2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-4-2011

USA v. James Barton

Precedential or Non-Precedential: Precedential

Docket No. 09-2211

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PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________

No. 09-2211 

_____________

UNITED STATES OF AMERICA 

v. 

JAMES FRANCIS BARTON, JR., 

 Appellant 

______________

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 07-cr-00376) 

District Judge: Honorable Alan N. Bloch 

_______________

Submitted Under Third Circuit LAR 34.1(a) 

October 21, 2010 

Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, 

Circuit Judges. 

(Filed: March 4, 2011) 
2 

Robert L. Eberhardt 

Charles A. Eberle 

Laura S. Irwin 

Office of the United States Attorney 

700 Grant Street 

Suite 4000 

Pittsburgh, PA 15219-0000 

 Attorneys for Appellee 

David B. Chontos 

Chontos & Chontos 

561 Beulah Road 

Turtle Creek, PA 15145-0000 

Attorneys for Appellant 

_____________

OPINION OF THE COURT 

______________

HARDIMAN, Circuit Judge. 

James Barton pleaded guilty to two counts of being a 

felon in possession of a firearm and ammunition, in violation of 

18 U.S.C. § 922(g)(1). In doing so, he reserved the right to 

argue on appeal that these convictions violate his Second 

Amendment right to keep and bear arms. Because we hold that 

18 U.S.C. § 922(g)(1) is constitutional both on its face and as 

applied to Barton, we will affirm. 

I 
3 

 On April 20, 2007, a confidential police informant paid 

Barton $300 for an Iver Johnson 32-caliber revolver loaded with 

five rounds of ammunition and a box containing 44 rounds of 

ammunition. The serial number on the firearm had been drilled 

out, rendering it indecipherable. Based on the information 

provided by the confidential informant, the police obtained a 

warrant to search Barton’s residence. The search uncovered 

seven pistols, five rifles, three shotguns, and various types of 

ammunition. 

 Barton was indicted on two counts of violating 18 U.S.C. 

§ 922(g)(1) for being a felon in possession of a firearm and 

ammunition.1

 It is undisputed that Barton had prior felony 

convictions for possession of cocaine with intent to distribute 

and for receipt of a stolen firearm. Barton moved to dismiss the 

indictment, arguing that 18 U.S.C. § 922(g)(1) violated his 

fundamental right to “use arms in defense of hearth and home,” 

recognized by the Supreme Court in District of Columbia v. 

Heller, 554 U.S. 570, 635 (2008), as the “core” principle 

embodied in the Second Amendment. Id. at 630. 

 The District Court denied Barton’s motion to dismiss, 

relying on the Supreme Court’s statement in Heller that certain 

“longstanding” statutes restricting the Second Amendment right 

to bear arms, such as those prohibiting gun possession by felons, 

 1 18 U.S.C. § 922(g)(1) states, in relevant part: “It shall 

be unlawful for any person . . . who has been convicted in any 

court of, a crime punishable by imprisonment for a term 

exceeding one year . . . to ship or transport in interstate or 

foreign commerce, or possess in or affecting commerce, any 

firearm or ammunition; or to receive any firearm or ammunition 

which has been shipped or transported in interstate or foreign 

commerce.” 
4 

are “presumptively lawful.” See id. at 626-27 n.26. Finding 

that such dispossession statutes cannot be both “presumptively 

lawful” and facially unconstitutional, the District Court refused 

to read Heller to invalidate this prohibition. 

 Following the District Court’s denial of his motion to 

dismiss, Barton entered conditional guilty pleas to both charges. 

 The District Court sentenced Barton to 51 months in prison, 

followed by three years of supervised release. Barton filed this 

timely appeal. 

II 

The District Court had jurisdiction over Barton’s 

indictment and sentence pursuant to 18 U.S.C. § 3231. We 

have jurisdiction over the appeal under 28 U.S.C. § 1291, and 

exercise plenary review over Barton’s constitutional challenge. 

United States v. Fullmer, 584 F.3d 132, 151 (3d Cir. 2009). 

A 

The Second Amendment provides: “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. In Heller, the Supreme Court held that 

the Second Amendment confers an individual the right to keep 

and bear arms that is not conditioned on service in a militia. 554 

U.S. at 595. At the “core” of the Second Amendment is the 

right of “law-abiding, responsible citizens to use arms in defense 

of hearth and home.” Id. at 635 (holding that a District of 

Columbia ordinance, which created an “absolute prohibition of 

handguns held and used for self-defense in the home,” could not 

withstand any level of “scrutiny that [the Court] has applied to 

enumerated Constitutional rights”). See also McDonald v. City 

of Chicago, 130 S. Ct. 3020, 3042 (2010) (“right to keep and 
5 

bear arms [is] among those fundamental rights necessary to our 

system of ordered liberty”). 

