United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2013 Decided June 23, 2015

Reargued March 9, 2015

No. 12-5305

STEPHEN DEARTH AND SECOND AMENDMENT FOUNDATION,

INC.,

APPELLANTS

v.

LORETTA E. LYNCH,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00587)

Alan Gura argued the cause and filed the briefs for

appellants.

Charles J. Cooper, David H. Thompson, Peter Patterson,

Brian W. Barnes, and Brian S. Koukoutchos were on the brief

for amicus curiae National Rifle Association of America, Inc. in

support of appellants.

Daniel Tenny, Attorney, U.S. Department of Justice, argued

the cause for appellee. With him on the briefs were Stuart F.

Delery, Assistant Attorney General at the time the briefs were
2

filed, Ronald C. Machen Jr., U.S. Attorney, and Mark B. Stern,

Michael S. Raab, and Anisha S. Dasgupta, Attorneys.

Before: HENDERSON and GRIFFITH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH. 

Opinion concurring in the judgment filed by Circuit Judge

GRIFFITH.

Dissenting opinion filed by Circuit Judge HENDERSON.

RANDOLPH, Senior Circuit Judge: 

I.

This appeal was considered on the record from the United

States District Court for the District of Columbia and on the

briefs and supplemental briefs and oral arguments of counsel. 

For the reasons stated below, it is

ORDERED AND ADJUDGED that the district court’s

grant of summary judgment in favor of the United States is

vacated with respect to plaintiff Dearth and plaintiff Second

Amendment Foundation, Inc. (insofar as its claim is based on

Dearth’s standing), and the case is remanded for trial. 

II.

We take this action although it may well be that, in the

words of Rule 56(a), “there is no genuine dispute as to any

material fact.” FED. R. CIV. P. 56(a). Even in those

circumstances, the courts retain discretion to refuse to decide
3

cases on the basis of a record developed on summary judgment. 

See Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57 (1948);

10A Charles Allen Wright et al., FED. PRACTICE & PROCEDURE

§ 2728 (3d ed. 2013).

The question in this case is whether a citizen who

permanently resides outside the United States has a right under

the Second Amendment to the United States Constitution to

purchase a firearm for self-defense while he is temporarily

visiting this country. Dearth alleges that 18 U.S.C. § 922(a)(9)

& (b)(3) and implementing regulations, 27 C.F.R. §§ 478.29a,

478.96, 478.99, 478.124, are unconstitutional because the

provisions, in effect, prohibit citizens not residing in any state

from purchasing firearms. In addition to mounting a facial

attack on the provisions, Dearth purports to be bringing an as

applied challenge. 

This case therefore raises “an extremely important

question,” and “summary procedures, however salutary where

issues are clear-cut and simple, present a treacherous record for

deciding issues of far-flung import.” Kennedy, 334 U.S. at

256-57 (footnote omitted). See, e.g., Univ. of Notre Dame v.

Burwell, No. 13-3853, 2015 WL 2374764, at *14, ___ F.3d ___

(7th Cir. 2015) (Hamilton, J., concurring) (“Where the law is

evolving rapidly and the facts are complex, the better course is

usually full exploration of the evidence and thorough findings of

fact by the district court, rather than reliance on sweeping legal

doctrines and hypothesized or assumed facts.” (citing, inter alia,

Doe v. Walker, 193 F.3d 42, 46 (1st Cir. 1999))). Here there are

too many unanswered questions regarding Dearth’s particular

situation even though he seeks to mount an as applied challenge. 

At the summary judgment stage, Dearth could no longer

“rest on . . . mere allegations,” Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992), that might satisfy the pleading
4

requirements, as he did in his earlier appeal, see Dearth v.

Holder, 641 F.3d 499 (D.C. Cir. 2011). He had to set forth

“specific facts.” Lujan, 504 U.S. at 561 (citing FED. R. CIV. P.

56) (internal quotation marks omitted), not mere “conclusory

statement[s].” Ass’n of Flight Attendants v. Dep’t of Transp.,

564 F.3d 462, 465 (D.C. Cir. 2009). Nevertheless, Dearth filed

nothing other than a short affidavit merely repeating the

complaint’s sparse allegations regarding his particular

circumstances. 

For example, we are able to discern, from the caption on his

complaint, filed in 2009, that Dearth’s address at that time was

Winnipeg, Canada. He asks us now to assume that his status has

remained static. Whether he had ever been a resident of any

state, and if so which one, he does not reveal. Whether he is still

considered a state resident for tax purposes we do not know. 

Whether he still votes in federal elections or pays federal taxes

on his income, including income earned outside the United

States, is not addressed. Dearth says he comes back to this

country on occasion. Exactly where or when he comes back, to

what state or states, his affidavit does not tell us. His affidavit

does say that on two occasions, once in 2006 and again in 2007,

while he was in the United States he unsuccessfully tried to

purchase “a firearm.” What type of firearm – a hunting rifle, for

instance, or a handgun – he does not mention. He swears that he

“intend[s] to purchase firearms” for “lawful sporting purposes

as well as for other purposes, including self-defense.” This

appears deliberately ambiguous. Did he try to buy a hunting

rifle, which he would also use for self-defense? Did he try to

purchase a handgun solely for self-defense? We cannot tell, yet

the question may be significant because in some circumstances

federal law allows non-residents to obtain firearms for “lawful

sporting purposes.” See 18 U.S.C. § 922(a)(5), (a)(9), (b)(3); 27

C.F.R. §§ 478.29a, 478.99(a), 478.115(d)(1). Where Dearth

sought to engage in these transactions he neglects to mention. 
5

The omission may be significant. The laws of many states bar

non-state residents like Dearth from buying a handgun so that no

matter what the outcome of this case, Dearth still could not

purchase a handgun in such a state. 

1

Dearth stated in his affidavit that he holds a “valid Utah

permit to publicly carry a handgun.” But we do not know

whether, if once he had a valid permit from Utah, he still does. 

States may require such permits to be renewed periodically. In

the same sentence, Dearth adds that the Utah public-carrypermit

“is recognized in numerous states.” Which states? And more to

the point, has Dearth visited such states in the past and is there

evidence that he will do so in the future?

Dearth’s counsel stated in the district court that his client

possessed firearms in Canada. Here again that is not evidence,

and we do not know what sort of firearms he has there, or

whether he has brought his firearms with him when he entered

the United States on visits, or whether there was any

impediment to his doing so. 

One final point deserves mention. Dearth, in his complaint,

purports to be bringing his as applied claim on behalf of himself

and “similarly situated individuals.” But the evidence tells us

very little about Dearth’s specific situation. In addition, the

complaint seems to be reciting a class action allegation yet

At reargument Dearth’s counsel proposed that his client might 1

be able to purchase a firearm in Texas, for instance, because –

according to counsel – Texas does not have a residency requirement.

But of course counsel’s proposal is not evidence. And we have no

evidence that Dearth has ever been in Texas, or that he would drive or

fly there to engage in such a transaction, or that he would legally be

able to transport a firearm from Texas into whatever otherstate he was

visiting.
6

Dearth never sought, and the district court never granted, class

action status to his action.

In short, for the foregoing reasons, we exercise our

discretion to require that the case proceed to trial on the subjects

we have mentioned and any others that bear on Dearth’s claims.
GRIFFITH, Circuit Judge, concurring in the judgment: 

After more than two years of consideration, three rounds 

of briefing, and two oral arguments, I agree with the dissent 

that we have sufficient information to decide this case. But 

since we cannot reach agreement either as to our authority to 

hear this case or as to the merits, I reluctantly concur in the 

remand so as to break this stalemate and allow the case to 

proceed. I concur only in Part I of the majority opinion, 

however, not in the rationale on which it relies in Part II to 

decide that remand is appropriate.

