PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4284

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SAMUEL ROBERT HOSFORD,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Deborah K. Chasanow, Senior District 

Judge. (8:13-cr-00550-DKC-1)

Argued: September 23, 2016 Decided: December 6, 2016 

Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit 

Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the 

opinion, in which Judge Wilkinson and Judge Diaz joined.

ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Greenbelt, Maryland, for Appellant. Dana Jill Brusca, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee. ON BRIEF: James Wyda, Federal Public Defender, 

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for 

Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF 

THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
2

GREGORY, Chief Judge:

In 2013, Mr. Samuel Hosford was indicted under 18 U.S.C. 

§ 922 for unlicensed dealing in firearms and conspiracy to deal 

firearms without a license. He moved to dismiss the indictment 

on constitutional grounds. Specifically, he argued that the

indictment violated his Second Amendment right to engage in 

intrastate firearm sales between non-prohibited persons; the Due 

Process Clause of the Fifth Amendment for vagueness; and the 

Commerce Clause. The district court denied his motion, and 

Hosford timely appealed.

“We review the district court’s factual findings on a 

motion to dismiss an indictment for clear error, but we review 

its legal conclusions de novo.” United States v. Perry, 757 

F.3d 166, 171 (4th Cir. 2014) (quoting United States v. 

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005)). We hold that the 

prohibition against unlicensed firearm dealing comports with the 

Second and Fifth Amendments both facially and as applied. It is 

also a valid exercise of congressional power under the Commerce 

Clause. Accordingly, we affirm the district court’s denial of 

Hosford’s motion to dismiss his indictment.
3

I.

Hosford, a resident of Montgomery County, Maryland, sold 

firearms to an individual he met in a public parking lot five 

times over the course of two-and-a-half months. He had no 

reason to believe that the individual was a prohibited 

purchaser, but he also took no measures to ensure that the 

individual was a valid purchaser. Unbeknownst to him, the 

individual was an undercover officer. Hosford was arrested and 

indicted for one count of conspiracy and five counts of 

unlicensed firearm dealing.

According to the facts agreed to in his conditional plea 

agreement, Hosford conspired with another man, Henry Parrott, to 

sell firearms. Parrott purchased firearms from gun shows and 

delivered them to Hosford. Hosford then sold these firearms to 

the undercover officer. Over five transactions, Hosford sold 

the officer eight guns and intended to sell another four guns 

before he was arrested.

Hosford moved to dismiss his indictment as unconstitutional 

under the Second Amendment, Due Process Clause of the Fifth 

Amendment, and Commerce Clause. The district court held that 

the indictment was constitutional. Hosford then pleaded guilty, 

conditioned on the outcome of this appeal about the statute’s 

constitutionality.
4

II.

Hosford was indicted under the Gun Control Act of 1968, 18 

U.S.C. § 921 et seq., which prohibits individuals without a 

license from regularly selling, for the predominant purpose of 

gaining profit, firearms that are not part of their personal 

collection or for their hobby. Because Hosford’s motion

challenges on Second Amendment and vagueness grounds the 

constitutionality of this prohibition, we first more carefully

review the statutes at issue, as well as the burdens and 

responsibilities they trigger.

18 U.S.C. § 922 forbids anyone “except a licensed importer, 

licensed manufacturer, or licensed dealer, to engage in the 

business of importing, manufacturing, or dealing in firearms.”

18 U.S.C. § 922(a)(1)(A).

18 U.S.C. § 921 lays out the relevant definitions for this 

prohibition. A dealer is, in relevant part, “any person engaged 

in the business of selling firearms at wholesale or retail.” 18 

U.S.C. § 921(11)(A). A licensed dealer is a dealer who has 

obtained a federal license to commercially buy and sell

firearms. Id. And under clarifying statutory definitions 

passed in 1986, “[e]ngaged in the business” means “a person who 

devotes time, attention, and labor to dealing in firearms as a 

regular course of trade or business with the principal objective 
5

of livelihood and profit through the repetitive purchase and 

resale of firearms.” 18 U.S.C. § 921(21)(C); see also Firearm 

Owners Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986). 

