United States v. Decastro

10-3773 United States v. Decastro 1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2011 7 8 9 (Argued: November 30, 2011 Decided: June 1, 2012) 10 11 Docket No. 10-3773 12 13 - - - - - - - - - - - - - - - - - - - -x 14 15 UNITED STATES OF AMERICA, 16 17 Appellee, 18 19 - v.- 20 21 ANGEL DECASTRO, 22 23 Defendant-Appellant. 24 25 - - - - - - - - - - - - - - - - - - - -x 26

27 Before: JACOBS, Chief Judge, HALL and LYNCH, 28 Circuit Judges. 29 30 Defendant was convicted of transporting into his state

31 of residence a firearm acquired in another state in 32 violation of 18 U.S.C. § 922(a)(3). He appeals on the 33 ground that § 922(a)(3) violates his Second Amendment right 34 to keep and bear arms. He argues: [1] that § 922(a)(3) is 35 unconstitutional on its face; and [2] that, in combination 36 with New York’s licensing scheme, the prohibition on the *2 1 transportation into New York of a firearm purchased in 2 another state made it virtually impossible for him to obtain 3 a handgun for self-defense. For the following reasons, the 4 judgment of the district court is affirmed. Judge Hall 5 concurs by separate opinion.

6 COLLEEN P. CASSIDY, Federal 7 Defenders of New York, Inc., New 8 York, NY, for 9 Appellant. 10 11 BRIAN A. JACOBS (BRENT S. WIBLE, 12 on the brief), Assistant United 13 States Attorney, for PREET 14 BHARARA, United States Attorney, 15 Southern District of New York, 16 New York, NY, for 17 Appellee. 18 19 DENNIS JACOBS, Chief Judge: 20 21 Following a bench trial on stipulated facts in the

22 United States District Court for the Southern District of 23 New York (Patterson, J.), Angel Decastro was convicted of 24 transporting into his state of residence a firearm acquired 25 in another state in violation of 18 U.S.C. § 922(a)(3). 26 Decastro appeals on the ground that § 922(a)(3) violates his 27 Second Amendment right to keep and bear arms. He argues: 28 [1] that § 922(a)(3) is unconstitutional on its face; and 29 [2] that, in combination with New York’s licensing scheme, 30 the prohibition on the transportation into New York of a *3 1 firearm purchased in another state made it virtually 2 impossible for him to obtain a handgun for self-defense. 3 For the following reasons, the judgment of the district 4 court is affirmed. 5 6 BACKGROUND 7 In 2002, Angel Decastro moved from Florida to New York 8 to help run his step-father’s dry cleaning business. In 9 July 2004, an encounter between Decastro and a customer 10 escalated into a gang confrontation. Police arrested 11 Decastro and the customer, but all charges were dropped. 12 Decastro feared retaliation, and on the recommendation of a 13 New York police detective, requested a handgun license 14 application from the New York Police Department (“NYPD”). 15 He did not submit an application because (he maintains) he 16 was told by an NYPD desk officer that there was “no way” his 17 application would be approved. 18 Decastro, who was licensed to own a handgun in Florida, 19 purchased firearms from a gun dealer on a visit there in 20 February 2005: a Taurus model PT92 pistol (“the Taurus 21 Pistol”) and a Glock nine-millimeter handgun. In connection 22 with the purchase, Decastro was required to sign Form 4473 *4 1 of the Bureau of Alcohol, Tobacco, Firearms and Explosives. 2 On it he falsely gave Florida rather than New York as his 3 state of residence. Decastro left the Glock handgun in 4 Florida but transported the Taurus Pistol home to New York, 5 where he kept it at the dry-cleaning business for 6 protection. 7 The Decastro family sold the dry-cleaning business in 8 May 2005; in February 2006, Decastro moved to Florida. 9 Before leaving New York, Decastro gave the Taurus Pistol to 10 a relative in the Bronx. Decastro planned to transport it 11 back to Florida in a few months’ time. 12 In July 2006, a Bronx woman reported to the NYPD that 13 she had found the Taurus Pistol in her closet along with 14 other items that belonged to her common-law husband (who was 15 a relative of Decastro). A police search of the closet 16 yielded the Taurus Pistol as well as two other guns, 17 handcuffs, masks, and fake police shields. 18 Decastro was subsequently indicted for violating 18 19 U.S.C. § 922(a)(3). That statute (subject to certain 20 exceptions not applicable here1) prohibits anyone other than