Many of the questions the opinion poses appear aimed at 

determining whether Dearth may be considered a resident of

the United States even though he lives in Canada, in which

case he would not satisfy the injury-in-fact requirement of 

Article III standing to challenge laws that prevent nonresidents 

from purchasing firearms. See Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560 (1992). But a prior panel of this court has 

already held that Dearth has standing, see Dearth v. Holder, 

641 F.3d 499 (D.C. Cir. 2011), which binds this panel absent a 

relevant change in factual circumstances, see LaShawn A. v. 

Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (“When 

there are multiple appeals taken in the course of a single piece 

of litigation, law-of-the-case doctrine holds that decisions 

rendered on the first appeal should not be revisited on later 

trips to the appellate court.” (internal quotation marks and 

citation omitted)). Even if Dearth’s standing was still an open 

question, Dearth has averred, and the government has 

conceded, that he is a United States citizen, that he “does not 

maintain a residence within the United States,” and that he was 

unable to purchase a firearm in the United States because he 

could not provide a state of residence on the form the ATF 

requires him to complete before such a purchase. See J.A.

29-30, 164. Based on these undisputed facts that the 

government has taken for granted in the six years since Dearth 

filed his complaint, this case is properly before us. 
2

Other questions posed in the opinion seek to determine 

where Dearth has previously sought to purchase firearms. 

Answers to these questions are irrelevant as well. It is true, as 

the opinion notes, that many states have their own laws that bar 

nonresidents from buying firearms, see Maj. Op. at 5 & n.1. 

The upshot of these state laws, the opinion seems to imply, is 

that perhaps Dearth will not be able to purchase a firearm even 

if he prevails in this suit, in which case he would lack standing

because his injury would not be redressable by a favorable 

outcome. See Lujan, 504 U.S. at 561. But once again, a prior 

panel has already addressed this issue and determined that 

Dearth’s injury is redressable. See Dearth, 641 F.3d at 501. As 

that panel noted, the government never contended otherwise. 

See id. (“The Government disputes only whether Dearth has 

suffered a cognizable injury, as the requirements of traceability 

and redressability are clearly met.”). Despite this, the opinion

implies that Dearth may need to show that he has visited Texas 

in the past or demonstrate to some undefined degree of 

certainty that he will return there to buy a firearm if he prevails 

in this suit. See Maj. Op. at 5 n.1. 

I disagree. Even if it were open to us to reconsider this 

point, Dearth’s injury remains just as redressable now as it was 

at the time of the prior panel’s decision. Dearth has sworn that 

he “intend[s] to purchase firearms within the United States.” 

See, e.g., J.A. 32. And he has noted for our benefit that even as 

a nonresident, the laws of Texas, Louisiana, and Virginia 

would allow him to purchase firearms if federal law did not 

prohibit him from doing so. See Appellant’s Reply Br. at 7-8. 

Dearth has thus shown that if he prevailed here he would be 

able to redress his injury by purchasing a firearm in the United 

States and he has sworn under penalty of perjury that he will do 

exactly that if federal law permits him. Article III does not 
3

require him to allege anything more about his shopping plans 

or his travel itinerary.*

Satisfied that Dearth has standing to bring this suit, I also 

believe we have enough facts in the record to decide this case.

Judge Henderson agrees. We disagree, however, on the merits. 

Forced to side either with a position that thinks we must 

remand for further factual development or with one that 

decides the issues differently than I would, I choose to break 

the tie in favor of the former. See, e.g., Green Tree Financial 

Corp. v. Bazzle, 539 U.S. 444, 455 (2003) (Stevens, J.,

concurring in the judgment and dissenting in part) (abandoning 

his “preferred disposition of the case” and voting to remand so 

that there could be a “controlling judgment of the Court”); 

Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., 

concurring) (concurring in the judgment and voting to remand, 

despite his views on the merits, “in order that disposition may 

be made of this case”). 

Because there will not be a controlling opinion on the 

merits of the issues in this case, I do not find it appropriate to 

expound upon the important constitutional questions the case 

presents. See, e.g., Blair v. United States, 250 U.S. 273, 279 

(1919) (“Considerations of propriety, as well as 

long-established practice, demand that we refrain from passing 

upon the constitutionality of an act of Congress unless obliged 

 

* I also note that the opinion does not ask Dearth to identify the 

county or city in which he previously tried to purchase a firearm (or 

would in the future), even though those jurisdictions may have laws 

or regulations prohibiting the sale of firearms to nonresidents. The 

reason that we do not need that information, of course, is that the 

Constitution does not require it—just as it does not require him to 

specify in which state he previously attempted to buy a gun (or 

where he will if allowed).
4

to do so in the proper performance of our judicial 

function . . . .”). But I raise just two qualms with the dissent. 

The dissent asserts that Dearth may purchase a firearm in 

Canada and bring it into the United States so long as the 

firearm itself is “generally recognized as particularly suitable 

for or readily adaptable to sporting purposes.” Dissent at 12. 

That is incorrect. Although the statutes the dissent cites may 

allow for such transport, see 18 U.S.C. §§ 922(l), 925(d),

federal regulations bar it, see 27 C.F.R. § 478.111 (“[N]o

firearm, firearm barrel, or ammunition may be imported or 

brought into the United States except as provided by this 

part.”); id. § 478.115(d)(1) (excepting from section 478.111 

certain firearms only if the nonresident intends to use them “for 

legitimate hunting or lawful sporting purposes”). Though the 

statutes, as the dissent rightfully notes, “turn on the nature of 

the firearm, not its owner’s purpose,” Dissent at 12, the 

regulations do just the opposite.

The dissent sees no problem because regulations cannot 

trump statutes. Dissent at 12 n.7. But Dearth faces real-life 

consequences as a result of the way the “regulations are 

interpreted and enforced in practice,” Dissent at 12 n.7, 

regardless of whether a court might one day invalidate those 

regulations. So long as 27 C.F.R. § 478.111 remains in force, 

any firearms Dearth purchased abroad will be subject to 

seizure and forfeiture if he attempts to bring them into the 

United States for self-defense. See 27 C.F.R. § 478.152. Yet 

the dissent suggests that the burden Dearth faces is somehow 

lessened because he has “ample alternative means of 

exercising” his rights. Dissent at 12. But mark what Dearth 

must do to bring a firearm purchased abroad into the United 

States to defend himself: He must carry that weapon over the 

border, have it seized, argue to a judicial or administrative 

tribunal that the seizure was improper because the regulations 
5

are inconsistent with the relevant statutory text, and then keep 

his fingers crossed that the tribunal agrees. I fail to see how an 

alternative that requires breaking the law and then seeking 

vindication through litigation lessens any potential burden. 

The dissent also suggests that Dearth lacks standing to 

challenge “the ban on rental or loan of a firearm” to 

nonresidents. Dissent at 21. I disagree. The challenged statutes 

do not contain a “ban on rental or loan of a firearm.” One of the 

statutes bans a nonresident from “receiv[ing] any firearms,” 

see 18 U.S.C. § 922(a)(9), while the other bans licensed 

firearm dealers from “sell[ing] or deliver[ing] . . . any firearm 

to any” nonresident, see id. § 922(b)(3). That second statute, 

section 922(b)(3), excepts any dealer who rents a firearm to a 

nonresident—thus permitting rentals in a narrow set of 

circumstances. Dearth attempted to “receive” a firearm by 

asking a licensed dealer to “sell” one to him and was turned 

away because he is a nonresident. The statutes he challenges 

have thus caused him to suffer a “concrete and particularized” 

injury sufficient to satisfy constitutional standing 

requirements. See Lujan, 504 U.S. at 560. The Constitution 

does not require Dearth to suffer an injury in every imaginable 

application of the statute. Cf. Dearth, 641 F.3d at 502 (holding 

that Dearth has standing because “the challenged provisions 

have . . . thwarted [his] best efforts to acquire a firearm”). Had 

the statutes instead banned the purchase, rental, or loan of a 

firearm (or the sale, loan, or rental of one by a dealer), then this 

would be a different case, and Dearth would have standing to 

challenge only the prohibition that injures him. But since 

Congress chose a blanket ban on “receiv[ing]” and “sell[ing]” 

a firearm, and Dearth suffered an injury due to those 

restrictions, he has standing to challenge both statutes.