And “with the principal objective of livelihood and profit” 

means that the intent of the sale “is predominantly one of 

obtaining livelihood and pecuniary gain,” as opposed to other 

intents like decreasing or increasing one’s personal firearm 

collection. 18 U.S.C. § 921(22). But these definitions 

explicitly exempt anyone “who makes occasional sales, exchanges, 

or purchases of firearms for the enhancement of a personal 

collection or for a hobby, or who sells all or part of his 

personal collection of firearms.” 18 U.S.C. § 921(21)(C).

To obtain a license, a prospective firearms dealer must 

submit an application, be at least twenty-one years old, pay a 

fee, and establish lawful premises for selling firearms. 18 

U.S.C. § 923(a), (d). If the applicant fulfills these steps and 

is otherwise legally able to possess, transport, and ship 

firearms, the application must be approved. 18 U.S.C. § 923(d).

Licensed dealers are subject to regulations that those 

conducting personal sales are not. For example, the Attorney 

General may require licensed dealers to maintain importation, 

production, shipment, and other kinds of records, 18 U.S.C. 

§ 923(g)(1)(A), and may inspect a dealer’s inventory or records 
6

without reasonable cause for a warrant, subject to other 

limitations, 18 U.S.C. § 923(g)(1)(B).

III.

We first review Hosford’s Second Amendment challenges. “A 

well regulated Militia, being necessary to the security of a 

free State, the right of the people to keep and bear Arms, shall 

not be infringed.” U.S. Const. amend. II. For centuries, the 

Second Amendment received minimal judicial interpretation.

Then, in District of Columbia v. Heller, 554 U.S. 570 

(2008), the Supreme Court determined that the Second Amendment 

protects an individual “right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.” Id. at 

635. The Court held unconstitutional the District of Columbia’s 

ban on possession of handguns in the home and its requirement 

that all firearms in the home be stored in a manner that 

rendered them inoperable for immediate self-defense. Id.

But the Court underscored that Heller was not meant “to 

clarify the entire field” of Second Amendment jurisprudence. 

Id. It further emphasized that Heller should not “be taken to 

cast doubt on longstanding prohibitions on the possession of 

firearms by felons and the mentally ill, or laws forbidding the 

carrying of firearms in sensitive places such as schools and 
7

government buildings, or laws imposing conditions and 

qualifications on the commercial sale of arms.” Id. at 626-27. 

In a footnote, the Court identified these kinds of prohibitions 

as “presumptively lawful regulatory measures.” Id. at 627 n.26.

Since Heller, courts have endeavored to establish what 

conduct the Second Amendment protects and what burdens on that 

conduct are constitutionally justifiable. The Fourth Circuit 

has adopted a two-pronged inquiry for Second Amendment 

challenges. First, the court must ask “whether the challenged 

law imposes a burden on conduct falling within the scope of the 

Second Amendment’s guarantee.” United States v. Chester, 628 

F.3d 673, 680 (4th Cir. 2010) (quoting United States v. 

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). If it does not, 

then the law comports with the Second Amendment. But if the 

challenged regulation does burden conduct within the scope of 

the Second Amendment as historically understood, the court must 

apply “an appropriate form of means-end scrutiny.” Id. at 680.

Against this backdrop, Hosford raises both facial and asapplied Second Amendment challenges to the prohibition against

unlicensed firearm dealing. We consider each in turn.

A.

We first examine Hosford’s facial challenge. To succeed in 

a facial constitutional challenge, a movant “must establish that 
8

no set of circumstances exists under which the Act would be 

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). 

Because of this stringent standard, a facial challenge is 

perhaps “the most difficult challenge to mount successfully.” 

Id. And while courts generally engage in the above-mentioned 

two-pronged analysis for facial Second Amendment challenges, our 

precedent simplifies that analysis for prohibitions deemed 

“presumptively lawful” in Heller.

In United States v. Moore, 666 F.3d 313 (4th Cir. 2012), 

this Court found the federal prohibition against possession of 

firearms by felons facially constitutional because it was 

identified in Heller as presumptively lawful. Id. at 318-19. 

According to this Court, the Supreme Court’s identification of 

“longstanding prohibitions on the possession of firearms by 

felons” as presumptively lawful “streamlined” the otherwiseapplicable two-pronged analysis. Id. at 317-18. “It is unclear 

to us whether Heller was suggesting that ‘longstanding 

prohibitions’ such as these . . . were historically understood 

to be valid limitations on the right to bear arms or did not 

violate the Second Amendment for some other reason.” Id. at 318 

(quoting Chester, 628 F.3d at 679); see also Marzzarella, 614 

F.3d at 91. But either reasoning demonstrated that these 

presumptively lawful prohibitions were facially constitutional, 
9

because they could be constitutionally applied. Moore, 666 F.3d 

at 318-19.

