United States v. Decastro 1

10-3773
United States v. Decastro
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2011 6
7
8
(Argued: November 30, 2011 Decided: June 1, 2012) 9
10
Docket No. 10-3773 11
12
- - - - - - - - - - - - - - - - - - - -x 13
14
UNITED STATES OF AMERICA, 15
16
Appellee, 17
18
- v.- 19
20
ANGEL DECASTRO, 21
22
Defendant-Appellant. 23
24
- - - - - - - - - - - - - - - - - - - -x 25
26
Before: JACOBS, Chief Judge, HALL and LYNCH, 27
Circuit Judges. 28
29
Defendant was convicted of transporting into his state 30
of residence a firearm acquired in another state in 31
violation of 18 U.S.C. § 922(a)(3). He appeals on the 32
ground that § 922(a)(3) violates his Second Amendment right 33
to keep and bear arms. He argues: [1] that § 922(a)(3) is 34
unconstitutional on its face; and [2] that, in combination 35
with New York’s licensing scheme, the prohibition on the 36

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2
transportation into New York of a firearm purchased in 1
another state made it virtually impossible for him to obtain 2
a handgun for self-defense. For the following reasons, the 3
judgment of the district court is affirmed. Judge Hall 4
concurs by separate opinion. 5
COLLEEN P. CASSIDY, Federal 6
Defenders of New York, Inc., New 7
York, NY, for 8
Appellant. 9
10
BRIAN A. JACOBS (BRENT S. WIBLE, 11
on the brief), Assistant United 12
States Attorney, for PREET 13
BHARARA, United States Attorney, 14
Southern District of New York, 15
New York, NY, for 16
Appellee. 17
18
DENNIS JACOBS, Chief Judge: 19
20
Following a bench trial on stipulated facts in the 21
United States District Court for the Southern District of 22
New York (Patterson, J.), Angel Decastro was convicted of 23
transporting into his state of residence a firearm acquired 24
in another state in violation of 18 U.S.C. § 922(a)(3). 25
Decastro appeals on the ground that § 922(a)(3) violates his 26
Second Amendment right to keep and bear arms. He argues: 27
[1] that § 922(a)(3) is unconstitutional on its face; and 28
[2] that, in combination with New York’s licensing scheme, 29
the prohibition on the transportation into New York of a 30

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3
firearm purchased in another state made it virtually 1
impossible for him to obtain a handgun for self-defense. 2
For the following reasons, the judgment of the district 3
court is affirmed. 4
5
BACKGROUND 6
In 2002, Angel Decastro moved from Florida to New York 7
to help run his step-father’s dry cleaning business. In 8
July 2004, an encounter between Decastro and a customer 9
escalated into a gang confrontation. Police arrested 10
Decastro and the customer, but all charges were dropped. 11
Decastro feared retaliation, and on the recommendation of a 12
New York police detective, requested a handgun license 13
application from the New York Police Department (“NYPD”). 14
He did not submit an application because (he maintains) he 15
was told by an NYPD desk officer that there was “no way” his 16
application would be approved. 17
Decastro, who was licensed to own a handgun in Florida, 18
purchased firearms from a gun dealer on a visit there in 19
February 2005: a Taurus model PT92 pistol (“the Taurus 20
Pistol”) and a Glock nine-millimeter handgun. In connection 21
with the purchase, Decastro was required to sign Form 4473 22

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1 The statute does not apply to: [1] firearms acquired
by inheritance outside the owner’s state of residence,
provided that it is lawful for the owner to purchase or
possess a firearm in her home state, 18 U.S.C.
4
of the Bureau of Alcohol, Tobacco, Firearms and Explosives. 1
On it he falsely gave Florida rather than New York as his 2
state of residence. Decastro left the Glock handgun in 3
Florida but transported the Taurus Pistol home to New York, 4
where he kept it at the dry-cleaning business for 5
protection. 6
The Decastro family sold the dry-cleaning business in 7
May 2005; in February 2006, Decastro moved to Florida. 8
Before leaving New York, Decastro gave the Taurus Pistol to 9
a relative in the Bronx. Decastro planned to transport it 10
back to Florida in a few months’ time. 11
In July 2006, a Bronx woman reported to the NYPD that 12
she had found the Taurus Pistol in her closet along with 13
other items that belonged to her common-law husband (who was 14
a relative of Decastro). A police search of the closet 15
yielded the Taurus Pistol as well as two other guns, 16
handcuffs, masks, and fake police shields. 17
Decastro was subsequently indicted for violating 18 18
U.S.C. § 922(a)(3). That statute (subject to certain 19
exceptions not applicable here 1) prohibits anyone other than 20

