United States v. Sylvester Gailes

                               RECOMMENDED FOR PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 24a0231p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



                                                            ┐
 UNITED STATES OF AMERICA,
                                                            │
                                   Plaintiff-Appellee,      │
                                                             >        No. 23-5928
                                                            │
       v.                                                   │
                                                            │
 SYLVESTER GAILES,                                          │
                                Defendant-Appellant.        │
                                                            ┘

Appeal from the United States District Court for the Western District of Tennessee at Memphis.
                  No. 2:22-cr-20250-1—Thomas L. Parker, District Judge.

                                Argued: September 10, 2024

                             Decided and Filed: October 10, 2024

               Before: MOORE, McKEAGUE, and GRIFFIN, Circuit Judges.

                                     _________________

                                           COUNSEL

ARGUED: Unam Peter Oh, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis,
Tennessee, for Appellant. Regina Brittenum, UNITED STATES ATTORNEY’S OFFICE,
Memphis, Tennessee, for Appellee. ON BRIEF: Unam Peter Oh, Brian Daniel Mounce,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.
Regina Brittenum, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for
Appellee.
 No. 23-5928                        United States v. Gailes                                Page 2


                                      _________________

                                           OPINION
                                      _________________

       GRIFFIN, Circuit Judge.

       Each year, millions of acts of domestic violence, and over 1,500 deaths from domestic
violence, occur in this country.1 While the law has long prohibited felons from possessing
firearms, many domestic-violence offenders are convicted of mere misdemeanors. So, in 1996,
Congress prohibited domestic-violence misdemeanants from possessing firearms in order “to
close a dangerous loophole in the gun control laws,” given that “firearms and domestic strife are
a potentially deadly combination.” United States v. Castleman, 

, 159–60 (2014)
(internal quotation marks and brackets omitted). In Stimmel v. Sessions, 

(6th Cir. 2018), we previously upheld this proscription, 

(g)(9), as constitutional.
But the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 

(2022), requires us to reconsider our precedent. We now hold that, even though Bruen abrogated
Stimmel, the result remains the same: 

(g)(9) is facially constitutional.

                                                I.

       Gailes is a serial perpetrator of domestic violence. In 2012, he struck his girlfriend in her
face with a closed fist. Two years later, he dragged the same woman—with their children
present—“by her hair, pulling out clumps of her hair in the process . . . [and] then pushed her to
the ground and kicked her in the head.” And in 2018, he entered a different ex-girlfriend’s
residence uninvited and demanded that she cook him something to eat; when she refused, Gailes
pulled her “off the couch by her arms,” “grabbed [her] around the neck with his forearm choking
her,” said “‘I can end it here[]’ and pulled out a handgun,” and then “began to hit [her] about her


       1
           Jason Zenor, If You See Something, Say Something: Can Artificial Intelligence Have a
Duty to Report Dangerous Behavior in the Home?, 98 Denv. L. Rev. 839, 848 (2021) (citing
Martin R. Huecker, Kevin C. King, Gary A. Jordan & William Smock, Domestic Violence, Nat’l
Inst. of Health, https://www.ncbi.nlm.nih.gov/books/NBK499891/ (last updated Apr. 9, 2023)
[https://perma.cc/KBN9-67FQ]).
 No. 23-5928                       United States v. Gailes                               Page 3


face and body.” The victim there “was in fear [for] her life.” For each incident, Gailes was
convicted of a domestic-violence misdemeanor in Tennessee.

       A few years later, Gailes was involved in an automobile accident. Responding officers
found Gailes in possession of two loaded pistols. His three domestic-violence-misdemeanor
convictions prohibited him from possessing those guns, so a grand jury indicted him on two
counts of possessing firearms in violation of § 922(g)(9).       Gailes moved to dismiss the
indictment, arguing that § 922(g)(9) is facially unconstitutional in light of Bruen. The district
court denied the motion. Gailes then pleaded guilty to both counts, and the district court
sentenced him to 50 months’ imprisonment. This appeal followed.

                                               II.

       Section 922(g)(9) prohibits anyone “who has been convicted in any court of a
misdemeanor crime of domestic violence” from transporting, receiving, or possessing a firearm
or ammunition. Generally, a “misdemeanor crime of domestic violence” means an offense
requiring proof of “the use or attempted use of physical force, or the threatened use of a deadly
weapon,” against another person with whom the offender has a familial, intimate, or cohabitation
relationship. 

(a)(33). Gailes neither disputes that he has previous domestic-
violence convictions nor that they qualify as predicate offenses under § 922(g)(9). Rather,
Gailes argues that § 922(g)(9) facially violates the Second Amendment.

