UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


FRAT ORDER PLCE

v.

UNITED STATES


97-5304b

D.C. Cir. 1999


*	*	*


Williams, Circuit Judge: In Moldea v. New York Times  Co., 22 F.3d 310,
311 (D.C. Cir. 1994), at the outset of an  opinion in which a panel on
petition for rehearing abandoned  its initial view, we quoted Justice
Frankfurter's remark,  "Wisdom too often never comes, and so one ought
not to  reject it merely because it comes late." Henslee v. Union 
Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949) 
(Frankfurter, J., dissenting). It still seems good advice.


I.Background


In Fraternal Order of Police v. United States, 152 F.3d 998  (D.C. Cir.
1998) ("FOP I"), this panel addressed two provi- sions of the 1996
amendments to the Gun Control Act of 1968,  18 U.S.C. s 921 et seq.
The first was s 922(g)(9), which adds  domestic violence
misdemeanants--"any person who has been  convicted in any court of a
misdemeanor crime of domestic  violence"--to the list of those for
whom it is unlawful to  possess a firearm "in or affecting interstate
commerce" or to  receive a firearm that has been shipped in interstate
or  foreign commerce. Besides covering additional persons, Con- gress
also amended a pre-existing exemption, s 925(a)(1),  which nullified
the Gun Control Act's disabilities for "any  firearm ... issued for
the use of ... any State or any  department, agency, or political
subdivision thereof"; Con- gress excluded the newly covered persons
from the section's  benefits. Thus, domestic violence misdemeanants,
unique  among persons forbidden to possess guns under the Act, are 
not allowed to possess even government-issued firearms.


The Fraternal Order of Police challenged the amendments  on a variety
of grounds, including the equal protection ele- ment of the Fifth
Amendment's due process clause. See  Bolling v. Sharpe, 347 U.S. 497,
500 (1954). We found such a  violation, holding that the amendments
failed "rational basis" 


review because of their harsher treatment of domestic vio- lence
misdemeanants as compared to domestic violence fel- ons. See id. at
1002-03.


The United States petitioned for rehearing on two grounds:  that FOP
had not properly raised an argument based on the  irrationality of the
relative treatment of misdemeanants and  felons, and that we were
incorrect to find the difference  irrational. We granted the petition,
and requested briefing  and heard oral argument on both points. See
Fraternal  Order of Police v. United States, 159 F.3d 1362 (1998).


We now determine that although it was likely improvident  to address
the felon-misdemeanant equal protection question  in our original
opinion, it has now become appropriate to do  so. We also reverse our
previous position and hold that the  challenged provisions do satisfy
rational basis review. This  requires us to reach FOP's other
arguments: that s 922(g)(9)  violates due process by burdening the
fundamental right to  bear arms, that it is beyond Congress's power
under the  commerce clause, and that it violates the Tenth Amendment. 
We reject all these claims.


II.Waiver of the felon-misdemeanant claim.


Although the felon-misdemeanant distinction was never the  focus of
FOP's arguments, the Order did raise it twice in this  litigation:
orally before the district court at the combined  summary
judgment/preliminary injunction hearing and in its  reply brief here.
After advancing FOP's principal equal  protection argument--that it
was irrational to focus on do- mestic violence misdemeanants to the
exclusion of other  misdemeanants--FOP's counsel said:


The other strangeness about it is that, if you are convict- ed of a
felony, you are a convicted serial killer ... you  can be rearmed, or
if you somehow become a police  officer after your conviction, you can
keep your gun,  because you're a convicted felon. Fine. The exemption 
section still obtains with respect to felonies.


So what's the rationality of, not only looking at one kind  of
misdemeanor instead of all violent misdemeanors, but  leaving every
felon able to be a law enforcement officer 


and carry a weapon in the public interest? I mean the  States may
regulate that, but the Federal government  isn't.


So if you looked just at the Federal enactment, it's  irrational to say
that convicted felons can be police  officers and carry weapons, and
people convicted of one  kind of misdemeanor cannot.


March 7, 1997 Hr'g Tr. at 50-51. Neither the government  nor the
district court addressed the misdemeanant-felon dis- tinction.


