Petitioner Kostmayer was convicted in 1994 of conspiracy to defraud the
United States, in violation of 18 U.S.C. 371, and petitioner Lawson was
convicted in 1993 of submitting a false tax return, in violation of 26 U.S.C.
7206(1). Those federal felony convictions subject petitioners to the firearms
disability set forth in Section 922(g)(1). See Pet. App. 23a-25a. Both petitioners
filed applications for relief under Section 925(c). ATF informed petitioners
that, in light of Congress's restriction on the use of appropriated funds,
it could take no action on their applications. Id. at 13a-14a, 20a-21a.
Petitioners then filed this action in district court. Pet. App. 22a. In
their complaint, they sought a writ of mandamus compelling ATF to consider
their applications and, alternatively, a declaratory judgment that 18 U.S.C.
922(g)(1) and 925(c), as applied to them, violated the Second Amendment.
Pet. App. 22a. According to the complaint, petitioners, both of whom reside
in Louisiana and were convicted there, had each received pardons from the
Governor of that State restoring their civil rights in connection with the
conduct underlying their federal crimes. Id. at 22a-28a.
In April 1998, the district court ruled for the government. Pet. App. 4a-5a.
The court reasoned that, "[i]nsofar as plaintiff[s] seek[] relief from
the firearm disabilities created by 18 U.S.C. 922(g)(1) through an order
directing the Bureau of Alcohol, Tobacco and Firearms to grant petitioners'
applications for relief from those disabilities, this court lacks jurisdiction."
Id. at 4a. The court then rejected petitioners' constitutional claim on
its merits, explaining, inter alia, that "it is irrelevant that plaintiffs
have each received a pardon from the governor of Louisiana restoring their
civil rights, including the right to bear arms. A state pardon cannot relieve
an individual of the * * * effects of a federal conviction." Id. at
5a.
The Fifth Circuit affirmed in an unpublished, per curiam order, relying
on "essentially the reasons assigned by the district court." Pet.
App. 2a.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of any other court of appeals or of this Court. Further review
is therefore not warranted.
1. The Second Amendment provides: "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." In United States v. Miller,
307 U.S. 174 (1939), this Court rejected a Second Amendment challenge to
a federal indictment for possession of a sawed-off shotgun, reasoning that
the Second Amendment creates no right to possess such a weapon in the absence
of "some reasonable relationship to the preservation or efficiency
of a well regulated militia." Id. at 178. The Court reaffirmed that
holding in Lewis v. United States, 445 U.S. 55, 66 (1980). And, as petitioners
recognize, the courts of appeals have interpreted this Court's precedent
"to hold that the Second Amendment creates only a 'collective' right
in the states to keep and bear arms rather than an individual right."
Pet. 11 (citing Hickman v. Block, 81 F.3d 98, 100-101 (9th Cir.), cert.
denied, 519 U.S. 912 (1996); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.),
cert. denied, 516 U.S. 813 (1995)); see also Gillespie v. City of Indianapolis,
No. 98-2691, 1999 WL 463577 (7th Cir. July 9, 1999) (adopting similar analysis
in rejecting Second Amendment claim on the merits, while recognizing individual's
standing to assert that claim).
Petitioners disagree (Pet. 9-15) with that long-standing consensus, arguing
that the Second Amendment does in fact create an individual right to possess
firearms quite apart from any relationship to the maintenance of a well
regulated state militia. Whether or not that issue might someday warrant
further consideration by this Court, this case would be an inappropriate
vehicle for addressing it, because the Court has squarely held that convicted
felons such as petitioners have no constitutional right to possess firearms.
In Lewis, this Court rejected a constitutional challenge to the predecessor
of 18 U.S.C. 922(g)(1), explaining that "Congress could rationally
conclude that any felony conviction, even an allegedly invalid one, is a
sufficient basis on which to prohibit the possession of a firearm."
445 U.S. at 66 (emphasis added). Referring explicitly to the Second Amendment,
the Court concluded that "[t]hese legislative restrictions on the use
of firearms are neither based upon constitutionally suspect criteria, nor
do they trench upon any constitutionally protected liberties." Id.
at 65 n.8. Petitioners' Second Amendment argument is irreconcilable with
that holding.
2. Petitioners also claim (Pet. 15-16) that their federal firearms disability
violates the Ninth Amendment, which provides that "[t]he enumeration
in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." As petitioners appear to
acknowledge (Pet. 17), however, the courts of appeals have consistently
rejected any argument that the Ninth Amendment somehow creates rights of
access to firearms. See, e.g., San Diego County Gun Rights Comm. v. Reno,
98 F.3d 1121, 1125 (9th Cir. 1996); United States v. Broussard, 80 F.3d
1025, 1041 & n.11 (5th Cir.), cert. denied, 519 U.S. 906 (1996).