The same reasoning applies here. Hosford’s facial 

challenge fails if the prohibition against unlicensed firearm 

dealing is the type of regulation deemed “presumptively lawful” 

in Heller. There may be debate as to whether the Supreme Court 

called presumptively lawful all “laws imposing conditions and 

qualifications on the commercial sale of arms,” or only 

“longstanding . . . laws imposing conditions and qualifications 

on the commercial sale of arms.” Heller, 554 U.S. at 626-27. 

But we need not parse that language here: the prohibition 

against unlicensed firearm dealing is a longstanding condition 

or qualification on the commercial sale of arms and is thus 

facially constitutional.

First, the regulation covers only the commercial sale of 

firearms. It affects only those who regularly sell firearms, 

not owned for personal use, in the course of trade or business 

for the principal purpose of profit. It explicitly excludes the 

vast majority of noncommercial sales, such as sales from one’s 

own personal collection, sales meant to enhance one’s hobby, and 

infrequent sales or exchanges.

Second, the regulation imposes a mere condition or 

qualification. Though framed as a prohibition against 
10

unlicensed firearm dealing, the law is in fact a requirement 

that those who engage in the commercial sale of firearms obtain 

a license. A prospective dealer who wishes to obtain a license 

need only submit an application, be at least twenty-one years 

old, pay a fee, and establish lawful premises for selling 

firearms. 18 U.S.C. § 923(a), (d). Neither the application 

procedure nor the fee are so prohibitive as to turn this 

condition or qualification into a functional prohibition. Cf.

Ill. Ass’n of Firearms Retailers v. City of Chicago, 961 F. 

Supp. 2d 928, 938-939 (N.D. Ill. 2014) (finding that city 

ordinances allowing firearm sales and transfers only outside 

city limits were a functional ban on firearm acquisition); 

Teixeira v. County of Alameda, 822 F.3d 1047 (9th Cir. 2016)

(noting that if no unincorporated area of county qualifies under

zoning requirement that firearm retailers must be 500 feet from 

certain establishments, zoning requirement may be functional ban 

on firearm stores).

And lastly, this prohibition against unlicensed firearm 

dealing is longstanding. Federal appellate courts have only 

recently begun to establish how old a firearm regulation must be 

to be longstanding. And no court has previously examined 

whether the prohibition at issue here is longstanding. But a 

review of similar cases establishes that the prohibition against 
11

unlicensed firearm dealing is of similar age to other 

longstanding firearm regulations, and is thus also longstanding.

The Third Circuit found New Jersey’s permit requirement for 

possessing handguns “longstanding”; New Jersey established its 

permit requirement in 1966 and first required permits for only 

concealable handguns in 1924. Drake v. Filko, 724 F.3d 426, 432 

(3d Cir. 2013). The D.C. Circuit noted that the U.S. Supreme 

Court found prohibitions on the possession of firearms by felons 

to be longstanding “although states did not start to enact 

th[ose prohibitions] until the early 20th century.” Heller v. 

District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011); see 

also C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 

Harv. J.L. & Pub. Pol’y 695, 708 (2009) (noting that bans on 

possession of firearms by felons not passed in any state other 

than New York until 1923, and not passed in states with 

constitutional right-to-arms provisions until 1925). And the 

D.C. Circuit found that Washington, D.C.’s handgun-registration 

requirement, first passed in 1975, was longstanding, even though 

some states first regulated the possession of handguns in 1927 

or 1932, and those laws required less of the purchaser. See

Heller, 670 F.3d at 1254; see also, e.g., 47 Stat. 650, 652 

(1932) (requiring purchasers of pistols in District of Columbia
12

to give seller basic personal identifying information); 1927 

Haw. Sess. Laws 209, 211 (same).

Licensing requirements for dealers have been around for as 

long as these laws, if not longer. The federal government first 

required dealers to obtain licenses in 1938, nearly eighty years 

ago. Federal Firearms Act, Pub. L. No. 75-785, 52 Stat. 1250, 

1250 (1938) (repealed 1968) (replaced with Gun Control Act of 

1968, Pub. L. 90-618, 82 Stat. 1213). And some states required 

licenses for dealers even earlier.1 Thus, the federal progenitor 

of the law at issue was passed decades before the handgunlicensing requirements examined by the Third Circuit and D.C. 