       A facial challenge “is the most difficult challenge to mount successfully[] because it
requires a defendant to establish that no set of circumstances exists under which the [challenged
statute] would be valid.” United States v. Rahimi, 

, 1898 (2024) (internal
quotation marks omitted). Therefore, if § 922(g)(9) “is constitutional in even just one of its
applications,” Gailes’s facial challenge must fail. See United States v. Williams, 

 (6th Cir. 2024).    We review the district court’s refusal to dismiss the indictment on
constitutional grounds de novo. United States v. Loney, 

 (6th Cir. 2003).
 No. 23-5928                         United States v. Gailes                                Page 4


                                                III.

                                                 A.

          The Second Amendment provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
U.S. Const. amend. II. The Supreme Court has held that “the Second Amendment confer[s] an
individual right to keep and bear arms.” District of Columbia v. Heller, 

(2008).     Further, this right is applicable to the states through the Fourteenth Amendment.
McDonald v. City of Chicago, 

 (2010). However, the right to possess arms “is
not unlimited.” Heller, 

. Indeed, in Heller, the Supreme Court emphasized that
“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” 

 at 626–27.

          Following Heller and McDonald, we, like several of our sister circuits, developed a two-
step test that applied “means-end scrutiny” for analyzing laws that might infringe on individuals’
Second Amendment rights. See, e.g., Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 

(6th Cir. 2016) (en banc) (collecting cases).          We used that test to uphold § 922(g)(9)’s
constitutionality in Stimmel. 

.

          But in Bruen, the Supreme Court ruled our means-end-scrutiny framework inconsistent
with Heller and McDonald and announced a different two-step test for Second Amendment
questions. Under Bruen’s first step, courts must ask whether “the Second Amendment’s plain
text covers an individual’s conduct.” 

. If so, “the Constitution presumptively
protects that conduct.” 

 Then under the second step, the burden shifts to the government to
“justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition
of firearm regulation.” 

 For the government to meet its burden, it need not identify a “dead
ringer” or “historical twin” to the challenged regulation. 

 (emphasis omitted). Instead,
the challenged regulation must be “relevantly similar” to a historical one. 

 at 28–29 (citation
omitted).
 No. 23-5928                       United States v. Gailes                                Page 5


       Earlier this year, in Rahimi, the Supreme Court applied for the first time Bruen’s two-step
framework.     Rahimi also involved a statute targeted at keeping guns out of the hands of
domestically violent individuals, 

(g)(8), which prohibits persons subject to a
domestic-violence restraining order from possessing firearms. 144 S. Ct. at 1894. In upholding
the statute under Bruen’s second step, the Supreme Court relied on “two distinct legal regimes”
from early America “that specifically addressed firearms violence”: surety laws and “going
armed” laws. Id. at 1899–901. Although neither of those regimes specifically targeted domestic-
violence-like crimes, the Supreme Court relied on those historical sources to confirm the
constitutionality of disarming individuals who “pose[] a clear threat of physical violence to
another.” Id. at 1901.

       Given Bruen’s explicit abrogation of our prior means-end-scrutiny framework, we are no
longer bound by Stimmel’s holding that § 922(g)(9) is constitutional. See RLR Invs., LLC v. City
of Pigeon Forge, 

 (6th Cir. 2021) (explaining that intervening Supreme Court
precedent may “mandate[] modification” of our otherwise binding precedent); see also Williams,
113 F.4th at 645–48 (holding that our pre-Bruen § 922(g)(1) precedent is no longer binding).
Likewise, we are not bound by Stimmel’s “assum[ption]” about the historical scope of the
Second Amendment right as it relates to domestic-violence misdemeanants. See 

(“assuming, without deciding, that a domestic violence misdemeanant’s Second Amendment
rights remain intact to some degree” due to the government’s “inconclusive” historical evidence);
cf. Wright v. Spaulding, 

, 701–02 (6th Cir. 2019). And to be sure, because Rahimi
clarified the types of historical evidence that we may rely upon when considering a Second
Amendment challenge, our historical analysis in Stimmel—where we faulted the government for
not identifying any source “establishing that individuals who physically abused their family
members or intimate partners were historically restricted from bearing arms,” 879 F.3d at 205—
was more narrow than now necessary.

       Thus, we must consider with fresh eyes the constitutionality of § 922(g)(9) under Bruen’s
two-step framework.
 No. 23-5928                       United States v. Gailes                               Page 6


                                               B.