Moreover, the premise of the specific Ninth Amendment argument presented
here is foreclosed by this Court's precedent. Petitioners argue that, even
though they were convicted of felonies under federal law, "principles
of federalism" preclude the imposition of federal firearms restrictions
now that Louisiana has (they allege) restored their civil rights under state
law. See Pet. 15-22. In Beecham v. United States, 511 U.S. 368 (1994), however,
this Court held that once an individual has been convicted under federal
law, only a federal pardon or civil rights restoration, and not a state
pardon or civil rights restoration, can relieve him of his federal disabilities.
Id. at 370-374. As petitioners observe (Pet. 19-20), the Court "express[ed]
no opinion" on how (if at all) a federal felon can secure the restoration
of his civil rights under federal law. 511 U.S. at 373 n.*. That question,
which the Court deemed immaterial to its holding, has no bearing on the
question presented here: whether the restoration of a felon's civil rights
under state law necessarily removes any federal firearms disability. Again,
Beecham answers that latter question in the negative. See also id. at 373
("Many jurisdictions have no procedure for restoring civil rights.
* * * Under our reading of the statute, a person convicted in federal court
is no worse off than a person convicted in a court of a State that does
not restore civil rights.").2
3. Finally, petitioners argue (Pet. 17; see Pet. 20-22) that, in enacting
Section 922(g)(1), Congress "has exceeded its powers under the Commerce
Clause." See U.S. Const. Art. I, § 8, Cl. 3. But, unlike the federal
firearms prohibition invalidated in United States v. Lopez, 514 U.S. 549
(1995), Section 922(g) contains an explicit interstate commerce element
that must be satisfied before a defendant can be convicted. See 18 U.S.C.
922(g) ("It shall be unlawful for any [qualifying] person * * * to
ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.")
(emphasis added). For that reason alone, as the courts of appeals have uniformly
held, Section 922(g) is a valid exercise of Congress's authority under the
Commerce Clause.3 And, because Commerce Clause principles cannot support
a challenge to Section 922(g), neither could they support a challenge to
the disposition of petitioners' request for an exemption from that provision
under Section 925(c).4
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
MARK B. STERN
THOMAS M. BONDY
Attorneys
SEPTEMBER 1999
1 Accord Pub. L. No. 105-61, 111 Stat. 1272, 1277 (1997); Pub. L. No. 104-208,
110 Stat. 3009, 3009-319 (1996); Pub. L. No. 104-52, 109 Stat. 468, 471
(1995); Pub. L. No. 103-329, 108 Stat. 2382, 2385 (1994); Pub. L. No. 103-123,
107 Stat. 1226, 1228 (1993); Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992).
2 Petitioners' related arguments under the Tenth Amendment (see Pet. 17)
are similarly without merit. Moreover, petitioners did not invoke the Tenth
Amendment at any point in the proceedings below, and they have therefore
waived any Tenth Amendment argument in this Court.
3 See, e.g., United States v. Abernathy, 83 F.3d 17, 20 (1st Cir. 1996);
United States v. Sorrentino, 72 F.3d 294, 296-297 (2d Cir. 1995); United
States v. Gateward, 84 F.3d 670, 671-672 (3d Cir.), cert. denied, 519 U.S.
907 (1996); United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996); United
States v. Pierson, 139 F.3d 501, 503-504 (5th Cir.), cert. denied, 119 S.
Ct. 220 (1998); United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996);
United States v. Bell, 70 F.3d 495, 497-498 (7th Cir. 1995); United States
v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995), cert. denied, 517 U.S. 1125
(1996); United States v. Hanna, 55 F.3d 1456, 1461-1462 (9th Cir. 1995);
United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995), cert. denied,
516 U.S. 1137 (1996); United States v. McAllister, 77 F.3d 387, 389-390
(11th Cir.), cert. denied, 519 U.S. 905 (1996); see also Scarborough v.
United States, 431 U.S. 563 (1977) (construing predecessor to Section 922(g)
to satisfy Commerce Clause); United States v. Bass, 404 U.S. 336 (1971)
(same).
4 Petitioners' request for mandamus on their Section 925(c) application
rests on the premise that the Constitution shields them from the application
of Section 922(g). See Pet. 25-27. That premise is false for the reasons
discussed above. The petition presents no issue concerning whether, apart
from any constitutional challenge to Section 922(g), the district courts
have authority to consider the statutory merits of Section 925(c) applications
in the first instance. Compare Owen v. Magaw, 122 F.3d 1350 (10th Cir. 1997)
(district court has no such authority); Burtch v. United States Dep't of
the Treasury, 120 F.3d 1087 (9th Cir. 1997) (same); United States v. McGill,
74 F.3d 64 (5th Cir.) (same), cert. denied, 519 U.S. 821 (1996), with Rice
v. United States, 68 F.3d 702 (3d Cir. 1995) (contra). In any event, even
if the issue were presented, this Court's review would be unwarranted for
the reasons set forth in our brief in opposition to certiorari in McGill
v. United States, 519 U.S. 821 (1996) (No. 95-2015). (We have served counsel
for petitioners with a copy of that brief.)