Finally, though I think a remand is unnecessary, I do agree 

that the record could be better developed. It is not entirely 
6

clear, for instance, whether Dearth intends to purchase firearms 

that he can use interchangeably for both sport and for 

self-defense, or whether he has in mind different firearms

uniquely suited to each activity. I believe there is enough in the 

record to infer the answer to that question, but perhaps further 

factfinding on remand will eliminate the need for inferences. 

Dearth also notes that he plans to store his firearms at his 

parents’ house in Ohio. Nothing in the record, however, 

suggests that his parents have consented to that plan. I leave it 

to the district court to settle these details, along with any others 

it deems appropriate.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting: 

I know enough about this case to decide it now. Stephen 

Dearth, a non-resident U.S. citizen, and similarly situated 

members of the Second Amendment Foundation challenge 

two subsections of 18 U.S.C. § 922, which are “part of a 

carefully constructed package of gun control legislation . . . in 

existence for many years.” Ball v. United States, 470 U.S. 

856, 862 (1985) (citation omitted). A federal firearms 

licensee (FFL) may not “sell or deliver” a firearm to a person 

who “does not reside in . . . the State in which the [FFL’s] 

place of business is located.” 18 U.S.C. § 922(b)(3). That 

provision has two exceptions, one of which is relevant here: 

An FFL may lend or rent a firearm to any person for 

“temporary use for lawful sporting purposes.” Id.

§ 922(b)(3)(B). On the reverse side of the coin, it is unlawful 

for “any person . . . who does not reside in any State to 

receive any firearms unless such receipt is for lawful sporting 

purposes.” Id. § 922(a)(9) (emphasis added). Because a nonresident citizen like Dearth does not reside in a “State,” these 

provisions prevent him from (1) purchasing a firearm for any 

purpose while visiting the United States and (2) renting a 

firearm for self-defense while here. The plaintiffs contend 

that these provisions violate the Second Amendment.

1

 1 The plaintiffs also contend that these provisions violate their 

rights to international travel and equal protection. I do not consider 

these claims separately, however, because they trigger nothing 

more than rational-basis scrutiny. See Califano v. Aznavorian, 439 

U.S. 170, 177 (1978) (laws with only incidental effect on right to 

international travel evaluated under rational-basis scrutiny); Dixon 

v. Dist. of Columbia, 666 F.3d 1337, 1342 (D.C. Cir. 2011) (same 

for laws that do not draw suspect classifications or violate 

fundamental rights); Kwong v. Bloomberg, 723 F.3d 160, 170 n.19 

(2d Cir. 2013) (equal protection does not provide additional 

safeguard for Second Amendment rights), cert. denied, 134 S. Ct. 

2696 (2014). The challenged laws easily satisfy that standard.
2

Since District of Columbia v. Heller, 554 U.S. 570 

(2008), we have dealt with the predictable wave of Second 

Amendment litigation by adopting a two-step approach that 

asks whether the provision under review impinges on an 

individual’s Second Amendment right and, if so, whether it 

nonetheless passes muster under the appropriate level of 

scrutiny. See Schrader v. Holder, 704 F.3d 980, 988–89 

(D.C. Cir.), cert. denied, 134 S. Ct. 512 (2013); Heller v. 

District of Columbia (Heller II), 670 F.3d 1244, 1252–53 

(D.C. Cir. 2011). Both of our cases since Heller and the 

overwhelming majority of cases from our sister circuits have 

followed this approach and applied intermediate scrutiny to 

various statutes regulating firearms. In my view, the proper 

application of intermediate scrutiny compels the conclusion 

that the challenged provisions of section 922 are 

constitutional.

Constitutional challenges to other provisions of section 

922 have, post-Heller, been rejected again, and again, and 

again.2

 Indeed, I can find no case in which a court of appeals 

 2 See, e.g., United States v. Decastro, 682 F.3d 160, 161 (2d 

Cir. 2012) (transportation of firearm from another state into one’s 

state of residence under section 922(a)(3)), cert. denied, 133 S. Ct. 

838 (2013); NRA v. ATF, 700 F.3d 185, 203–04 (5th Cir. 2012) 

(sale of handgun by federally licensed dealer to person under 21 

years old pursuant to section 922(b)(1)), cert. denied, 134 S. Ct. 

1364 (2014); United States v. Moore, 666 F.3d 313, 316–17 (4th 

Cir. 2012) (possession of firearm by felon under section 922(g)(1)); 

Schrader, 704 F.3d at 990–91 (section 922(g)(1) as applied to 

common-law misdemeanants); United States v. Pruess, 703 F.3d 

242, 247 (4th Cir. 2012) (section 922(g)(1) as applied to nonviolent felons); United States v. Dugan, 657 F.3d 998, 999 (9th Cir. 

2011) (possession of firearm by unlawful user of controlled 

substance under section 922(g)(3)); United States v. McRobie, No. 

08-4632, 2009 WL 82715, at *1 (4th Cir. Jan. 14, 2009) 

(unpublished per curiam) (possession of firearm by person 
3

has struck down any part of this criminal statute.3 The 

Supreme Court has at times shown “a general reticence to 

 

committed to mental institution under section 922(g)(4)); United 

States v. Carpio-Leon, 701 F.3d 974, 982 (4th Cir. 2012) 

(possession of firearm by illegal alien under section 922(g)(5)), 

cert. denied, 134 S. Ct. 58 (2013); United States v. Mahin, 668 F.3d 

119, 123–24 (4th Cir. 2012) (possession of firearm while subject to 

domestic protection order under section 922(g)(8)); United States v. 

Booker, 644 F.3d 12, 26 (1st Cir. 2011) (possession of firearm by 

person convicted of domestic violence misdemeanor under section 

922(g)(9)), cert. denied, 132 S. Ct. 1538 (2012); United States v. 

Marzzarella, 614 F.3d 85, 101 (3d Cir. 2010) (possession of 

firearm with obliterated serial number under section 922(k)), cert. 

denied, 131 S. Ct. 958 (2011); United States v. Henry, 688 F.3d 

637, 640 & n.3 (9th Cir. 2012) (possession of machine gun under 

section 922(o)), cert. denied, 133 S. Ct. 996 (2013); United States 

v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (possession of handgun 

by juvenile under section 922(x)(2)), cert. denied, 558 U.S. 1133 

(2010).

3 The Fourth Circuit has twice remanded challenges to 

provisions of section 922 to the district court for further evidentiary 

development because the Government had not satisfied its burden 

of demonstrating the fit between the government interest and the 

challenged provision. See United States v. Carter, 669 F.3d 411, 

421 (4th Cir. 2012) (section 922(g)(3)); United States v. Chester, 

628 F.3d 673, 683 (4th Cir. 2010) (section 922(g)(9)). In each case,

the district court upheld the statute on remand, see United States v. 

Carter, No. 2:09-cr-00055, 2012 WL 5935710, at *7 (S.D.W. Va. 