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§ 922(a)(3)(A), [2] rifles and shotguns acquired outside of
the purchaser’s state of residence, provided that the
transaction is conducted in person and in compliance with
the legal conditions of sale in both the purchaser’s home
state and the state in which the seller’s place of business
is located, id. § 922(a)(3)(B), (b)(3)(A), [3] firearms
loaned or rented for temporary use for lawful sporting
purposes, id. § 922(a)(3)(B), (b)(3)(B), or [4] the
transportation of a firearm acquired in any state prior to
the effective date of the statute, id. § 922(a)(3)(C).
5
a licensed importer, manufacturer, dealer or collector from 1
transporting into his state of residence a firearm purchased 2
or obtained outside that state. Decastro moved to dismiss 3
the indictment on the ground that it violated his Second 4
Amendment right to possess a gun for self-defense. He 5
argued that § 922(a)(3) was facially unconstitutional under 6
District of Columbia v. Heller, 554 U.S. 570 (2008), and 7
that New York City’s restrictive licensing requirements were 8
tantamount to a ban. In support, Decastro submitted a chart 9
showing that few applications for pistol licenses were 10
received and issued by New York City in the period 2004- 11
2006. For residential-premises handgun licenses, an average 12
of 858 new applications were submitted annually and an 13
average of 620 licenses were issued; for business-premises 14
licenses, an average of 59 new applications were submitted 15

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

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7
February 2006--while he resided in New York-- 1
Decastro knowingly and willfully transported the 2
Taurus Pistol from Florida to New York, and gave 3
it to a resident of the Bronx; 4
[5] Decastro never applied for and was not issued a 5
license to possess a firearm in New York, and when 6
he transported the pistol from Florida to New York 7
he knew that his conduct was unlawful. 8
The district court found Decastro guilty on the sole 9
count of the indictment and sentenced him to two years of 10
probation (and imposed a mandatory $100 special assessment). 11
This appeal followed. 12
13
DISCUSSION 14
On appeal, Decastro challenges the constitutionality of 15
18 U.S.C. § 922(a)(3) on two grounds: [1] it is facially 16
unconstitutional because it impermissibly burdens the right 17
to keep and bear arms guaranteed by the Second Amendment; 18
and [2] when combined with New York’s licensing scheme, the 19
prohibition on the transportation into New York of a firearm 20
purchased in another state made it practically impossible 21
for him to secure a handgun for self-defense. The district 22

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8
court confined its analysis to the second argument; on 1
appeal Decastro focuses principally on the first. 2
As to each argument, our review is de novo. See United 3
States v. Pettus, 303 F.3d 480, 483 (2d Cir. 2002). 4
5
I 6
When “a defendant has already been convicted for 7
specific conduct under the challenged law,” a court 8
considering a facial challenge to a criminal statute must 9
“‘examine the complainant’s conduct before analyzing other 10
hypothetical applications.’” United States v. Farhane, 634 11
F.3d 127, 139 (2d Cir. 2011) (quoting Vill. of Hoffman 12
Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 495 13
(1982)). We are guided by “‘the principle that a person to 14
whom a statute may constitutionally be applied will not be 15
heard to challenge that statute on the ground that it may 16
conceivably be applied unconstitutionally to others, in 17
other situations not before the Court.’” Parker v. Levy, 18
417 U.S. 733, 759 (1974) (quoting Broadrick v. Oklahoma, 413 19
U.S. 601, 610 (1973)). It follows that a defendant who 20
fails to demonstrate that a challenged law is 21
unconstitutional as applied to him has “necessarily fail[ed] 22