1 The statute does not apply to: [1] firearms acquired by inheritance outside the owner’s state of residence, provided that it is lawful for the owner to purchase or possess a firearm in her home state, 18 U.S.C.

1 a licensed importer, manufacturer, dealer or collector from 2 transporting into his state of residence a firearm purchased 3 or obtained outside that state. Decastro moved to dismiss 4 the indictment on the ground that it violated his Second 5 Amendment right to possess a gun for self-defense. He 6 argued that § 922(a)(3) was facially unconstitutional under 7 District of Columbia v. Heller, 554 U.S. 570 (2008), and 8 that New York City’s restrictive licensing requirements were 9 tantamount to a ban. In support, Decastro submitted a chart 10 showing that few applications for pistol licenses were 11 received and issued by New York City in the period 2004-12 2006. For residential-premises handgun licenses, an average 13 of 858 new applications were submitted annually and an 14 average of 620 licenses were issued; for business-premises 15 licenses, an average of 59 new applications were submitted

§ 922(a)(3)(A), [2] rifles and shotguns acquired outside of the purchaser’s state of residence, provided that the transaction is conducted in person and in compliance with the legal conditions of sale in both the purchaser’s home state and the state in which the seller’s place of business is located, id. § 922(a)(3)(B), (b)(3)(A), [3] firearms loaned or rented for temporary use for lawful sporting purposes, id. § 922(a)(3)(B), (b)(3)(B), or [4] the transportation of a firearm acquired in any state prior to the effective date of the statute, id. § 922(a)(3)(C).

1 annually and an average of 50 licenses were issued.2 2 The district court declined to dismiss the indictment. 3 Inferring from the NYPD statistics that there is a high 4 grant rate for handgun licenses in New York City, the court 5 rejected Decastro’s argument that he was effectively forced 6 to violate § 922(a)(3) by traveling outside the state in 7 order to secure a handgun for self-defense. The court did 8 not address Decastro’s argument that § 922(a)(3) is 9 unconstitutional on its face. 10 At the bench trial, the parties stipulated to the 11 following facts: 12 [1] Decastro had never been a licensed importer, 13 manufacturer, dealer or collector of firearms; 14 [2] From at least 2002 through February 2006, Decastro 15 resided in New York, not Florida; 16 [3] In April 2005, Decastro purchased the Taurus 17 Pistol from a firearms dealer in Florida; 18 [4] After purchasing it in April 2005 but prior to

2 The number of licenses issued for business premises in 2006 exceeded the number of new applications received that year, which suggests that licenses were not necessarily issued in the year they were applied for, or that the number of licenses issued includes license renewals that are not considered “new applications,” or both. In any event, this does not affect our analysis.

