Interesting case on DV orders. Commerce & 2d Amendment

[14] OPINION

[15] Defendant-Appellant Harvey Lloyd Napier appeals his
conviction under 18 U.S.C. § 922(g)(8) for possession of firearms
while subject to a domestic violence order. For the reasons set forth
below, we AFFIRM Napier's conviction.

[16] I.

[17] The essential facts are not in dispute.*fn1 On January 30,
1999, Napier's estranged wife called the Corbin, Kentucky, Police
Department to report an assault by Napier. When Napier's vehicle was
stopped, the officers found a 10 mm Glock Model 20 semi-automatic
pistol and twenty-two rounds of 10 mm ammunition on the floorboard in
the rear of the vehicle. Napier was arrested.

[18] At the time of his arrest Napier was subject to two domestic
violence orders. One domestic violence order was entered by the
Harlan County Circuit Court on December 9, 1996. The other domestic
violence order was entered by the Whitley County District Court on
September 28, 1998. Both domestic violence orders contained a finding
that acts of domestic violence had occurred and may occur again, and
restrained Napier from committing further acts of domestic violence
against his spouse and their children. Both orders contained the
following notice in boldface type: "Pursuant to 18 U.S.C. § (section)
922(g), it is a federal violation to purchase, receive or possess a
firearm while subject to this order." Napier had received actual
notice and had an opportunity to participate in both hearings prior
to issuance of the orders.

[19] Napier was indicted by a federal grand jury on two counts of
possession of firearms by a person subject to a domestic violence
order in violation of 18 U.S.C. § 922(g)(8).*fn2 Count One of the
indictment charged him with possession of a semi-automatic handgun on
January 30, 1999, while he was subject to two domestic violence
orders, and Count Two charged him with possession of twenty-two
rounds of 10 mm ammunition on the same date, while he was subject to
the same domestic violence orders.

[20] Napier filed three motions to dismiss the indictment. In his
first motion he argued that § 922(g)(8) violates the Second and Fifth
Amendments of the Constitution and is an unconstitutional exercise of
the commerce power. In his second motion he argued that the
underlying domestic violence orders were either void or did not
qualify as predicate offenses. In his third motion he argued that the
domestic violence orders do not fulfill the substantive requirements
of 18 U.S.C. § 922(g)(8)(i) and (ii). The district court denied all
three motions. On the eve of trial the government made two oral
motions in limine to exclude evidence regarding the validity of the
domestic violence orders and regarding Napier's belief as to the
existence of the domestic violence orders at the time of the instant
offense. The district court granted the government's motions.

[21] In light of the district court's rulings, Napier entered a
conditional plea of guilty to both counts of the indictment. He
admitted that on January 30, 1999, in Knox County, in the Eastern
District of Kentucky, he knowingly possessed the gun and ammunition.
He further admitted that at the time he possessed the firearm and
ammunition, he was subject to domestic violence orders in Whitley
County, Kentucky, and Harlan County, Kentucky. Finally, Napier
admitted that the firearm and ammunition he possessed at the time of
the instant offenses were manufactured outside the Commonwealth of
Kentucky, and therefore traveled in interstate commerce prior to
coming into his possession. As a condition of the plea of guilty,
Napier reserved the right to appeal the orders of the district court
denying his motions to dismiss the indictment.

[22] II.

[23] We review the district court's determination of the
constitutionality of a federal statute de novo. United States v.
Baker, 197 F.3d 211, 215 (6th Cir. 1999), cert. denied, --- U.S.
----, 120 S. Ct. 1262, 146 L.Ed.2d 117 (2000).

[24] Napier's contention that § 922(g)(8) violates the Due
Process Clause and the Commerce Clause of the United States
Constitution are not unprecedented. This Circuit previously upheld §
922(g)(8) against similar attacks in Baker, supra.

[25] "A fundamental principle of this court is that '[a] panel .
. . cannot overrule the decision of another panel. The prior decision
remains controlling authority unless an inconsistent decision of the
United States Supreme Court requires modification of the decision or
this Court sitting en banc overrules the prior decision.'" United
States v. Ables, 167 F.3d 1021, 1027 (6th Cir. 1999) (quoting Salmi
v. Secretary of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.
1985)). Accordingly, unless Baker is distinguishable, or if there are
inconsistent decisions of the Supreme Court that require modification
of Baker, Baker precludes us from ruling in Napier's favor on his Due
Process and Commerce Clause challenges to § 922(g)(8).

