See Smith, 742 F. Supp. 2d at 869 (“Domestic violence misdemeanants are, by statutory definition, violent criminals”). C. Plaintiffs Lack Standing To Challenge The Constitutionality of 18 U.S.C. § 922(d)(9) Plaintiffs appear to have properly abandoned their challenge to the constitutionality of 18 U.S.C. § 922(d)(9) by failing to address this issue in their motion for summary judgment. In any event, plaintiffs lack standing to challenge that statute because they fail to allege anywhere in their Second Amended Complaint that they intend to sell or otherwise dispose of any firearms.

Indeed, nearly every federal district court has rejected the argument as well. The sole52 reported decision finding otherwise is United States v. Engstrum, 609 F. Supp. 2d 1227 (D. Utah 2009), which upheld the constitutionality of Section 922(g)(9) under strict scrutiny (making its perfunctory discussion of the appropriate standard of scrutiny unnecessary to the holding). In any event, Engstrum does not reflect the law in the Tenth Circuit.

These and other controlling precedents also foreclose the Government’s arguments that Section 922(b)(1) does not inflict any judicially cognizable burden because it does not absolutely and permanently bar anyone all access to firearms. Finally, con- trary to the Government’s assertions, Plaintiffs in this case have plainly demonstrated concrete injury sufficient to satisfy Article III. A. Controlling Precedent Makes Clear That Section 922(b)(1) May Be Chal- lenged by Firearms Dealers, 18-to-20 Year Olds, or Both. Under controlling precedent, it is absolutely clear that either a potential vendor or a po- tential purchaser has standing to challenge a restriction on the vendor that burdens the purchas- 5

(finding jurisdiction lacking where plaintiff failed to exhaust administrative remedies in tort claim against the United States as Westfall Act substitute). In addition, to the extent that Plaintiff’s conspiracy claim challenges the enforcement of 18 U.S.C. §§ 922(d)(3) and (g)(3) and the accompanying provisions of the Code of Federal Regulations, Plaintiff’s claim is expressly excluded from 15 The fact that a claim against the United States must immediately fail following substitution under the Westfall Act does not preclude substitution. See United States v. Smith, 499 U.S. 160, 165-66 (1991); Levin v. United States, 663 F.3d 1059, 1064 (9th Cir. 2011).

Accordingly, the analysis must proceed to the next step of determining whether the firearms ban can withstand the appropriate level of scrutiny demanded by the Second Amendment. C. The Application Of 18 U.S.C. § 922(g)(1) To Schrader Cannot Survive Independent Review Under Any Appropriate Level Of Scrutiny As applied against Schrader, the government’s categorical lifetime firearms ban cannot survive any appropriate standard of review, regardless of whether the ban is evaluated under strict or intermediate scrutiny. While Plaintiffs urge that strict scrutiny is most appropriate for reasons discussed below, both relevant standards are analyzed in turn.

96(b) are constitutional. 25 18 U.S.C. § 922(b)(1) and 922(c), and C.F.R. §§ 478.99(b)(1), 478.

Heller, 554 U.S. at 604. C. The Application Of 18 U.S.C. § 922(g)(1) To Schrader Cannot Survive Independent Review Under Any Appropriate Level Of Scrutiny As applied against Schrader, the government’s categorical lifetime firearms ban cannot survive any appropriate standard of review, regardless of whether the ban is evaluated under strict or intermediate scrutiny. While Plaintiffs urge that strict scrutiny is most appropriate for reasons discussed below, both relevant standards are analyzed in turn.

He similarly frames his Second Amendment challenge to Section 922(o) and 26 U.S.C. § 5801 et seq., see id. at ¶ 69. The Government does not address whether Watson’s claim is properly facial or as-applied.

3. In Any Event, 18 U.S.C. § 922(g)(3) Substantially Relates to the Important Governmental Interest in Protecting Public Safety and Combating Violent Crime. Even if the Court were to find that § 922(g)(3) impinges upon a right protected by the Second Amendment (or declines to reach the issue), it should still uphold § 922(g)(3), as applied to all marijuana users, because the statute easily survives heightened review.

The study found that Adenial of 14 The Court may properly take judicial notice of such materials, as other appellate courts have done in upholding related provisions of Section 922(g). See, e.g., Reese, 627 F.3d at 802-03 (upholding 18 U.S.C. § 922(g)(8), which disarms persons subject to domestic violence protective orders); Williams, 616 F.3d at 692-94 (upholding 18 U.S.C. § 922(g)(1), as applied to violent felons); Yancey, 621 F.3d at 682-87 (upholding 18 U.S.C. § 922(g)(3), which disarms unlawful drug users). Case 1:10-cv-01736-RMC Document 26 Filed 08/19/11 Page 32 of 34 - 33 - handgun purchase was associated with a moderate decrease in risk of arrest for new gun and/or violent crimes,@ even taking into account gender, age and criminal history.