1 February 2006--while he resided in New York--2 Decastro knowingly and willfully transported the 3 Taurus Pistol from Florida to New York, and gave 4 it to a resident of the Bronx; 5 [5] Decastro never applied for and was not issued a 6 license to possess a firearm in New York, and when 7 he transported the pistol from Florida to New York 8 he knew that his conduct was unlawful. 9 The district court found Decastro guilty on the sole 10 count of the indictment and sentenced him to two years of 11 probation (and imposed a mandatory $100 special assessment). 12 This appeal followed. 13 14 DISCUSSION 15 On appeal, Decastro challenges the constitutionality of 16 18 U.S.C. § 922(a)(3) on two grounds: [1] it is facially 17 unconstitutional because it impermissibly burdens the right 18 to keep and bear arms guaranteed by the Second Amendment; 19 and [2] when combined with New York’s licensing scheme, the 20 prohibition on the transportation into New York of a firearm 21 purchased in another state made it practically impossible 22 for him to secure a handgun for self-defense. The district *8 1 court confined its analysis to the second argument; on 2 appeal Decastro focuses principally on the first. 3 As to each argument, our review is de novo. See United 4 States v. Pettus, 303 F.3d 480, 483 (2d Cir. 2002). 5 6 I 7 When “a defendant has already been convicted for 8 specific conduct under the challenged law,” a court 9 considering a facial challenge to a criminal statute must 10 “‘examine the complainant’s conduct before analyzing other 11 hypothetical applications.’” United States v. Farhane, 634 12 F.3d 127, 139 (2d Cir. 2011) (quoting Vill. of Hoffman 13 Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 495 14 (1982)). We are guided by “‘the principle that a person to 15 whom a statute may constitutionally be applied will not be 16 heard to challenge that statute on the ground that it may 17 conceivably be applied unconstitutionally to others, in 18 other situations not before the Court.’” Parker v. Levy, 19 417 U.S. 733, 759 (1974) (quoting Broadrick v. Oklahoma, 413 20 U.S. 601, 610 (1973)). It follows that a defendant who 21 fails to demonstrate that a challenged law is 22 unconstitutional as applied to him has “necessarily fail[ed] *9 1 to state a facial challenge, which requires [him] to 2 establish that no set of circumstances exists under which 3 the statute would be valid.” Diaz v. Paterson, 547 F.3d 88, 4 101 (2d Cir. 2008) (internal quotation marks and brackets 5 omitted). Since Decastro has already been convicted under 6 § 922(a)(3), the first step in our consideration of his 7 facial challenge is to assess the burden, if any, that the 8 statute has imposed on Decastro himself. 9 10 II 11 A. 12 Decastro’s first argument with respect to the 13 unconstitutionality of § 922(a)(3) as applied to him focuses 14 on the interplay between New York state licensing laws and 15 federal firearms law. Decastro argues that because the 16 restrictive licensing scheme in his home state effectively 17 compelled him to go elsewhere to get a handgun, § 922(a)(3) 18 prevented him from exercising his Second Amendment right to 19 possess a handgun for self-defense. 20 The premise of Decastro’s argument is that New York’s 21 licensing scheme is itself constitutionally defective; his 22 argument is therefore tantamount to a challenge to that *10 1 scheme. However, because Decastro failed to apply for a gun 2 license in New York, he lacks standing to challenge the 3 licensing laws of the state. “As a general matter, to 4 establish standing to challenge an allegedly 5 unconstitutional policy, a plaintiff must submit to the 6 challenged policy.” Jackson-Bey v. Hanslmaier, 115 F.3d 7 1091, 1096 (2d Cir. 1997); see also Allen v. Wright, 468 8 U.S. 737, 746, 755 (1984) (holding that parents lacked 9 standing to challenge the tax-exempt status of allegedly 10 racially discriminatory private schools to which their 11 children had not applied); Moose Lodge No. 107 v. Irvis, 407 12 U.S. 163, 166-68 (1972) (holding that an African American 13 lacked standing to challenge the discriminatory membership 14 policy of a club to which he never applied). Failure to 15 apply for a license would not preclude Decastro’s challenge 16 if he made a “substantial showing” that submitting an 17 application “would have been futile.” Jackson-Bey, 115 F.3d 18 at 1096; cf. Bach v. Pataki, 408 F.3d 75, 82-83 (2d cir. 19 2005) (holding that plaintiff’s challenge to New York’s gun 20 licensing laws applicable to non-residents was justiciable 21 despite his failure to apply for a license because he was 22 statutorily ineligible for a license and therefore *11 1 submitting an application would have been a “futile gesture” 2 (internal quotation marks omitted)). But the only evidence 3 Decastro offers to show futility is the hearsay statement of 4 an unidentified police desk officer who had no apparent 5 connection to the licensing process, and whose view is 6 incompatible with the NYPD report that Decastro submitted to 7 the district court showing that roughly 2/3 to 3/4 of 8 handgun license applications during the period in question 9 were granted. Although the absolute number of handgun 10 licenses granted has historically been small, so has the 11 number of applications received. Decastro has adduced no 12 evidence that the low volume of license applications is 13 itself a product of the futility of the application process. 14 He has therefore not made the substantial showing of 15 futility necessary to excuse his failure to apply for a 16 handgun license in New York. 17 18 B. 19 Having concluded that Decastro is in no position to 20 challenge the constitutionality of § 922(a)(3) based on the 21 asserted effects of New York’s licensing scheme, we now 22 consider Decastro’s argument that § 922(a)(3) is, by its own *12 1 terms, unconstitutional because it infringes the core Second 2 Amendment right of law-abiding citizens to possess firearms 3 for self-defense. Decastro maintains that the statute 4 should be subject to strict scrutiny or (at minimum) 5 intermediate scrutiny, and that it cannot withstand review 6 under either standard. 7 We hold that heightened scrutiny is appropriate only as 8 to those regulations that substantially burden the Second 9 Amendment. Because § 922(a)(3) only minimally affects the 10 ability to acquire a firearm, it is not subject to any form 11 of heightened scrutiny. (We therefore need not decide the 12 level of scrutiny applicable to laws that do impose such a 13 burden.)3 14