FOP's oral argument on the felon-misdemeanant distinction  was enough
to satisfy the general requirement that an issue  on appeal be raised
in the trial court. The government  complains that it lost any
"opportunity to make a record as to  the relevant facts and legal
arguments" because of FOP's  timing in raising the issue below. Gov't
Reh'g Br. at 4. But  the government did not, as it could have, seek to
submit a  post-argument brief or supplemental affidavits on the felon-
misdemeanant question. See Fed. R. Civ. P. 56(e) ("The  court may
permit [summary judgment] affidavits to be sup- plemented or opposed
by depositions, answers to interrogato- ries, or further
affidavits."). Furthermore, the issue present- ed is essentially a
legal one, and the government has not  identified in its rehearing
petition or briefs any type of factual  evidence it would have


In any event, the District Court for the District of Colum- bia
regularly considers arguments raised for the first time at  oral
argument in deciding dispositive motions. See Joslin Co.  v. Robinson
Broadcasting Corp., 977 F. Supp. 491, 493  (D.D.C. 1997) (motion to
dismiss); Jones v. WMATA, 1997  WL 198114, No. Civ. A. 95-2300-LFO, at
*1 n.1 (D.D.C. April  10, 1997) (summary judgment); Richardson v.
National Rifle  Ass'n, 871 F. Supp. 499, 501 (D.D.C. 1994) (summary
judg- ment). If the felon-misdemeanant issue had been properly 
briefed on appeal, it would have been proper for us to address  it.


But FOP failed to raise the issue in its opening brief on  appeal.
Although two passages in that brief might be read in 


isolation as related to the felon-misdemeanant equal protec- tion
argument, context makes clear that neither one actually  did so. The
first vague allusion was merely ancillary to  FOP's commerce clause
argument, see FOP Br. at 34-35, and  the second, though vague, plainly
related solely to FOP's  claim of irrational discrimination among
misdemeanants, see  FOP Br. 39-40. Unsurprisingly, the government did
not  address the felon-misdemeanant distinction in its brief.


FOP's reply brief, however, did raise it, saying, albeit in the 
context of its commerce clause argument, that "[t]his limited 
elimination of a long-standing exception is irrational....  Permitting
a person convicted of a felony on a domestic  partner to benefit from
the exception but not a person  convicted of a misdemeanor on a
domestic partner serves no  legitimate goal." FOP Reply Br. at 16.


Normally, because of the likely unfairness to parties and  risk of
improvident decisions, we would refuse to consider an  argument that
an appellant failed to raise before its reply  brief. See, e.g.,
Doolin Sec. Sav. Bank v. OTS, 156 F.3d 190,  191 (D.C. Cir. 1998);
McBride v. Merrell Dow & Pharms.,  Inc., 800 F.2d 1208, 1210-11 (D.C.
Cir. 1986). Here, however,  the felon-misdemeanant issue was raised
energetically by the  court at oral argument (perhaps because,
although defectively  raised, it appeared comparatively
straightforward), but the  government, though responding on the
merits, made no men- tion of FOP's waiver of the issue. Oral Arg. Tr.
at 35-39.  Accordingly, we think it was within the court's discretion
to  treat the government as having waived the waiver. See  United
States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.  1994) (en
banc); cf. Ochran v. United States, 117 F.3d 495,  503 (11th Cir.
1997) (weighing "prejudice to the parties" and  "interest of justice"
in determining whether to treat govern- ment as having waived


That of course is not to say that affirmative exercise of the 
discretion was wise. We have already telegraphed that with  the more
complete briefing we see the issue as coming out the 


other way. In retrospect, it may well have been imprudent to  address
the merits on so thin an argumentative record.


Now, however, both parties have weighed in on the issue in 
considerable detail. The court has worked through it not  once but
twice. So there is no special risk of reaching an  improvident
decision; and, as the government has had (and  taken) the opportunity
to respond, the most important re- spect in which reaching the issue
might have been "unfair" is  also absent. One might also think it
"unfair" in a relevant  sense to be faced with the risk of losing a
case on the basis of  an argument that one's adversary failed to raise
in the time  and space allotted. But that seems weak here, as the
govern- ment shares some of the responsibility for our having missed 
the procedural objection initially.


Thus, there is no bar to resolving the felon-misdemeanant  issue at
this stage. In addition, there is an affirmative reason  for doing so:
judicial economy. This panel's prior opinion  highlighted the
felon-misdemeanant issue; it will surely be  raised again soon. The
costs of now going forward being  modest, and the potential benefit
being at least the norm for  any judicial decision, it makes little
sense to drop the issue.