[26] III.

[27] Napier challenges § 922(g)(8) on due process grounds on its
face because it fails to require notice of its prohibitions. Napier
also challenges the statute as applied because he contends he did not
in fact receive notice that his conduct violated federal law.

[28] According to Napier, § 922(g)(8) is a technical, obscure
statute which punishes conduct that a reasonable person ordinarily
would not consider to be criminal. In support of this contention,
Napier relies on Judge Posner's dissent in United States v. Wilson,
159 F.3d 280 (7th Cir. 1998), cert. denied, 119 S. Ct. 2371 (1999),
and the determination in United States v. Emerson, 46 F. Supp.2d 598
(N.D. Tex. 1999), that § 922(g)(8) violates the Fifth Amendment
because it is an obscure, highly technical statute with no mens rea
requirement that renders a person subject to prosecution without
proof of knowledge that he was violating the statute.

[29] We rejected just such a challenge to § 922(g)(8) in Baker,
supra. The defendant in Baker argued that the district court erred in
failing to instruct the jury that it could not convict him of
violating § 922(g)(8) unless he knew that the law forbade him to
possess firearms while subject to a domestic violence order. 197 F.3d
at 218. We noted the general rule that citizens are presumed to know
the requirements of the law. We also noted that this rule is not
absolute, and may be abrogated when a law is "so technical or obscure
that it threatens to ensnare individuals engaged in apparently
innocent conduct," because to presume knowledge of such a law would
violate a core due process principle, namely that citizens are
entitled to fair warning that their conduct may be criminal. 197 F.3d
at 218-19. We ultimately determined, however, that it was not
necessary to interpret the statute to recognize ignorance of the law
as an excuse because Baker did receive adequate notice with respect
to the requirements of § 922(g)(8). Id. at 219. Each of the domestic
violence orders entered against Baker featured a bold print warning
that he could not lawfully possess firearms. Id.

[30] Although the domestic violence orders entered against Napier
contained the same bold print warning that was found adequate in
Baker, Napier contends that his case is distinguishable from Baker
because he never received a copy of either domestic violence order
entered against him.

[31] The defendant in Baker made a similar argument, which this
court held was "of no moment." Id. at 220 n. 6. Even if Baker had not
received direct notice of his firearms disability, his prosecution
under § 922(g)(8) would still not have resulted in a violation of his
due process rights:

[32] The fact that Baker had been made subject to a domestic
violence protection order provided him with notice that his conduct
was subject to increased government scrutiny. Because it is not
reasonable for someone in his position to expect to possess dangerous
weapons free from extensive regulation, Baker cannot successfully
claim a lack of fair warning with respect to the requirements of §
922(g)(8). 197 F.3d at 220.

[33] Although this language in Baker might be considered dicta,
its reasoning was adopted in United States v. Beavers, 206 F.3d 706
(6th Cir. 2000), to support the determination that § 922(g)(9), which
makes it a crime for one who has been convicted of a misdemeanor
crime of domestic violence to possess a firearm, is constitutional
even though it does not require the government to prove that the
defendant had actual knowledge that his possession of a firearm was
illegal. Id. at 709-10. We concluded in Beavers that the defendant's
conviction on a domestic violence offense sufficiently placed him on
notice that the government might regulate his ability to own or
possess a firearm. Id. at 710.

[34] Napier suggests that in considering whether the domestic
violence order proceeding should have put him on notice that the
government might regulate his possession of a firearm, the Court
should consider the fact that domestic violence order proceedings are
often informal and uncounseled.

[35] While there are procedural differences between a domestic
violence order and a misdemeanor conviction on a domestic violence
offense, we do not find those procedural differences significant. As
we pointed out in Baker, the nature of the proceeding is not what is
important under the statute. It is the status of the individual as
one subject to a domestic violence order. 197 F.3d at 216-17:

[36] The fact that Baker's status makes him criminally liable for
possessing a firearm does not imbue the process by which he attained
that status with constitutional significance. Indeed, a legally
relevant status under § 922(g) may arise in the absence of any formal
proceeding. For example, § 922(g)(3) prohibits an individual addicted
to controlled substances from possessing a firearm, yet an individual
attains the status of a drug addict without a court proceeding of any
kind. 197 F.3d at 216-17.