3 We also need not decide whether certain firearm laws might regulate conduct that is entirely unprotected by the Second Amendment, whether because of the type of weapon involved, the status of the person claiming the right, or where the right is sought to be exercised. See Ezell v. City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010), cert. denied, 131 S. Ct. 2476 (2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89-91 (3d Cir. 2010), cert. denied, 131 S. Ct. 958 (2011); cf. Heller v. District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011).

1 1. 2 The Second Amendment provides: “A well regulated 3 Militia, being necessary to the security of a free State, 4 the right of the people to keep and bear Arms, shall not be 5 infringed.” U.S. Const. amend. II. In District of Columbia 6 v. Heller, the Supreme Court held that the Second Amendment 7 codified a pre-existing “individual right to possess and 8 carry weapons in case of confrontation.” 554 U.S. at 592. 9 In emphasizing the need for self-defense, the Court relied 10 on the historical record and the meaning of the text of the 11 Second Amendment at the time of ratification. The Court 12 declined to announce the precise standard of review 13 applicable to laws that infringe the Second Amendment right 14 because the laws at issue (by which the District of Columbia 15 categorically banned handguns, and required that all other 16 firearms be kept inoperable) would be unconstitutional 17 “[u]nder any of the standards of scrutiny that we have 18 applied to enumerated constitutional rights.” Id. at 628-19 29. At the same time, Heller disclaims any reading that 20 calls into question (among other things) “laws forbidding 21 the carrying of firearms in sensitive places such as schools 22 and government buildings, or laws imposing conditions and *14 1 qualifications on the commercial sale of arms.” Id. at 626-2 27; see also McDonald v. City of Chicago, 130 S. Ct. 3020, 3 3047 (2010) (reiterating Heller’s assurances that the 4 decision “did not cast doubt on such longstanding regulatory 5 measures”).4 Although the Court did not expand on why these 6 two classes of restrictions would be permissible, the 7 natural explanation is that time, place and manner 8 restrictions may not significantly impair the right to 9 possess a firearm for self-defense, and may impose no 10 appreciable burden on Second Amendment rights. 11 Throughout, Heller identifies the constitutional 12 infirmity in the District of Columbia laws in terms of the 13 burden on the ability of D.C. residents to possess firearms 14 for self-defense. The Court emphasized that the handgun ban 15 prohibited the “most popular weapon chosen by Americans for 16 self-defense in the home,” id. at 629, that the mandate to 17 disable all firearms “makes it impossible for citizens to

4 In addition to these time, place and manner restrictions, the “presumptively lawful regulatory measures” cited by the Court included “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller, 554 U.S. at 626, 627 n.26. The Court also noted that the Second Amendment right does not encompass all weapons, but only those “typically possessed by law-abiding citizens for lawful purposes” and thus does not include the right to possess “dangerous and unusual weapons.” Id. at 625, 627 (internal quotation marks omitted).

