No. 99-626
In the Supreme Court of the United States
GERALD GILLESPIE, PETITIONER
v.
CITY OF INDIANAPOLIS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK B. STERN
ROBERT M. LOEB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
In 1996, Congress amended the Gun Control Act of 1968 to bar persons convicted
of a misdemeanor crime of domestic violence from possessing a firearm that
has traveled in interstate commerce. See 18 U.S.C. 922(g)(9) (Supp. IV 1998).
The questions presented are as follows:
1. Whether the application of Section 922(g)(9) to state and local employees
who would otherwise carry firearms in the performance of their duties violates
the Tenth Amendment.
2. Whether Congress acted within its Commerce Clause powers in enacting
Section 922(g)(9).
In the Supreme Court of the United States
No. 99-626
GERALD GILLESPIE, PETITIONER
v.
CITY OF INDIANAPOLIS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-36) is reported at 185
F.3d 693. The opinion of the district court (Pet. App. 37-77) is reported
at 13 F. Supp. 2d 811.
JURISDICTION
The court of appeals entered its judgment on July 9, 1999. The petition
for a writ of certiorari was filed on October 7, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Gun Control Act of 1968, Pub. L. No. 90-618, § 102, 82 Stat.
1216, prohibits specified classes of persons from possessing firearms "in
or affecting commerce." 18 U.S.C. 922(g) (1994 & Supp. IV 1998).
Those classes include, inter alia, felons, fugitives, illegal aliens, and
persons committed to a mental institution. See 18 U.S.C. 922(g)(1)-(8) (1994
& Supp. IV 1998). The prohibitions contained in Section 922(g)(1)-(8)
are inapplicable to firearms "issued for the use of, the United States
or any department or agency thereof or any State or any department, agency,
or political subdivision thereof." 18 U.S.C. 925(a)(1) (Supp. IV 1998).
In 1996, Congress amended the Gun Control Act to bar the possession of firearms
by any person convicted of a misdemeanor crime of domestic violence. See
18 U.S.C. 922(g)(9) (Supp. IV 1998).1 Unlike the other prohibitions set
forth in Section 922(g), Section 922(g)(9) applies to firearms issued by
federal, state, and local governments. 18 U.S.C. 925(a)(1) (Supp. IV 1998).
2. Petitioner was employed as a police officer by the Indianapolis Police
Department. Pet. App. 2. In October 1995, petitioner pleaded guilty to a
misdemeanor charge of battery involving his former wife. Id. at 4. It is
undisputed that this offense constitutes a "misdemeanor crime of domestic
violence" for purposes of Section 922(g)(9). Id. at 4-5.
After the enactment of Section 922(g), federal law prohibited petitioner
from possessing a firearm in or affecting commerce. Based on Section 922(g)(9),
the Indianapolis Police Department concluded that petitioner could no longer
carry a firearm. Pet. App. 5. Because Department policy requires that every
police officer be trained and equipped to possess and use a firearm, the
Department further concluded that petitioner is no longer eligible to serve
as a police officer. Accordingly, it notified petitioner that he would be
terminated from the Department's employ. Ibid.
3. Petitioner then filed suit against respondent City of Indianapolis, challenging
the Department's termination decision and seeking to have Section 922(g)(9)
declared unconstitutional. Pet. App. 2. The United States intervened pursuant
to 28 U.S.C. 2403(a) to defend the constitutionality of the statute. Pet.
App. 39, 43. The district court dismissed petitioner's complaint, rejecting
each of his constitutional arguments. Id. at 51-77.
4. The court of appeals affirmed. Pet. App. 1-36.
a. The court of appeals held that Section 922(g) constitutes a permissible
exercise of Congress's authority under the Commerce Clause. The court held
that the inclusion of a jurisdictional element, limiting the statute's application
to firearms "in or affecting commerce," was sufficient to overcome
petitioner's Commerce Clause challenge. Pet. App. 18-21. The court held
that the statute does not require proof "that a given firearm or a
particular individual's possession of that firearm had a substantial impact
on commerce." Id. at 21. Rather, the court explained, "[a]ll that
need be shown in the individual case * * * was that the firearm in question
had previously moved across state lines." Ibid. Petitioner made "no
claim that the weapon issued to him by the Indianapolis Police Department
might never have moved across state lines." Id. at 22. The court concluded
that
in acknowledging that the gun at the least has this minimal tie to interstate
commerce, [petitioner] has conceded away the only basis he might have for
a Commerce Clause challenge to the statute. Without question, Congress has
the power to regulate the interstate trade in firearms. Pursuant to that
authority, it may act to stem the flow of guns to those whom it rationally
believes may use them irresponsibly, including those whose convictions for
domestic violence offenses reflect a propensity to inflict bodily harm upon
others.