Nov. 27, 2012); United States v. Chester, 847 F. Supp. 2d 902, 912 

(S.D.W. Va. 2012), and the Fourth Circuit affirmed, see United 

States v. Carter, 750 F.3d 462, 464 (4th Cir. 2014); United States v. 

Chester, 514 F. App’x 393, 395 (4th Cir. 2013); see also United 

States v. Staten, 666 F.3d 154, 167 (4th Cir. 2011), cert. denied, 

132 S. Ct. 1937 (2012).

The Sixth Circuit, applying strict scrutiny, held that section 

922(g)(4)—which prohibits possession of firearms by any person 
4

invalidate the acts of the Nation’s elected leaders” and noted 

that “ ‘[p]roper respect for a coordinate branch of the 

government’ requires that we strike down an Act of Congress 

only if ‘the lack of constitutional authority to pass [the] act in 

question is clearly demonstrated.’ ” Nat’l Fed’n of Indep. 

Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) (quoting 

United States v. Harris, 106 U.S. 629, 635 (1883) (first 

alteration added)). I share that reticence. If more exacting 

scrutiny is needed to invalidate a firearms law, the Supreme 

Court must lead the way. For the following reasons, I 

respectfully dissent from my colleagues’ decision to remand 

the plaintiffs’ Second Amendment challenge to section 922’s 

ban on the sale of a firearm to a non-resident citizen.4

I. SCOPE OF SECOND AMENDMENT RIGHT

At the first step of the analysis, we ask whether the 

challenged restrictions impinge upon an individual’s Second 

Amendment right. As just explained, the challenged 

provisions of section 922 prohibit a non-resident citizen from 

 

“who has been committed to a mental institution”—was 

unconstitutional on the record before it. See Tyler v. Hillsdale 

Cnty. Sheriff’s Dep’t, 775 F.3d 308, 330, 344 (6th Cir. 2014). That 

opinion has since been vacated and the case will be reheard en 

banc.

4 I believe the plaintiffs lack standing to challenge section 

922’s ban on rental of a firearm by a non-resident citizen. Their 

complaint and declarations state only that they want to purchase

firearms and, thus, that is the only aspect of the challenged 

provisions they have standing to contest. See Lewis v. Casey, 518 

U.S. 343, 357–58 & n.6 (1996) (because “standing is not dispensed 

in gross,” a plaintiff “who has been subject to injurious conduct of 

one kind” does not “possess by virtue of that injury the necessary 

stake in litigating conduct of another kind, although similar, to 

which he has not been subject”).
5

purchasing a firearm to use for self-defense while visiting the 

United States. Because a non-resident citizen is by definition 

outside his residence when he is here, the facts of this case 

implicate, if somewhat obliquely, the currently disputed 

question whether the Second Amendment has any application 

outside one’s home. Heller’s holding guaranteeing the 

individual right to keep and bear arms for self-defense is 

expressly confined to the “home,” 554 U.S. at 635–36, and 

the Court was careful to emphasize that the Second 

Amendment, “[l]ike most rights, . . . is not unlimited,” id. at 

626. That is, it does not confer “a right to keep and carry any 

weapon whatsoever in any manner whatsoever and for 

whatever purpose.” Id.

Whether, and to what extent, the Second Amendment 

applies to a resident citizen outside his house has split the 

circuits: One circuit has held that the Second Amendment 

affords no less protection outside the house than in; three have 

concluded that, if the Second Amendment affords any 

protection outside the house, it is more limited. Compare 

Moore v. Madigan, 702 F.3d 933, 941 (7th Cir. 2012) (“The 

Supreme Court has decided that the amendment confers a 

right to bear arms for self-defense, which is as important 

outside the home as inside.”),5 with Drake v. Filko, 724 F.3d 

426, 431, 436 (3d Cir. 2013) (assuming “the Second 

Amendment’s individual right to bear arms may have some 

application beyond the home” but stating “[i]f the Second 

Amendment protects the right to carry a handgun outside the 

home for self-defense at all, that right is not part of the core of 

 5 A panel of the Ninth Circuit agreed with the Seventh Circuit 

that “carrying weapons in public for the lawful purpose of self 

defense is a central component of the right to bear arms.” Peruta v. 

County of San Diego, 742 F.3d 1144, 1175 (9th Cir. 2014). That 

case, however, is currently being reheard en banc.
6

the Amendment” (emphasis in original; brackets and 

quotation marks omitted)), cert. denied, 134 S. Ct. 2134 

(2014), Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.) 

(assuming arguendo that right has some application outside 

house), cert. denied, 134 S. Ct. 422 (2013), and Kachalsky v. 

Cnty. of Westchester, 701 F.3d 81, 89, 96 (2d Cir. 2012) 

(assuming right has “some application” outside house but 

applying intermediate scrutiny “[b]ecause our tradition so 

clearly indicates a substantial role for state regulation of the 

carrying of firearms in public”), cert. denied, 133 S. Ct. 1806 

(2013). State courts are also split. Compare People v. 

Aguilar, 2 N.E.3d 321, 327 (Ill. 2013) (agreeing with Moore), 

with Williams v. State, 10 A.3d 1167, 1177 (Md.) (“If the 

Supreme Court . . . meant its holding to extend beyond home

possession, it will need to say so more plainly.”), cert. denied,

132 S. Ct. 93 (2011). The Supreme Court has to date declined 

invitations to resolve the split.

I prefer the Second, Third and Fourth Circuits’ slant and 

would hold that, assuming the Second Amendment has some

application in this context, its core protection is not implicated 

by provisions that affect one’s ability to carry a firearm

outside his house. See Drake, 724 F.3d at 436; Kachalsky, 

701 F.3d at 94; United States v. Masciandaro, 638 F.3d 458, 

470 (4th Cir.) (“[A]s we move outside the home, firearm 

rights have always been more limited . . . .”), cert. denied, 132 

S. Ct. 756 (2011). As already noted, the Supreme Court 

expressly and repeatedly limited its holding to the “home.” 

See, e.g., Heller, 554 U.S. at 573, 635–36. I would extend 

Heller no further unless and until the Supreme Court does so 

itself:

On the question of Heller’s applicability outside the 

home environment, we think it prudent to await 

direction from the Court itself. . . .
7

There may or may not be a Second Amendment right 

in some places beyond the home, but we have no 

idea what those places are, what the criteria for 

selecting them should be, what sliding scales of 

scrutiny might apply to them, or any one of a number 

of other questions. It is not clear in what places 

public authorities may ban firearms altogether 

without shouldering the burdens of litigation. The 

notion that “self-defense has to take place wherever 

[a] person happens to be,” appears to us to portend 

all sorts of litigation over schools, airports, parks, 

public thoroughfares, and various additional 

government facilities. And even that may not 

address the place of any right in a private facility 

where a public officer effects an arrest. The whole 

matter strikes us as a vast terra incognita that courts 

should enter only upon necessity and only then by 

small degree. . . .

There simply is no need in this litigation to break 

ground that our superiors have not tread. To the 

degree that we push the right beyond what the 

Supreme Court in Heller declared to be its origin, we 

circumscribe the scope of popular governance, move 

the action into court, and encourage litigation in 

contexts we cannot foresee. This is serious business. 

We do not wish to be even minutely responsible for 

some unspeakably tragic act of mayhem because in 

the peace of our judicial chambers we miscalculated

as to Second Amendment rights. . . .

If ever there was an occasion for restraint, this 

would seem to be it.

Masciandaro, 638 F.3d at 475–76 (citations omitted)

(emphasis added).
8

Moreover, the long history of state restrictions on the 

carrying of firearms in public supports the view that Second 

Amendment rights are more limited outside the house. That 

history has been exhaustively canvassed by numerous courts. 

