FRANK S. VAN DER HULE, Plaintiff-Appellant,
ERIC H. HOLDER, JR., Attorney General, Defendant-Appellee
Resubmitted, Portland, Oregon: July 9, 2014.
Appeal from the United States District Court for the District of Montana. D.C. No. 9:05-cv-00190-DWM. Donald W. Molloy, District Judge, Presiding. March 7, 2012, Argued and Submitted.
Second Amendment / Firearms
The panel affirmed the district court's judgment in favor of the Attorney General of the United States in an action for declaratory relief brought by Frank Van der hule, a former felon whose civil rights were automatically restored under Montana law, seeking approval of a proposed firearm purchase.
The panel held that Montana's prohibition on Van der hule's obtaining a permit to carry a concealed weapon was a sufficient restriction of his firearm rights to trigger the " unless clause" of 18 U.S.C. § 921(a)(20). The panel also held that Van der hule was forbidden to receive or possess a firearm under federal law, and that ban did not violate his Second Amendment rights.
Quentin M. Rhoades (argued) and Robert Erickson, Sullivan, Tabaracci & Rhoades, Missoula, Montana, for Plaintiff-Appellant.
Adam C. Jed (argued), Assistant United States Attorney; Tony West, Assistant Attorney General; Michael W. Cotter, United States Attorney; Mark B. Stern, Michael S. Raab, and Abby C. Wright, Attorneys, United States Department of Justice, Civil Division, Washington, D.C., for Defendant-Appellee.
Before: William A. Fletcher, Raymond C. Fisher, and Jay S. Bybee, Circuit Judges.
BYBEE, Circuit Judge:
In this case we address two issues: (1) Whether Frank Van der hule, who is prohibited under Montana law from receiving
a concealed weapons permit, is therefore prohibited under 18 U.S.C. § 922(g)(1) from possessing any firearms, see Caron v. United States, 524 U.S. 308, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998); and (2) assuming he is barred by federal law, whether such restriction violates Van der hule's rights under the Second Amendment to the U.S. Constitution, see Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). We hold that Van der hule is barred by federal law from possessing a firearm and that such ban does not violate his Second Amendment rights. We affirm the judgment of the district court.
In December 1983, Frank Van der hule pled guilty to sexual assault and four counts of sexual intercourse without consent in Montana. He was sentenced to 25 years' imprisonment and completed his sentence in 1996. At the completion of his sentence, Montana law automatically restored to Van der hule his civil rights. See Mont. Const. art. II, § 28(2) (" Full rights are restored by termination of state supervision for any offense against the state." ); Mont. Code Ann. § 46-18-801(2) (" [I]f a person has been deprived of a civil or constitutional right by reason of conviction . . . and the person's sentence has expired . .., the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred." ).
In July 2003, Van der hule attempted to purchase a firearm from a firearms dealer, who held a federal firearms license, in Montana. The dealer began the National Instant Criminal Background Check System (" NICS" ) process, and the NICS examiner who processed the background check concluded that Van der hule's prior convictions precluded him from receiving a Montana concealed weapons permit, and therefore he was also prohibited under federal law from possessing or receiving any firearm. The NICS examiner informed the dealer that Van der hule should not be permitted to purchase a firearm, and the dealer refused to make the sale.
Van der hule filed an administrative appeal with the NICS Appeal Services Team (" AST" ), but the AST upheld the examiner's determination. Van der hule then filed suit for a declaratory judgment under 18 U.S.C. § 925A, requesting that the court order the Attorney General to approve the proposed firearm transfer to Van der hule. Van der hule argued that Montana and federal law did not restrict him from obtaining a concealed weapons permit or possessing any firearms. In September 2007, the district court granted the government's motion for summary judgment in part but certified a question to the Montana Supreme Court. It asked whether, under Montana law, Mont. Code. Ann. § 45-8-321(1), a sheriff has the discretion to grant a concealed weapons permit to someone with a criminal history similar to Van der hule's. In January 2009, the Montana Supreme Court held that such a person was prohibited from obtaining a concealed weapons permit under Montana law and a sheriff had no discretion to grant him a permit. Van der hule v. Mukasey, 2009 MT 20, 349 Mont. 88, 217 P.3d 1019, 1022 (Mont. 2009).
In the meantime, Van der hule amended his complaint to add a claim that the federal and state laws depriving him of his right to purchase a firearm violate the Second Amendment. After the Montana Supreme Court rendered its decision, the parties again filed cross-motions for summary judgment, and the district court granted the government's motion. The district court held that Van der hule was prohibited by federal law from possessing or receiving a firearm by virtue of his restriction on obtaining a Montana concealed weapons permit and that Van der hule, by virtue of his prior felony conviction, had no
federal constitutional right to possess a firearm. Van der hule ...