Circuit. And licensing requirements on dealers have existed at 

least as long as regulations on the possession of handguns.

For these reasons, the prohibition against unlicensed 

firearm dealing is a longstanding condition or qualification on 

the commercial sale of firearms. As a result, Hosford’s facial 

Second Amendment challenge fails.

B.

Even if a statute is facially constitutional, “the phrase 

‘presumptively lawful regulatory measures’ suggests the 

 

1 See, e.g., 47 Stat. 650, 652 (1932) (District of Columbia 

established licensing requirement in 1932); 1927 Haw. Sess. Laws 

209, 211 (Hawaii established licensing requirement in 1927).
13

possibility that one or more of these ‘longstanding’ regulations 

‘could be unconstitutional in the face of an as-applied 

challenge.” Chester, 628 F.3d at 679 (quoting United States v. 

Williams, 616 F.3d 685, 692 (7th Cir. 2010)). We thus now turn 

to Hosford’s as-applied challenge.

As stated above, this Court has established a two-pronged 

analysis for Second Amendment challenges: “whether the 

challenged law imposes a burden on conduct falling within the 

scope of the Second Amendment’s guarantee,” and if so, whether 

the challenged law survives “an appropriate form of means-end 

scrutiny.” Chester, 628 F.3d at 680. But even when applying 

this analysis, we are at liberty to assume that a challenged 

statute burdens conduct protected by the Second Amendment and 

focus instead on whether the burden is constitutionally 

justifiable. Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 

2013) (“[W]e are not obliged to impart a definitive ruling at 

the first step of the Chester inquiry. And indeed, we and other 

courts of appeals have sometimes deemed it prudent to instead 

resolve post-Heller challenges to firearm prohibitions at the 

second step”). Because we can resolve the statute’s 

constitutionality on the inquiry’s second prong, we also find it 

prudent in this case to assume, without holding, that the 
14

federal prohibition against unlicensed firearm dealing burdens 

conduct protected by the Second Amendment.

1.

We first must determine what level of scrutiny applies. 

The right to bear arms, after all, “is not unlimited.” Heller, 

554 U.S. at 626. Even as historically and traditionally 

understood, law-abiding citizens do not have the “right to keep 

and carry any weapon whatsoever in any manner whatsoever and for 

whatever purpose.” Id.

In United States v. Masciandaro, 638 F.3d 458 (4th Cir. 

2011), this Court held that laws burdening “core” Second 

Amendment conduct receive strict scrutiny, while less severe 

burdens receive only intermediate scrutiny. Id. at 471. We

noted that core Second Amendment conduct includes the

“fundamental right to possess firearms for self-defense within 

the home. But a considerable degree of uncertainty remains as 

to the scope of that right beyond the home . . . .” Id. at 467. 

“[A]s we move outside the home, firearm rights have always been

more limited, because public safety interests often outweigh 

individual interests in self defense.” Id. at 470. Thus, “less 

severe burdens on the right, laws that merely regulate rather 

than restrict, and laws that do not implicate the central self-
15

defense concern of the Second Amendment, may be more easily 

justified.” Id. at 470 (quoting Chester, 628 F.3d at 682).

Here, even assuming that the prohibition implicates conduct 

protected by the Second Amendment, the prohibition does not 

touch on the Second Amendment’s core protections. Individuals 

remain free to possess firearms for self-defense. Individuals 

also remain free to purchase or sell firearms owned for 

personal, self-defensive use. The law merely imposes a 

licensing requirement on those who wish to profit by regularly 

selling firearms outside of their personal collection; it 

serves, not as a prohibition, but as a condition or 

qualification. The law, therefore, regulates rather than 

restricts, addresses only conduct occurring outside the home, 

and does not touch on self-defense concerns. It is thus subject 

to intermediate scrutiny.

2.

To satisfy intermediate scrutiny, the government must show 

that “there is a ‘reasonable fit’ between the challenged 

regulation and a ‘substantial’ government objective.” Chester, 

628 F.3d at 683 (quoting Bd. of Trs. of State Univ. of N.Y. v. 

Fox, 492 U.S. 469, 480 (1989)).