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9
to state a facial challenge, which requires [him] to 1
establish that no set of circumstances exists under which 2
the statute would be valid.” Diaz v. Paterson, 547 F.3d 88, 3
101 (2d Cir. 2008) (internal quotation marks and brackets 4
omitted). Since Decastro has already been convicted under 5
§ 922(a)(3), the first step in our consideration of his 6
facial challenge is to assess the burden, if any, that the 7
statute has imposed on Decastro himself. 8
9
II 10
A. 11
Decastro’s first argument with respect to the 12
unconstitutionality of § 922(a)(3) as applied to him focuses 13
on the interplay between New York state licensing laws and 14
federal firearms law. Decastro argues that because the 15
restrictive licensing scheme in his home state effectively 16
compelled him to go elsewhere to get a handgun, § 922(a)(3) 17
prevented him from exercising his Second Amendment right to 18
possess a handgun for self-defense. 19
The premise of Decastro’s argument is that New York’s 20
licensing scheme is itself constitutionally defective; his 21
argument is therefore tantamount to a challenge to that 22

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10
scheme. However, because Decastro failed to apply for a gun 1
license in New York, he lacks standing to challenge the 2
licensing laws of the state. “As a general matter, to 3
establish standing to challenge an allegedly 4
unconstitutional policy, a plaintiff must submit to the 5
challenged policy.” Jackson-Bey v. Hanslmaier, 115 F.3d 6
1091, 1096 (2d Cir. 1997); see also Allen v. Wright, 468 7
U.S. 737, 746, 755 (1984) (holding that parents lacked 8
standing to challenge the tax-exempt status of allegedly 9
racially discriminatory private schools to which their 10
children had not applied); Moose Lodge No. 107 v. Irvis, 407 11
U.S. 163, 166-68 (1972) (holding that an African American 12
lacked standing to challenge the discriminatory membership 13
policy of a club to which he never applied). Failure to 14
apply for a license would not preclude Decastro’s challenge 15
if he made a “substantial showing” that submitting an 16
application “would have been futile.” Jackson-Bey, 115 F.3d 17
at 1096; cf. Bach v. Pataki, 408 F.3d 75, 82-83 (2d cir. 18
2005) (holding that plaintiff’s challenge to New York’s gun 19
licensing laws applicable to non-residents was justiciable 20
despite his failure to apply for a license because he was 21
statutorily ineligible for a license and therefore 22

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11
submitting an application would have been a “futile gesture” 1
(internal quotation marks omitted)). But the only evidence 2
Decastro offers to show futility is the hearsay statement of 3
an unidentified police desk officer who had no apparent 4
connection to the licensing process, and whose view is 5
incompatible with the NYPD report that Decastro submitted to 6
the district court showing that roughly 2/3 to 3/4 of 7
handgun license applications during the period in question 8
were granted. Although the absolute number of handgun 9
licenses granted has historically been small, so has the 10
number of applications received. Decastro has adduced no 11
evidence that the low volume of license applications is 12
itself a product of the futility of the application process. 13
He has therefore not made the substantial showing of 14
futility necessary to excuse his failure to apply for a 15
handgun license in New York. 16
17
B. 18
Having concluded that Decastro is in no position to 19
challenge the constitutionality of § 922(a)(3) based on the 20
asserted effects of New York’s licensing scheme, we now 21
consider Decastro’s argument that § 922(a)(3) is, by its own 22

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3 We also need not decide whether certain firearm laws
might regulate conduct that is entirely unprotected by the
Second Amendment, whether because of the type of weapon
involved, the status of the person claiming the right, or
where the right is sought to be exercised. See Ezell v.
City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011);
United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.
2010), cert. denied, 131 S. Ct. 2476 (2011); United States
v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States
v. Marzzarella, 614 F.3d 85, 89-91 (3d Cir. 2010), cert.
denied, 131 S. Ct. 958 (2011); cf. Heller v. District of
Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011).
12
terms, unconstitutional because it infringes the core Second 1
Amendment right of law-abiding citizens to possess firearms 2
for self-defense. Decastro maintains that the statute 3
should be subject to strict scrutiny or (at minimum) 4
intermediate scrutiny, and that it cannot withstand review 5
under either standard. 6
We hold that heightened scrutiny is appropriate only as 7
to those regulations that substantially burden the Second 8
Amendment. Because § 922(a)(3) only minimally affects the 9
ability to acquire a firearm, it is not subject to any form 10
of heightened scrutiny. (We therefore need not decide the 11
level of scrutiny applicable to laws that do impose such a 12
burden.) 3
13
14