        First, we ask whether the Second Amendment’s plain text covers Gailes’s possession of
firearms following his domestic-violence-misdemeanor convictions. The Second Amendment
unquestionably protects Gailes’s conduct (i.e., possession of pistols, as opposed to an unusually
dangerous weapon, for example). But because the Second Amendment protects “the right of the
people to keep and bear Arms,” we must also ask whether domestic-violence misdemeanants are
included in “the people” who possess that right. See, e.g., Worth v. Jacobson, 

,
688–92 (8th Cir. 2024).

        Rahimi suggests the answer is yes. There, the Court skipped Bruen’s first step (plain
text) and decided the case on the second (history and tradition). Rahimi, 144 S. Ct. at 1898–99.
Perhaps it did so because “no one question[ed] that the law Mr. Rahimi challenge[d]”—
prohibiting those subject to domestic-violence restraining orders from possessing guns—restricts
conduct covered by the Second Amendment’s text. Id. at 1907 (Gorsuch, J., concurring). But
given that courts proceed to Bruen’s second step only if the Second Amendment covers the
conduct at issue, we can deduce that possessing a firearm, even while subject to a domestic-
violence restraining order, is protected conduct and that individuals subject to such orders are
among “the people” who enjoy this right.

        Regardless, our post-Rahimi caselaw confirms this reading. Felons, we have held, are a
part of “the people” covered by the Second Amendment. Williams, 113 F.4th at 649–50; United
States v. Goins, — F.4th —, 

, at *2 n.3 (6th Cir. 2024) (following Williams);
see also United States v. Gore, — F.4th —, 

, at *4 (6th Cir. 2024) (holding that
individuals under indictment for a felony are a part of “the people”). This conclusion is due to
Heller’s direction that “‘the people’ unambiguously refers to all members of the political
community, not an unspecified subset.” Williams, 

 (quoting Heller, 

). Thus, the Second Amendment’s protections belong presumptively to “all Americans,”
regardless of whether they have been convicted of a felony. 

 (quoting Heller, 

).
 No. 23-5928                        United States v. Gailes                                Page 7


       If people subject to a domestic-violence restraining order and felons are among “the
people” protected by the Second Amendment, so are domestic-violence misdemeanants like
Gailes. Indeed, the government conceded at oral argument that Gailes is a member of “the
people” and therefore prevails under Bruen’s first step.             Accordingly, domestic-violence
misdemeanants are still “members of the political community” despite their convictions, see 

and thus, the Second Amendment presumptively protects their right to possess firearms, see
Bruen, 

. “[T]heir status,” however, “may justify limitations” on their individual
right to bear arms. Gore, 

, at *4 (citation and emphasis omitted). Given that
§ 922(g)(9) constrains that right, we turn to Bruen’s second step.

                                                C.

       We next ask whether the government has demonstrated that § 922(g)(9) “is consistent
with this Nation’s historical tradition of firearm regulation.” Bruen, 

. If it has,
“[o]nly then may [we] conclude that [Gailes’s] conduct falls outside the Second Amendment’s
unqualified command.”      

 (internal quotation marks omitted).        In this regard, the
government must identify only a “historical analogue,” not a “historical twin,” to the challenged
regulation. Rahimi, 144 S. Ct. at 1902–03. And it can rely on “relevantly similar” historical
precursors even if they do not “precisely match” the regulation at issue. Id. at 1898 (citation
omitted). “Why and how the regulation burdens the right [to bear arms] are central to this
inquiry.” Id. Applying the rationales in Rahimi and Williams, we hold that § 922(g)(9) passes
constitutional muster.

                                                1.

       Domestic-violence convictions generally involve some sort of physical force. See, e.g.,
Tenn. Code §§ 39-13-101, 39-13-111 (prohibiting the intentional, reckless, or knowing causing
of bodily injury, reasonable fear of imminent bodily injury, or offensive physical contact with a
“domestic abuse victim”); Ky. Rev. Stat. § 403.720(2)(a) (defining “domestic violence and
abuse” as “[p]hysical injury, serious physical injury, stalking, sexual assault, strangulation,
assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual
assault, strangulation, or assault between family members or members of an unmarried couple”);
 No. 23-5928                        United States v. Gailes                              Page 8

(2) (prohibiting the assault or battery of one’s spouse or ex-spouse,
romantic partner, child’s parent, or resident or former resident of one’s home); Ohio Rev. Code
§ 2919.25 (prohibiting the knowing or reckless physical harm of a family or household member);
see also 

(a)(33)(A)(ii) (providing that a “misdemeanor crime of domestic
violence” involves “the use or attempted use of physical force, or the threatened use of a deadly
weapon”).