The government enacted the prohibition against unlicensed 

firearm dealing, alongside myriad other firearm regulations, 
16

because “the ease with which firearms could be obtained 

contributed significantly to the prevalence of lawlessness and 

violent crime in the United States.” Huddleston v. United 

States, 415 U.S. 814, 824 (1974) (citing S. Rep. No. 90-1097, at 

2198 (1968)). The government’s interest is, therefore, “to 

c[ur]b crime by keeping ‘firearms out of the hands of those not 

legally entitled to possess them because of age, criminal 

background, or incompetency.’” Id.

Such interests in public safety and preventing crime are 

indisputably substantial governmental interests. See Woollard, 

712 F.3d at 877. The question then is whether there is a 

reasonable fit between the prohibition against unlicensed 

firearm dealing and the government’s objectives.

The requirement that firearm dealers——those who regularly 

engage in the business of selling firearms——obtain licenses is a 

crucial part of the federal firearm regulatory scheme. Licensed 

dealers are subject to more stringent regulations and 

governmental oversight than private sellers. See 18 U.S.C. 

§ 923(g)(1). By subjecting firearm dealers to routine 

inspections, which require neither a warrant nor probable cause, 

the government has more opportunities to ensure compliance with 

laws that have demonstrated effects on reducing gun violence.
17

For example, prohibiting those under a restraining order 

for domestic violence from possessing firearms correlates to a 

statistically significant decrease in intimate partner 

homicides. See Elizabeth R. Vigdor & James A. Mercy, Do Laws 

Restricting Access to Firearms By Domestic Violence Offenders 

Prevent Intimate Partner Homicide?, 30 Eval. Rev. 313, 332 

(2006). And restricting these individuals’ access to firearms 

by prohibiting their purchase of firearms, rather than merely 

their possession, is significantly more effective. Id. at 333. 

Requiring sellers to conduct background checks, as licensed 

firearms dealers must do under federal law, also significantly 

reduces prohibited purchasers’ access to firearms. See

Katherine A. Vittes et al., Legal Status and Source of 

Offenders’ Firearms in States with the Least Stringent Criteria 

for Gun Ownership, 19 Injury Prevention 26, 29 (2013). Indeed,

of those studied, very few offenders purchased a weapon from a 

federal firearms dealer, in large part because of the 

background-check requirement. Id. at 30. Without a prohibition 

against the unlicensed dealing of firearms, individuals who 

regularly engage in the business of selling firearms for profit 

would have no incentive to obtain a license and subject 

themselves to these requirements.
18

Despite Hosford’s protestations, this prohibition against 

the unlicensed dealing of firearms is not “a broad prohibition, 

applying to the entire law-abiding population, that 

substantially burdens conduct that goes to the core of rights 

secured under the Second Amendment.” Appellant Br. at 29. Nor 

does this prohibition impermissibly implicate “the right of a 

non-prohibited person to engage in the private, intrastate sale 

of firearms to another non-prohibited person,” even assuming 

such a right is countenanced in the Second Amendment’s core 

protections. Appellant Br. at 12. Individuals are free to sell 

firearms from their personal collection, to sell firearms only 

occasionally, and to sell firearms commercially with a license. 

This prohibition is a narrowly delineated, reasonable fit to 

further Congress’s important objectives in public safety and 

crime prevention: it affects only those select individuals who 

regularly sell firearms they do not personally own in their

collection or for their hobby, for the principle purpose of 

accruing profit. And it is a necessary component to the 

effectiveness of federal firearm regulations.

Moreover, nothing about Hosford’s situation changes this 

analysis as applied to him. Over the course of five separate 

occasions, he sold to an unknown individual nearly a dozen 

firearms that he purchased hours before. A grand jury indicted 
19

Hosford for the unlawful, regular sale of firearms for the 

principal purpose of profit, where the firearms were not part of 

his personal collection or for his hobby. And Hosford does not 

contest that his conduct violated the statute.

Applying the federal prohibition to Hosford affects no 

“core” constitutional right, so applying only intermediate 

scrutiny remains appropriate. His brief possession of the 

firearms he sold had no connection to the long-held right to 

self-defense; he did not purchase or own them for that purpose. 