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13
1. 1
The Second Amendment provides: “A well regulated 2
Militia, being necessary to the security of a free State, 3
the right of the people to keep and bear Arms, shall not be 4
infringed.” U.S. Const. amend. II. In District of Columbia 5
v. Heller, the Supreme Court held that the Second Amendment 6
codified a pre-existing “individual right to possess and 7
carry weapons in case of confrontation.” 554 U.S. at 592. 8
In emphasizing the need for self-defense, the Court relied 9
on the historical record and the meaning of the text of the 10
Second Amendment at the time of ratification. The Court 11
declined to announce the precise standard of review 12
applicable to laws that infringe the Second Amendment right 13
because the laws at issue (by which the District of Columbia 14
categorically banned handguns, and required that all other 15
firearms be kept inoperable) would be unconstitutional 16
“[u]nder any of the standards of scrutiny that we have 17
applied to enumerated constitutional rights.” Id. at 628- 18
29. At the same time, Heller disclaims any reading that 19
calls into question (among other things) “laws forbidding 20
the carrying of firearms in sensitive places such as schools 21
and government buildings, or laws imposing conditions and 22

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4 In addition to these time, place and manner
restrictions, the “presumptively lawful regulatory measures”
cited by the Court included “longstanding prohibitions on
the possession of firearms by felons and the mentally ill.”
Heller, 554 U.S. at 626, 627 n.26. The Court also noted
that the Second Amendment right does not encompass all
weapons, but only those “typically possessed by law-abiding
citizens for lawful purposes” and thus does not include the
right to possess “dangerous and unusual weapons.” Id. at
625, 627 (internal quotation marks omitted).
14
qualifications on the commercial sale of arms.” Id. at 626- 1
27; see also McDonald v. City of Chicago, 130 S. Ct. 3020, 2
3047 (2010) (reiterating Heller’s assurances that the 3
decision “did not cast doubt on such longstanding regulatory 4
measures”).4 Although the Court did not expand on why these 5
two classes of restrictions would be permissible, the 6
natural explanation is that time, place and manner 7
restrictions may not significantly impair the right to 8
possess a firearm for self-defense, and may impose no 9
appreciable burden on Second Amendment rights. 10
Throughout, Heller identifies the constitutional 11
infirmity in the District of Columbia laws in terms of the 12
burden on the ability of D.C. residents to possess firearms 13
for self-defense. The Court emphasized that the handgun ban 14
prohibited the “most popular weapon chosen by Americans for 15
self-defense in the home,” id. at 629, that the mandate to 16
disable all firearms “makes it impossible for citizens to 17

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15
use them for the core lawful purpose of self-defense and is 1
hence unconstitutional,” id. at 630 (emphasis added), and 2
that “[f]ew laws in the history of our Nation have come 3
close to the severe restriction of the District’s handgun 4
ban,” id. at 629. 5
The Court emphasized the practical impact of a 6
challenged regulation on the ability of citizens to possess 7
and use guns for the core lawful purpose of self-defense. 8
That emphasis is implicitly justified (in the opinion) by 9
the history of the Amendment as a response to measures taken 10
by English kings, including George III, to disarm the 11
citizenry, see id. at 592-95, and is reinforced by the 12
grounds used by the majority to distinguish the founding-era 13
laws cited by the dissent. Thus the majority distinguished 14
18th-century laws regulating the storage of excess 15
gunpowder, id. at 632, and the laws of colonial cities 16
regulating time, place and manner for the discharge of 17
firearms (as on public streets and taverns or on New Year’s 18
Eve), id. at 632-33. Such colonial laws did not much burden 19
self-defense and had a minimal deterrent effect on the 20
exercise of Second Amendment rights. 21