Although the individual right to keep and bear arms is 

fundamental, it is “not unlimited,” id. at 676, and certain 

“longstanding prohibitions on the possession of firearms” are 

“presumptively lawful,” id. at 626-27 n.26. These include: 

“prohibitions on the possession of firearms by felons and the 

mentally ill, laws forbidding the carrying of firearms in sensitive 

places such as schools and government buildings, [and] laws 

imposing conditions and qualifications on the commercial sale of 

arms.” Id. at 626-27. As reaffirmed by the Supreme Court in 

McDonald v. City of Chicago, this list of “presumptively 

lawful” regulations reflects the historical understanding “from 

Blackstone through the 19th-century cases . . . that the [right 

protected in the Second Amendment] was not a right to keep 

and carry any weapon whatsoever in any manner whatsoever 

and for whatever purpose.” Heller, 554 U.S. at 626. 

Accordingly, Heller’s list of permissible regulations “does not 

purport to be exhaustive.” Id. at 627 n.26. 

Barton argues that the Supreme Court’s discussion of the 

presumptive lawfulness of felon gun dispossession statutes is 

mere dicta, as it “could have been deleted without seriously 

impairing the analytical foundations of the holding—that, being 

peripheral, may not have received the full and careful 

consideration of the court that uttered it.” McDonald v. Master 

Fin. Inc., 205 F.3d 606, 612 (3d Cir. 2000) (quoting Sarnoff v. 

Am. Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)). 

 This argument is not without force, as three of our sister courts 

of appeals have characterized the “presumptively lawful” 

language in Heller as dicta. See United States v. Scroggins, 

599 F.3d 433, 451 (5th Cir. 2010); United States v. McCane, 

573 F.3d 1037, 1047 (10th Cir. 2009) (Tymkovich, J., 
6 

concurring); United States v. Skoien, 614 F.3d 638, 640 (7th 

Cir. 2010) (en banc). Even so, these courts relied on the Heller

“dicta” to reaffirm the constitutionality of § 922(g)(1). See 

Skoein, 614 F.3d at 639; Scroggins, 599 F.3d at 451; McCane, 

573 F.3d at 1047. Moreover, two circuit courts of appeals have 

recognized that “[t]o the extent that this portion of Heller limits 

the Court’s opinion to possession of firearms by law-abiding and 

qualified individuals, it is not dicta.” United States v. Rozier, 

598 F.3d 768, 771 n.6 (11th Cir. 2010); see also United States 

v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (“Courts often 

limit the scope of their holdings, and such limitations are integral 

to those holdings.”). 

We agree with the Second and Ninth Circuits that 

Heller’s list of “presumptively lawful” regulations is not dicta. 

As we understand Heller, its instruction to the District of 

Columbia to “permit [Heller] to register his handgun [and to] 

issue him a license to carry it in the home,” was not 

unconditional. See Heller, 554 U.S. at 647. Rather, it was 

made expressly contingent upon a determination that Heller was 

not “disqualified from the exercise of Second Amendment 

rights.” Id. The District of Columbia could comply with the 

Supreme Court’s holding either: (1) by finding that Heller was 

“disqualified from the exercise of Second Amendment rights” 

under a “presumptively lawful” regulation (such as a felon 

dispossession statute); or (2) by registering Heller’s handgun 

and allowing him to keep it operable in his home. Id. 

Accordingly, the Supreme Court’s discussion in Heller of the 

categorical exceptions to the Second Amendment was not 

abstract and hypothetical; it was outcome-determinative. As 
7 

such, we are bound by it. See Connecticut v. Doehr, 501 U.S. 

1, 30 (1991).2

B 

To prevail on his facial challenge, Barton must 

“establish[] that no set of circumstances exists under which . . . 

[§ 922(g)(1)] would be valid, i.e., that the law is 

unconstitutional in all of its applications.” Wash. State Grange 

v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) 

(internal citations and quotations marks omitted).3

 The 

 2 Barton cites two opinions—an unpublished Fourth 

Circuit opinion and a vacated Seventh Circuit opinion—for the 

proposition that courts may not rely exclusively on Heller’s list 

of “presumptively lawful” regulations to justify categorical 

exclusions to the Second Amendment. See United States v. 