       When the presence of a gun accompanies the use of physical force, the likelihood that
abuse turns to homicide greatly increases. See Castleman, 572 U.S. at 159–60; see also Rahimi,
144 S. Ct. at 1906 (Sotomayor, J., concurring) (“[O]ver 70 people [are] shot and killed by an
intimate partner each month in the United States.”). And domestic abusers with firearms are
dangerous not only to their direct victims, but also to accompanying loved ones, bystanders, and
responding law enforcement officers. Rahimi, 144 S. Ct. at 1906 (Sotomayor, J., concurring);
see also Stimmel, 

 (“[A]pproximately 10% of non-accidental law enforcement
officer fatalities in the line of duty [in 2016] occurred while the officers were responding to
domestic disturbance calls.”). It is no surprise then that Congress sought to deprive people with
domestic-violence convictions from possessing firearms. Following the rationales of Rahimi and
Williams, we conclude that there is historical support for doing so.

                                                 2.

       Rahimi held that people subject to domestic-violence restraining orders may be
categorically disarmed without violating the Second Amendment. In ruling that § 922(g)(8)
survives the Bruen test, the Court focused its analysis on two statutory regimes: surety laws and
“going armed” laws. Rahimi, 144 S. Ct. at 1899–1901. Surety laws were a “form of preventive
justice,” which required people suspected of “future misbehavior” to post a bond; if a person
broke the peace, then that person would forfeit the bond. Id. at 1899–900 (citation omitted).
And going armed laws “punish[ed] those who had menaced others with firearms” by requiring
such individuals to forfeit their arms and face imprisonment. Id. at 1900–01. Of course, these
regimes did not specifically prevent suspected domestic-violence offenders from using firearms.
See id. at 1903 (rejecting the necessity of a “historical twin”); see also id. at 1900, 1905
(Sotomayor, J., concurring) (“Given the fact that the law at the founding was more likely to
 No. 23-5928                        United States v. Gailes                               Page 9


protect husbands who abused their spouses than offer some measure of accountability it is no
surprise that that generation did not have an equivalent to § 922(g)(8).” (internal citation
omitted)). Indeed, the only connection that either of these regimes had with domestic violence
was that sureties could be demanded by one spouse against the other. See id. at 1900 (majority
opinion). Yet, the Supreme Court found them to be sufficient historical analogues to § 922(g)(8)
under Bruen because they are “relevantly similar” enough to “apply[] faithfully the balance
struck by the founding generation to modern circumstances.” Id. at 1898 (quoting Bruen, 

 & n.7). Therefore, the Court stated, “[t]aken together, the surety and going armed
laws confirm what common sense suggests: When an individual poses a clear threat of physical
violence to another, the threatening individual may be disarmed.” Id. at 1901.

        Extending Rahimi’s historical analysis and logic, we recently held in Williams that
convicted felons may be categorically disarmed under § 922(g)(1) based on our Nation’s history
and tradition of firearm regulation. 

. Namely, we relied upon general, historical
analogues—none that specifically targeted felons’ right to bear arms—to affirm § 922(g)(1)’s
constitutionality under the second prong of the Bruen analysis. See id. at 650–57 Thus, we held
that “§ 922(g)(1) is constitutional on its face,” as well as in “most applications,” so long as
allegedly dangerous disarmed people have “an opportunity to make an individualized showing
that [they are] not actually dangerous.” Id. at 657, 662.

        Taken together, Rahimi and Williams evince that our history and tradition of firearm
regulation support § 922(g)(9). Although § 922(g)(9) “is by no means identical” to the historical
sources above or a founding-era regime, “it does not need to be.” Rahimi, 144 S. Ct. at 1901.
The historical sources cited in Rahimi and Williams establish the constitutionality of modern
firearms regulations targeting those who “pose[] a clear threat of physical violence to another.”
Rahimi, 144 S. Ct. at 1901; cf. Williams, 

.            Section 922(g)(9), which
categorically disarms individuals with valid, domestic-violence convictions, fits well within this
historical tradition.
 No. 23-5928                         United States v. Gailes                              Page 10


                                                 3.

         Gailes resists, arguing that “the government has not uncovered what would be the best
evidence of a historical tradition supporting Section 922(g)(9): a founding-era regulation that
banned individuals with prior criminal convictions for domestic violence from ever possessing
firearms.” But such evidence would be a “historical twin,” which is not necessary for the
government to satisfy its burden of finding a “historical analogue.” Bruen, 

;
Rahimi, 144 S. Ct. at 1903. As demonstrated by Rahimi’s historical analysis (again, which did
not expressly discover domestic-violence-related regulations), the government’s evidence here
shows that § 922(g)(9) is “‘relevantly similar’ to laws that our tradition is understood to permit.”
144 S. Ct. at 1898 (citation omitted).