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16
Given Heller’s emphasis on the weight of the burden 1
imposed by the D.C. gun laws, we do not read the case to 2
mandate that any marginal, incremental or even appreciable 3
restraint on the right to keep and bear arms be subject to 4
heightened scrutiny. Rather, heightened scrutiny is 5
triggered only by those restrictions that (like the complete 6
prohibition on handguns struck down in Heller) operate as a 7
substantial burden on the ability of law-abiding citizens to 8
possess and use a firearm for self-defense (or for other 9
lawful purposes). This approach finds support, to varying 10
degrees, in other Circuits. See Nordyke v. King, 644 F.3d 11
776, 786 (9th Cir.) (“[O]nly regulations which substantially 12
burden the right to keep and to bear arms trigger heightened 13
scrutiny under the Second Amendment.”), reh’g in banc 14
granted, 664 F.3d 774 (9th Cir. 2011); see also Heller v. 15
District of Columbia, 670 F.3d 1244, 1253, 1260 (D.C. Cir. 16
2011) (laws that have only a “de minimis” effect on the 17
right to bear arms or that do not “meaningfully affect 18
individual self-defense” do not impinge on the Second 19
Amendment right and therefore do not warrant heightened 20
scrutiny (internal quotation marks omitted)); cf. Ezell v. 21
City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011) (holding 22

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17
that “a severe burden on the core Second Amendment right of 1
armed self-defense will require an extremely strong public- 2
interest justification and a close fit between the 3
government’s means and its end” but that “laws restricting 4
activity lying closer to the margins of the Second Amendment 5
right, laws that merely regulate rather than restrict, and 6
modest burdens on the right may be more easily justified”); 7
United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir.) 8
(endorsing a sliding scale approach to determining the level 9
of scrutiny applicable to laws that burden Second Amendment 10
rights depending in part on “the extent to which [Second 11
Amendment] interests are burdened by government 12
regulation”), cert. denied, 132 S. Ct. 756 (2011); United 13
States v. Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010) 14
(suggesting that a “de minimis” burden on the right to keep 15
arms for self-defense might not warrant heightened 16
scrutiny), cert. denied, 131 S. Ct. 958 (2011). 17
Reserving heightened scrutiny for regulations that 18
burden the Second Amendment right substantially is not 19
inconsistent with the classification of that right as 20
fundamental to our scheme of ordered liberty in McDonald v. 21

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5 Nor is it inconsistent with language in Heller
rejecting rational basis review for laws that infringe
Second Amendment rights. See Heller, 554 U.S. at 628 n.27.
In Heller, the Court was faced with restrictions that
undoubtedly did impose a significant burden on core Second
Amendment rights. It had no occasion to consider the
appropriate standard of review for laws that only minimally
impact such rights.
18
City of Chicago, 130 S. Ct. at 3036. 5 A similar threshold 1
showing is needed to trigger heightened scrutiny of laws 2
alleged to infringe other fundamental constitutional rights. 3
The right to marry is fundamental, but “reasonable 4
regulations that do not significantly interfere with 5
decisions to enter into the marital relationship” are not 6
subject to the “rigorous scrutiny” that is applied to laws 7
that “interfere directly and substantially with the right to 8
marry.” Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978). 9
The right to vote is fundamental, but “the rigorousness of 10
our inquiry into the propriety of a state election law 11
depends upon the extent to which a challenged regulation 12
burdens First and Fourteenth Amendment rights.” Burdick v. 13
Takushi, 504 U.S. 428, 434 (1992); see also Rosario v. 14
Rockefeller, 410 U.S. 752, 757-60 (1973) (upholding a law 15
conditioning the right to vote in primaries, because the 16
restriction imposed a time limitation that was not “so 17
severe as itself to constitute an unconstitutionally onerous 18
burden on the petitioners’ exercise of the franchise”). 19

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19
The weight of the burden matters in assessing the 1
permissible bounds of regulation in other constitutional 2
contexts as well, such as takings, abortion, and free 3
speech. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 4
1014-16 (1992) (only those regulations on property that go 5
“too far” require the payment of just compensation under the 6
Takings Clause (internal quotation marks omitted)); Stenberg 7
v. Carhart, 530 U.S. 914, 921 (2000) (prior to fetal 8
viability, a state may not enact laws that impose an “undue 9
burden” on a woman’s decision to terminate her pregnancy, 10
i.e., regulations that have “‘the purpose or effect of 11
placing a substantial obstacle in the path of a woman 12
seeking an abortion’” (quoting Planned Parenthood of Se. Pa. 13
v. Casey, 505 U.S. 833, 877 (1992)); Ward v. Rock Against 14
Racism, 491 U.S. 781, 791 (1989) (reasonable time, place or 15
manner restrictions are subject to lesser scrutiny as long 16
as they are content-neutral and preserve “ample alternative 17
channels for communication of the information” (internal 18
quotation marks omitted)) . 19
In deciding whether a law substantially burdens Second 20
Amendment rights, it is therefore appropriate to consult 21
principles from other areas of constitutional law, including 22
the First Amendment (to which Heller adverted repeatedly). 23