His indictment does not implicate his right to keep firearms in 

his home. Indeed, any attempt to characterize Mr. Hosford’s 

conduct as “core” Second Amendment conduct, thus deserving of 

higher scrutiny, goes merely to whether Mr. Hosford was guilty 

of the crime. If he were a hobbyist, sold firearms only 

occasionally, or sold firearms from his personal collection, he 

may argue——assuming he were even indicted——that his core Second 

Amendment conduct was implicated. But that hypothetical 

scenario is not at issue here.

And in applying intermediate scrutiny, the government’s

interests in the law generally also justify applying the law to 

Hosford. Hosford sold firearms on multiple occasions to an 

individual whom, as far as the record shows, he did not vet. He 

kept no record of the firearms he sold. He conducted no 
20

background check. He did not know whether the buyer was 

prohibited, and took no steps to ensure that the buyer could 

legally purchase firearms. His actions are the exact kind of 

unlicensed firearm dealing that Congress feared when passing the 

licensing requirement as an attempt to stymie the unregulated 

flow of firearms to prohibited purchasers. For these reasons, 

Hosford’s as-applied Second Amendment challenge also fails.

IV.

Hosford next argues that the federal prohibition against 

unlicensed firearm dealing is void for vagueness, both facially 

and as applied. “[T]he void-for-vagueness doctrine requires 

that a penal statute define the criminal offense with sufficient 

definiteness that ordinary people can understand what conduct is 

prohibited and in a manner that does not encourage arbitrary and 

discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 

357 (1983).

Yet “[a] plaintiff who engages in some conduct that is 

clearly proscribed cannot complain of the vagueness of the law 

as applied to the conduct of others.” Holder v. Humanitarian 

Law Project, 561 U.S. 1, 18-19 (2010) (quoting Vill. of Hoffman 

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 

(1982)). Thus, if a law clearly prohibits a defendant’s 
21

conduct, the defendant cannot challenge, and a court cannot 

examine, whether the law may be vague for other hypothetical 

defendants. Because the prohibition against unlicensed firearm 

dealing is not vague as applied to Hosford, both his as-applied 

and facial challenges fail.2

In 1975, this Court upheld the pre-1986, less specific

prohibition against unlicensed firearm dealing. United States 

v. Huffman, 518 F.2d 80 (4th Cir. 1975) (per curiam).3 At the 

time, the statute prohibited individuals from “engag[ing] in the 

business of selling firearms or ammunition at wholesale or 

retail,” but did not define what “business” meant. See id. at 

81. The defendant “engaged in more than a dozen transactions in 

the course of a few months. He frequently built firearms, or 

had them rebuilt, and exchanged them for other weapons which he 

subsequently sold or traded. There was also evidence that he

 

2 Hosford argues that his facial vagueness challenge should 

be heard even if the claim is not vague as applied to him, 

because the statute may nonetheless “chill constitutionallyprotected activity.” Appellant Br. at 40. But his argument 

confuses a due-process vagueness challenge with a First 

Amendment overbreadth challenge. Because Hosford has not 

alleged an overbreadth claim, we decline to address it.

3 Hosford alleges that Huffman is not persuasive because it 

was decided pre-Heller. But Heller’s recognition of an 

individual right to keep and bear arms has no bearing on whether 

a statute is vague as a matter of due process.
22

traded large quantities of military ammunition for firearms.” 

Id. This Court held that the statute was not vague as applied 

to the defendant. Id.

Here, the prohibition against unlicensed firearm dealing is 

much narrower and clearer: it regulates only individuals who 

regularly sell, for the principal purpose of accruing profit or 

maintaining a livelihood, firearms that are not part of their

personal collection or for their hobby. And like the defendant 

in Huffman, Hosford engaged in transactions that resulted in the 

sale or attempted sale of a dozen weapons over the course of a 

few months. Indeed, Hosford’s conduct may be even more clearly 

commercial than that of the defendant in Huffman. In Huffman, 

the defendant both traded and built firearms, which could 

possibly imply that he had a hobby; Hosford resold for profit 

weapons he purchased a few hours earlier. Thus, applying the 

narrower and more clarifying statute to Hosford’s similarly 

commercial sale of firearms is not unconstitutionally vague.

Hosford argues that the statute is unclear as to whether 

someone is a “dealer” or “collector,” and whether someone sells 

the guns for profit or as a mere hobby. Appellant Br. at 48.

But statutes necessarily have some ambiguity, as no standard can 

be distilled to a purely objective, completely predictable 

standard. “[T]he law is full of instances where a man’s fate 
23

depends on his estimating rightly . . . some matter of degree.” 

