US v. Samuel Robert Hosford

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:13-cr-00550-DKC-1. [999981187]. [15-4284]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4284

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL ROBERT HOSFORD,
Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00550-DKC-1)
Argued:

September 23, 2016

Decided:

December 6, 2016

Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit
Judges.
Affirmed by published opinion.
Chief Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Diaz joined.
ARGUED:
Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Dana Jill Brusca,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
ON BRIEF:
James Wyda, Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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GREGORY, Chief Judge:
In 2013, Mr. Samuel Hosford was indicted under 18 U.S.C.
§ 922 for unlicensed dealing in firearms and conspiracy to deal
firearms without a license.

He moved to dismiss the indictment

on constitutional grounds.

Specifically, he argued that the

indictment

violated

his

Second

Amendment

right

to

engage

in

intrastate firearm sales between non-prohibited persons; the Due
Process Clause of the Fifth Amendment for vagueness; and the
Commerce

Clause.

The

district

court

denied

his

motion,

and

Hosford timely appealed.
“We

review

the

district

court’s

factual

findings

on

a

motion to dismiss an indictment for clear error, but we review
its legal conclusions de novo.”
F.3d

166,

171

(4th

Cir.

2014)

United States v. Perry, 757
(quoting

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005)).

United

States

v.

We hold that the

prohibition against unlicensed firearm dealing comports with the
Second and Fifth Amendments both facially and as applied.

It is

also a valid exercise of congressional power under the Commerce
Clause.

Accordingly, we affirm the district court’s denial of

Hosford’s motion to dismiss his indictment.

2

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I.
Hosford, a resident of Montgomery County, Maryland, sold
firearms to an individual he met in a public parking lot five
times

over

reason

to

the

course

believe

of

that

purchaser,

but

he

also

individual

was

a

valid

two-and-a-half
the

took

individual
no

measures

purchaser.

for

one

count

of

was
to

He
a

ensure

Unbeknownst

individual was an undercover officer.
indicted

months.

to

had

no

prohibited
that

the

him,

the

Hosford was arrested and

conspiracy

and

five

counts

of

unlicensed firearm dealing.
According to the facts agreed to in his conditional plea
agreement, Hosford conspired with another man, Henry Parrott, to
sell firearms.

Parrott purchased firearms from gun shows and

delivered them to Hosford.
the undercover officer.

Hosford then sold these firearms to
Over five transactions, Hosford sold

the officer eight guns and intended to sell another four guns
before he was arrested.
Hosford moved to dismiss his indictment as unconstitutional
under

the

Second

Amendment,

Due

Amendment, and Commerce Clause.
the indictment was constitutional.

Process

Clause

of

the

Fifth

The district court held that
Hosford then pleaded guilty,

conditioned on the outcome of this appeal about the statute’s
constitutionality.
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II.
Hosford was indicted under the Gun Control Act of 1968, 18
U.S.C.

§ 921

et

seq.,

which

prohibits

individuals

without

a

license from regularly selling, for the predominant purpose of
gaining profit, firearms that are not part of their personal
collection

or

for

their

challenges

on

Second

hobby.

Amendment

Because
and

Hosford’s

vagueness

motion

grounds

the

constitutionality of this prohibition, we first more carefully
review

the

statutes

at

issue,

as

well

as

the

burdens

and

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

manufacturer,

or

licensed

dealer,

to

engage

in

the

business of importing, manufacturing, or dealing in firearms.”
18 U.S.C. § 922(a)(1)(A).
18 U.S.C. § 921 lays out the relevant definitions for this
prohibition.

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

in the business of selling firearms at wholesale or retail.”
U.S.C. § 921(11)(A).
obtained
firearms.

a

federal
Id.

And

18

A licensed dealer is a dealer who has
license
under

to

commercially

clarifying

buy

statutory

and

sell

definitions

passed in 1986, “[e]ngaged in the business” means “a person who
devotes time, attention, and labor to dealing in firearms as a
regular course of trade or business with the principal objective
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of livelihood and profit through the repetitive purchase and
resale of firearms.”

18 U.S.C. § 921(21)(C); see also Firearm

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

“with

means

that

the

principal

the

intent

objective

of

the

of

sale

livelihood

“is

and

profit”

predominantly

one

of

obtaining livelihood and pecuniary gain,” as opposed to other
intents

like

decreasing

collection.