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20
See Heller, 554 U.S. at 582, 595, 635 (analogizing to First 1
Amendment doctrine); see also Ezell, 651 F.3d at 702-04 2
(drawing parallels from the First Amendment context to 3
analyze Second Amendment claims); Marzzarella, 614 F.3d at 4
89 & n.4 (looking to the structure of the First Amendment 5
for guidance in evaluating Second Amendment challenges). In 6
evaluating the reasonableness of content-neutral time, place 7
or manner regulations under the First Amendment, we ask 8
whether the challenged regulation “leave[s] open ample 9
alternative channels for communication of the information.” 10
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 11
(1984). Regulation may “reduce to some degree the potential 12
audience for [one’s] speech” so long as “the remaining 13
avenues of communication are []adequate.” Ward, 491 U.S. at 14
802. By analogy, law that regulates the availability of 15
firearms is not a substantial burden on the right to keep 16
and bear arms if adequate alternatives remain for law- 17
abiding citizens to acquire a firearm for self-defense. See 18
Nordyke, 644 F.3d at 787-88; see also Heller, 554 U.S. at 19
626-27 (identifying as presumptively lawful “laws imposing 20
conditions and qualifications on the commercial sale of 21
arms”). 22
23

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21
2. 1
Applying those principles to Decastro’s challenge, we 2
conclude that § 922(a)(3) does not substantially burden his 3
right to keep and bear arms. Section 922(a)(3) prohibits 4
the transportation into one’s state of residence of firearms 5
acquired outside the state; but it does nothing to keep 6
someone from purchasing a firearm in her home state, which 7
is presumptively the most convenient place to buy anything. 8
The evident purpose of the statute is to stop circumvention 9
of state laws regulating gun possession; it does so by 10
requiring state residents to comply with conditions of sale 11
and similar requirements in their home state. See S. Rep. 12
No. 90-1097, at 50 (1968), reprinted in 1968 U.S.C.C.A.N. 13
2112, 2166 (concluding that the traffic of guns through mail 14
order common carriers and non-resident sources “is a means 15
which affords circumvention and contravention of State and 16
local laws governing the acquisition of [firearms]”). 17
Moreover, as interpreted by the Bureau of Alcohol, Tobacco, 18
Firearms and Explosives, § 922(a)(3) does not bar purchases 19
from an out-of-state supplier if the gun is first 20
transferred to a licensed gun dealer in the purchaser’s home 21
state. See Bureau of Alcohol, Tobacco, Firearms and 22
Explosives, Frequently Asked Questions, available at 23

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6 Decastro has not advanced any argument that
§ 922(a)(3) makes it more costly to acquire a firearm (as by
insulating local gun dealers from interstate competition, or
because of increased transportation costs). In any event,
within limits, that would not be a constitutional defect.
See Casey, 505 U.S. at 874 (“The fact that a law which
serves a valid purpose, one not designed to strike at the
right itself, has the incidental effect of making it more
difficult or more expensive to procure an abortion cannot be
enough to invalidate it.”); Kovacs v. Cooper, 336 U.S. 77,
88-89 (1949) (upholding a city ordinance prohibiting the use
of sound trucks: “That more people may be more easily and
cheaply reached by sound trucks, perhaps borrowed without
cost from some zealous supporter, is not enough to call
forth constitutional protection”).
22
http://www.atf.gov/firearms/faq/unlicensed-persons.html#out- 1
of-state-firearm.html (last visited on May 31, 2012). 6 In 2
light of the ample alternative means of acquiring firearms 3
for self-defense purposes, § 922(a)(3) does not impose a 4
substantial burden on the exercise of Decastro’s Second 5
Amendment rights. 6
7
III 8
Since § 922(a)(3) does not burden Decastro’s Second 9
Amendment rights in a way so substantial as to justify 10
heightened scrutiny, his facial challenge to the statute 11
must also fail. In order to succeed in his facial challenge 12
to § 922(a)(3), Decastro would need to show that “no set of 13
circumstances exists under which the [statute] would be 14

