Frank Van der hule v. Eric Holder, Jr.

Filing

FILED OPINION (WILLIAM A. FLETCHER, RAYMOND C. FISHER and JAY S. BYBEE) 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 AFFIRMED. Judge: WAF , Judge: RCF , Judge: JSB Authoring. FILED AND ENTERED JUDGMENT. [9170612]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FRANK S. VAN DER HULE,
Plaintiff-Appellant,
v.
ERIC H. HOLDER, JR., Attorney
General,
Defendant-Appellee.

No. 09-36008
D.C. No.
9:05-cv-00190DWM

OPINION

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 7, 2012
Withdrawn November 2, 2012
Resubmitted July 9, 2014
Portland, Oregon
Filed July 16, 2014
Before: William A. Fletcher, Raymond C. Fisher,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee

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VAN DER HULE V. HOLDER
SUMMARY*

Second Amendment / Firearms
The panel affirmed the district court’s judgment in favor
of the Attorney General of the United States in an action for
declaratory relief brought by Frank Van der hule, a former
felon whose civil rights were automatically restored under
Montana law, seeking approval of a proposed firearm
purchase.
The panel held that Montana’s prohibition on Van der
hule’s obtaining a permit to carry a concealed weapon was a
sufficient restriction of his firearm rights to trigger the
“unless clause” of 18 U.S.C. § 921(a)(20). The panel also
held that Van der hule was forbidden to receive or possess a
firearm under federal law, and that ban did not violate his
Second Amendment rights.

COUNSEL
Quentin M. Rhoades (argued) and Robert Erickson, Sullivan,
Tabaracci & Rhoades, Missoula, Montana, for PlaintiffAppellant.
Adam C. Jed (argued), Assistant United States Attorney;
Tony West, Assistant Attorney General; Michael W. Cotter,
United States Attorney; Mark B. Stern, Michael S. Raab, and
Abby C. Wright, Attorneys, United States Department of
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Justice, Civil Division, Washington, D.C., for DefendantAppellee.

OPINION
BYBEE, Circuit Judge:
In this case we address two issues: (1) Whether Frank
Van der hule, who is prohibited under Montana law from
receiving a concealed weapons permit, is therefore prohibited
under 18 U.S.C. § 922(g)(1) from possessing any firearms,
see Caron v. United States, 524 U.S. 308 (1998); and
(2) assuming he is barred by federal law, whether such
restriction violates Van der hule’s rights under the Second
Amendment to the U.S. Constitution, see Dist. of Columbia
v. Heller, 554 U.S. 570 (2008). We hold that Van der hule is
barred by federal law from possessing a firearm and that such
ban does not violate his Second Amendment rights. We
affirm the judgment of the district court.
I
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

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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

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permit. Van der hule v. Mukasey, 217 P.3d 1019, 1022
(Mont. 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 federal constitutional right
to possess a firearm. Van der hule filed this appeal.1
II
A. The Statutory Scheme
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:
It shall be unlawful for any person—

1

We review a district court’s grant of summary judgment de novo.
Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc).

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(1) 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.

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 (1983); see Lewis v. United States, 445
U.S. 55, 62–65 (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,”
[should] be determined in accordance with the
law of the jurisdiction in which the
proceedings were held. Any conviction which
has been expunged, or set aside or for which
a person has been pardoned or has had civil
rights restored shall not be considered a

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conviction for purposes of this chapter, unless
such pardon, expungement, or restoration of
civil rights expressly provides that the person
may not ship, transport, possess, or receive
firearms.
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:
1. Use state law to determine whether the
defendant has a “conviction.” If not, the
defendant is not guilty. If so, go to step 2.
2. Determine whether the conviction was
expunged, set aside, the defendant was
pardoned, or the defendant’s civil rights were
restored. If not, the conviction stands. If so,
go to step 3.
3. Determine whether the pardon,
expung[e]ment, or restoration of civil rights
expressly provides that the defendant may not
ship, transport, possess, or receive firearms.
If so, the conviction stands. If not, the
defendant is not guilty.
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

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year.” It is also uncontested that Van der hule has had his
civil rights restored by automatic operation of state law. See
Mont. Const. art. II, § 28(2); Mont. Code Ann. § 46-18801(2); Caron , 524 U.S. at 312–13. The dispute arises at the
third step, with the parties contesting whether Montana’s
concealed weapons statute triggers the “unless clause.”
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. §§ 45-8315, -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

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applicant qualifies under the statute. Id. § 45-8-321(1). The
statute describing the permit provides that this
privilege may not be denied an applicant
unless the applicant . . .
has been convicted in any state or federal
court of:
(i) a crime punishable by more than 1 year
of incarceration; or
(ii) regardless of the sentence that may be
imposed, a crime that includes as an
element of the crime an act, attempted act,
or threat of intentional homicide, serious
bodily harm, unlawful restraint, sexual
abuse, or sexual intercourse or contact
without consent.
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

