United States of America v. Lynn Allen Schrag

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LYNN ALLEN SCHRAG,
Defendant - Appellant.
No. 12-30344
D.C. No. 1:10-cr-30027-PA-5
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted October 9, 2013**
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Lynn Schrag appeals the district court determination that he violated a
condition of his probation because his wife’s loaded pistol was on top of the
refrigerator in their home. Schrag claims that under the Second Amendment his
FILED
OCT 15 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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right to have a firearm in his home for self defense may not be limited just because
he is a convicted felon. We affirm the district court’s rejection of Schrag’s claims.1
We review de novo the constitutionality of a statute and constitutional
challenges to district court orders. United States v. Vongxay, 594 F.3d 1111, 1114
(9th Cir. 2010).
Schrag’s claims are based on, and founder on, the Supreme Court’s opinion
in District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the Court held
that a citizen has an individual right to possess firearms in his or her home, but
further stated that “[l]ike most rights, the right secured by the Second Amendment
is not unlimited,” and “nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons.” Id. at 626; see
also McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (reiterating that
the Court’s opinion in Heller “did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons’”). Accordingly,
the Supreme Court’s opinions rebut Schrag’s contention that his Second
Amendment rights may not be limited just because he is a felon.
1 Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2

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We are further constrained in considering Schrag’s argument by our opinion
in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010). Vongxay challenged
his conviction under 18 U.S.C. § 922(g)(1) for being a felon in possession of a
firearm. He argued that the he had a right under the Second Amendment as
construed by the Supreme Court in Heller to posses a gun and that the language in
Heller concerning certain long-standing restrictions on gun possession by felons
and others was non-binding dicta. Id. at 1115. We held that the language was not
dicta and that § 922(g)(1) was not unconstitutional. Id. As a three-judge panel we
are bound by Vongxay. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)
(en banc); Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012).
We also reject Schrag’s argument that Oregon state cases provide him with a
right under the Oregon constitution to possess a firearm. See State v. Burney, 619
P.2d 1336, 1339 (Or. App. 1980) (noting that the “choice of evils” defense might
justify a felon’s “resort to a weapon which it would otherwise be unlawful for
[him] to possess”).
Finally, we do not find Schrag’s objections to the application of the doctrine
of constructive possession to be well taken. Schrag cites no authorities that
support his argument, and we know of none. Moreover, the public safety interests
underlying the prohibition on felons possessing firearms would be compromised if
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felons could have actual access to firearms as long as they did not legally own the
firearms.
The district court’s order denying Schrag’s motion to suppress and motion to
dismiss, and its order finding that Schrag violated the conditions of probation and
continuing community supervision are AFFIRMED.
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