18

or

U.S.C.

increasing

§ 921(22).

one’s
But

personal
these

firearm

definitions

explicitly exempt anyone “who makes occasional sales, exchanges,
or

purchases

of

firearms

for

the

enhancement

of

a

personal

collection or for a hobby, or who sells all or part of his
personal collection of firearms.”

18 U.S.C. § 921(21)(C).

To obtain a license, a prospective firearms dealer must
submit an application, be at least twenty-one years old, pay a
fee, and establish lawful premises for selling firearms.
U.S.C. § 923(a), (d).
is

otherwise

legally

If the applicant fulfills these steps and
able

to

possess,

firearms, the application must be approved.
Licensed

dealers

18

are

subject

conducting personal sales are not.

to

transport,

and

ship

18 U.S.C. § 923(d).

regulations

that

those

For example, the Attorney

General may require licensed dealers to maintain importation,
production,

shipment,

and

other

kinds

of

records,

18

U.S.C.

§ 923(g)(1)(A), and may inspect a dealer’s inventory or records
5

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without

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reasonable

cause

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for

a

warrant,

subject

to

other

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

III.
We first review Hosford’s Second Amendment challenges.

“A

well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed.”

U.S. Const. amend. II.

For centuries, the

Second Amendment received minimal judicial interpretation.
Then,

in

District

of

Columbia

v.

Heller,

554

U.S.

570

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

an

individual

“right

of

law-abiding,

responsible

citizens to use arms in defense of hearth and home.”
635.

Id. at

The Court held unconstitutional the District of Columbia’s

ban on possession of handguns in the home and its requirement
that

all

firearms

in

the

home

be

stored

in

a

rendered them inoperable for immediate self-defense.

manner

that

Id.

But the Court underscored that Heller was not meant “to
clarify
Id.

the

entire

field”

of

Second

Amendment

jurisprudence.

It further emphasized that Heller should not “be taken to

cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and
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government

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buildings,

or

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laws

imposing

conditions

qualifications on the commercial sale of arms.”

and

Id. at 626-27.

In a footnote, the Court identified these kinds of prohibitions
as “presumptively lawful regulatory measures.”
Since

Heller,

courts

have

endeavored

Id. at 627 n.26.
to

establish

what

conduct the Second Amendment protects and what burdens on that
conduct are constitutionally justifiable.
has

adopted

challenges.

a

two-pronged

inquiry

The Fourth Circuit

for

Second

Amendment

First, the court must ask “whether the challenged

law imposes a burden on conduct falling within the scope of the
Second Amendment’s guarantee.”
F.3d

673,

680

(4th

Cir.

United States v. Chester, 628

2010)

(quoting

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)).

United

States

v.

If it does not,

then the law comports with the Second Amendment.

But if the

challenged regulation does burden conduct within the scope of
the Second Amendment as historically understood, the court must
apply “an appropriate form of means-end scrutiny.”

Id. at 680.

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

We consider each in turn.
A.

We first examine Hosford’s facial challenge.

To succeed in

a facial constitutional challenge, a movant “must establish that
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no set of circumstances exists under which the Act would be
valid.”

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

Because

of

this

stringent

standard,

a

facial

challenge

is

perhaps “the most difficult challenge to mount successfully.”
Id.

And while courts generally engage in the above-mentioned

two-pronged analysis for facial Second Amendment challenges, our
precedent

simplifies

that

analysis

for

prohibitions

deemed

“presumptively lawful” in Heller.
In United States v. Moore, 666 F.3d 313 (4th Cir. 2012),
this Court found the federal prohibition against possession of
firearms

by

felons

facially

constitutional

because

identified in Heller as presumptively lawful.

it

was

Id. at 318-19.

According to this Court, the Supreme Court’s identification of
“longstanding
felons”

as

prohibitions

on

presumptively

the

lawful

applicable two-pronged analysis.
to

us

whether

Heller

was

possession

of

“streamlined”
Id. at 317-18.

suggesting

that

firearms

the

by

otherwise-

“It is unclear
‘longstanding

prohibitions’ such as these . . . were historically understood
to be valid limitations on the right to bear arms or did not
violate the Second Amendment for some other reason.”

Id. at 318

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

at

91.

But

either

reasoning

demonstrated

that

these

presumptively lawful prohibitions were facially constitutional,
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because they could be constitutionally applied.

Moore, 666 F.3d

at 318-19.
The

same

reasoning

applies

here.