Ibid.
b. The court of appeals also rejected petitioner's contention that the Tenth
Amendment bars the application of Section 922(g)(9) to persons, like himself,
who have been authorized by a state or local government to carry firearms
in the performance of official duties. Although holding that petitioner
had standing to raise the argument (Pet. App. 9-17), the court concluded
that Congress had not intruded into an area of authority reserved to the
States by the Tenth Amendment (id. at 22-28). The court of appeals explained
that Congress has long barred felons from possessing firearms in or affecting
commerce, and this Court has "not view[ed] the proscription as an unconstitutional
intrusion upon state sovereignty." Id. at 23-24. The court held that
"[t]he recent inclusion of some misdemeanants raises no new concerns"
because "[t]he statute simply employs a state conviction as the predicate
for a prohibition to engage in an activity over which Congress has broad
authority." Id. at 24.
The court found it constitutionally insignificant that the firearms ban
includes individuals who are employed in state and local law enforcement,
or who would otherwise be qualified to serve in state militias. Pet. App.
24-25. The court explained:
[S]ection 922(g)(9) is a criminal statute of general application that regulates
individual behavior * * *. It singles out no one by occupation or affiliation
with state or local government. To the extent that the statute renders individuals
like [petitioner] ineligible for employment in state and local law enforcement
and ineligible to serve in a state militia, it does so incidentally and
as a result of a valid congressional exercise of the commerce power.
Id. at 25.
The court also rejected petitioner's argument that Section 922(g)(9) violates
the Tenth Amendment "by imposing a federal firearms disability that
most States themselves have not chosen to impose." Pet. App. 26-27.
The court explained that it "discern[ed] no respect in which the statute
commandeers state governments or their officers." Id. at 27. The court
noted that the statute "is not directed at States or state officials."
Ibid. Rather, Section 922(g)(9) is "a criminal law of general application;
as such, it regulates the behavior of individuals as individuals."
Ibid.
c. The court of appeals also rejected petitioner's equal protection claim.
Pet. App. 28-31. Petitioner contended that Section 922(g)(9) is subject
to strict scrutiny because it implicates his asserted Second Amendment right
"to keep and bear Arms." Id. at 28. The court held that Section
922(g)(9) does not impair any fundamental right, that it is consequently
subject to review under a rational-basis standard, and that it was not irrational
for Congress to impose a firearms ban on domestic violence misdemeanants
but not on persons who have been convicted of other misdemeanors. See id.
at 29-30. The court also rejected petitioner's contention "that the
firearms ban may be irrational to the extent it reaches individuals like
[petitioner], who carry firearms in the public interest." Id. at 30.
The court explained:
That someone previously convicted of engaging in domestic violence may possess
a firearm for public rather than private purposes does not negate the possibility
that he might use that gun against someone in his household. Congress could,
therefore, reasonably conclude that the reasons for an individual carrying
a gun are irrelevant and that it is the individual's criminal history which
should determine his right to do so.
Id. at 30-31.
d. The court of appeals concluded that United States v. Miller, 307 U.S.
174 (1939), and its progeny "confirm that the Second Amendment establishes
no right to possess a firearm apart from the role possession of the gun
might play in maintaining a state militia." Pet. App. 32-33. The court
held that petitioner had failed to demonstrate a "reasonable relationship"
between his own inability to carry a firearm and "the preservation
or efficiency of a well regulated militia." Id. at 35 (quoting Miller,
307 U.S. at 178). The court noted that petitioner did "not argue (and
we do not believe under any plausible set of facts that he could) that the
viability and efficacy of state militias will be undermined by prohibiting
those convicted of perpetrating domestic violence from possessing weapons
in or affecting interstate commerce." Ibid.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or of any other court of appeals. In Fraternal
Order of Police v. United States, 120 S. Ct. 324 (1999), this Court recently
denied a petition for a writ of certiorari raising essentially the same
arguments as are advanced by petitioner.2 Further review of petitioner's
claims is therefore not warranted.
1. Every court of appeals that has considered the question has held that
Section 922(g)(9)'s application to state and local employees does not violate
the Tenth Amendment. See Pet. App. 15-17; Fraternal Order of Police v. United
States, 173 F.3d 898 (D.C. Cir. 1999), cert. denied, 120 S. Ct. 324 (1999);
Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998) (affirming and adopting
National Ass'n of Gov't Employees, Inc. v. Barrett, 968 F. Supp. 1564, 1575-1576
(N.D. Ga. 1997)). See also United States v. Meade, 175 F.3d 215 (1st Cir.