III.The rationality of the felon/misdemeanant distinction


The analysis of standing on this issue is unchanged from  our prior
opinion. 152 F.3d at 1001-02. On the merits, it is  plain that ss
922(g)(9) and 925(a)(1) impose a harsher sanc- tion on domestic
violence misdemeanants than on felons.  Whereas gun possession by
persons convicted of a crime  punishable by at least one year of
imprisonment is subject to  s 925(a)(1)'s exemption for
government-issued firearms, gun  possession by domestic violence
misdemeanants is not. See  ss 922(g)(1) & (9), 925(a)(1).


Such domestic violence misdemeanants are not a suspect  class for equal
protection analysis, and we assume for the  purposes of this section
that the regulation does not infringe  a fundamental right. (In
section IV we address and reject  the contention that s 922(g)(9) has
been shown on this record  to infringe such a right.) Thus, the
classification "must be 


upheld against equal protection challenge if there is any  reasonably
conceivable state of facts that could provide a  rational basis for
the classification." FCC v. Beach Commu- nications, Inc., 508 U.S.
307, 313 (1993).


Treating misdemeanants more harshly than felons seems  irrational in
the conventional sense of that term. After all,  "what is uniform and
undisputed is that the presence of some  aggravating circumstance (or
perhaps the absence of a miti- gating one) is necessary to establish a
felony." FOP I, 152  F.3d at 1003. In the standard equal protection
case the  legislature is fully entitled to weigh one characteristic
more  heavily than another, even though the balance may seem  baffling
to the court. But here Congress has incorporated a  set of
classifications made by state legislators who clearly  regarded the
felons' conduct as calling for greater severity  than the
misdemeanants'--whether because of moral oppro- brium, risk to
society, or whatever criteria may have guided  their judgment. Yet
Congress inverted this adopted classifi- cation, imposing a lesser
disability on the felons, whom the  state legislators had singled out
for more severe treatment.  Thus the usual proposition that Congress
is entitled to ad- dress a problem "one step at a time" is not


But on reflection it appears to us not unreasonable for  Congress to
believe that existing laws and practices adequate- ly deal with the
problem of issuance of official firearms to  felons but not to
domestic violence misdemeanants--ade- quately at least in the sense of
explaining how Congress  might have found that as to felons the net
benefit of federal  prohibition (and non-exemption) fell below the net
benefit of  prohibition and non-exemption as to misdemeanants. Al-
though state laws do not uniformly ban felons from possess- ing guns,
as we observed in FOP I, see 152 F.3d at 1003,  nonlegal restrictions
such as formal and informal hiring prac- tices may, as the government
argues, prevent felons from  being issued firearms covered by s
925(a)(1) in a large mea- sure of the remaining cases. In the absence
of evidence  negating these propositions, they indicate that there is
a  reasonably "conceivable state of facts" under which it is 


rational to believe that the felon problem makes a weaker  claim to
federal involvement than the misdemeanant one.  When the government is
faced with a practical determination  like this one, we are obliged to
accept "rough," even "illogi- cal," solutions with an "imperfect fit
between means and  ends." See Heller v. Doe, 509 U.S. 312, 321


We note that federal criminal prohibitions in areas tradi- tionally
left to the states always entail costs--such as loss of  state
capacity to experiment (and of others to learn from the  experiments),
some atrophy of state authority, and loss of the  nuance possible
where regulation is by governmental institu- tions closer to the local
scene. Thus Congress's self- limitation here may reflect a legitimate
accommodation of the  inherent interest in minimizing the scope of
potentially intru- sive federal legislation. This parallels our
observation in  Blount v. SEC, 61 F.3d 938, 946 (D.C. Cir. 1995), on
the  functions of underinclusiveness analysis in the First Amend- ment
realm. It addresses whether the proffered state inter- est actually
underlies the disputed law; once that is estab- lished, there is no
occasion for any inquiry into whether some  broader restriction on
speech would more effectively advance  the specified set of


We leave for another day the complex interpretive issues  posed by the
statutory provision relieving an offender of the  disability where the
underlying conviction has been expunged  or set aside, or the offender
pardoned, or where civil rights  that have been revoked are restored.
See 18 U.S.C.  s 921(a)(33)(B)(ii); FOP I, 152 F.3d at 1003-04. The
possible  anomalies noted in our earlier opinion and in those of other
 courts have not been addressed in the briefs and their impact  would
appear to turn on a detailed analysis of applicable state  law and its
interaction with federal law.