1 use them for the core lawful purpose of self-defense and is 2 hence unconstitutional,” id. at 630 (emphasis added), and 3 that “[f]ew laws in the history of our Nation have come 4 close to the severe restriction of the District’s handgun 5 ban,” id. at 629. 6 The Court emphasized the practical impact of a 7 challenged regulation on the ability of citizens to possess 8 and use guns for the core lawful purpose of self-defense. 9 That emphasis is implicitly justified (in the opinion) by 10 the history of the Amendment as a response to measures taken 11 by English kings, including George III, to disarm the 12 citizenry, see id. at 592-95, and is reinforced by the 13 grounds used by the majority to distinguish the founding-era 14 laws cited by the dissent. Thus the majority distinguished 15 18th-century laws regulating the storage of excess 16 gunpowder, id. at 632, and the laws of colonial cities 17 regulating time, place and manner for the discharge of 18 firearms (as on public streets and taverns or on New Year’s 19 Eve), id. at 632-33. Such colonial laws did not much burden 20 self-defense and had a minimal deterrent effect on the 21 exercise of Second Amendment rights. *16 1 Given Heller’s emphasis on the weight of the burden 2 imposed by the D.C. gun laws, we do not read the case to 3 mandate that any marginal, incremental or even appreciable 4 restraint on the right to keep and bear arms be subject to 5 heightened scrutiny. Rather, heightened scrutiny is 6 triggered only by those restrictions that (like the complete 7 prohibition on handguns struck down in Heller) operate as a 8 substantial burden on the ability of law-abiding citizens to 9 possess and use a firearm for self-defense (or for other 10 lawful purposes). This approach finds support, to varying 11 degrees, in other Circuits. See Nordyke v. King, 644 F.3d 12 776, 786 (9th Cir.) (“[O]nly regulations which substantially 13 burden the right to keep and to bear arms trigger heightened 14 scrutiny under the Second Amendment.”), reh’g in banc 15 granted, 664 F.3d 774 (9th Cir. 2011); see also Heller v. 16 District of Columbia, 670 F.3d 1244, 1253, 1260 (D.C. Cir. 17 2011) (laws that have only a “de minimis” effect on the 18 right to bear arms or that do not “meaningfully affect 19 individual self-defense” do not impinge on the Second 20 Amendment right and therefore do not warrant heightened 21 scrutiny (internal quotation marks omitted)); cf. Ezell v. 22 City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011) (holding *17 1 that “a severe burden on the core Second Amendment right of 2 armed self-defense will require an extremely strong public-3 interest justification and a close fit between the 4 government’s means and its end” but that “laws restricting 5 activity lying closer to the margins of the Second Amendment 6 right, laws that merely regulate rather than restrict, and 7 modest burdens on the right may be more easily justified”); 8 United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir.) 9 (endorsing a sliding scale approach to determining the level 10 of scrutiny applicable to laws that burden Second Amendment 11 rights depending in part on “the extent to which [Second 12 Amendment] interests are burdened by government 13 regulation”), cert. denied, 132 S. Ct. 756 (2011); United 14 States v. Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010) 15 (suggesting that a “de minimis” burden on the right to keep 16 arms for self-defense might not warrant heightened 17 scrutiny), cert. denied, 131 S. Ct. 958 (2011). 18 Reserving heightened scrutiny for regulations that 19 burden the Second Amendment right substantially is not 20 inconsistent with the classification of that right as 21 fundamental to our scheme of ordered liberty in McDonald v. *18 1 City of Chicago, 130 S. Ct. at 3036.5 A similar threshold 2 showing is needed to trigger heightened scrutiny of laws 3 alleged to infringe other fundamental constitutional rights. 4 The right to marry is fundamental, but “reasonable 5 regulations that do not significantly interfere with 6 decisions to enter into the marital relationship” are not 7 subject to the “rigorous scrutiny” that is applied to laws 8 that “interfere directly and substantially with the right to 9 marry.” Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978). 10 The right to vote is fundamental, but “the rigorousness of 11 our inquiry into the propriety of a state election law 12 depends upon the extent to which a challenged regulation 13 burdens First and Fourteenth Amendment rights.” Burdick v. 14 Takushi, 504 U.S. 428, 434 (1992); see also Rosario v. 15 Rockefeller, 410 U.S. 752, 757-60 (1973) (upholding a law 16 conditioning the right to vote in primaries, because the 17 restriction imposed a time limitation that was not “so 18 severe as itself to constitute an unconstitutionally onerous 19 burden on the petitioners’ exercise of the franchise”).