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7 While we hold that Section 922(a)(3) is not
unconstitutional on its face, we do not rule out the
possibility that, on a different set of facts, a defendant
might be able to establish that the application of Section
922(a)(3) to him would burden his right to keep and bear
arms so substantially as to render the statute
unconstitutional as applied.
23
valid, i.e., that the law is unconstitutional in all of its 1
applications,” or at least that it lacks a “plainly 2
legitimate sweep.” Wash. State Grange v. Wash. State 3
Republican Party, 552 U.S. 442, 449 (2008) (internal 4
quotation marks and citation omitted). Because § 922(a)(3) 5
does not substantially burden the fundamental right to 6
obtain a firearm sufficient for self-defense, and attempts 7
only to assist states in the enforcement of their own gun 8
laws, it does not infringe the Second Amendment right to 9
keep and bear arms, and its sweep is therefore plainly 10
legitimate.7
11
The facial constitutionality of § 922(a)(3) is 12
unimpaired by the risk that some state laws governing the 13
sale of firearms may themselves be unconstitutional. 14
Nothing on the face of § 922(a)(3) sanctions, compels, or 15
encourages state regulations that offend the Second 16
Amendment. If the requisite interstate nexus exists, 17
Congress may enact laws (like § 922(a)(3)) designed to 18

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24
prevent the circumvention of state law, and in so doing may 1
indulge the presumption that the underlying state laws are 2
not unconstitutional. See, e.g., 18 U.S.C. § 228(a)(1) 3
(making it a federal offense to willfully fail to pay a 4
support obligation with respect to a child living in another 5
state). By the same token, courts have upheld federal laws 6
that curtail the possession of firearms by certain persons 7
based on state court adjudications. See, e.g., United 8
States v. Reese, 627 F.3d 792, 802-04 (10th Cir. 2010) 9
(upholding against a Second Amendment challenge a federal 10
statute prohibiting possession of firearms by anyone subject 11
to certain restraining orders, and explaining that the 12
defendant could not collaterally attack the underlying 13
protective order in his federal prosecution), cert. denied, 14
131 S. Ct. 2476 (2011). It may be that a “statute tolerates 15
different outcomes . . . in different states, but this is 16
true of all situations in which a firearms disability (or 17
any other adverse consequence) depends on state law.” 18
United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) 19
(in banc), cert. denied, 131 S. Ct. 1674 (2011). If an 20
injury is suffered as a result of the unconstitutional 21
application of a state law regulating the possession of 22
firearms, the proper challenge is one addressed to the state 23

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25
law. See McDonald, 130 S. Ct. at 3026 (holding that the 1
Second Amendment applies to the states). 2
As Decastro observes, § 922(a)(3) has no exception for 3
the transportation of firearms purchased out-of-state by 4
someone who is licensed to possess a gun at home; but 5
Decastro is not in a position to raise such an overbreadth 6
exception. Decastro did not have a license to own a firearm 7
in New York, nor did he apply for one. Facial overbreadth 8
challenges are disfavored and permitted “in relatively few 9
settings, and, generally, on the strength of specific 10
reasons weighty enough to overcome [courts’] well-founded 11
reticence.” Sabri v. United States, 541 U.S. 600, 609-10 12
(2004). There is no overbreadth argument that Decastro can 13
make in the Second Amendment context. See Masciandaro, 638 14
F.3d at 474 (rejecting defendant’s facial overbreadth 15
challenge because “a person . . . to whom a statute was 16
constitutionally applied, will not be heard to challenge 17
that statute on the ground that it may conceivably be 18
applied unconstitutionally to others, in other situations 19
not before the Court” (internal quotation marks omitted)); 20
Skoien, 614 F.3d at 645 (“A person to whom a statute 21
properly applies can’t obtain relief based on arguments that 22
a differently situated person might present.”). 23

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26
For the reasons stated, Decastro’s facial challenge to 1
18 U.S.C. § 922(a)(3) fails. 2
3
CONCLUSION 4
For the foregoing reasons, the judgment of the district 5
court is affirmed. 6

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

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