Finally, we reaffirm the determination in our original opin- ion that a
special focus on domestic violence misdemeanants,  as opposed to other
misdemeanants, was not irrational under  the norms of equal protection
jurisprudence. See id. at 1002- 03.


IV.Other constitutional claims


A.Standing


In FOP I we found that FOP members who are chief law  enforcement
officers ("CLEOs") would have Article III stand- ing to challenge ss
922(g)(9) and 925(a)(1): the provisions  injure the CLEOs because they
prevent them from using  officers affected by the ban in situations
requiring firearms,  and the injury is redressable by this court. FOP
I, 152 F.3d  at 1001-02. Further, FOP satisfied the standards of Hunt
v.  Washington State Apple Advertising Comm'n, 432 U.S. 333,  343
(1977), for Article III standing--(1) CLEOs are among  FOP's members,
(2) the challenge is germane to its purpose,  and (3) the CLEOs'
participation as individuals is not neces- sary for disposition of the
case--at least as to those claims for  which the complaining CLEOs
also have prudential standing.


In FOP I we raised the question whether a deficiency in  prudential
standing on the part of members would translate,  for the association,
into a deficiency in Article III standing or  into one in prudential
standing. 152 F.3d at 1001 n.1. As we  found prudential standing for
the CLEOs on the equal pro- tection claim, in the end we didn't need
to resolve the issue.  But the analysis we used for prudential
standing for the  CLEOs depended on the claim's being one of equal
protec- tion, and so is unavailable for the issues now before us.


It is, however, permissible to reject a claim on the merits  without
having explicitly resolved the prudential standing  issue. For one
reason, as the Court has explained, overlap  between the merits and
prudential standing is sometimes so  great as to make any distinction
artificial. Steel Co. v.  Citizens for a Better Env., 523 U.S. 83, 118
S. Ct. 1003, 1013- 14 n.2 (1998). See also George E. Warren Corp. v.
EPA, 164  F.3d 676 (D.C. Cir. 1999). But we may proceed along this 
line only if our answer to the question left open in FOP I is  that a
failure in members' prudential standing constitutes  only a failure in
prudential standing for the association.


As we suggested in FOP I would be the case, that is our  answer. Cases
have treated the first Washington Apple 


requirement (that a member have standing) as entirely con-
stitutional, see, e.g., United Food & Comm'l Workers v.  Brown Group,
517 U.S. 544, 554-56 (1996), but those cases  did not confront the
significance of a member's having consti- tutional but not prudential
standing. Basically the first crite- rion appears simply to look
through the associational veil to  the member's interest; the second
(germaneness to the asso- ciation's purposes) aims at assuring proper
representative- ness and is thus needed to establish requisite
adversariness,  and the third (absence of any need to have the members
 before the court) meets certain convenience considerations.  Id.
Because the association functions only as a transparency  in relation
to the requirement of a member's standing, we  think the normal
(qualified) excusability of addressing pru- dential standing is passed
through to the association. Ac- cordingly, we move on to the merits.


B. Merits


SubstantiveDue Process; Second Amendment


FOP argues that s 922(g)(9) violates the substantive due  process
guarantee of the Fifth Amendment by "unnecessarily  and irrationally
burdening important individual interests in  possession of a firearm
in the public interest, in serving the  communit[y], and in pursuing
an established career." FOP  Br. at 36. The second interest has
clearly not attained the  status of a fundamental right. As to the
third, it is true that  if government action against a particular
person "precludes"  him from pursuing his profession, that action can
infringe a  "liberty interest"; if so, the predicate procedures must
satisfy  due process requirements. See Kartseva v. Department of 
State, 37 F.3d 1524, 1529-30 (D.C. Cir. 1994). But FOP's  claim is
that s 922(g)(9) violates "substantive" due process;  yet it has
failed to develop either a factual record or the legal  standard for
evaluating whether s 922(g)(9) burdens the lib- erty interest so
deeply as to require even justification. Ac- cordingly we turn
directly to the claim arising from the  Second Amendment.