Hosford’s

facial

challenge fails if the prohibition against unlicensed firearm
dealing is the type of regulation deemed “presumptively lawful”
in Heller.

There may be debate as to whether the Supreme Court

called presumptively lawful all “laws imposing conditions and
qualifications

on

the

commercial

sale

of

arms,”

or

only

“longstanding . . . laws imposing conditions and qualifications
on the commercial sale of arms.”
But

we

need

not

parse

that

Heller, 554 U.S. at 626-27.

language

here:

the

prohibition

against unlicensed firearm dealing is a longstanding condition
or qualification on the commercial sale of arms and is thus
facially constitutional.
First, the regulation covers only the commercial sale of
firearms.

It affects only those who regularly sell firearms,

not owned for personal use, in the course of trade or business
for the principal purpose of profit.

It explicitly excludes the

vast majority of noncommercial sales, such as sales from one’s
own personal collection, sales meant to enhance one’s hobby, and
infrequent sales or exchanges.
Second,
qualification.

the

regulation
Though

imposes

framed
9

as

a
a

mere

condition

prohibition

or

against

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unlicensed firearm dealing, the law is in fact a requirement
that those who engage in the commercial sale of firearms obtain
a license.

A prospective dealer who wishes to obtain a license

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

pay

a

firearms.

fee,

and

establish

lawful

18 U.S.C. § 923(a), (d).

procedure

nor

the

fee

are

so

premises

for

selling

Neither the application

prohibitive

as

to

turn

this

condition or qualification into a functional prohibition.

Cf.

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

2d

928,

ordinances
city

938-939

allowing

limits

were

a

(N.D.

firearm

Ill.

sales

functional

2014)
and

ban

(finding

transfers

on

firearm

that

only

city

outside

acquisition);

Teixeira v. County of Alameda, 822 F.3d 1047 (9th Cir. 2016)
(noting that if no unincorporated area of county qualifies under
zoning requirement that firearm retailers must be 500 feet from
certain establishments, zoning requirement may be functional ban
on firearm stores).
And

lastly,

this

prohibition

dealing is longstanding.

against

unlicensed

firearm

Federal appellate courts have only

recently begun to establish how old a firearm regulation must be
to

be

longstanding.

And

no

court

has

previously

whether the prohibition at issue here is longstanding.

examined
But a

review of similar cases establishes that the prohibition against
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unlicensed

Filed: 12/06/2016

firearm

dealing

Pg: 11 of 26

is

of

similar

age

to

other

longstanding firearm regulations, and is thus also longstanding.
The Third Circuit found New Jersey’s permit requirement for
possessing handguns “longstanding”; New Jersey established its
permit requirement in 1966 and first required permits for only
concealable handguns in 1924.
(3d Cir. 2013).

Drake v. Filko, 724 F.3d 426, 432

The D.C. Circuit noted that the U.S. Supreme

Court found prohibitions on the possession of firearms by felons
to

be

longstanding

“although

states

did

not

start

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

to

enact

Heller v.

District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011); see
also C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32
Harv. J.L. & Pub. Pol’y 695, 708 (2009) (noting that bans on
possession of firearms by felons not passed in any state other
than

New

York

until

1923,

and

not

passed

in

states

constitutional right-to-arms provisions until 1925).

with

And the

D.C. Circuit found that Washington, D.C.’s handgun-registration
requirement, first passed in 1975, was longstanding, even though
some states first regulated the possession of handguns in 1927
or 1932, and those laws required less of the purchaser.

See

Heller, 670 F.3d at 1254; see also, e.g., 47 Stat. 650, 652
(1932) (requiring purchasers of pistols in District of Columbia

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to

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give

seller

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basic

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personal

identifying

information);

1927

Haw. Sess. Laws 209, 211 (same).
Licensing requirements for dealers have been around for as
long as these laws, if not longer.

The federal government first

required dealers to obtain licenses in 1938, nearly eighty years
ago.

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

1250 (1938) (repealed 1968) (replaced with Gun Control Act of
1968, Pub. L. 90-618, 82 Stat. 1213).
licenses for dealers even earlier. 1
of

the

law

at

issue

was

passed

And some states required

Thus, the federal progenitor
decades

before

the

handgun-

licensing requirements examined by the Third Circuit and D.C.
Circuit.

And licensing requirements on dealers have existed at

least as long as regulations on the possession of handguns.
For

these

reasons,

the

prohibition

against

unlicensed

firearm dealing is a longstanding condition or qualification on
the commercial sale of firearms.