See Kachalsky, 701 F.3d at 94–96 (documenting 

“longstanding tradition of states regulating firearm possession 

and use in public because of the dangers posed to public 

safety”); Peruta, 742 F.3d at 1182–91 (Thomas, J., 

dissenting) (history of right to carry concealed firearms in 

public); see also Drake, 724 F.3d at 431 (“We reject [the] 

contention that a historical analysis leads inevitably to the 

conclusion that the Second Amendment confers upon 

individuals a right to carry handguns in public for selfdefense.”); Peterson v. Martinez, 707 F.3d 1197, 1210 (10th 

Cir. 2013) (“There can be little doubt that bans on the 

concealed carrying of firearms are longstanding.”); 

Masciandaro, 638 F.3d at 470–71 (“longstanding out-of-thehome/in-the-home distinction bears directly on the level of 

scrutiny applicable” and therefore “a lesser showing is 

necessary with respect to laws that burden the right to keep 

and bear arms outside of the home”). I will not rehash that 

discussion here.

I would point out, however, that if we consider a factor 

unique to this case, the Government’s position becomes even 

stronger: In addition to the long history of regulating 

possession of firearms outside the house, there is a long 

history of regulating the acquisition and use of firearms by 

non-residents of a given State. The Government has 

identified twelve States and the District of Columbia that, in 

the early 20th century, imposed various restrictions on the 

acquisition, use or possession of firearms by non-residents. In 

1919, North Carolina made it unlawful “for any person . . . to 

sell, . . . purchase or receive . . . any pistol [or] so-called 

pump-gun” without a permit, which permits were available 
9

only to residents of North Carolina. Act of Mar. 10, 1919, ch. 

197, §§ 1–2, 1919 N.C. LAWS 397, 397–98, reprinted in Joint 

Appendix (JA) 159. Just as North Carolina law did a century 

ago, section 922 makes it unlawful for an FFL to “sell” a 

firearm to a non-resident of the FFL’s State, 18 U.S.C. 

§ 922(b)(3), or for a person who does not reside in any State 

to “receive” a firearm therein, id. § 922(a)(9). In the 1920s, 

Michigan and Missouri banned the purchase of pistols and 

revolvers by non-residents. See Act of June 2, 1927, ch. 372, 

§ 2, 1927 MICH. ACTS 887, 887–88, reprinted in JA 155 

(banning purchase of pistol without license, which license 

was available only to individuals residing in State for six 

months or more); Act of Apr. 7, 1921, § 2, 1921 MO. LAWS

692, reprinted in JA 156 (“[n]o person . . . shall . . . buy, sell, 

. . . deliver or receive . . . any pistol [or] revolver” without 

permit obtained from circuit clerk in Missouri county in 

which applicant resided). And numerous states prohibited 

non-residents from obtaining permits to carry pistols and 

revolvers.6

 This history “demonstrates that while the Second 

 6 See Act of May 21, 1913, ch. 608, § 1, 1913 N.Y. LAWS

1627, 1628–29, reprinted in JA 157–59 (permit to carry pistol or 

revolver inapplicable to “any person not a citizen of and usually 

resident in the state of New York”); Act of May 29, 1922, ch. 485, 

§ 9, 1922 MASS. ACTS 560, 563, reprinted in JA 155 (permit to 

carry pistol or revolver issued only to “persons residing or having a 

place of business within the jurisdiction of the person issuing the 

license”); Act of Feb. 16, 1909, ch. 51, 1909 W. VA. ACTS 394, 

395–96, reprinted in JA 160–61 (same); Act of Mar. 11, 1924, ch. 

137 §§ 1–2, 1924 N.J. ACTS 305, 305–06, reprinted in JA 157 

(same for “revolver, pistol or other firearm”); Act of June 2, 1923, 

ch. 252, §§ 2–3, 1923 CONN. ACTS 3707, reprinted in JA 153 

(permit to carry pistol or revolver issued to any person having 

“bona fide residence” in local jurisdiction or to any “bona fide 

resident of the United States having a permit or license to carry any 

firearm” in another State); Act of Mar. 12, 1925, ch. 207 §§ 5, 7, 

1925 IND. LAWS 495, 496–97, reprinted in JA 154 (same); Act of 
10

Amendment’s core concerns are strongest inside hearth and 

home, states have long recognized a countervailing and 

competing set of concerns” regarding the sale of firearms to 

non-residents and therefore “tradition . . . clearly indicates a 

substantial role for state regulation.” Kachalsky, 701 F.3d at 

96.

The plaintiffs’ only response is to insist on carbon copy

historical analogs. See Appellants’ Br. 41; Appellants’ Reply 

Br. 13. But “Heller demonstrates that a regulation can be 

deemed ‘longstanding’ even if it cannot boast a precise 

founding-era analogue.” NRA, 700 F.3d at 196; accord 

United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en 

banc) (“[W]e do take from Heller the message that exclusions 

need not mirror limits that were on the books in 1791.”). If 

we demanded the telescopic level of similarity the plaintiffs

demand, few laws could ever be deemed “longstanding”—

including, perhaps, the laws considered longstanding in 

Heller itself. See Heller II, 670 F.3d at 1253 (noting that 

“Heller considered prohibitions on the possession of firearms 

by felons to be longstanding although states did not start to 

enact them until the early 20th century” (quotation marks 

omitted)); United States v. McCane, 573 F.3d 1037, 1047–49 

 

July 8, 1932, ch. 465, §§ 4, 6, 47 Stat. 650, 651 (1932), reprinted in

JA 153–54 (similar District of Columbia statute including 

concealed carry permits); Firearms Act, ch. 1052, §§ 4, 6, 1927 R.I.

LAWS 256, 257, 258, reprinted in JA 160 (same); Act of Feb. 25, 

1939, ch. 14, 1939 ME. ACTS 53, reprinted in JA 154–55 

(concealed carry permits available only to residents of local 

jurisdiction); Act of June 2, 1927, ch. 372, § 6, 1927 MICH. ACTS

887, 888–89, reprinted in JA 155–56 (banning concealed carrying 

of pistol without license, which licenses were available only to 

individuals residing in State for six months or more); Act of Mar. 3, 

1919, ch. 74, § 5, 1919 MONT. ACTS 147, 148, reprinted in JA 

156–57 (same).
11

(10th Cir. 2009) (Tymkovich, J., concurring) (questioning 

Heller’s statement that felon dispossession laws are 

“longstanding”). The salient point is that, for at least a 

century, numerous States have considered an individual’s 

residency to be a sine qua non of possessing firearms. Thus, 

whether or not the Second Amendment provides any 

protection outside one’s residence generally, the “core” 

Second Amendment protection announced in Heller does not 

include the right of a non-resident citizen to possess a firearm

without regard to his residence. And, by definition, a nonresident citizen like Dearth is away from his residence while 

visiting the United States.

II. MEANS/END SCRUTINY

A. Level of Scrutiny

“[T]he level of scrutiny applicable under the Second 

Amendment surely depends on the nature of the conduct 

being regulated and the degree to which the challenged law 

burdens the right.” Heller II, 670 F.3d at 1257 (quotation 

marks omitted). “That is, a regulation that imposes a 

substantial burden upon the core right of self-defense 

protected by the Second Amendment must have a strong 

justification, whereas a regulation that imposes a less 

substantial burden should be proportionately easier to justify.” 

Id. Our precedent dictates that, although a statute’s burden

may be “severe,” intermediate scrutiny applies if the burden 

“falls on individuals who cannot be said to be exercising the 

core of the Second Amendment right identified in Heller.” 