         Nor do Gailes’s attempts to distinguish Rahimi persuade. True, Rahimi considered the
constitutionality of disarming individuals subject to a domestic-violence restraining order, not
individuals who have a domestic-violence-misdemeanor conviction. But if someone who is
merely accused of committing domestic violence can be disarmed without offending the Second
Amendment, then a fortiori someone with a valid conviction can also be disarmed. Even Justice
Thomas’s dissenting opinion in Rahimi, which took issue with § 922(g)(8)’s ability to disarm
people without a criminal conviction, noted how § 922(g)(9) does not suffer that problem. See
id. at 1930 (Thomas, J., dissenting).

         Gailes further emphasizes that Rahimi upheld the disarmament of individuals who
presently pose a threat of physical violence, not individuals who previously posed such a threat.
But someone who posed a risk in the past does not mean they no longer do so. Scholars agree
that—and as Gailes himself demonstrates—the recidivism rate for domestic-violence offenders is
high. See, e.g., Martin Rettenberger & Reinhard Eher, Actuarial Risk Assessment in Sexually
Motivated Intimate-Partner Violence, 37 L. & Hum. Behav. 75, 77 (2013); Brendan Horan,
Comment, The Ball is in Whose Court? Rhode Island’s Need for an Integrated Domestic
Violence Court, 26 Rogers Williams U. L. Rev. 738, 750 (2021); Viet Nguyen & Mia Bird,
Tailoring Domestic Violence Programs to Reduce Recidivism, Pub. Pol’y Inst. of Cal. (June 12,
2018),     https://www.ppic.org/blog/tailoring-domestic-violence-programs-to-reduce-recidivism/
[https://perma.cc/MRT7-C2MF]; see also Stimmel, 879 F.3d at 208–09 (discussing recidivism
 No. 23-5928                         United States v. Gailes                               Page 11


data); United States v. Skoien, 

 (7th Cir. 2010) (en banc) (“[T]he recidivism
rate [for domestic-violence offenders] is high, implying that there are substantial benefits in
keeping the most deadly weapons out of the hands of domestic abusers.”). Moreover, (again, as
shown by Gailes’s conduct), “[d]omestic violence often escalates in severity over time, and the
presence of a firearm increases the likelihood that it will escalate to homicide.” Castleman, 

 (internal citations omitted).

       The fact that the Rahimi Court addressed § 922(g)(8)’s temporary firearm ban, as
opposed to a permanent ban, does not change our conclusion. See 144 S. Ct. at 1902. That is
because in Williams, we upheld a permanent firearm ban. See 113 F.4th at 662–63 (upholding

(g)(1)). And, both Williams and Gailes were convicted—in accordance with
due-process principles—of their predicate crimes prior to disarmament. Also, the purported
permanent ban in § 922(g)(9) may not always be so, given that domestic-violence
misdemeanants “can (1) petition to set aside their conviction; (2) seek a pardon; (3) have their
conviction expunged; or (4) have their civil rights fully restored.” Stimmel, 

(citing 

(a)(33)(B)(ii)).

       Finally, Gailes contends that some predicate convictions for § 922(g)(9) might not
involve physical threats or violence because the definition of “force” under the statute
encompasses offenses that merely involve offensive touching. See Castleman, 572 U.S. at 162–
63. We need not mull over all the predicate convictions that could subject one to disarmament
under § 922(g)(9) because Gailes raises only a facial challenge to the statute. See Gore, 

, at *6. Because there are numerous domestic-violence misdemeanors that do
involve violent, physical contact, our Nation’s history and tradition support our conclusion that
§ 922(g)(9) “is constitutional in some of its applications.” Rahimi, 144 S. Ct. at 1898.

                                                IV.

       While the “why and how” behind our regulation of firearms may have evolved, our
Nation has always taken measures to prevent violence by people with firearms who pose a clear
threat to others. See id. The Second Amendment demands only that § 922(g)(9) be consistent
with our country’s “historical tradition of firearm regulation.” See Bruen, 

.
 No. 23-5928                        United States v. Gailes                            Page 12


And, as chronicled in Rahimi and Williams, our history “confirm[s] what common sense
suggests”: people who were previously convicted of a domestic-violence misdemeanor fall
squarely within the category of people who pose a clear threat to the physical safety of others.
See Rahimi, 144 S. Ct. at 1901. We therefore hold that 

(g)(9) is facially
constitutional, “consistent with the Second Amendment.” See 

.

       For these reasons, we affirm the judgment of the district court and the denial of Gailes’s
motion to dismiss the indictment.