As a result, Hosford’s facial

Second Amendment challenge fails.
B.
Even if a statute is facially constitutional, “the phrase
‘presumptively

lawful

regulatory

1

measures’

suggests

the

See, e.g., 47 Stat. 650, 652 (1932) (District of Columbia
established licensing requirement in 1932); 1927 Haw. Sess. Laws
209, 211 (Hawaii established licensing requirement in 1927).

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possibility that one or more of these ‘longstanding’ regulations
‘could

be

unconstitutional

challenge.”

in

the

face

of

an

as-applied

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

Williams, 616 F.3d 685, 692 (7th Cir. 2010)).

We thus now turn

to Hosford’s as-applied challenge.
As stated above, this Court has established a two-pronged
analysis

for

Second

Amendment

challenges:

“whether

the

challenged law imposes a burden on conduct falling within the
scope of the Second Amendment’s guarantee,” and if so, whether
the challenged law survives “an appropriate form of means-end
scrutiny.”

Chester, 628 F.3d at 680.

But even when applying

this analysis, we are at liberty to assume that a challenged
statute burdens conduct protected by the Second Amendment and
focus

instead

justifiable.

on

whether

the

burden

is

constitutionally

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

2013) (“[W]e are not obliged to impart a definitive ruling at
the first step of the Chester inquiry.

And indeed, we and other

courts of appeals have sometimes deemed it prudent to instead
resolve post-Heller challenges to firearm prohibitions at the
second

step”).

Because

we

can

resolve

the

statute’s

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

in

this

case

to

assume,

13

without

holding,

that

the

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federal prohibition against unlicensed firearm dealing burdens
conduct protected by the Second Amendment.
1.
We first must determine what level of scrutiny applies.
The right to bear arms, after all, “is not unlimited.”
554

U.S.

at

626.

Even

as

historically

and

Heller,

traditionally

understood, law-abiding citizens do not have the “right to keep
and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.”

Id.

In United States v. Masciandaro, 638 F.3d 458 (4th Cir.
2011),

this

Amendment

Court

conduct

held
receive

that

laws

strict

burdening

scrutiny,

burdens receive only intermediate scrutiny.
noted

that

core

Second

Amendment

“core”

while

Second

less

severe

Id. at 471.

conduct

includes

We
the

“fundamental right to possess firearms for self-defense within
the home.

But a considerable degree of uncertainty remains as

to the scope of that right beyond the home . . . .”

Id. at 467.

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

limited,

because

public

safety

individual interests in self defense.”

interests

often

Id. at 470.

outweigh

Thus, “less

severe burdens on the right, laws that merely regulate rather
than restrict, and laws that do not implicate the central self-

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defense

Filed: 12/06/2016

concern

justified.”

of

the

Second

Pg: 15 of 26

Amendment,

may

be

more

easily

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

Here, even assuming that the prohibition implicates conduct
protected

by

the

Second

Amendment,

the

prohibition

does

not

touch on the Second Amendment’s core protections.

Individuals

remain free to possess firearms for self-defense.

Individuals

also

remain

personal,

free

to

purchase

self-defensive

or

use.

sell

The

firearms

law

owned

merely

for

imposes

a

licensing requirement on those who wish to profit by regularly
selling

firearms

outside

serves,

not

a

as

qualification.

The

of

their

prohibition,
law,

personal
but

therefore,

as

collection;

it

condition

or

a

regulates

rather

than

restricts, addresses only conduct occurring outside the home,
and does not touch on self-defense concerns.

It is thus subject

to intermediate scrutiny.
2.
To satisfy intermediate scrutiny, the government must show
that

“there

is

a

‘reasonable

fit’

between

the

challenged

regulation and a ‘substantial’ government objective.”

Chester,

628 F.3d at 683 (quoting Bd. of Trs. of State Univ. of N.Y. v.
Fox, 492 U.S. 469, 480 (1989)).
The government enacted the prohibition against unlicensed
firearm

dealing,

alongside

myriad
15

other

firearm

regulations,

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because

Filed: 12/06/2016

“the

ease

with

Pg: 16 of 26

which

firearms

could

be

obtained

contributed significantly to the prevalence of lawlessness and
violent

crime

in

the

United

States.”

Huddleston

v.