Schrader, 704 F.3d at 989. For the reasons explained in Part I 

supra, I believe the plaintiffs do not seek to exercise a core 

Second Amendment right. Intermediate scrutiny should 

therefore apply.
12

Further, the plaintiffs have ample alternative means of 

exercising their right. A citizen like Dearth who previously 

resided in the United States can purchase a firearm while he is 

a resident and, later, as a non-resident, carry that firearm into 

the United States with him for any lawful purpose. 18 U.S.C. 

§ 925(d)(4); 27 C.F.R. § 478.115(a). Dearth admits that he 

never availed himself of this option. Appellants’ 2d Supp. 

Br. 25. And we know that one of the original plaintiffs did

have such firearms. Sept. 20, 2012 Hr’g Tr. 4. Additionally, 

the plaintiffs could purchase firearms abroad and bring them 

into the United States so long as the firearm is “generally 

recognized as particularly suitable for or readily adaptable to 

sporting purposes.” See 18 U.S.C. §§ 922(l), 925(d). The 

availability of this option turns on the nature of the firearm, 

not its owner’s purpose, so the plaintiffs could presumably 

bring such firearms into the United States and use them for 

self-defense. See Springfield, Inc. v. Buckles, 292 F.3d 813, 

817 (D.C. Cir. 2002) (“the phrase ‘generally recognized as 

particularly suitable for or readily adaptable to sporting 

purposes’ . . . refer[s] to the characteristics of the firearm” 

(quoting ATF report) (emphasis added)).7

 The availability of 

 7 The concurrence contends that the ATF regulations, 27 

C.F.R. §§ 478.111(a), .115(d)(1), somehow supersede the statutory 

command that “[t]he Attorney General shall authorize a firearm or 

ammunition to be imported or brought into the United States or any 

possession thereof if the firearm or ammunition . . . is generally 

recognized as particularly suitable for or readily adaptable to 

sporting purposes.” 18 U.S.C. § 925(d)(3) (emphasis added). 

However those regulations are interpreted and enforced in practice, 

they plainly cannot “bar” what the statute “allow[s] for.” Concur. 

Op. 2. See Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980)

(regulations cannot be “inconsistent with the statutory mandate” or

“supersede the language chosen by Congress”); see also Gun South, 

Inc. v. Brady, 877 F.2d 858, 863 (11th Cir. 1989) (“Section 
13

these alternative means of exercising the Second Amendment 

right further justifies intermediate scrutiny. See Heller II, 670 

F.3d at 1262. Even if the plaintiffs never took advantage of 

these options, their failure to do so weighs against them. Cf. 

Decastro, 682 F.3d at 168.

In the Second Amendment context, intermediate scrutiny 

is satisfied so long as “the regulation promotes a substantial 

governmental interest that would be achieved less effectively 

absent the regulation, and the means chosen are not 

substantially broader than necessary to achieve that interest.” 

Heller II, 670 F.3d at 1258 (quoting Ward v. Rock Against 

Racism, 491 U.S. 781, 782–83 (1989)). Although the 

Government must establish a “tight ‘fit’ between the 

[regulations] and an important or substantial governmental 

interest,” it need not employ “the least restrictive means,” but 

only “a means narrowly tailored to achieve the desired 

objective.” Id. (quoting Bd. of Trs. of State Univ. of N.Y. v. 

Fox, 492 U.S. 469, 480 (1989)). Put differently, “the fit 

between the challenged regulation and the asserted objective 

need only be reasonable, not perfect.” Schrader, 704 F.3d at 

990 (quoting Marzzarella, 614 F.3d at 98 (brackets omitted)); 

accord Staten, 666 F.3d at 167; see also Fox, 492 U.S. at 480 

(“What our decisions require is . . . a fit that is not necessarily 

perfect, but reasonable; that represents not necessarily the 

single best disposition but one whose scope is in proportion to 

the interest served.” (citation omitted)); Michael M. v. Super.

Ct. of Sonoma Cnty., 450 U.S. 464, 473 (1981) (plurality 

opinion) (“The relevant inquiry . . . is not whether the statute 

is drawn as precisely as it might have been, but whether the 

line chosen by the . . . Legislature is within constitutional 

limitations.”); Nat’l Cable & Telecomms. Ass’n v. FCC, 555 

 

925(d)(3) . . . unambiguously requires the [Attorney General] to 

authorize the importation of sporting firearms.” (emphasis added)).
14

F.3d 996, 1002 (D.C. Cir. 2009) (“The government does not 

have to show that it has adopted the least restrictive means for 

bringing about its regulatory objective; it does not have to 

demonstrate a perfect means-ends fit; and it does not have to 

satisfy a court that it has chosen the best conceivable option. 

The only condition is that the regulation be proportionate to 

the interests sought to be advanced.” (citing Fox, 492 U.S. at 

476–81)).

“In assessing this ‘fit,’ we afford ‘substantial deference to 

the predictive judgments of Congress.’ ” Schrader, 704 F.3d 

at 990 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 

622, 665 (1994)). We do so because “[i]n the context of 

firearm regulation, the legislature is ‘far better equipped than 

the judiciary’ to make sensitive policy judgments (within 

constitutional limits) concerning the dangers in carrying 

firearms and the manner to combat those risks.” Id. (quoting 

Kachalsky, 701 F.3d at 97 (quoting Turner Broad. Sys., 512 

U.S. at 665)). We have said that the Government “needs to 

present some meaningful evidence, not mere assertions, to 

justify its predictive judgments.” Heller II, 670 F.3d at 1259; 

accord Chester, 628 F.3d at 683. At the same time, “[t]he 

quantum of empirical evidence needed to satisfy heightened 

judicial scrutiny of legislative judgments will vary up or down 

with the novelty and plausibility of the justification raised.” 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000). 

And even when applying strict scrutiny, the Supreme Court 

has allowed the Government to carry its burden by relying 

“solely on history, consensus, and ‘simple common sense.’ ” 

Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) 

(quoting Burson v. Freeman, 504 U.S. 191, 211 (1992)); 

accord Carter, 669 F.3d at 418 (applying this precedent in 

Second Amendment context); see also Nat’l Cable & 

Telecomms. Ass’n., 555 F.3d at 1002 (our precedent does not 

always “require exhaustive evidence documenting the 
15

necessity of” given regulation but instead has “relied on 

Congress’s reasonable, commonsense determination” that 

regulation is required). I would find that the Government has 

carried its burden here.

B. Government Interest

Intermediate scrutiny requires a “substantial” or 

“important” government interest. Heller II, 670 F.3d at 1258. 

The Government’s interest in preventing crime is not merely 

substantial and important; it is “compelling.” See United 

States v. Salerno, 481 U.S. 739, 749 (1987); Schall v. Martin, 

467 U.S. 253, 264 (1984); Schrader, 704 F.3d at 989–90; 

Heller II, 670 F.3d at 1258. The Government offers two 

specific ways in which the challenged provisions of section 

922 contribute to its interest in stopping crime: (1) preventing 

circumvention of State firearms regulations and 

(2) preventing international firearms trafficking. See 

Appellee’s Br. 25–30.

In the Omnibus Crime Control and Safe Streets Act of 

1968, the Congress found:

(1) that there is a widespread traffic in firearms 

moving in or otherwise affecting interstate or foreign 

commerce . . . ; 

(2) that the ease with which any person can acquire 

firearms other than a rifle or shotgun . . . is a 

significant factor in the prevalence of lawlessness 

and violent crime in the United States; 

(3) that only through adequate Federal control over 

interstate and foreign commerce in these weapons 

. . . can this grave problem be properly dealt with

. . . ; [and]
16

(5) that the sale or other disposition of concealable 

weapons by [FFLs] to nonresidents of the State in 

which the [FFLs’] places of business are located, has 

tended to make ineffective the laws . . . in the several 

States and local jurisdictions regarding such 

firearms . . . .

