Frank Van Der Hule v. Eric Holder, Jr.
759 F.3d 1043
9th Cir.2014Background
- In 1983 Van der hule pleaded guilty to sexual assault and related offenses; he served his sentence and Montana law automatically restored his civil rights upon completion in 1996.
- In 2003 Van der hule attempted to buy a firearm; a NICS examiner concluded his convictions made him ineligible for a Montana concealed-weapons permit and thus barred under federal law from receiving/possessing firearms.
- NICS Appeal Services and the ATF declined his administrative appeal; Van der hule sued under 18 U.S.C. § 925A seeking a declaration that the transfer should be allowed.
- The district court certified a question to the Montana Supreme Court, which held a sheriff lacks discretion to issue a concealed-weapons permit to someone with Van der hule’s convictions under Mont. Code Ann. § 45-8-321(1)(c).
- The district court then granted summary judgment for the government, holding Montana’s permit prohibition triggers the federal “unless clause” in 18 U.S.C. § 921(a)(20) and that § 922(g)(1) does not violate Van der hule’s Second Amendment rights.
- The Ninth Circuit affirmed: Montana’s ban on issuing a concealed-carry permit to Van der hule sufficiently restricts his manner of possession to trigger the federal felon-in-possession bar, and that federal ban is constitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Montana’s prohibition on issuing a concealed-weapons permit to Van der hule prevents him from possessing/receiving firearms under 18 U.S.C. § 922(g)(1) via the § 921(a)(20) “unless clause” | Van der hule: Montana still permits him to possess and carry firearms (except concealment permit), so the federal ban should not apply | Government: Montana’s restriction on concealed carry is a time/place/manner restriction that activates the “unless clause,” so federal ban applies | Held: Montana’s concealment-permit prohibition limits his manner of possession and triggers § 921(a)(20); federal ban applies |
| Statutory construction / rule of lenity: whether ambiguity favors Van der hule | Van der hule: “may not . . . possess” is ambiguous and should be construed in his favor under the rule of lenity | Government: Caron and statutory purpose show Congress intended a broad national ban when a State limits an offender’s firearm rights | Held: No ambiguity remains after Caron and statutory analysis; rule of lenity does not apply |
| Whether § 922(g)(1) (felon-in-possession) violates the Second Amendment as applied to Van der hule | Van der hule: strict scrutiny required; the federal ban unconstitutionally burdens his right to bear arms for self-defense | Government: § 922(g)(1) is longstanding and constitutional; intermediate scrutiny or similar applies and is satisfied | Held: Following Ninth Circuit precedent (Vongxay, Chovan) and Heller, § 922(g)(1) withstands challenge; Van der hule’s Second Amendment claim fails |
| Standard for restoring federal firearm rights when state restores civil rights | Van der hule: state restoration of civil rights should fully remove federal disability absent an explicit firearms prohibition | Government: Under 18 U.S.C. § 921(a)(20) the inquiry focuses on whether state law “may not” permit firearms (including manner restrictions) | Held: Court applies three-step Valerio framework and holds Montana’s restriction qualifies under the “unless clause” |
Key Cases Cited
- Caron v. United States, 524 U.S. 308 (interpreting § 921(a)(20) to apply when a State forbids an offender certain types or manners of firearm possession)
- United States v. Valerio, 441 F.3d 837 (9th Cir.) (three-step test for applying § 921(a)(20))
- United States v. Vongxay, 594 F.3d 1111 (9th Cir.) (§ 922(g)(1) does not violate the Second Amendment)
- United States v. Chovan, 735 F.3d 1127 (9th Cir.) (Second Amendment challenges evaluated under heightened/intermediate scrutiny and § 922(g) may survive)
- Dickerson v. New Banner Inst., Inc., 460 U.S. 103 (state expungement/record-altering devices do not automatically change federal treatment of convictions)
- Moskal v. United States, 498 U.S. 103 (rule of lenity applied only where statutory ambiguity persists after traditional tools of interpretation)
- Leocal v. Ashcroft, 543 U.S. 1 (rule of lenity applies in criminal statute interpretation context)