United

States, 415 U.S. 814, 824 (1974) (citing S. Rep. No. 90-1097, at
2198

(1968)).

The

government’s

interest

is,

therefore,

“to

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

entitled

to

possess

them

background, or incompetency.’”

because

of

age,

criminal

Id.

Such interests in public safety and preventing crime are
indisputably substantial governmental interests.
712

F.3d

at

reasonable

877.
fit

The

question

between

the

then

is

See Woollard,

whether

prohibition

there

against

is

a

unlicensed

firearm dealing and the government’s objectives.
The requirement that firearm dealers——those who regularly
engage in the business of selling firearms——obtain licenses is a
crucial part of the federal firearm regulatory scheme.
dealers

are

subject

governmental

oversight

§ 923(g)(1).

By

to
than

more

stringent

private

subjecting

sellers.

firearm

Licensed

regulations
See

dealers

18

to

and

U.S.C.
routine

inspections, which require neither a warrant nor probable cause,
the government has more opportunities to ensure compliance with
laws that have demonstrated effects on reducing gun violence.

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For example, prohibiting those under a restraining order
for domestic violence from possessing firearms correlates to a
statistically
homicides.

significant

decrease

in

intimate

partner

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

Restricting Access to Firearms By Domestic Violence Offenders
Prevent

Intimate

(2006).

Partner

Homicide?,

30

Eval.

Rev.

313,

332

And restricting these individuals’ access to firearms

by prohibiting their purchase of firearms, rather than merely
their possession, is significantly more effective.

Id. at 333.

Requiring

as

sellers

to

conduct

background

checks,

licensed

firearms dealers must do under federal law, also significantly
reduces

prohibited

Katherine

A.

purchasers’

Vittes

et

al.,

access
Legal

to
Status

firearms.
and

See

Source

of

Offenders’ Firearms in States with the Least Stringent Criteria
for Gun Ownership, 19 Injury Prevention 26, 29 (2013).

Indeed,

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

firearms

dealer,

in

background-check requirement.
against

the

unlicensed

large

part

Id. at 30.

dealing

of

because

of

the

Without a prohibition

firearms,

individuals

who

regularly engage in the business of selling firearms for profit
would

have

no

incentive

to

obtain

themselves to these requirements.

17

a

license

and

subject

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Despite Hosford’s protestations, this prohibition against
the unlicensed dealing of firearms is not “a broad prohibition,
applying

to

the

entire

law-abiding

population,

that

substantially burdens conduct that goes to the core of rights
secured under the Second Amendment.”

Appellant Br. at 29.

Nor

does this prohibition impermissibly implicate “the right of a
non-prohibited person to engage in the private, intrastate sale
of

firearms

such

a

to

right

protections.

another

is

non-prohibited

countenanced

in

the

Appellant Br. at 12.

person,”
Second

even

assuming

Amendment’s

core

Individuals are free to sell

firearms from their personal collection, to sell firearms only
occasionally, and to sell firearms commercially with a license.
This prohibition is a narrowly delineated, reasonable fit to
further

Congress’s

crime prevention:
regularly

sell

collection

or

accruing

important

profit.

in

public

safety

and

it affects only those select individuals who

firearms
for

objectives

they

their
And

do

hobby,
it

is

not
for

a

personally
the

own

principle

necessary

in

their

purpose

component

to

of
the

effectiveness of federal firearm regulations.
Moreover,

nothing

about

analysis as applied to him.
occasions,

he

sold

to

an

Hosford’s

situation

changes

this

Over the course of five separate
unknown

individual

firearms that he purchased hours before.
18

nearly

a

dozen

A grand jury indicted

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Hosford

for

Filed: 12/06/2016

the

unlawful,

Pg: 19 of 26

regular

sale

of

firearms

for

the

principal purpose of profit, where the firearms were not part of
his personal collection or for his hobby.

And Hosford does not

contest that his conduct violated the statute.
Applying
“core”

the

federal

constitutional

scrutiny

remains

prohibition

right,

so

appropriate.

to

Hosford

applying
His

brief

only

affects

no

intermediate

possession

of

the

firearms he sold had no connection to the long-held right to
self-defense; he did not purchase or own them for that purpose.
His indictment does not implicate his right to keep firearms in
his home.

Indeed, any attempt to characterize Mr. Hosford’s

conduct as “core” Second Amendment conduct, thus deserving of
higher scrutiny, goes merely to whether Mr. Hosford was guilty
of

the

crime.

