United States v. Eric McGinnis, 956 F.3d 747

Background

In July 2017 police found Eric McGinnis with a short-barrel AR-15, magazines, and documents after discovering he was subject to an active Dallas County protective order issued in 2015 after a hearing in which allegations of physical assaults were found and the court found family violence had occurred and was likely to recur. The order warned that firearm possession would violate 18 U.S.C. § 922(g)(8).
McGinnis had earlier lied on a background check when attempting to buy a receiver in 2016; ATF warned him he could not legally possess firearms, after which he 3D-printed a receiver.
A federal grand jury indicted McGinnis for possessing an unregistered short-barrel rifle and for possession of ammunition by a person subject to a qualifying domestic protective order (§ 922(g)(8)); a jury convicted on both counts.
On appeal McGinnis raised three principal claims: (1) § 922(g)(8) is facially unconstitutional under the Second Amendment; (2) the underlying protective order’s language did not satisfy § 922(g)(8)(C)(i) or (ii); and (3) the written judgment added a supervised-release condition (barring entry to places frequented by the protected person) that was not orally pronounced at sentencing.
The Fifth Circuit affirmed the conviction, holding § 922(g)(8) survives the court’s post‑Heller two‑step framework (applying intermediate scrutiny), found the protective order met (C)(ii), and remanded only to conform the written judgment to the oral pronouncement regarding contact restrictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutional validity of 18 U.S.C. § 922(g)(8) (facial Second Amendment challenge)	McGinnis: statute broadly disarms persons (including in‑home defense) and therefore burdens the core Second Amendment right and must be struck down or at least subjected to strict scrutiny.	Government: statute targets a narrow class (those adjudged in protective orders after a hearing) who are not "law‑abiding, responsible" core‑right holders; intermediate scrutiny applies and the law is reasonably adapted to reducing domestic gun abuse.	Court: affirmed Emerson; assuming the law implicates the Second Amendment, intermediate scrutiny applies and § 922(g)(8) survives as reasonably adapted to important government interests.
Sufficiency of the protective order to satisfy § 922(g)(8)(C)(i)/(ii)	McGinnis: Texas definition of "family violence" can encompass non‑physical conduct, so the order’s generalized family‑violence finding cannot satisfy (C)(i); order language is not "explicit" under (C)(ii).	Government: order included prohibitions (e.g., committing family violence, abusing, threatening) that commonly encompass physical force; courts adopt common‑sense readings to satisfy (C)(ii).	Court: protective order met (C)(ii); commonly understood meanings of terms like "abuse" and "family violence" include physical force, so a reasonable jury could find the order satisfied (C)(ii).
Written judgment including additional supervised‑release restriction not orally pronounced	McGinnis: added language (bar from entering or loitering near places frequented by protected person) was not pronounced; he had no chance to object so error review should be for abuse of discretion.	Government: conceded remand appropriate to remove the extra phrase and conform written judgment to oral pronouncement.	Court: agreed; because McGinnis had no notice of the extra written terms, reviewed for abuse of discretion and remanded to amend written judgment to match oral sentence.

Key Cases Cited

United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (earlier Fifth Circuit decision recognizing an individual Second Amendment right and upholding § 922(g)(8) as a permissible restriction)
District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to possess firearms for self‑defense while noting longstanding limits)
Nat'l Rifle Ass'n v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185 (5th Cir. 2012) (adopts two‑step framework for analyzing post‑Heller Second Amendment challenges)
Salerno v. United States, 481 U.S. 739 (1987) (standard for facial challenges: challenger must show no set of circumstances in which statute is valid)
United States v. Mahin, 668 F.3d 119 (4th Cir. 2012) (upheld § 922(g)(8) based on link between domestic abuse, recidivism, and gun violence)
United States v. Bostic, 168 F.3d 718 (4th Cir. 1999) (protective‑order language like "refrain from abusing" satisfies § 922(g)(8)(C)(ii))
United States v. Coccia, 446 F.3d 233 (1st Cir. 2006) (common‑sense reading of "abuse" and similar terms can satisfy (C)(ii))
United States v. DuBose, 598 F.3d 726 (11th Cir. 2010) (upholds protective‑order language prohibiting "hurting" or "intimidating" as sufficient for (C)(ii))
United States v. Chapman, 666 F.3d 220 (4th Cir. 2012) (persons adjudged threats are outside the Second Amendment’s core protection)