[37] "Regardless as to how Baker became subject to a domestic
violence protection order, he attained that status and thus must
comply with § 922(g)(8)." Id. at 217.

[38] Every circuit court which has considered a due process
challenge similar to Napier's has rejected it. See, e.g., United
States v. Kafka, 222 F.3d 1129, 1131-32 (9th Cir. 2000) (no departure
from rule that ignorance of the law is no excuse was warranted
because the restraining order transformed the otherwise "innocent"
nature of the defendant's gun possession); United States v. Reddick,
203 F.3d 767, 769-71 (10th Cir. 2000) ("We agree with every circuit
court that has considered due process challenges to § 922(g)(8) and
conclude that due process does not require actual knowledge of the
federal statute."); United States v. Meade, 175 F.3d 215, 225-26 (1st
Cir. 1999) (individual under domestic violence protection order
"would not be sanguine about the legal consequences of possessing a
firearm"); United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir.
1999) ("Like a felon, a person [subject to a domestic violence
protection order] cannot reasonably expect to be free from regulation
when possessing a firearm"); United States v. Wilson, 159 F.3d 280,
288-89 (7th Cir. 1998), cert. denied, 527 U.S. 1024, 119 S. Ct. 2371,
144 L. Ed.2d 774 (1999).

[39] We find no basis for requiring actual notice of the gun
prohibition. Napier was notified of the proceedings that led up to
issuance of the domestic violence orders and did in fact attend those
hearings. He was made subject to a domestic violence order. As we
stated in Baker, whether or not he received or read those domestic
violence orders is of no moment. His status alone, as one subject to
a domestic violence order, was sufficient to preclude him from
claiming a lack of fair warning with respect to the requirements of §
922(g)(8).

[40] IV.

[41] Napier contends the district court erred in granting the
government's motions in limine to exclude evidence at trial regarding
the validity of the domestic violence orders and regarding Napier's
knowledge of the existence of any valid domestic violence orders.

[42] Napier entered into a plea agreement which reserved his
right to appeal the orders of the district court denying his motions
to dismiss the indictment. He did not reserve the right to appeal the
district court's pretrial evidentiary ruling. Napier expressly
admitted, in a document entitled "Factual Basis for Guilty Plea" that
at the time he possessed the firearm and ammunition "he was subject
to Domestic Violence Orders in Whitley County, Kentucky, and Harlan
County, Kentucky." Napier did not preserve the issue regarding the
validity of the domestic violence orders for appeal.

[43] Moreover, in light of our determination above that §
922(g)(8) does not require that the defendant have actual knowledge
of the firearm restrictions, the district court correctly concluded
that the evidence Napier sought to introduce regarding his knowledge
as to the existence of those orders was irrelevant.

[44] V.

[45] Napier also challenges the constitutionality of § 922(g)(8)
on the basis that it represents an unconstitutional exercise of
Congress' power under the Commerce Clause. Napier contends that §
922(g)(8) is an unconstitutional attempt to regulate domestic abuse,
which is strictly a matter of state concern.

[46] Our review of the Commerce Clause challenge begins with the
recognition that congressional enactments are entitled to a
presumption of constitutionality. "[W]e invalidate a congressional
enactment only upon a plain showing that Congress has exceeded its
constitutional bounds." United States v. Morrison, 120 S. Ct. 1740,
1748 (2000). There are three broad categories of activity that
Congress may regulate under its commerce power: 1) the use of the
channels of interstate commerce; 2) the instrumentalities of
interstate commerce, or persons or things in interstate commerce; and
3) those activities having a substantial relation to interstate
commerce. Id. at 1749.

[47] In support of his commerce clause challenge to § 922(g)(8),
Napier contends that the Supreme Court's opinion in United States v.
Lopez, 514 U.S. 549 (1995), requires a finding that Congress exceeded
the proper scope of the Commerce Clause when it enacted § 922(g)(8).

[48] A similar argument relying on Lopez was made and rejected in
Baker, supra. In Lopez the Supreme Court struck down a federal law
prohibiting firearm possession in a school zone because it exceeded
Congress' authority under the Commerce Clause.*fn3 One of the Court's
considerations was that the statute contained "no express
jurisdictional element which might limit its reach to a discrete set
of firearm possessions that additionally have an explicit connection
with or effect on interstate commerce." 514 U.S. at 562.