If

he

were

a

hobbyist,

sold

firearms

only

occasionally, or sold firearms from his personal collection, he
may argue——assuming he were even indicted——that his core Second
Amendment

conduct

was

implicated.

But

that

hypothetical

the

government’s

scenario is not at issue here.
And

in

applying

intermediate

scrutiny,

interests in the law generally also justify applying the law to
Hosford.

to

an

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

He

kept

no

no

Hosford

record

of

sold

the

firearms

firearms
19

on

he

multiple

sold.

occasions

He

conducted

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background

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check.

He

did

not

Pg: 20 of 26

know

whether

the

buyer

was

prohibited, and took no steps to ensure that the buyer could
legally purchase firearms.

His actions are the exact kind of

unlicensed firearm dealing that Congress feared when passing the
licensing requirement as an attempt to stymie the unregulated
flow of firearms to prohibited purchasers.

For these reasons,

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

IV.
Hosford next argues that the federal prohibition against
unlicensed firearm dealing is void for vagueness, both facially
and

as

applied.

“[T]he

void-for-vagueness

doctrine

requires

that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.”

Kolender v. Lawson, 461 U.S. 352,

357 (1983).
Yet

“[a]

plaintiff

who

engages

in

some

conduct

that

is

clearly proscribed cannot complain of the vagueness of the law
as applied to the conduct of others.”

Holder v. Humanitarian

Law Project, 561 U.S. 1, 18-19 (2010) (quoting Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
(1982)).

Thus,

if

a

law

clearly
20

prohibits

a

defendant’s

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conduct,

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the

defendant

cannot

Pg: 21 of 26

challenge,

and

a

court

cannot

examine, whether the law may be vague for other hypothetical
defendants.

Because the prohibition against unlicensed firearm

dealing is not vague as applied to Hosford, both his as-applied
and facial challenges fail. 2
In

1975,

this

Court

upheld

the

pre-1986,

prohibition against unlicensed firearm dealing.

less

specific

United States

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

At the

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

of

selling

firearms

or

ammunition

at

retail,” but did not define what “business” meant.
81.

wholesale

or

See id. at

The defendant “engaged in more than a dozen transactions in

the course of a few months.

He frequently built firearms, or

had them rebuilt, and exchanged them for other weapons which he
subsequently sold or traded.

There was also evidence that he

2

Hosford argues that his facial vagueness challenge should
be heard even if the claim is not vague as applied to him,
because the statute may nonetheless “chill constitutionallyprotected activity.”
Appellant Br. at 40.
But his argument
confuses a due-process vagueness challenge with a First
Amendment overbreadth challenge.
Because Hosford has not
alleged an overbreadth claim, we decline to address it.
3

Hosford alleges that Huffman is not persuasive because it
was decided pre-Heller.
But Heller’s recognition of an
individual right to keep and bear arms has no bearing on whether
a statute is vague as a matter of due process.

21

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Pg: 22 of 26

traded large quantities of military ammunition for firearms.”
Id.

This Court held that the statute was not vague as applied

to the defendant.

Id.

Here, the prohibition against unlicensed firearm dealing is
much narrower and clearer:

it regulates only individuals who

regularly sell, for the principal purpose of accruing profit or
maintaining a livelihood, firearms that are not part of their
personal collection or for their hobby.

And like the defendant

in Huffman, Hosford engaged in transactions that resulted in the
sale or attempted sale of a dozen weapons over the course of a
few months.

Indeed, Hosford’s conduct may be even more clearly

commercial than that of the defendant in Huffman.
the

defendant

both

traded

and

built

firearms,

In Huffman,
which

could

possibly imply that he had a hobby; Hosford resold for profit
weapons he purchased a few hours earlier.
narrower

and

more

clarifying

statute

to

Thus, applying the
Hosford’s

similarly

commercial sale of firearms is not unconstitutionally vague.
Hosford argues that the statute is unclear as to whether
someone is a “dealer” or “collector,” and whether someone sells
the guns for profit or as a mere hobby.

Appellant Br. at 48.

But statutes necessarily have some ambiguity, as no standard can
be

distilled

standard.

to

a

purely

objective,

completely

predictable

“[T]he law is full of instances where a man’s fate
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depends on his estimating rightly . . . some matter of degree.”
Johnson v. United States, 135 S. Ct. 2551, 2561 (2015) (quoting
Nash v. United States, 229 U.S. 373, 377 (1913)).