5 Nor is it inconsistent with language in Heller rejecting rational basis review for laws that infringe Second Amendment rights. See Heller, 554 U.S. at 628 n.27. In Heller, the Court was faced with restrictions that undoubtedly did impose a significant burden on core Second Amendment rights. It had no occasion to consider the appropriate standard of review for laws that only minimally impact such rights.

1 The weight of the burden matters in assessing the 2 permissible bounds of regulation in other constitutional 3 contexts as well, such as takings, abortion, and free 4 speech. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 5 1014-16 (1992) (only those regulations on property that go 6 “too far” require the payment of just compensation under the 7 Takings Clause (internal quotation marks omitted)); Stenberg 8 v. Carhart, 530 U.S. 914, 921 (2000) (prior to fetal 9 viability, a state may not enact laws that impose an “undue 10 burden” on a woman’s decision to terminate her pregnancy, 11 i.e., regulations that have “‘the purpose or effect of 12 placing a substantial obstacle in the path of a woman 13 seeking an abortion’” (quoting Planned Parenthood of Se. Pa. 14 v. Casey, 505 U.S. 833, 877 (1992)); Ward v. Rock Against 15 Racism, 491 U.S. 781, 791 (1989) (reasonable time, place or 16 manner restrictions are subject to lesser scrutiny as long 17 as they are content-neutral and preserve “ample alternative 18 channels for communication of the information” (internal 19 quotation marks omitted)). 20 In deciding whether a law substantially burdens Second 21 Amendment rights, it is therefore appropriate to consult 22 principles from other areas of constitutional law, including 23 the First Amendment (to which Heller adverted repeatedly). *20 1 See Heller, 554 U.S. at 582, 595, 635 (analogizing to First 2 Amendment doctrine); see also Ezell, 651 F.3d at 702-04 3 (drawing parallels from the First Amendment context to 4 analyze Second Amendment claims); Marzzarella, 614 F.3d at 5 89 & n.4 (looking to the structure of the First Amendment 6 for guidance in evaluating Second Amendment challenges). In 7 evaluating the reasonableness of content-neutral time, place 8 or manner regulations under the First Amendment, we ask 9 whether the challenged regulation “leave[s] open ample 10 alternative channels for communication of the information.” 11 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 12 (1984). Regulation may “reduce to some degree the potential 13 audience for [one’s] speech” so long as “the remaining 14 avenues of communication are []adequate.” Ward, 491 U.S. at 15 802. By analogy, law that regulates the availability of 16 firearms is not a substantial burden on the right to keep 17 and bear arms if adequate alternatives remain for law-18 abiding citizens to acquire a firearm for self-defense. See 19 Nordyke, 644 F.3d at 787-88; see also Heller, 554 U.S. at 20 626-27 (identifying as presumptively lawful “laws imposing 21 conditions and qualifications on the commercial sale of 22 arms”). 23 *21 1 2. 2 Applying those principles to Decastro’s challenge, we 3 conclude that § 922(a)(3) does not substantially burden his 4 right to keep and bear arms. Section 922(a)(3) prohibits 5 the transportation into one’s state of residence of firearms 6 acquired outside the state; but it does nothing to keep 7 someone from purchasing a firearm in her home state, which 8 is presumptively the most convenient place to buy anything. 9 The evident purpose of the statute is to stop circumvention 10 of state laws regulating gun possession; it does so by 11 requiring state residents to comply with conditions of sale 12 and similar requirements in their home state. See S. Rep. 13 No. 90-1097, at 50 (1968), reprinted in 1968 U.S.C.C.A.N. 14 2112, 2166 (concluding that the traffic of guns through mail 15 order common carriers and non-resident sources “is a means 16 which affords circumvention and contravention of State and 17 local laws governing the acquisition of [firearms]”). 18 Moreover, as interpreted by the Bureau of Alcohol, Tobacco, 19 Firearms and Explosives, § 922(a)(3) does not bar purchases 20 from an out-of-state supplier if the gun is first 21 transferred to a licensed gun dealer in the purchaser’s home 22 state. See Bureau of Alcohol, Tobacco, Firearms and 23 Explosives, Frequently Asked Questions, available at *22 1 http://www.atf.gov/firearms/faq/unlicensed-persons.html#out-2 of-state-firearm.html (last visited on May 31, 2012).6 In 3 light of the ample alternative means of acquiring firearms 4 for self-defense purposes, § 922(a)(3) does not impose a 5 substantial burden on the exercise of Decastro’s Second 6 Amendment rights. 7 8 III 9 Since § 922(a)(3) does not burden Decastro’s Second 10 Amendment rights in a way so substantial as to justify 11 heightened scrutiny, his facial challenge to the statute 12 must also fail. In order to succeed in his facial challenge 13 to § 922(a)(3), Decastro would need to show that “no set of 14 circumstances exists under which the [statute] would be