Chester, 367 F. App’x 392, 399 (4th Cir. 2010); United States 

v. Skoien, 587 F.3d 803 (7th Cir. 2009), rev’d en banc, 614 

F.3d 638 (2010). Barton’s reliance on these cases is misplaced. 

 The statute at issue in Chester and Skoein—a prohibition on 

gun possession by misdemeanor domestic violence offenders—

was not included in Heller’s list of permissible regulations. See 

Chester, 367 F. App’x at 393; Skoien, 587 F.3d at 804. Not 

surprisingly, therefore, these courts were forced to look beyond 

the language in Heller to find that domestic violence offenders 

were not protected by the Second Amendment. Here, no such 

inquiry is necessary, because § 922(g)(1) is one of Heller’s 

enumerated exceptions. 

3

 Because we do not recognize an “overbreadth” 

doctrine outside the limited context of the First Amendment, 

Schall v. Martin, 467 U.S. 253, 268 n.18 (1984), Barton cannot 

raise a successful facial challenge to § 922(g)(1) by simply 
8 

Supreme Court has twice stated that felon gun dispossession 

statutes are “presumptively lawful.” See Heller, 554 U.S. at 

626-27 n.26; McDonald, 130 S. Ct. at 3047. A “lawful” 

prohibition regulates conduct “fall[ing outside] the scope of the 

Second Amendment’s guarantee.” See United States v. 

Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010) (finding this 

interpretation a “better reading, based on the text and structure 

of Heller,” than one that would require “lawful” regulations to 

satisfy every level of constitutional scrutiny).4

In sum, because Heller requires that we “presume,” 

under most circumstances, that felon dispossession statutes 

regulate conduct which is unprotected by the Second 

Amendment, Barton’s facial challenge must fail. Accord 

Rozier, 598 F.3d at 770-71; Vongxay, 594 F.3d at 1114-18; 

McCane, 573 F.3d at 1047; United States v. Anderson, 559 

 

showing that the statute operates unconstitutionally under some 

sets of circumstances. 

4 In Marzzarella, we faced a “novel” regulation—namely, 

a ban on the possession of a firearm with a “removed, 

obliterated, or altered” serial number. 614 F.3d at 93. Unlike 

the “presumptively lawful” prohibitions listed in Heller, 18 

U.S.C. § 922(k) was neither “derived from historical 

regulations,” id., nor addressed conduct “with a heightened 

capability to cause damage,” id. at 95. Accordingly, we could 

not determine with certainty whether the act of owning an 

unmarked weapon fell within or outside the Second 

Amendment’s protections. Id. We nevertheless upheld the 

constitutionality of the statute, finding, under the second step of 

Heller’s two-part inquiry, that 18 U.S.C. § 922(k) satisfies both 

intermediate and strict scrutiny. Id. at 101. 
9 

F.3d 348, 352 & n.6 (5th Cir.), cert. denied, 129 S. Ct. 2814 

(2009). 

C 

Having rejected Barton’s facial challenge, we turn to his 

claim that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to 

him. As the Government concedes, Heller’s statement 

regarding the presumptive validity of felon gun dispossession 

statutes does not foreclose Barton’s as-applied challenge. By 

describing the felon disarmament ban as “presumptively” lawful, 

Heller, 554 U.S. at 626-27 n.26, the Supreme Court implied 

that the presumption may be rebutted.

Heller does not catalogue the facts we must consider 

when reviewing a felon’s as-applied challenge. Rather, the 

Supreme Court has noted that it will “expound upon the 

historical justifications for exceptions [it] mentioned if and when 

those exceptions come before [it].” Id. at 635. Thus, to 

evaluate Barton’s as-applied challenge, we look to the historical 

pedigree of 18 U.S.C. § 922(g) to determine whether the 

traditional justifications underlying the statute support a finding 

of permanent disability in this case. 

The first federal statute disqualifying felons from 

possessing firearms was enacted in 1938. Federal Firearms Act 

(FFA), ch. 850, § 1(6), 52 Stat. 1250, 1251 (1938). In enacting 

the statute, “Congress sought to rule broadly -- to keep guns out 

of the hands of those who have demonstrated that they may not 

be trusted to possess a firearm without becoming a threat to 

society.” Scarborough v. United States, 431 U.S. 563, 572 

(1977) (internal citations and quotation marks omitted). 