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weapon,2 which in turn restricts him from concealing a
handgun in certain locations.
The issue is whether this prohibition on carrying a
concealed weapon in certain locations is a restriction that
triggers the “unless clause” in 18 U.S.C. § 921(a)(20). We
now turn to that question.
B. The Supreme Court and the “Unless Clause”
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. 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; 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,

2

Although both subsections (i) and (ii) of Montana Code Annotated
§ 45-8-321(1)(c) preclude Van der hule from obtaining a concealed
weapons permit, after the Montana Supreme Court’s opinion, the statute
was amended and his restriction would now be removed if he had not been
convicted of a crime described in § 45-8-321(1)(c)(ii). Mont. Code Ann.
§ 45-8-321(6) (“A person, except a person referred to in subsection
(1)(c)(ii), who has been convicted of a felony and whose rights have been
restored pursuant to Article II, section 28, of the Montana constitution is
entitled to issuance of a concealed weapons permit if otherwise eligible.”).

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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. Petitioner
appealed, arguing that the federal statute only prohibited what
was already prohibited by state law. Id. at 314.
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:
[A] state weapons limitation on an offender
activates the uniform federal ban on
possessing any firearms at all. This is so even
if the guns the offender possessed were ones
the State permitted him to have. The State has
singled out the offender as more dangerous
than law-abiding citizens, and federal law
uses this determination to impose its own
broader stricture.
Id. at 315.
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

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state law.” Id. at 316. 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.
C. Montana’s Restriction on Possession
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).3 Montana’s restriction differs from

3

Only two other circuits have addressed the issue—one pre-Caron and
one post-Caron. In a pre-Caron case, the First Circuit observed that a
Maine statute that permitted a felon to carry a firearm five years after
discharge of his sentence but would not permit him to carry a concealed
weapon acted as “an explicit restraint on a felon’s ability to possess a
firearm.” United States v. Sullivan, 98 F.3d 686, 689 & n.2 (1st Cir. 1996).
This observation was in dicta because the defendant was not yet eligible
for a carry permit; the court may have relied on his being prohibited from
carrying all firearms.
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 (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

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Massachusetts’ restriction at issue in Caron in an important
regard. Massachusetts permitted Caron to own firearms,
including rifles, shotguns, and handguns, but he could not
carry the handguns outside of his home or business. Van der
hule, by contrast, may carry any firearms Montana permits
others to carry; he is restricted, however, in that he is barred
from obtaining a permit to carry concealed handguns.
Montana’s scheme is thus less restrictive than
Massachusetts’.
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
(1914). Yet, we have done our best to bring order out of

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.

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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. § 452-101(59) (“‘Possession’ is the knowing control of anything
for a sufficient time to be able to terminate control.”). Van
der hule is more limited in the control he may exercise over
a handgun than a person with a permit to carry a concealed
handgun is because he may not place one underneath his
clothing or continue to carry it if his clothing obscures the
handgun. Quite simply, there are restrictions on the ways he
may use a handgun that do not apply to others who lack a
similar criminal history. These restrictions limit Van der
hule’s ability to possess a handgun and bring him within the
“unless clause” in § 921(a)(20). Accord Sanford, 707 F.3d at
598.
III
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

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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 (1990) (emphasis omitted) (quoting
Bifulco v. United States, 447 U.S. 381, 387 (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 (1994).4
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. 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.
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

4

Although the interpretation of the statute occurs here in the context of
Van der hule’s declaratory judgment action, because we are construing a
criminal statute, the rule of lenity is still applicable. See Leocal v.
Ashcroft, 543 U.S. 1, 11 n.8 (2004).

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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.
IV
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, 594 F.3d 1111 (9th Cir. 2010) and
determined that it did not. Id. at 1118; see also United States
v. Williams, 616 F.3d 685, 694 (7th Cir. 2010) (holding
§ 922(g)(1) did not violate convicted felon’s equal protection
rights). We see no reason to change our view now. Most
recently, in United States v. Chovan, 735 F.3d 1127 (9th Cir.
2013), we made it explicit that Second Amendment questions
are reviewed under heightened scrutiny, id. at 1137–38, and
upheld, under intermediate scrutiny, a subsection of § 922(g)
that barred firearm possession by anyone who has been
convicted in any court of a misdemeanor crime of domestic
violence. Id. at 1140–41; see 18 U.S.C. § 922(g)(9).
In light of Chovan and Vongxay, we believe that
§ 922(g)(1) continues to pass constitutional muster. See
Heller, 554 U.S. at 626 (“[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.

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V
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
AFFIRMED.