[49] We determined in Baker that § 922(g)(8) did not suffer from
the same infirmity because it contains the jurisdictional element
that was lacking in Lopez. Section 922(g) only applies to firearms or
ammunition that are shipped or transported in interstate or foreign
commerce, or possessed in or affecting commerce. 18 U.S.C. § 922(g).
With this jurisdictional element, § 922(g) "both explicitly relates
to commerce and ensures only those activities affecting interstate
commerce fall within its scope." Baker, 197 F.3d at 218.

[50] Baker does not stand alone. In United States v. Chesney, 86
F.3d 564, 568-70 (6th Cir. 1996), and United States v. Turner, 77
F.3d 887, 889 (6th Cir. 1996), we relied on this jurisdictional
element in upholding § 922(g)(1) against a Commerce Clause challenge.
As we stated in Turner, every court of appeals that has been faced
with the Commerce Clause challenge to § 922(g) since Lopez has held
that "the jurisdictional element of § 922(g) provides the requisite
nexus with interstate commerce that § 922(q) lacked." Turner, 77 F.3d
at 889.

[51] Notwithstanding our determination in Baker that § 922(g)(8)
is a proper exercise of congressional power under the Commerce
Clause, Napier contends that his case is distinguishable from Baker
because Baker purchased a gun after he was subject to a domestic
violence order. Napier, on the other hand, had possessed his gun for
years before a domestic violence order was entered against him. He
contends that any commerce involving the firearm had long since
ceased, and the link between his conduct and the effect on commerce
is too attenuated to come within Congress' power under the Commerce
Clause. He contends that even if Congress has the authority to
regulate persons who purchase guns when they are subject to domestic
violence orders, it does not have the authority to regulate persons
who already own guns before they become subject to a domestic
violence order.

[52] A similar argument was rejected in Chesney. Although there
was no question that Chesney's gun had moved in interstate commerce,
Chesney argued that Lopez requires the government to prove that his
possession of the gun in itself had a substantial connection to
interstate commerce. 86 F.3d at 570. We rejected that argument
because it read Lopez too broadly. "Lopez . . . did not disturb the
Supreme Court's precedents which indicate that a firearm that has
been transported at any time in interstate commerce has a sufficient
effect on commerce to allow congress to regulate the possession of
that firearm pursuant to its Commerce Clause powers." Chesney, at
570-71 (emphasis added). As we noted in Chesney, "[p]rohibiting
possession by felons limits the market for firearms, and discourages
shipping, transporting, and receiving firearms in or from interstate
commerce. Regulation of interstate gun trafficking, which is clearly
commercial activity, is thus facilitated by regulation of possession
in or affecting commerce." Id. at 571-72.

[53] The same analysis applies to those subject to domestic
violence orders. See also Gillespie v. City of Indianapolis, 185 F.3d
693, 706 (7th Cir. 1999) ("Without question, Congress has the power
to regulate the interstate trade in firearms. . . . So long as that
gun has moved across state lines at least once, it is subject to the
exercise of congressional Commerce Clause authority."); United States
v. Barry, 98 F.3d 373, 378 (8th Cir. 1996) (§ 922(g)(1)
constitutionally applied to a defendant who possessed a shotgun that
had traveled in interstate commerce); United States v. Hanna, 55 F.3d
1456, 1462 n. 2 (9th Cir. 1995) ("Section 922(g)'s requirement that
the firearm have been, at some time, in interstate commerce is
sufficient to establish its constitutionality under the Commerce
Clause.").

[54] Napier suggests that the recent Supreme Court opinion in
Jones v. United States, 120 S. Ct. 1904 (2000), puts the Chesney
analysis in question. In Jones the Court held that the arson of an
owner-occupied private residence was not subject to prosecution under
18 U.S.C. § 844(i) (prohibiting malicious destruction by fire of
property used in or affecting interstate commerce), because such a
residence was not used in interstate commerce or in a
commerce-affecting activity. Id. at 1912. The Supreme Court held that
§ 844(i)'s use-in-commerce requirement "is most sensibly read to mean
active employment for commercial purposes, and not merely a passive,
passing, or past connection to commerce." Id. at 1910.