1999) (rejecting Tenth Amendment challenge to 18 U.S.C. 922(g)(8) (1994
& Supp. IV 1998)). That conclusion is correct and consistent with this
Court's precedents. In New York v. United States, 505 U.S. 144 (1992), the
Court emphasized the longstanding distinction between laws passed by Congress
"requiring or prohibiting certain acts," and laws that "directly
* * * compel the States to require or prohibit those acts." Id. at
166; see also South Carolina v. Baker, 485 U.S. 505, 514-515 (1988). Section
922(g)(9) does not compel the States to enact regulations, nor does it commandeer
state officials to implement a federal program. Rather, Section 922(g)(9)
regulates the behavior of individuals, making it a federal crime-enforceable
by federal authorities and prosecutable in the federal courts-for a category
of persons deemed unsuitable by Congress to possess or receive firearms
in or affecting commerce.
Petitioner contends (Pet. 9-13) that Section 922(g)(9) improperly precludes
state and local governments from determining that particular domestic violence
misdemeanants should be permitted to carry firearms in the performance of
official duties. As the D.C. Circuit recently explained in upholding Section
922(g), however, it is a common "side effect of federal prohibitions
to impair offenders' fitness for service as a police officer." Fraternal
Order of Police, 173 F.3d at 907. "Showing up for work at some spot
other than a federal prison is a qualification for most state positions;
federal incarceration intrudes inescapably." Ibid. Section 922(g)(9)
"regulates individual behavior * * *. It singles out no one by occupation
or affiliation with state or local government." Pet. App. 25. To the
extent that the statute renders certain individuals ineligible for employment
in state and local law enforcement and ineligible to serve in a state militia,
"it does so incidentally." Ibid. Thus, "Congress has not
superseded the criteria state and local governments employ to select those
serving on their behalf; it has instead, in the exercise of its authority
over interstate commerce, merely rendered some individuals unable, as a
practical matter, to meet one of the criteria that state and local governments
have themselves established." Id. at 25-26.3
2. The court of appeals correctly rejected petitioner's claim that Section
922(g)(9) should be subjected to strict scrutiny based upon its alleged
interference with rights protected by the Second Amendment.4 In Lewis v.
United States, 445 U.S. 55, 65 & n.8 (1980), this Court held that the
federal bar on receipt and possession of firearms by convicted felons was
subject only to rational basis review. The District of Columbia and Eighth
Circuits, the only other courts of appeals that have addressed such a challenge
to Section 922(g)(9), have also rejected it. Fraternal Order of Police,
173 F.3d at 905-906; United States v. Smith, 171 F.3d 617, 624 (8th Cir.
1999). See also National Ass'n of Gov't Employees, Inc. v. Barrett, 968
F.Supp. at 1573 n.11; United States v. Boyd, 52 F. Supp. 2d 1233, 1236 (D.
Kan. 1999).
As the court of appeals explained here, "[t]he link that the [Second
A]mendment draws between the ability 'to keep and bear Arms' and '[a] well
regulated Militia' suggests that the right protected is limited, one that
inures not to the individual but to the people collectively, its reach extending
so far as is necessary to protect their common interest in protection by
a militia." Pet. App. 31-32. Under United States v. Miller, 307 U.S.
174 (1939), the Second Amendment does not apply in the absence of "some
reasonable relationship" between the regulation at issue and "the
preservation or efficiency of a well regulated militia." Id. at 178.
"Miller and its progeny * * * confirm that the Second Amendment establishes
no right to possess a firearm apart from the role possession of the gun
might play in maintaining a state militia." Pet. App. 32-33. See also
Lewis, 445 U.S. at 65 n.8 (restriction on possession of firearms by felons
does not "trench upon any constitutionally protected liberties");
United States v. Rybar, 103 F.3d 273, 285-286 (3d Cir. 1996), cert. denied,
522 U.S. 807 (1997); San Diego County Gun Rights Comm. v. Reno, 98 F.3d
1121, 1124-1125 & n.1 (9th Cir. 1996); Hickman v. Block, 81 F.3d 98,
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); United States
v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974).
