BYBEE, Circuit Judge:
In this case we address two issues: (1) Whether Frank Van der hule, who is prohibited under Montana law from receiving
In December 1983, Frank Van der hule pled guilty to sexual assault and four counts of sexual intercourse without consent in Montana. He was sentenced to 25 years' imprisonment and completed his sentence in 1996. At the completion of his sentence, Montana law automatically restored to Van der hule his civil rights. See Mont. Const. art. II, § 28(2) ("Full rights are restored by termination of state supervision for any offense against the state."); Mont.Code Ann. § 46-18-801(2) ("[I]f a person has been deprived of a civil or constitutional right by reason of conviction... and the person's sentence has expired..., the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred.").
In July 2003, Van der hule attempted to purchase a firearm from a firearms dealer, who held a federal firearms license, in Montana. The dealer began the National Instant Criminal Background Check System ("NICS") process, and the NICS examiner who processed the background check concluded that Van der hule's prior convictions precluded him from receiving a Montana concealed weapons permit, and therefore he was also prohibited under federal law from possessing or receiving any firearm. The NICS examiner informed the dealer that Van der hule should not be permitted to purchase a firearm, and the dealer refused to make the sale. Van der hule filed an administrative appeal with the NICS Appeal Services Team ("AST"), but the AST upheld the examiner's determination.
Van der hule then filed suit for a declaratory judgment under 18 U.S.C. § 925A, requesting that the court order the Attorney General to approve the proposed firearm transfer to Van der hule. Van der hule argued that Montana and federal law did not restrict him from obtaining a concealed weapons permit or possessing any firearms. In September 2007, the district court granted the government's motion for summary judgment in part but certified a question to the Montana Supreme Court. It asked whether, under Montana law, Mont.Code Ann. § 45-8-321(1), a sheriff has the discretion to grant a concealed weapons permit to someone with a criminal history similar to Van der hule's. In January 2009, the Montana Supreme Court held that such a person was prohibited from obtaining a concealed weapons permit under Montana law and a sheriff had no discretion to grant him a permit. Van der hule v. Mukasey, 349 Mont. 88, 217 P.3d 1019, 1022 (2009).
In the meantime, Van der hule amended his complaint to add a claim that the federal and state laws depriving him of his right to purchase a firearm violate the Second Amendment. After the Montana Supreme Court rendered its decision, the parties again filed cross-motions for summary judgment, and the district court granted the government's motion. The district court held that Van der hule was prohibited by federal law from possessing or receiving a firearm by virtue of his restriction on obtaining a Montana concealed weapons permit and that Van der hule, by virtue of his prior felony conviction, had no
The federal statutory framework at issue is Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, §§ 901-07, 82 Stat. 197, 225-35, amended by the Gun Control Act of 1968, Pub.L. No. 90-618, § 102, 82 Stat. 1213, 1213-26 (codified as amended at 18 U.S.C. §§ 921-28).
The Act provides that:
18 U.S.C. § 922(g). Prior to 1986, the Supreme Court held that federal law alone determined whether a conviction under state law triggered the disability under § 922(g), and that "expunction under state law [would] not alter the historical fact of the conviction." Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 114-15, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983); see Lewis v. United States, 445 U.S. 55, 62-65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).
In 1986, however, Congress enacted the Firearms Owners' Protection Act ("FOPA"), expressing its intent to roll back certain restrictions on the rights of citizens to possess firearms. Pub.L. 99-308, § 1, 100 Stat. 449, 449 (1986). FOPA amended Title IV to provide that a "crime punishable by imprisonment for a term exceeding one year,"
18 U.S.C. § 921(a)(20) (emphasis added). The last clause of this provision is known as the "unless clause."
We follow a three-step procedure for determining whether a state conviction is invalidated for purposes of the federal felon-in-possession statute. We have adopted the following formula:
United States v. Valerio, 441 F.3d 837, 840 (9th Cir.2006). Here, it is uncontested that Van der hule was convicted of "a crime punishable by imprisonment for a term exceeding one year." It is also uncontested
Montana law defines "[c]oncealed weapon" generally as "any weapon [mentioned in other provisions] that is wholly or partially covered by the clothing or wearing apparel of the person carrying or bearing the weapon." Mont.Code Ann. § 45-8-315. It punishes "[a] person who carries or bears concealed upon the individual's person a ... pistol, revolver, ... or other deadly weapon." Id. § 45-8-316(1). It provides numerous exceptions, however, including allowing the carrying of concealed weapons "outside the official boundaries of a city or town," by those "lawfully engaged in ... outdoor activit[ies] in which weapons are often carried for recreation or protection," and "on one's own premises or at one's home or place of business." Id. § 45-8-317(1)(i), (j). Montana also issues permits to carry a concealed weapon, which allow a permit holder to carry "a handgun or a knife with a blade 4 or more inches in length" — though not other weapons otherwise prohibited from concealment — almost anywhere except certain government buildings, financial institutions, and places licensed to serve alcohol. Id. §§ 45-8-315, -321, -328. Thus, under Montana law, a permit to carry a concealed weapon allows the holder to conceal a handgun in certain locations where it would otherwise be unlawful to do so.