And where, as

here, the statute clearly gave notice to Hosford that he ought
not to regularly sell firearms that he only purchased and resold
for profit——firearms not acquired for the purpose of a personal
collection
applied

or

for

vagueness

the

hobby

challenge

of

collecting

fails.

As

firearms——his

a

result,

as-

Hosford’s

facial challenge also fails.

V.
Lastly,

Hosford

argues

that

the

prohibition

against

unlicensed firearm dealing is not a valid exercise of Congress’s
power under the Commerce Clause.

The Commerce Clause allows

Congress to regulate (1) the channels of interstate commerce;
(2) the instrumentalities of interstate commerce, and persons or
things

in

interstate

commerce;

and

(3)

“substantially affect” interstate commerce.
545

U.S.

1,

16-17

(2005).

We

join

our

activities

that

Gonzales v. Raich,
sister

circuits

in

holding that the prohibition against unlicensed firearm dealing
is

a

valid

Clause.

exercise

of

Congress’s

power

under

the

Commerce

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

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1973); United States v. Hornbeck, 489 F.2d 1325 (7th Cir. 1973)
(per curiam).
In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court
upheld the federal Controlled Substances Act’s application to
individuals who grew and consumed marijuana for personal use.
See id. at 7.

Those individuals cultivated their own marijuana

or received marijuana for free from caregivers.
purchase

or

sell

marijuana

interstate or intrastate.
Despite
activity,
effect

the

the

on

interstate

cultivating,

for

marijuana

products,

either

Id. at 7.

intrastate

Supreme

or

They did not

Court

and

noncommercial

held

that

commerce.

themselves,

a

it
The

fungible

had

nature
a

the

substantial

individuals

commodity

there was an established interstate market.

of

for

were
which

Id. at 18.

The

purpose of the Controlled Substances Act was to “control the
supply and demand of controlled substances in both lawful and
unlawful drug markets.”

Id. at 19.

Congress had a “rational

basis for believing that leaving home-consumed marijuana outside
federal control would . . . affect price and market conditions.”
Id.

And

lastly,

the

growing

demand

for

marijuana

in

the

interstate market could draw in-state, homegrown marijuana into
the interstate market, thus frustrating Congress’s purposes if
left unregulated.

Id.
24

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More

so

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than

the

Pg: 25 of 26

respondents

in

Gonzales,

Hosford——just

like similar individuals who would be indicted under this law——
engaged in commercial, inter-personal conduct.
resold

firearms,

a

fungible

commodity

for

He purchased and

which

there

established interstate market, to unknown individuals.
the

market

believe

for

that

marijuana,

leaving

Congress

intrastate

has

a

firearm

rational
markets

is

an

And like
basis

to

unregulated

would affect the interstate market or draw firearms purchased
intrastate
indicates

into
that

the

interstate

firearms

found

market.

illegally

Indeed,
in

one

traced back to legal purchases in other states.

research

state

may

be

See Steven G.

Brandl & Meghan S. Stroshine, The Relationship Between Gun and
Gun Buyer Characteristics and Firearm Time-to-Crime, 22 Crim. J.
Pol’y Rev. 285, 287 (2011) (noting that all firearms begin on
legal

market);

Characteristics

Glenn
and

L.

Pierce

Dynamics

of

et

al.,

Illegal

Research

Firearms

Note,

Markets:

Implications for a Supply-Side Enforcement Strategy, 21 Just. Q.
391, 401 (2004) (finding that 35% of illegally possessed and
traced firearms originated from different state).
such

as

New

strictest,

York

the

vast

or

Boston,

majority

originated out of state.

where
of

firearm

illegally

And in cities

regulations

possessed

are

firearms

Brandl, supra at 289 (New York and

Boston have strict regulations); Pierce, supra at 401 (finding
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that, of firearms traced, 82.6% of firearms recovered in New
York originated out of state, and 66.4% of firearms recovered in
Boston

originated

commercial
Congress’s

out

sale

of

purpose

to

of

state).

firearms
police

Leaving

unregulated

the

interstate

the

intrastate,

would

frustrate

firearms

market.

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

sales,

constitutionally

implicates
regulated

interstate

by

Congress

commerce
under

and
the

may

be

Commerce

Clause.

VI.
For these reasons, the district court’s decision not to
dismiss Mr. Hosford’s indictment is
AFFIRMED.

26