As the District of Columbia Circuit correctly recognized, Section 922(g)(9)
"does not hinder the militia service of all police officers, only of
domestic violence misdemeanants whose convictions have not been expunged,
etc." Fraternal Order of Police, 173 F.3d at 906. Because petitioner
"never indicates how [such] restrictions on the latter, relevant class
would have a material impact on the militia," his Second Amendment
claim fails. Ibid. See also Pet. App. 35 (rejecting Second Amendment challenge
to Section 922(g)(9) because petitioner failed to demonstrate that "the
viability and efficacy of state militias will be undermined by prohibiting
those convicted of perpetrating domestic violence from possessing weapons
in or affecting interstate commerce").
3. Petitioner contends (Pet. 19-21) that Section 922(g)(9) exceeds Congress's
power under the Commerce Clause. As the District of Columbia Circuit noted
in Fraternal Order of Police, all of the "numbered circuits" have
rejected similar Commerce Clause challenges to the various restrictions
on gun possession imposed by 18 U.S.C. 922(g) (1994 & Supp. IV 1998).
See Fraternal Order of Police, 173 F.3d at 907 & n.2 (citing cases from
eleven courts of appeals). The restrictions are constitutional because Section
922(g) bars persons within the specified categories from possessing firearms
"in or affecting commerce." 18 U.S.C. 922(g) (1994 & Supp.
IV 1998). The statute thus contains a jurisdictional element that "ensure[s],
through case-by-case inquiry, that the firearm possession in question affects
interstate commerce." United States v. Lopez, 514 U.S. 549, 561 (1995);
see also Scarborough v. United States, 431 U.S. 563, 564, 575 (1977) (felon's
possession of a firearm satisfies the Omnibus Crime Control Act's "in
commerce or affecting commerce" requirement if the gun has moved in
interstate commerce at any time in the past).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK B. STERN
ROBERT M. LOEB
Attorneys
DECEMBER 1999
1 Section 922(g)(9) does not apply to an individual whose conviction has
been set aside or expunged, or who has been pardoned or has had his civil
rights restored. See 18 U.S.C. 921(a)(33)(B)(ii) (Supp. IV 1998).
2 Petitioner filed a motion to consolidate his petition with the petition
filed in Fraternal Order of Police on the ground that the petitions raised
the same issues. This Court denied the motion as moot because it had already
denied the Fraternal Order of Police petition.
3 Under 18 U.S.C. 922(d)(9) (Supp. IV 1998), one who knowingly transfers
a firearm to a person previously convicted of a domestic violence misdemeanor
is subject to possible criminal penalties. See also 18 U.S.C. 924(a)(2)
(establishing criminal penalties for any person who "knowingly violates"
Section 922(d)). State supervisory officials who knowingly issue firearms
to domestic violence misdemeanants would be covered by that provision. Section
922(d)(9) is not targeted at state officials, however, nor does it require
state officials to assist in the enforcement or administration of federal
law. Rather, it (like Section 922(g)(9)) simply encompasses state officials
within the class of individuals subject to a generally applicable prohibition.
Application of Section 922(d)(9) to state officials in that manner raises
no genuine constitutional concern. Compare Printz v. United States, 521
U.S. 898, 913 (1997) (noting "the duty owed to the National Government,
on the part of all state officials, to enact, enforce, and interpret state
law in such fashion as not to obstruct the operation of federal law").
4 Petitioner does not seek review of the court of appeals' holding that
the statute passes rational basis scrutiny. See Pet. App. 30-31 & n.11.
In any event, Section 922(g)(9) is an entirely reasonable means of removing
firearms from likely scenes of domestic violence. Evidence before Congress
showed that "the presence of a gun increases the likelihood that a
woman will be killed threefold." 142 Cong. Rec. S11,227 (daily ed.
Sept. 25, 1996) (Sen. Lautenberg). As the Seventh Circuit recently explained
in United States v. Lewitzke, 176 F.3d 1022, 1026, cert. denied, 120 S.
Ct. 267 (1999):
The rationale for keeping guns out of the hands of those convicted of domestic
violence crimes is eminently reasonable. Persons convicted of such offenses
have, by definition, already employed violence against their domestic partners
on one or more occasions. Congress could reasonably believe that such individuals
may resort to violence again, and that in the event they do, access to a
firearm would increase the risk that they
might do grave harm, particularly to the members of their household who
have fallen victim to their violent acts before.
Moreover, as the District of Columbia Circuit explained in upholding the
statute, it was not irrational for Congress to focus upon domestic violence
misdemeanants. See Fraternal Order of Police, 173 F.3d at 903-904 ("it
appears to us not unreasonable for Congress to believe that existing laws
and practices adequately deal with the problem of issuance of official firearms
to felons but not to domestic violence misdemeanants").