United States v. Bena, 2011 U.S. App. LEXIS 25283

Bena pleaded guilty to unlawful firearm possession while subject to a no-contact order under 18 U.S.C. § 922(g)(8).
The underlying state order arose from Iowa domestic assault allegations and was entered at Bena's initial appearance; he appeared by video and had no counsel at that proceeding.
The Iowa court found probable domestic abuse and that Bena’s presence posed a threat to the spouse and family, restraining him from certain conduct.
Bena challenged § 922(g)(8) as facially unconstitutional under the Second Amendment and as applied under the Fifth and Sixth Amendments.
The district court denied the motion to dismiss; Bena pleaded guilty and reserved the right to appeal the ruling on the indictment.
The court reviews the constitutional challenges de novo and upholds § 922(g)(8) as constitutionally permissible both facially and as applied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 922(g)(8) is facially unconstitutional under the Second Amendment	Bena argues the statute infringes the right to bear arms in all applications.	The government contends the provision is presumptively lawful and narrowly tailored to public safety.	Not facially unconstitutional; regulatory measure with presumptively lawful status.
Whether § 922(g)(8) as applied to Bena violates the Fifth or Sixth Amendment	Bena asserts uncounseled state-ordered conduct taints the predicate under § 922(g)(8).	Lewis collateral-attack framework allows use of the predicate without invalidating the federal statute.	As applied challenges rejected; no collateral attack on the predicate.

United States v. Salerno, 481 F.3d 739 (Supreme Court, 1987) (facial challenge standard for the Second Amendment)
District of Columbia v. Heller, 554 U.S. 570 (Supreme Court, 2008) ( Second Amendment protects right to possess for self-defense with limits)
McDonald v. City of Chicago, 130 S. Ct. 3020 (Supreme Court, 2010) (incorporation of Second Amendment against states)
United States v. Seay, 620 F.3d 919 (8th Cir., 2010) (presumptively lawful firearms regulations; § 922(g)(3) analysis)
United States v. Skoien, 614 F.3d 638 (7th Cir., 2010) (historical justifications for prohibitions on firearm possession)
Lewis v. United States, 445 U.S. 55 (Supreme Court, 1980) (collateral attack on uncounseled state conviction for § 922(g) predicate)
United States v. Reese, 627 F.3d 792 (10th Cir., 2010) (domestic violence restrictions and § 922(g)(8) rationale)
United States v. Emerson, 270 F.3d 203 (5th Cir., 2001) (interpretation of § 922(g)(8)(C)(ii) and dangerousness)
United States v. Baker, 197 F.3d 211 (6th Cir., 1999) (predecessor frameworks for § 922(g)(8) applicability)