Although 18 U.S.C. § 922(g) was meant to “keep 

firearms out of the hands of presumptively ‘risky people,’” 
10 

United States v. Bass, 404 U.S. 336, 345 (1971), Congress did 

not bar non-violent felons from possessing guns until 1961. See 

An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-

342, 75 Stat. 757 (1961). For nearly a quarter century, § 

922(g)(1) had a “narrower basis for a disability, limited to those 

convicted of a ‘crime of violence.’” Kevin Marshall, Why Can’t 

Martha Stewart Have a Gun?, 32 HARV. J. L. & PUB. POL’Y

695, 698 (2009). “Crimes of violence” were commonly 

understood to include only those offenses “ordinarily committed 

with the aid of firearms.” Id. at 702. Prior to 1923, at least 

seven state legislatures had adopted bans on the carrying of 

concealed weapons by violent offenders. Id. at 702, 707-09 

(citing HANDBOOK OF THE NATIONAL CONFERENCE OF 

COMMISSIONERS ON UNIFORM STATE LAWS AND PROCEEDINGS OF 

THE THIRTY-FIFTH ANNUAL MEETING 862-63 (1925)); see also 

State v. Hogan, 58 N.E. 572, 574-75 (Ohio 1900) (holding that 

a state law banning “tramps,” or roaming beggars, from 

carrying firearms protected “every honest man, woman and 

child” from the threat of theft, robbery, and murder). 

Debates from the Pennsylvania, Massachusetts and New 

Hampshire ratifying conventions, which were considered 

“highly influential” by the Supreme Court in Heller, 554 U.S. at 

604, also confirm that the common law right to keep and bear 

arms did not extend to those who were likely to commit violent 

offenses. For instance, when Anti-Federalist delegates at the 

Pennsylvania ratifying convention proposed in December 1787 

that the Constitution include a right to keep and bear arms, they 

excluded from this right those who had committed crimes and 

those who posed a “real . . . danger of public injury.” BERNARD 

SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY

665 (1971). And as Samuel Adams urged at the Massachusetts 

ratifying convention, the Second Amendment should “be never 

construed . . . to prevent the people of the United States who are 
11 

peaceable citizens, from keeping their own arms.” Id. at 674-

75 (emphasis added); see also id. at 674-75 (describing a 

proposal at the New Hampshire ratifying convention, which 

would have ensured that Congress “never disarm any Citizen 

unless such as are or have been in Actual Rebellion”); Robert E. 

Shallope, The Armed Citizen in the Early Republic, 49 LAW &

CONTEMP. PROBS. 125, 130 (1986) (citing Seventeenth Century 

English sources for the proposition that arms should only be 

placed in the hands of those interested in preserving the “publick 

Peace”). 

To raise a successful as-applied challenge, Barton must 

present facts about himself and his background that distinguish 

his circumstances from those of persons historically barred from 

Second Amendment protections. For instance, a felon 

convicted of a minor, non-violent crime might show that he is no 

more dangerous than a typical law-abiding citizen. Similarly, a 

court might find that a felon whose crime of conviction is 

decades-old poses no continuing threat to society. The North 

Carolina Supreme Court did just that in Britt v. State, 681 

S.E.2d 320 (N.C. 2009), finding that a felon convicted in 1979 

of one count of possession of a controlled substance with intent 

to distribute had a constitutional right to keep and bear arms, at 

least as that right is understood under the North Carolina 

Constitution. Id. at 323. 

Unlike the defendant in Britt, Barton fails to develop the 

factual basis for his as-applied challenge. Barton does not argue 

that his predicate offenses make him no more likely than the 

typical citizen to commit a crime of violence, nor could he have 

done so persuasively in light of the facts of his case. Courts 

have held in a number of contexts that offenses relating to drug 

trafficking and receiving stolen weapons are closely related to 

violent crime. See, e.g., United States v. Dean, 59 F.3d 1479, 
12 

1490 (5th Cir. 1995) (“We have observed repeatedly that 

firearms are the tools of the trade of those involved in illegal 

drug activity.”); United States v. Mobley, 956 F.2d 450, 454 (3d 

Cir. 1992) (“The Commission promulgated U.S.S.G. § 

2K2.1(b)(2) on the premise that ‘stolen firearms are used 

disproportionately in the commission of crimes.’”) (citing 

U.S.S.G. § 2K2.1(b)(2), commentary). Moreover, the record 

indicates that Barton has not been rehabilitated, as he recently 

admitted to selling a firearm with an obliterated serial number to 

a confidential police informant. Because Barton has failed to 

demonstrate that his circumstances place him outside the 

intended scope of § 922(g)(1), we find no error in the District 

Court’s dismissal of his as-applied challenge. 