6 Decastro has not advanced any argument that § 922(a)(3) makes it more costly to acquire a firearm (as by insulating local gun dealers from interstate competition, or because of increased transportation costs). In any event, within limits, that would not be a constitutional defect. See Casey, 505 U.S. at 874 (“The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”); Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949) (upholding a city ordinance prohibiting the use of sound trucks: “That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to call forth constitutional protection”).

1 valid, i.e., that the law is unconstitutional in all of its 2 applications,” or at least that it lacks a “plainly 3 legitimate sweep.” Wash. State Grange v. Wash. State 4 Republican Party, 552 U.S. 442, 449 (2008) (internal 5 quotation marks and citation omitted). Because § 922(a)(3) 6 does not substantially burden the fundamental right to 7 obtain a firearm sufficient for self-defense, and attempts 8 only to assist states in the enforcement of their own gun 9 laws, it does not infringe the Second Amendment right to 10 keep and bear arms, and its sweep is therefore plainly 11 legitimate.7 12 The facial constitutionality of § 922(a)(3) is 13 unimpaired by the risk that some state laws governing the 14 sale of firearms may themselves be unconstitutional. 15 Nothing on the face of § 922(a)(3) sanctions, compels, or 16 encourages state regulations that offend the Second 17 Amendment. If the requisite interstate nexus exists, 18 Congress may enact laws (like § 922(a)(3)) designed to

7 While we hold that Section 922(a)(3) is not unconstitutional on its face, we do not rule out the possibility that, on a different set of facts, a defendant might be able to establish that the application of Section 922(a)(3) to him would burden his right to keep and bear arms so substantially as to render the statute unconstitutional as applied.