[55] Jones does not invalidate the Chesney analysis. In contrast
to § 844(i), § 922(g) does not contain the "use" requirement that was
at the heart of the Jones opinion. Nothing in Jones suggests that the
Supreme Court is backing off of its opinion that § 1202(a), the
predecessor of § 922(g)(1), required only "the minimal nexus that the
firearm have been, at some time, in interstate commerce." Scarborough
v. United States, 431 U.S. 563, 575 (1977).

[56] We accordingly reject Napier's contention that he could not
be convicted under § 922(g)(8) unless the government could show that
his continued possession of the gun had a substantial connection to
interstate commerce. There is no question that the firearm and
ammunition possessed by Napier had previously traveled in interstate
commerce. That is sufficient to establish the interstate commerce
connection.

[57] Napier also argues that Baker should not control the
disposition of this case because the Supreme Court's recent decision
in United States v. Morrison, 120 S. Ct. 1740 (2000), is inconsistent
with Baker and compels the conclusion that Congress went too far in
enacting § 922(g)(8), and that lower courts have erred in construing
Lopez too narrowly.

[58] In Morrison the Supreme Court struck down the civil remedy
provision of the Violence Against Women Act, 42 U.S.C. § 13981, on
the ground that it exceeded Congress' power under the Commerce
Clause. The Court rejected the argument that Congress may regulate
non-economic violent criminal conduct based solely on that conduct's
aggregate effect on interstate commerce. Id. at 1754. The Court
expressed concern that if the Commerce Clause could be satisfied by
following a but-for causal chain from a crime to every attenuated
effect it had upon interstate commerce, it would obliterate the
constitution's distinction between national and local authority. Id.
at 1752. It would even give Congress authority over "family law and
other areas of traditional state regulation since the aggregate
effect of marriage, divorce, and childrearing on the national economy
is undoubtedly significant." Id. at 1753.

[59] Napier contends that the domestic disputes of a married
couple addressed in domestic violence orders are precisely the type
of purely intrastate activity, typically regulated by the state's
police power, that the Supreme Court was concerned about in Morrison.

[60] We are not convinced by Napier's argument. The Morrison
Court began its analysis of the Violence Against Women Act by noting
that § 13981, like the Gun-Free School Zones Act at issue in Lopez,
contained no jurisdictional element establishing that the federal
cause of action was in pursuance of Congress' power to regulate
interstate commerce. Id. at 1751. Section 922(g)(8), by contrast,
does contain a jurisdictional element that establishes that it was
enacted in pursuance of Congress' power to regulate interstate
commerce in firearms and ammunition. In addition, the Violence
Against Women Act is regulating a purely intrastate activity. Nothing
in Morrison casts doubt on the validity of § 922(g), which regulates
a product of interstate commerce. See United States v. Wesela, 223
F.3d 656, 660 (7th Cir. 2000) ("Nothing in [Morrison or Jones] causes
us to think that a different result is now required for § 922(g). . .
Nothing in either case casts doubt on the validity of § 922(g), which
is a law that specifically requires a link to interstate commerce.") .

[61] VI.

[62] Finally, Napier contends that § 922(g)(8) violates his
individual right to bear arms under the United States and the
Kentucky Constitutions.

[63] In contrast to the Due Process and Commerce Clause issues
discussed above, this Court has never addressed a Second Amendment
challenge to § 922(g)(8). That is not to say that this Court enters
this territory without substantial guidance.

[64] The Second Amendment provides:

[65] 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.2.

[66] In United States v. Warin, 530 F.2d 103 (6th Cir. 1976), the
defendant raised a Second Amendment challenge to his conviction for
possession of an unregistered submachine gun in violation of the
National Firearms Act as amended by the Gun Control Act of 1968, 26
U.S.C. § 5801 et seq. This Court rejected the challenge on the basis
that "the Second Amendment guarantees a collective rather than an
individual right." Id. at 106.

[67] Since the Second Amendment right "to keep and bear Arms"
applies only to the right of the State to maintain a militia and not
to the individual's right to bear arms, there can be no serious claim
to any express constitutional right of an individual to possess a
firearm. Id. at 106 (quoting Stevens v. United States, 440 F.2d 144,
149 (6th Cir. 1971)).