As a fallback position, Barton maintains that even if his 

prior offenses place him in a category of offenders society has 

decided should “not be trusted to possess a firearm,” 

Scarborough, 431 U.S. at 572, the government may not strip 

him of his fundamental right to use a weapon for the purpose of 

defending “hearth and home.” In support of this argument, 

Barton cites the Supreme Court’s statement in Heller that the 

right to use a weapon in self-defense is at the “core” of one’s 

right to keep and bear arms. 554 U.S. at 570. Barton contends 

that § 922(g)(1), like the ordinance struck down in Heller, is 

unconstitutional to the extent that it restricts his fundamental 

right to keep a weapon in his home for self-defense. See id.

 Barton’s argument regarding defense of his home is 

foreclosed by our decision in Marzzarella. There, we 

recognized that a “felon arguably possesses just as strong an 

interest in defending himself and his home as any law-abiding 

individual.” 614 F.3d at 92. Nevertheless, we held that “a 

felony conviction disqualifies an individual from asserting” his 

fundamental right to “defense of hearth and home.” Id. In this 
13 

regard, the Second Amendment is not unique; felony 

convictions trigger a number of disabilities, many of which 

impact fundamental constitutional rights. See, e.g., McKune v. 

Lile, 536 U.S. 24, 38 (2002) (“[L]awful conviction and 

incarceration necessarily place limitations on the exercise of a 

defendant’s privilege against self-incrimination.”); Jones v. 

Helms, 452 U.S. 412, 419 (1981) (upholding restrictions on a 

felon’s fundamental right to travel); Richardson v. Ramirez, 418 

U.S. 24, 54-56 (1974) (upholding a state law disenfranchising 

felons on the basis of criminal conviction); see also D.C. CODE

§ 49-401 (prohibiting felons from serving in a militia). 

 The federal felon gun dispossession statute, like the 

disabilities noted above, does not depend on how or for what 

reason the right is exercised. Rather, it focuses upon whom the 

right was intended to protect. The language in Heller makes 

this clear: the opinion does not refer to “regulations” on the 

possession of firearms by felons and the mentally ill, but rather 

to “prohibitions.” 554 U.S. at 626. A “prohibition” does more 

than merely alter or restrain a person’s behavior; it is “an edict, 

decree, or order which forbids, prevents, or excludes.” 

OXFORD ENGLISH DICTIONARY (2d ed. 1989). Moreover, the 

prohibition discussed in Heller is a broad one: a person may 

“possess” any item over which he exercises “dominion and 

control.” United States v. Garth, 188 F.3d 99, 112 (3d Cir. 

1999) (quoting United States v. Blackston, 940 F.2d 877, 883 

(3d Cir. 1991)). Thus, Heller forecloses any as-applied 

challenge based on the manner in which a felon wishes to 

exercise his Second Amendment rights. 

Despite the breadth of this exclusion, denying felons the 

right to possess firearms is entirely consistent with the purpose 

of the Second Amendment to maintain “the security of a free 

State.” U.S. CONST. amend. II. It is well-established that felons 
14 

are more likely to commit violent crimes than are other lawabiding citizens. See, e.g., Bureau of Justice Statistics,

Recidivism of Prisoners Released in 1994 at 6 (2002) (finding 

that within a population of 234,358 federal inmates released in 

1994, the rates of arrest for homicides were 53 times the 

national average). Moreover, felons forfeit other civil liberties, 

including fundamental constitutional rights such as the right to 

vote or to serve on a jury. For these reasons, we find persuasive 

the Ninth Circuit’s conclusion that “felons are categorically 

different from the individuals who have a fundamental right to 

bear arms.” Vongxay, 594 F.3d at 1115. 

III 

 The Supreme Court’s decisions in Heller and McDonald 

compel the conclusion that 18 U.S.C. § 922(g)(1) is facially 

constitutional. It is also constitutional as applied to Barton 

because he has presented no facts distinguishing his 

circumstances from those of other felons who are categorically 

unprotected by the Second Amendment. For these reasons, we 

will affirm the District Court’s judgment of conviction and 

sentence.