Montana is a "shall-issue" state in that it requires the local sheriff to issue a concealed weapons permit when an applicant qualifies under the statute. Id. § 45-8-321(1). The statute describing the permit provides that this
Id. § 45-8-321(1)(c)(i), (ii).
In response to the certified question from the district court in this case, the Montana Supreme Court held that although the statute only specifies that the privilege "may" not be denied, when an applicant meets the description in Mont. Ann.Code § 45-8-321(1)(c)(i) or (ii), a sheriff is prohibited from issuing him or her a permit. Van der hule, 217 P.3d at 1020-22. Because Van der hule was convicted of the crimes of sexual abuse and sexual intercourse without consent, the sheriff cannot issue him a permit to carry a concealed weapon,
The Supreme Court addressed the reach of the "unless clause" in Caron v. United States. In that case, the petitioner had multiple prior felony convictions and was appealing his recent conviction for carrying a rifle in violation of 18 U.S.C. § 922(g), the felon-in-possession provision. 524 U.S. at 310-11, 118 S.Ct. 2007. His civil rights had been restored by operation of Massachusetts law, and because more than five years had passed since his conviction, he was entitled to receive a firearms identification card permitting him to own and possess firearms, including handguns. Id. at 313, 316, 118 S.Ct. 2007; Mass. Gen. Laws ch. 140, §§ 129B-29C; ch. 269, § 10(a). Yet because he had been convicted of a felony, he was unable to obtain a license to carry and thus was prevented from being able to lawfully carry a handgun outside of his residence or place of business. See Mass. Gen. Laws ch. 140, §§ 129C, 140; ch. 269, § 10(a). The First Circuit held that Massachusetts's restrictions were sufficient to trigger the "unless clause" and bar him from possessing any firearms under federal law. Caron, 524 U.S. at 311-12, 118 S.Ct. 2007. Petitioner appealed, arguing that the federal statute only prohibited what was already prohibited by state law. Id. at 314, 118 S.Ct. 2007.
The Supreme Court concluded that the phrase "may not ... possess ... firearms" in § 922(g) must be interpreted under an "all-or-nothing" approach. Id. (internal quotation marks omitted). "Either it applies when the State forbids one or more types of firearms, as the Government contends; or it does not apply if state law permits one or more types of firearms, regardless of the one possessed in the particular case." Id. Under the former approach:
Id. at 315, 118 S.Ct. 2007.
The Court held that this approach was the proper one. Id. It determined that Congress's purpose was "to keep guns away from all offenders who, the Federal Government feared, might cause harm, even if those persons were not deemed dangerous by States." Id. Congress had thus adopted "a single, national, protective policy, broader than required by state law." Id. at 316, 118 S.Ct. 2007. The Court concluded that the Massachusetts restriction triggered the "unless clause." When "Massachusetts treats [the convict] as too dangerous to trust with handguns,.... [f]ederal law uses this state finding of dangerousness in forbidding [the convict] to have any guns." Id. at 316-17, 118 S.Ct. 2007.
The issue before us is whether Montana's restriction on Van der hule concealing weapons he is otherwise permitted to carry is a restriction on his right to "possess... firearms." 18 U.S.C. § 921(a)(20).
This difference does not help Van der hule. In one sense Montana does not restrict Van der hule from possessing any firearms. There are no firearms that others may possess in Montana that Van der hule cannot own; indeed, there are no firearms that Van der hule cannot lawfully carry in Montana. Montana does, however, restrict the way in which Van der hule can possess such firearms. Like Massachusetts' restriction in Caron, Montana has effectively imposed a time, place, and manner restriction on Van der hule's right to possess firearms. After Caron, we think that is sufficient to trigger the "unless clause" in § 921(a)(20).