[68] Even the collective right of the militia is limited to
keeping and bearing arms that have "some reasonable relationship to
the preservation or efficiency of a well regulated militia." Warin,
530 F.2d at 106 (quoting United States v. Miller, 307 U.S. 174, 178
(1939)).*fn4

[69] Napier has made no effort to show that § 922(g)(8) has some
impact on the collective right of the militia. He argues instead that
the Second Amendment grants him an individual right to bear arms. He
does not contend Warin has been overruled by an en banc decision of
this Court, nor does he cite any inconsistent decisions of the
Supreme Court authority that would require modification of Warin. He
merely argues that Warin was wrongly decided and lacks the benefit of
the impressive Second Amendment scholarship that has developed in
recent years. Recent scholarship, however, does not provide a
sufficient basis for overruling an earlier decision of this Court.
See Ables, 167 F.3d at 1027.

[70] The case law subsequent to Warin overwhelmingly suggests
that our holding in Warin was sound. It is well-established that the
Second Amendment does not create an individual right. Since Miller,
"the lower federal courts have uniformly held that the Second
Amendment preserves a collective, rather than individual, right."
Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995). The Ninth
Circuit stated in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), that
it was following its sister circuits in holding that "the Second
Amendment is a right held by the states, and does not protect the
possession of a weapon by a private citizen." Id. at 101. The
Eleventh Circuit held in United States v. Wright, 117 F.3d 1265 (11th
Cir. 1997), vacated in part on other grounds, 133 F.3d 1412 (11th
Cir. 1998), that the Second Amendment protects "only the use or
possession of weapons that is reasonably related to a militia
actively maintained and trained by the states." Id. at 1273.

[71] Although the Supreme Court noted in Staples v. United
States, 511 U.S. 600 (1994), that "[t]here is a long tradition of
lawful gun ownership by private individuals in this country," this
language does not suggest an individual right to gun ownership under
the Second Amendment and it does not infer that lawful gun ownership
means unregulated gun ownership. The Supreme Court clearly reiterated
in Lewis v. United States, 445 U.S. 55 (1980), that legislative
restrictions on the use of firearms do not trench upon any
constitutionally protected liberties. Id. at 65 n. 8.

[72] Every circuit court which has had occasion to address the
issue has upheld § 922 generally against challenges under the Second
Amendment. See United States v. Chavez, 204 F.3d 1305 (11th Cir.
2000); Gillespie v. City of Indianapolis, 185 F.3d 693, 709 (7th Cir.
1999) (finding § 922(g)(9) does not violate Second Amendment);
Fraternal Order of Police v. United States, 173 F.3d 898, 906 (D.C.
Cir. 1999) (rejected challenge to § 922(g)(9) by police fraternal
organization, since the statute "does not hinder the militia service
of all police officers, only of domestic violence misdemeanants whose
convictions have not been expunged"); United States v. Waller, 218
F.3d 856 (8th Cir. 2000) ("it is now well-settled that Congress did
not violate the Second Amendment" in enacting 18 U.S.C. § 922(g)(1));
United States v. Smith, 171 F.3d 617, 624 (8th Cir. 1999) (Second
Amendment is inapplicable to conviction under § 922(g)(9)); United
States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999) (18 U.S.C. § 922(k)
did not violate the Second Amendment right to bear arms); United
States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504
F.2d 1288, 1290, n. 5 (7th Cir. 1974) (§ 1202(a)(1) does not violate
the Second Amendment); United States v. Johnson, 497 F.2d 548 (4th
Cir. 1974) (§ 922(g) does not violate the Second Amendment); Cody v.
United States, 460 F.2d 34 (8th Cir. 1972) (§ 922(a)(6) does not
violate the Second Amendment).

[73] The only case Napier has cited in support of his contention
that § 922(g)(8) violates the Second Amendment is United States v.
Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999). In Emerson, Judge
Cummings observed that "It is absurd that a boilerplate state court
divorce order can collaterally and automatically extinguish a
law-abiding citizen's Second Amendment rights, particularly when
neither the judge issuing the order, nor the parties, nor their
attorneys are aware of the federal criminal penalties arising from
firearm possession after entry of the restraining order. That such a
routine civil order has such extensive consequences totally
attenuated from divorce proceedings makes the statute
unconstitutional. There must be a limit to government regulation on
lawful firearm possession. This statute exceeds that limit, and
therefore it is unconstitutional." Id. at 611.