First we note that on appeal FOP also raises an indepen- dent Second
Amendment claim. But as it did not do so in the  district court1 we do
not address it in that form. We must  confess, however, that we are
mystified by the decision to  advance a substantive due process claim
based on an explicit  Second Amendment right in preference to a simple
assertion  of the explicit right itself. It is not apparent how a
claim  might be strengthened by being tucked into the catch-all of 
substantive due process.


In any event, the claim obviously requires us to consider  the Second
Amendment right, on which the Supreme Court's  guidance has been
notoriously scant. The government argues  that FOP's claim fails
because FOP has not "alleg[ed], much  less prov[en], that section
922(g)(9) has any relationship to  the 'preservation or efficiency of
a well regulated militia.' "  Gov't Br. at 35 (quoting United States
v. Miller, 307 U.S. 174,  178 (1939)). Since Miller dealt with
Congress's authority to  prohibit ownership of short-barreled
shotguns, FOP could  have challenged the test's applicability by
arguing that it  serves only to separate weapons covered by the
amendment  from uncovered weapons. It did not do so, and we thus 


But we are not altogether clear what kind of "relation- ship"--or, to
quote Miller more precisely, "reasonable rela- tionship," id.--is
called for here. This Miller test appears in  some sense to invert the
commercial speech test, which  requires the government to show that
legislation restricting  such speech bears a reasonable relationship
to some "legiti- mate" or "substantial" goal. See, e.g., City of
Cincinnati v.  Discovery Network, Inc., 507 U.S. 410, 416 (1993);
Board of  Trustees v. Fox, 492 U.S. 469, 480 (1989). We suppose Miller




__________

n 1 There FOP invoked the Second Amendment only as part of  arguments
that s 922(g)(9) violates the Tenth Amendment and the  constitutional
guarantees of substantive due process and equal  protection. See
Hearing Trans. at 47, 52 (Tenth Amendment);  FOP Memo. in Support of
Prel. Inj. at 15, 18 (equal protection and  substantive due process);
FOP Resp. and Reply at 15-16 (Tenth  Amendment).


would be met by evidence supporting a finding that the  disputed rule
would materially impair the effectiveness of a  militia, though
perhaps some other showing could suffice.  We need not fix the exact
form of the required relationship,  however, because FOP has presented
no evidence on the  matter at all.


Instead FOP simply argues that, in "most" states, police  officers can
be called into service as militia members. But  none of the nine
states' provisions it cites appears to make  police officers any more
susceptible to such service than  ordinary citizens (or in some cases,
than males between the  ages of 17 and 45). In any event, s 922(g)(9)
does not hinder  the militia service of all police officers, only of
domestic  violence misdemeanants whose convictions have not been 
expunged, etc. FOP never indicates how restrictions on the  latter,
relevant class would have a material impact on the  militia.


TenthAmendment


FOP's Tenth Amendment challenge fails because  s 922(g)(9) does not
force state officials to do anything affir- mative to implement its
bar on domestic violence misdemean- ants' possession of firearms. The
Amendment forbids the  federal government to "conscript[ ] the State's
officers" to  "enforce a federal regulatory program," Printz v. United
 States, 117 S. Ct. 2365, 2384 (1997), but FOP has presented  no
evidence that s 922(g)(9) enacts any such conscription.


Although the Gun Control Act does not designate an agen- cy responsible
for enforcement of its criminal provisions, both  the contentions of
the parties and undisputed record evidence  indicate that federal
authorities, in particular the Bureau of  Alcohol, Tobacco, and
Firearms ("ATF"), have such enforce- ment responsibility for s
922(g)(9). See Memo in Support of  Plaintiff's Motion for a
Preliminary Injunction, at 2; Gov't Br.  at 33; Nicholas M. Gess,
Director, Office of Intergovernmen- tal Affairs, Department of
Justice, "Memorandum for All  Interested Law Enforcement Groups," Dec.
6, 1996, at 2. It  is true that ATF has made suggestions to state and
local law  enforcement officials about how best to deal with employees


newly disqualified from carrying firearms. See, e.g., John W.  Magaw,
Director, ATF, "Open Letter to All State and Local  Law Enforcement
Officials," Nov. 26, 1996, at 2-3. But even  if these purported to
require nonfederal authorities to em- bark on active enforcement
measures, they would evidently  represent a transgression of the
Bureau's statutory authority  rather than dutiful implementation of an
unconstitutional  statute. In fact, however, the Open Letter does not
seem to  suggest even an implied claim of authority to compel local
law  enforcement officials to take active measures. For employees 
subject to the disability, it advises that "[i]f such person  refuses
to relinquish the firearm ... , and your agency is  without authority
to retain or seize the firearm ... , you  should contact the local ATF