Pub. L. No. 90-351, Title IV, § 901(a), 82 Stat. 197, 225. 

Among the provisions enacted in order “to cope with the 

conditions referred to” in the above findings, 82 Stat. at 226, 

was 18 U.S.C. § 922(b)(3). Section 922(b)(3)’s ban on the 

sale of a firearm to a person who does not reside in the FFL’s 

home state was a response to concerns that local law 

enforcement efforts in States with stricter firearms regulations 

were being undermined by an influx of firearms purchased by 

their residents in States with looser regulations. See S. REP.

NO. 89-1866, at 19–20, reprinted in JA 59; H.R. REP. NO. 90-

1577, at 4420 (section 922(b)(3) enacted in order to “prevent 

the avoidance of state and local laws controlling firearms by 

the simple expediency of crossing a State line to purchase 

one”); accord S. REP. NO. 90-1097, at 2204. For instance, the 

Massachusetts State Police traced 87% of the concealable 

firearms used in crimes to out-of-state purchases. S. REP. NO.

89-1866, at 3, reprinted in JA 43; see also id. at 61–62, 

reprinted in JA 101–02 (individual Senators’ views 

summarizing testimony and stating “[t]he record is replete 

with testimony documenting the fact that the purchase of 

firearms by persons in other than their resident State is a 

serious contributing factor to crime”). Section 922(b)(3) is 

buttressed by section 922(a)(5), which prevents a person other 

than an FFL from doing what an FFL cannot. Together, these 

provisions were intended to fix the problem of circumvention 

of State firearms laws.
17

The Congress did not, however, cover every angle. As 

originally codified, section 922(a)(5) barred non-FFLs from 

transferring firearms to “any person . . . who the transferor 

knows . . . resides in any State other than that in which the 

transferor resides.” 18 U.S.C. § 922(a)(5) (1970). In a 

statement covering proposed amendments to several firearms 

laws, the U.S. Department of Justice observed that “[r]ead 

literally, this language may make it impossible to prosecute an 

individual who delivers a firearm to an alien or other person, 

such as a transient, who does not reside in ‘any State.’ ” 134 

CONG. REC. 12,309 (1988) (emphasis added). One Senator 

addressed the problem again in 1991 and proposed an 

amendment to close the loophole. He explained:

This section addresses the law enforcement problem 

posed by aliens legally in the United States, but not 

residing in any State, who acquire firearms from 

[FFLs] by utilizing an intermediary. Having 

acquired firearms in this country, such aliens often 

smuggle the weapons out of the country. . . . 

However, the alien’s receipt of a firearm from a 

licensee or through an intermediary does not violate 

any specific portion of the Act.

137 CONG. REC. 2743 (1991). When the amendment was 

finally enacted as part of the Violent Crime Control and Law 

Enforcement Act of 1994, Pub. L. No. 103-322, Title XI, 

§ 110514, 108 Stat. 1796, 2019, it closed the loophole by 

making it unlawful “for any person, other than a [FFL], who 

does not reside in any State to receive any firearms unless 

such receipt is for lawful sporting purposes.” 18 U.S.C. 

§ 922(a)(9) (emphasis added).

To summarize: Section 922(b)(3)’s ban on the sale of a 

firearm to a non-resident responded to specific Congressional 

findings about the need for such a ban to prevent the 
18

circumvention of State firearms laws; section 922(a)(9)’s ban 

on receipt of a firearm by a non-resident patched a loophole in 

the statute that increased the likelihood of international 

firearms trafficking. There can be no doubt, therefore, that 

the provisions serve the “compelling” governmental interest 

of crime prevention. See Salerno, 481 U.S. at 749; Schall, 

467 U.S. at 264; Schrader, 704 F.3d at 989–90; Heller II, 670 

F.3d at 1258.

C. Narrow Tailoring

The next inquiry is whether the government interest

“would be achieved less effectively absent the regulation[s], 

and [whether] the means chosen are not substantially broader 

than necessary to achieve that interest.” Heller II, 670 F.3d at 

1258 (quoting Ward, 491 U.S. at 782–83). The challenged 

provisions of section 922 play a vital role in combatting 

violent crime by preventing the circumvention of State 

firearms regulations and international firearms trafficking and 

they are narrowly tailored to serve their purpose.

Section 922(b)(3) prohibits an FFL from selling firearms 

(with an exception not relevant here) to a non-resident of the 

FFL’s State. The provision directly addresses the problem of 

circumvention of local firearms regulations identified by the 

Congress. See Pub. L. No. 90-351, Title IV, § 901(a), 82 Stat. 

at 225; S. REP. NO. 89-1866, at 19, reprinted in JA 59; H.R.

REP. NO. 90-1577, at 4420; S. REP. NO. 90-1097, at 2204. 

Standing alone, it plainly passes muster. See Decastro, 682 

F.3d at 168 (finding that accompanying provision banning 

transportation of firearms bought in another State into one’s 

State of residence “does not substantially burden [the] right to 

keep and bear arms” because it “does nothing to keep 

someone from purchasing a firearm in her home state, which 

is presumptively the most convenient place to buy anything”). 

Section 922(a)(5)—not challenged here—likewise furthers 
19

this interest by preventing a non-FFL from doing what an FFL

cannot.

Section 922(a)(9)’s ban on receipt of a firearm by a nonresident is aimed at a different goal: preventing aliens and 

others not residing in any State from acquiring firearms they 

might smuggle out of the country. See 134 CONG. REC.

12,309 (1988); 137 CONG. REC. 2743 (1991). If preventing 

international firearms trafficking is the goal, preventing 

individuals who reside abroad from obtaining firearms in the 

United States is a “common sense” solution to the problem. 

Fla. Bar, 515 U.S. at 628 (citation omitted); see Burson, 504 

U.S. at 211; Shrink Mo. Gov’t PAC, 528 U.S. at 391; cf. 

TSSAA v. Brentwood Acad., 551 U.S. 291, 300 (2007) (“We 

need no empirical data to credit [the] commonsense 

conclusion that hard-sell tactics directed at middle school 

students could lead to exploitation . . . .”). This is particularly 

so with respect to a non-resident citizen, who by virtue of his 

citizenship may have an easier time crossing our borders. Cf. 

Moore, 702 F.3d at 940 (“[T]he state can prevail with less 

evidence when . . . guns are forbidden to a class of persons 

who present a higher than average risk of misusing a gun.”). 

In addition, the Government has presented anecdotal evidence 

that firearms trafficking by non-resident citizens is indeed a 

substantial law enforcement concern. See Appellee’s Br. 32 

n.13 (collecting ATF press releases and other news reports 

identifying instances of non-resident United States citizens 

prosecuted for smuggling weapons across Canadian and 

Mexican borders). Restrictions on speech may be justified by 

studies and anecdotes, even ones “pertaining to different 

locales altogether,” Fla. Bar, 515 U.S. at 628 (citing City of 

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50–51

(1986)); accord Lorillard Tobacco Co. v. Reilly, 533 U.S. 

525, 558 (2001) (collecting cases), and there is no reason that
20

restrictions on the receipt of firearms should be treated

differently.