1 prevent the circumvention of state law, and in so doing may 2 indulge the presumption that the underlying state laws are 3 not unconstitutional. See, e.g., 18 U.S.C. § 228(a)(1) 4 (making it a federal offense to willfully fail to pay a 5 support obligation with respect to a child living in another 6 state). By the same token, courts have upheld federal laws 7 that curtail the possession of firearms by certain persons 8 based on state court adjudications. See, e.g., United 9 States v. Reese, 627 F.3d 792, 802-04 (10th Cir. 2010) 10 (upholding against a Second Amendment challenge a federal 11 statute prohibiting possession of firearms by anyone subject 12 to certain restraining orders, and explaining that the 13 defendant could not collaterally attack the underlying 14 protective order in his federal prosecution), cert. denied, 15 131 S. Ct. 2476 (2011). It may be that a “statute tolerates 16 different outcomes . . . in different states, but this is 17 true of all situations in which a firearms disability (or 18 any other adverse consequence) depends on state law.” 19 United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) 20 (in banc), cert. denied, 131 S. Ct. 1674 (2011). If an 21 injury is suffered as a result of the unconstitutional 22 application of a state law regulating the possession of 23 firearms, the proper challenge is one addressed to the state *25 1 law. See McDonald, 130 S. Ct. at 3026 (holding that the 2 Second Amendment applies to the states). 3 As Decastro observes, § 922(a)(3) has no exception for 4 the transportation of firearms purchased out-of-state by 5 someone who is licensed to possess a gun at home; but 6 Decastro is not in a position to raise such an overbreadth 7 exception. Decastro did not have a license to own a firearm 8 in New York, nor did he apply for one. Facial overbreadth 9 challenges are disfavored and permitted “in relatively few 10 settings, and, generally, on the strength of specific 11 reasons weighty enough to overcome [courts’] well-founded 12 reticence.” Sabri v. United States, 541 U.S. 600, 609-10 13 (2004). There is no overbreadth argument that Decastro can 14 make in the Second Amendment context. See Masciandaro, 638 15 F.3d at 474 (rejecting defendant’s facial overbreadth 16 challenge because “a person . . . to whom a statute was 17 constitutionally applied, will not be heard to challenge 18 that statute on the ground that it may conceivably be 19 applied unconstitutionally to others, in other situations 20 not before the Court” (internal quotation marks omitted)); 21 Skoien, 614 F.3d at 645 (“A person to whom a statute 22 properly applies can’t obtain relief based on arguments that 23 a differently situated person might present.”). *26 1 For the reasons stated, Decastro’s facial challenge to 2 18 U.S.C. § 922(a)(3) fails. 3 4 CONCLUSION 5 For the foregoing reasons, the judgment of the district 6 court is affirmed.

1 HALL, Circuit Judge, concurring: 2 I fully concur in the result reached in the opinion. I write separately, however, to 3 enunciate how I reach the determination that § 922 (a)(3) does not impose a substantial burden 4 on the exercise of Decastro’s Second Amendment right. 5 Had Decastro opted to utilize the lawful means by which he could have acquired a 6 handgun in New York and done so, § 922 (a)(3) would have played no role in regulating that 7 transaction. By the same token, § 922 (a)(3) by its terms did not preclude Decastro from 8 acquiring the handgun in question from the Florida dealer because all that the federal statute 9 effected were minor limitations on the channels through which that handgun was to be shipped 10 from Florida to New York. Even though acquisition is indeed often necessary to effectuate the 11 Second Amendment right to keep and bear arms, any limitations on Decastro’s acquisition were 12 those occasioned by his own refusal to comply with New York State’s requirements for 13 possessing a handgun, and the federal statute, therefore, played no demonstrable role in 14 precluding Decastro from purchasing a firearm in either state so as to exercise his Second 15 Amendment right. For these reasons, § 922 (a)(3), as applied, does not substantially burden 16 Decastro’s Second Amendment right to own a firearm in defense of his home and hearth. See 17 District of Columbia v. Heller, 554 U.S. 570, 635 (2008).