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Ninth Circuit: Second Amendment Challenge Fails in Prosecution Over Sale of Ghost Guns
Opinion Says Federal Law Criminalizing Unlicensed Sale of Firearms Survives Constitutional Scrutiny
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that the U.S. Constitution does not bar prosecution under a federal law criminalizing the unlicensed sale of firearms, finding that the Second Amendment does not apply to the defendants’ activities in manufacturing so-called “ghost guns”—or firearms without serial numbers—in order to market custom AR-15-type weapons to Californians despite a state ban on selling most assault rifles.
Circuit Judge Danielle J. Forrest wrote the opinion, joined in by Circuit Judges Sandra S. Ikuta and Ronald M. Gould, finding that the law does not “meaningfully constrain” the core possessory individual right to “keep and bear Arms” and, as such, the Second Amendment does not protect the conduct proscribed by the provision.
Challenging their convictions were James Vlha and Travis Schlotterbeck, two Southern California men who were charged with conspiring to manufacture and sell semi-automatic firearms without a license. They were accused of running their operation out of two Bellflower-area businesses operated by Schlotterbeck, Sign Imaging and Live Fire Coatings.
Custom Assault Weapons
According to prosecutors, Vlha and Schlotterbeck accepted orders for custom assault weapons, created parts using specialized equipment, and sold the guns to their customers for a price tag ranging from $1,500 to $2,000. In 2015 and 2016, they unwittingly sold firearms to undercover federal agents, one of whom was a confidential informant with a felonious criminal history.
Each moved to dismiss his indictment under Federal Rule of Criminal Procedure 12(b)(3) as unconstitutional under the Second Amendment, citing the 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen. Senior District Court Judge George H. Wu of the Central District of California denied their motions.
In 2022, both men entered conditional guilty pleas—while preserving their right to appeal Wu’s denial—to engaging in a conspiracy in violation 18 U.S.C. §922(a), which provides that “[i]t shall be unlawful” for any person “except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms.”
Vlha was sentenced to time-served on the offense, and Schlotterbeck, who also pled guilty to selling a firearm to a felon, was sentenced to three months in prison.
Yesterday’s decision affirms their convictions.
Ancillary-Rights Doctrine
Forrest said that “[w]here the challenger is an individual whose direct possessory right to ‘keep and bear Arms’ is not implicated,” the Ninth Circuit applies an “ancillary-rights” analysis. Under the doctrine, established before Bruen was decided, the Second Amendment “protects some activities ancillary to the core possessory right, including the ability to acquire weapons.”
However, she explained:
“[T]he Second Amendment is limited in this context: it protects ancillary activities only if the regulation of such activities ‘meaningfully constrain[s]’ the core individual possessory right….There is not ‘a freestanding right’ to sell firearms that is ‘wholly detached from any customer’s ability to acquire firearms.’…A vendor challenging a firearms regulation must be able to demonstrate that the would-be purchasers’ core right of possession is being meaningfully constrained.”
She acknowledged that Bruen amounted to a sea-change in Second Amendment jurisprudence—requiring that courts first consider whether the plain text covers the conduct in question, in which case the Constitution presumptively protects the conduct and the government must justify the challenged law by demonstrating that it is consistent with the historical tradition of firearm regulation—but said that the case “did not abrogate our ancillary-rights doctrine.”
Saying that “we apply the meaningful-constraint test at step one of the Bruen analysis to determine whether the conduct at issue is presumptively protected by the Second Amendment,” she turned to the defendants’ actions.
Core Right
The jurist wrote:
“Broadly speaking, we agree with Defendants that the ability to manufacture firearms facilitates individuals’ ability to buy firearms, which facilitates the core right to ‘keep and bear Arms.’…But federal law does not prohibit manufacturing, only manufacturing ‘as a regular course of trade or business’ without a license…. The licensing scheme that Congress created here is not discretionary—the required license must be issued if the applicant pays a filing fee, is at least 21-years old, has premises on which to conduct his business, and is generally compliant with other laws.”
Considering whether individuals looking to purchase guns are meaningfully prevented from doing so by the law, she remarked:
“In 2023, there were over 3500 licensed firearms manufacturers in the United States…. That same year, there were also nearly 10 million firearms manufactured by licensed manufacturers….Given this, requiring commercial firearm manufacturers to obtain licenses under the shall-issue scheme challenged here does not meaningfully constrain would-be purchasers from obtaining firearms.”
Forrest added, quoting from Bruen:
“While ‘any permitting scheme can be put toward abusive ends’ through ‘lengthy wait times in processing license applications or exorbitant fees’ and the like,…Defendants have not shown any such abuse here. Therefore, we conclude that the text of the Second Amendment does not cover the conduct regulated by §922(a)(1)(A), and Defendants’ constitutional challenge as to this statute fails.”
She similarly rejected Schlotterbeck’s contention that his conviction for selling a firearm to a convicted felon under §922(d)(1) violated the Constitution, saying that “the answer to this challenge is more straightforward than the challenge to § 922(a)(1)(A).”
Citing jurisprudence establishing that felons have no possessory rights under the Second Amendment, based on “our nation’s history and tradition of disarming people the legislature deems dangerous,” she commented:
“If felons have no Second Amendment right to keep and bear arms, then it necessarily follows that they have no right to purchase firearms.”
The case is U.S. v. Vlha, 22-50281.
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