The success of sections 922(a)(9) & (b)(3) in preventing 

circumvention of state law and international firearms 

trafficking depends in part on the definition of residency. The 

U.S. Department of Justice’s Bureau of Alcohol, Tobacco, 

Firearms, and Explosives defines an individual’s “State of 

residence” to require “presen[ce] in a State with the intention 

of making a home in that State.” 27 C.F.R. § 478.11. This 

definition addresses the problem the Congress identified back 

in 1968 that local law enforcement authorities were unaware 

of out-of-state firearms being brought into their jurisdictions 

and used for violent crime. See S. REP. NO. 89-1866, at 19, 

reprinted in JA 59. The requisite continuity of presence, 

when coupled with the identifying information that must be 

provided when purchasing a firearm, also facilitates law 

enforcement efforts to trace firearms in the course of criminal 

investigations. 131 CONG. REC. 18,201 (1985); see Abramski

v. United States, 134 S. Ct. 2259, 2269 (2014) (section 922’s 

record-keeping provisions “help[] to fight serious crime” by 

facilitating tracing (citing Nat’l Shooting Sports Found., Inc. 

v. Jones, 716 F.3d 200, 204 (D.C. Cir. 2013))); Peterson, 707 

F.3d at 1221 (Lucero, J., concurring) (Colorado residency 

requirement for concealed handgun license justified because 

local law enforcement officials have access to greater level of 

information with respect to resident applicants than nonresidents and greater ability to monitor if residents come into 

contact with local law enforcement authorities).

Each statutory provision challenged here therefore 

constitutes an independently supported restriction that is 

narrowly tailored to achieving the compelling government

interest in crime prevention. The plaintiffs nevertheless 

object that taken together these restrictions prevent a nonresident citizen from acquiring firearms in the United States 
21

for anything other than the excepted temporary use for sport. 

As noted, however, the plaintiffs lack standing to challenge 

the ban on rental or loan of a firearm to a non-resident 

citizen. See supra n.4. This disposes of the bulk of the 

plaintiffs’ arguments, which are largely directed at the “lawful 

sporting purpose” exception that exists for the rental ban but 

not the sales ban. Their remaining arguments are 

unpersuasive.

The plaintiffs appear to suggest that the government 

interest in preventing non-residents from acquiring firearms in 

the United States is limited to a non-resident alien and 

therefore the provisions are overbroad in their application to a 

non-resident citizen. See Appellants’ Br. 34–35; see also id.

at 3 (“Congress did not intentionally create this legal 

landscape. In 1994, Congress surmised that foreign visitors 

might illegally smuggle arms overseas . . . .”). In my view, 

the provisions are justified as applied to non-resident citizens 

as well as to aliens. The salient characteristic of the antismuggling rationale is residence. The ability of an individual 

who lives abroad to obtain firearms in the United States 

causes concern whether he is a citizen or an alien.8

 

 8 Even if the application of the provisions to a non-resident 

citizen were overbroad, we have permitted some degree of overinclusiveness in firearms legislation. See Schrader, 704 F.3d at 

990–91 (“To be sure, some common-law misdemeanants, perhaps 

even Schrader, may well present no such risk, but ‘Congress is not 

limited to case-by-case exclusions of persons who have been shown 

to be untrustworthy with weapons, nor need these limits be 

established by evidence presented in court.’ ” (quoting Skoien, 704 

F.3d at 641)). Our sister circuits have repeatedly done the same. 

See, e.g., Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 

966 (9th Cir. 2014) (rejecting claim that handgun storage 

requirement is impermissibly over-inclusive because some handgun 

owners live alone and thus risk of unauthorized access by children 
22

The plaintiffs also fault the Government for submitting 

what is admittedly a sparse evidentiary record demonstrating 

the Congress’s rationale for applying the ban on receipt of 

firearms to non-resident citizens. See Appellants’ Br. 36–38. 

It is hardly surprising that the Government is not able to offer 

more because the provisions at issue here were enacted in 

1968 and 1994—long before the individual-right view of the 

Second Amendment became the law of the land. See United 

States v. Miller, 307 U.S. 174, 178 (1939); Lewis v. United 

States, 445 U.S. 55, 65–66 & n.8 (1980) (citing Miller for 

proposition that “the Second Amendment guarantees no right 

to keep and bear a firearm that does not have ‘some 

reasonable relationship to the preservation or efficiency of a 

well regulated militia’ ”); Heller, 554 U.S. at 638 n.2 

(Stevens, J., dissenting) (collecting appellate decisions 

uniformly holding same until 2001). The Congress had no 

indication from the judiciary that the challenged provisions 

might run afoul of the Second Amendment; indeed, several 

Senators expressly stated their view to the contrary. See S.

 

is absent); Peterson, 707 F.3d at 1222 (Lucero, J., concurring) 

(residency requirement justified because officials have access to 

more information about residents than non-residents in the 

aggregate “even if . . . this information gap may not be present in 

every case”); United States v. Huitron-Guizar, 678 F.3d 1164, 1170 

(10th Cir.) (upholding section 922(g)(5) and noting “[i]t is surely a 

generalization to suggest, as courts do, that unlawfully present 

aliens, as a group, pose a greater threat to public safety—but 

general laws deal in generalities” (citation omitted)), cert. denied, 

133 S. Ct. 289 (2012); Carter, 669 F.3d at 420–21 (rejecting 

argument that section 922(g)(3) is over-inclusive because it disarms 

all drug users without individualized determination of threat to 

public safety); Marzzarella, 614 F.3d at 99–101 (rejecting argument

that section 922(k)’s ban on firearms with obliterated serial number 

is fatally over-inclusive because laboratory tests can often reveal 

serial number).
23

REP. NO. 89-1866, at 68, reprinted in JA 108 (“The decisions 

hold that the second amendment, unlike the first, was not 

adopted with the individual rights in mind, but is a prohibition 

upon Federal action which would interfere with the 

organization of militia by the States of the Union.” (citing 

Miller and other cases)). The Congress had no reason to 

make an extensive record of findings regarding the Second 

Amendment consequences of the provisions as applied to this 

narrow class of individuals. As the Third Circuit recently 

observed in upholding New Jersey’s handgun permit law:

New Jersey’s inability to muster legislative history 

indicating what reports, statistical information, and 

other studies its legislature pondered when it 

concluded that requiring handgun permit applicants 

to demonstrate a “justifiable need” would reasonably 

further its substantial public safety interest, 

notwithstanding the potential burden on Second 

Amendment rights, is unsurprising. First, at each 

relevant moment in the history of New Jersey gun 

laws, spanning from 1905 to 1981, the legislature 

could not have foreseen that restrictions on carrying 

a firearm outside the home could run afoul of a 

Second Amendment that had not yet been held to 

protect an individual right to bear arms, given that 

the teachings of Heller were not available until that 

landmark case was decided in 2008 . . . . Simply put, 

New Jersey’s legislators could not have known that 

they were potentially burdening protected Second 

Amendment conduct, and as such we refuse to hold 

that the fit here is not reasonable merely because 

New Jersey cannot identify a study or tables of crime 

statistics upon which it based its predictive 

judgment.

Drake, 724 F.3d at 437–38 (footnotes omitted).
24

Although we demand “evidence, not mere assertions,” 

Heller II, 670 F.3d at 1259, the “quantum of empirical 

evidence” required is lower where, as here, the justifications 

offered are plausible, not novel, Shrink Mo. Gov’t PAC, 528 

U.S. at 391. Such evidence may take many forms, including 

anecdotal evidence, history, consensus and, perhaps most 

importantly, good old common sense. Fla. Bar, 515 U.S. at 

628. The Government has demonstrated that the challenged 

provisions are tailored to the specific interests identified: 

preventing international firearms trafficking and 

circumvention of State firearms regulations. It has done so by 

pointing to legislative findings regarding the law enforcement 

problems posed by the purchase of firearms by non-residents 

and anecdotal evidence about international firearms 

trafficking by non-resident citizens.

For these reasons, I would hold that the challenged 

provisions of section 922 are constitutional insofar as they 

ban the sale of a firearm to a non-resident citizen. Therefore, 

I respectfully dissent from my colleagues’ decision to remand.