Johnson v. United States, 135 S. Ct. 2551, 2561 (2015) (quoting 

Nash v. United States, 229 U.S. 373, 377 (1913)). And where, as 

here, the statute clearly gave notice to Hosford that he ought 

not to regularly sell firearms that he only purchased and resold 

for profit——firearms not acquired for the purpose of a personal 

collection or for the hobby of collecting firearms——his asapplied vagueness challenge fails. As a result, Hosford’s 

facial challenge also fails.

V.

Lastly, Hosford argues that the prohibition against 

unlicensed firearm dealing is not a valid exercise of Congress’s 

power under the Commerce Clause. The Commerce Clause allows 

Congress to regulate (1) the channels of interstate commerce; 

(2) the instrumentalities of interstate commerce, and persons or 

things in interstate commerce; and (3) activities that 

“substantially affect” interstate commerce. Gonzales v. Raich, 

545 U.S. 1, 16-17 (2005). We join our sister circuits in 

holding that the prohibition against unlicensed firearm dealing 

is a valid exercise of Congress’s power under the Commerce 

Clause. See Mandina v. United States, 472 F.2d 1110 (8th Cir. 
24

1973); United States v. Hornbeck, 489 F.2d 1325 (7th Cir. 1973) 

(per curiam).

In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court 

upheld the federal Controlled Substances Act’s application to 

individuals who grew and consumed marijuana for personal use. 

See id. at 7. Those individuals cultivated their own marijuana

or received marijuana for free from caregivers. They did not 

purchase or sell marijuana or marijuana products, either 

interstate or intrastate. Id. at 7.

Despite the intrastate and noncommercial nature of the 

activity, the Supreme Court held that it had a substantial 

effect on interstate commerce. The individuals were 

cultivating, for themselves, a fungible commodity for which 

there was an established interstate market. Id. at 18. The 

purpose of the Controlled Substances Act was to “control the 

supply and demand of controlled substances in both lawful and 

unlawful drug markets.” Id. at 19. Congress had a “rational 

basis for believing that leaving home-consumed marijuana outside 

federal control would . . . affect price and market conditions.” 

Id. And lastly, the growing demand for marijuana in the 

interstate market could draw in-state, homegrown marijuana into 

the interstate market, thus frustrating Congress’s purposes if 

left unregulated. Id.
25

More so than the respondents in Gonzales, Hosford——just 

like similar individuals who would be indicted under this law——

engaged in commercial, inter-personal conduct. He purchased and 

resold firearms, a fungible commodity for which there is an 

established interstate market, to unknown individuals. And like 

the market for marijuana, Congress has a rational basis to 

believe that leaving intrastate firearm markets unregulated 

would affect the interstate market or draw firearms purchased 

intrastate into the interstate market. Indeed, research 

indicates that firearms found illegally in one state may be 

traced back to legal purchases in other states. See Steven G. 

Brandl & Meghan S. Stroshine, The Relationship Between Gun and 

Gun Buyer Characteristics and Firearm Time-to-Crime, 22 Crim. J. 

Pol’y Rev. 285, 287 (2011) (noting that all firearms begin on 

legal market); Glenn L. Pierce et al., Research Note, 

Characteristics and Dynamics of Illegal Firearms Markets: 

Implications for a Supply-Side Enforcement Strategy, 21 Just. Q. 

391, 401 (2004) (finding that 35% of illegally possessed and 

traced firearms originated from different state). And in cities 

such as New York or Boston, where firearm regulations are 

strictest, the vast majority of illegally possessed firearms 

originated out of state. Brandl, supra at 289 (New York and 

Boston have strict regulations); Pierce, supra at 401 (finding 
26

that, of firearms traced, 82.6% of firearms recovered in New 

York originated out of state, and 66.4% of firearms recovered in 

Boston originated out of state). Leaving the intrastate, 

commercial sale of firearms unregulated would frustrate 

Congress’s purpose to police the interstate firearms market. 

For these reasons, the unlicensed dealing of firearms, even in 

intrastate sales, implicates interstate commerce and may be 

constitutionally regulated by Congress under the Commerce 

Clause.

VI.

For these reasons, the district court’s decision not to 

dismiss Mr. Hosford’s indictment is

AFFIRMED.