[74] Emerson stands alone in holding that the Second Amendment
guarantees an individual right to bear arms. Even a sister district
court in Texas declined to follow Emerson, choosing instead to follow
the majority path. See United States v. Spruill, 61 F. Supp.2d 587,
591 (W.D. Tex. 1999).

[75] We find no reason to retreat from our determination in Warin
that the Second Amendment does not guarantee an individual right to
bear arms, and we accordingly hold that § 922(g)(8) does not violate
the Second Amendment.

[76] Napier's argument that § 922(g)(8) impermissibly violates
his State constitutional right to bear arms is also unavailing. The
Constitution of the Commonwealth of Kentucky provides in pertinent
part:

[77] All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned:

[78] Seventh: The right to bear arms in defense of themselves and
of the State, subject to the power of the General Assembly to enact
laws to prevent persons from carrying concealed weapons. Ky. Const §
1.

[79] This state constitutional provision, however, is trumped by
the Supremacy Clause of the United States Constitution, which
provides that federal law "shall be the supreme Law of the Land . . .
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." U.S. Const. art. VI. "Thus, as has been clear since
the Supreme Court's decision in M'Culloch v. Maryland, 17 U.S. (4
Wheat.), 316, 4 L.Ed. 579 (1819), any state law that conflicts with
federal law is 'without effect.'" King v. Ford Motor Co., 209 F.3d
886, 891 (6th Cir. 2000) (quoting Cipollone v. Liggett Group, Inc.,
505 U.S. 504, 516 (1992)).

[80] An argument similar to Napier's was rejected in United
States v. Minnick, 949 F.2d 8 (1st Cir. 1991). The First Circuit held
that the Supremacy Clause prevents reliance on the qualified right to
bear arms contained in the New Hampshire Constitution as a defense to
§ 922(g)(1)). Id. at 10-11. The court also rejected the argument that
the federal gun-control legislation intrudes on the right of the
state of New Hampshire to decide who should possess firearms. "The
integrity of New Hampshire, which the Tenth Amendment protects, is
not violated by a federal statute that outlaws a felon's possession
of firearms. The statute is not directed at states as such, but at
individual behavior." Id. at 10 (citation omitted).

[81] CONCLUSION

[82] For the reasons stated above, we AFFIRM the district court's
decision to overrule Napier's various challenges to his convictions
under 18 U.S.C. § 922(g)(8).

Opinion Footnotes

[83] *fn* The Honorable Robert Holmes Bell, United States
District Judge for the Western District of Michigan, sitting by
designation.

[84] *fn1 The factual predicate for the plea is contained in the
transcript of the plea proceeding on November 18, 1999, and in a
document entitled "Factual Basis for Guilty Plea" signed by the
Defendant and his counsel on November 11, 1999.

[85] *fn2 The statute makes it unlawful for any person (8) who is
subject to a court order that-- (A) was issued after a hearing of
which such person received actual notice, and at which such person
had an opportunity to participate; (B) restrains such person from
harassing, stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging in
other conduct that would place an intimate partner in reasonable fear
of bodily injury to the partner or child; and (C)(i) includes a
finding that such person represents a credible threat to the physical
safety of such intimate partner or child; or (ii) by its terms
explicitly prohibits the use, attempted use, or threatened use of
physical force against such intimate partner or child that would
reasonably be expected to cause bodily injury; 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)(8).

[86] *fn3 The Gun-Free School Zones Act struck down in Lopez was
formerly codified at 18 U.S.C. § 922(q)(1)(A).

[87] *fn4 Although we have not had occasion since Warin to rule
on the scope of the Second Amendment right to bear arms, we have
followed Warin in subsequent cases. We noted in Peoples Rights
Organization, Inc. v. City of Columbus, 152 F.3d 522, 539 (6th Cir.
1998), that "the Second Amendment guarantees a collective rather than
an individual right." Id. at 539 (quoting Warin, 530 F.2d at 106). We
also rejected the argument in Baker, supra, that § 922(g)(8) deprived
Baker of equal protection of the laws in that it "infringes upon the
exercise of a fundamental right and operates to a disadvantage of a
suspected class." Baker, 197 F.3d at 216. Although Baker did not
specify what fundamental right was at issue, we noted that he had no
fundamental right to possess an assault rifle based upon the finding
in Warin that the Second Amendment does not guarantee a personal
right to bear arms. Id. (citing Warin, 530 F.2d at 106-07).