Our determination is consistent with the general definition of "possession." As the Supreme Court has reminded us, "there is no word more ambiguous in its meaning than possession." Nat'l Safe Deposit Co. v. Stead, 232 U.S. 58, 67, 34 S.Ct. 209, 58 L.Ed. 504 (1914). Yet, we have done our best to bring order out of semantic chaos. We have held that possession of a firearm "involves the power to control and the intent to control." United States v. Angelini, 607 F.2d 1305, 1310 (9th Cir. 1979); see also United States v. Vasquez, 654 F.3d 880, 885 (9th Cir.2011) ("`Dominion and control' means [the defendant] had knowledge of the weapons and the power and intent to exercise control over them."). This is consistent with standard definitions of the term. See, e.g., Black's Law Dictionary 1281 (9th ed.2009) ("1. The fact of having or holding property in one's power; the exercise of dominion over property.... 2. The right under which one may exercise control over something to the exclusion of all others...."); id. at 1282 ("[A]ctual possession[—] ... Physical occupancy or control over property."); see also Mont.Code. Ann. § 45-2-101(59) ("`Possession' is the knowing control of
Van der hule argues that the "unless clause" is ambiguous and does not clearly indicate that it covers restrictions on concealed weapons. He asks that we grant him the benefit of the doubt under the rule of lenity. Application of the rule of lenity is reserved "for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to `the language and structure, legislative history, and motivating policies' of the statute." Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (emphasis omitted) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980)). It "applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute." United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994).
In Caron, the Court also addressed a rule of lenity argument based on the "unless clause." The petitioner argued that because the phrase "may not ... possess... firearms" was susceptible to more than one possible construction, such that it could be interpreted to apply only when a state has an absolute ban prohibiting felons from possessing all firearms rather than applying any time a state prohibits possession of even one type of firearm, the "unless clause" should not preclude his possessing a firearm allowed by state law. 524 U.S. at 310, 118 S.Ct. 2007. The Court found this mere "grammatical possibility" insufficient to trigger the rule of lenity because the petitioner's reading was an "implausible reading of the congressional purpose." Id. at 316, 118 S.Ct. 2007.
In this case, it is likewise possible that the phrasing "may not ... possess" would not reach concealment as a mere manner of possession. Yet such a reading of the statute would, as the Court explained in Caron, be implausible in light of Congress' purposes. Montana has imposed firearms restrictions on Van der hule because he is "too dangerous to trust with handguns," unlike someone without a similar criminal history. Id. Although Montana has enacted only a time, place, or manner restriction on Van der hule's possession of handguns, Congress has adopted "a single, national, protective policy, broader than required by state law." Id. After Caron, no reasonable doubt persists about the meaning of the statute.
Van der hule argues in the alternative that § 922(g)(1)'s ban should be analyzed under strict scrutiny and that it unconstitutionally burdens his Second Amendment right to keep and bear arms for personal protection. We addressed whether § 922(g)(1) violates the Second Amendment in United States v. Vongxay,
In light of Chovan and Vongxay, we believe that § 922(g)(1) continues to pass constitutional muster. See Heller, 554 U.S. at 626, 128 S.Ct. 2783 ("[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons...."). Accordingly, Van der hule's Second Amendment argument fails.
Montana's prohibition on Van der hule's obtaining a permit to carry a concealed weapon is a sufficient restriction of his firearm rights to trigger the "unless clause" of 18 U.S.C. § 921(a)(20). He is, accordingly, forbidden to receive or possess a firearm under federal law and that ban does not violate his Second Amendment rights. The judgment of the district court is
The Sixth Circuit has addressed this issue in two post-Caron cases. In the first case, the court suggested that there is a difference between a state law that gives a felon the right to possess only certain types of weapons, as in Caron, and one that gives the felon the right to possess all types of weapons but not the right to conceal them. United States v. Campbell, 256 F.3d 381, 394 n. 9 (6th Cir.2001), abrogated on other grounds by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). However, the court provided no reasoning on this point and ultimately reached its holding on grounds other than whether a restriction on concealment triggers the "unless clause." More recently, the Sixth Circuit reviewed the case of a defendant who had been convicted of misdemeanor domestic violence. United States v. Sanford, 707 F.3d 594 (6th Cir.2012). The defendant was ineligible under Michigan law for a concealed weapons permit, and the court found that his inability to obtain the permit burdened his ability to "transport firearms, even when unconcealed in a vehicle." Id. at 598 (emphasis omitted) (citing § 921(a)(33)). Applying Caron, it held that his "ineligibility for a concealed weapons permit trigger[ed] the `unless clause' and permit[ed] his indictment for firearm possession in violation of § 922(g)(9)." Id.