FOP argues that s 922(g)(9) unconstitutionally restricts  states' power
to determine police officers' "qualifications for  office," FOP Br. at
21, by prohibiting domestic violence  misdemeanants from holding law
enforcement positions re- quiring the use of firearms. But assuming
that this consti- tutes federal regulation of "core" areas of state
sovereignty,  the Supreme Court no longer reads the Tenth Amendment as
 forbidding such regulation, relegating to the political process  the
states' protection from undue intrusion in this form. See  South
Carolina v. Baker, 485 U.S. 505, 511 (1988); Garcia v.  San Antonio
Metro. Transit Auth., 469 U.S. 528, 550-54  (1985).


Even if the Tenth Amendment insulated some areas of  state activity
from negative federal regulation, FOP's claim  would be overbroad. It
may commonly be a side effect of  federal prohibitions to impair
offenders' fitness for service as  a police officer. Showing up for
work at some spot other  than a federal prison is a qualification for
most state posi- tions; federal incarceration intrudes inescapably. Of
course  s 925(a)(1)'s exemption for state-issued weapons protects 
states from this sort of peripheral interference as to all  persons
barred by federal law from weapons possession other  than domestic
violence misdemeanants, but the exemption's  existence does not
establish it either as a constitutional right 


or as a baseline for measuring claims under the Tenth  Amendment--or
any other constitutional provision.


Commerce Clause


FOP argues that s 922(g)(9) is beyond Congress's power to  enact under
the commerce clause. We join all the numbered  circuits2 in rejecting
this argument because s 922(g)(9) con- tains a "jurisdictional
element": in any prosecution under the  provision for possession, the
government must prove that the  defendant possessed the firearm "in or
affecting commerce."


In United States v. Bass, 404 U.S. 336 (1971), the Supreme  Court
confronted an ambiguity in a provision imposing penal- ties on any
felon who "receives, possesses, or transports in  commerce or
affecting commerce ... any firearm." The  United States argued that
the phrase "in commerce or affect- ing commerce" qualified only
"transports," while the defen- dant contended that the commerce
requirement applied to  "receives" and "possesses" as well. The Court
resolved the  ambiguity in favor of the defendant and noted that that 
disposition made it unnecessary to reach the question "wheth- er, upon
appropriate findings, Congress can constitutionally  punish the 'mere
possession' of firearms." Bass, 404 U.S. at  339 n.4. Since the Court
held that a qualification substantial- ly identical to the one here
made it unnecessary even to  consider whether the prohibition in
question exceeded Con- gress's power, the enactment here, as so
qualified, must also  fall within Congress's authority.3 United States


__________

n 2 See United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996); 
United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1995); United 
States v. Gateward, 84 F.3d 670, 672 (3d Cir. 1996); United States  v.
Wells, 98 F.3d 808, 811 (4th Cir. 1996); United States v. Rawls,  85
F.3d 240, 242 (5th Cir. 1996); United States v. Turner, 77 F.3d  887,
889 (6th Cir. 1996); United States v. Lewis, 100 F.3d 49, 52  (7th
Cir. 1996); United States v. Barry, 98 F.3d 373, 378 (8th Cir.  1996);
United States v. Nguyen, 88 F.3d 812, 820-21 (9th Cir. 1996);  United
States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995); United  States v.
McAllister, 77 F.3d 387, 390 (11th Cir. 1996).


3 18 U.S.C. s 922(d)(9), barring transfer of firearms to the  various
proscribed persons, lacks any such explicit jurisdictional 


U.S. 549 (1995), does not change the impact of Bass, for in  Lopez the
Court explicitly noted that the law there held  unconstitutional
contained "no jurisdictional element which  would ensure, through
case-by-case inquiry, that the firearm  possession in question affects
interstate commerce." Id. at  561. See also United States v.
Harrington, 108 F.3d 1460,  1465 (D.C. Cir. 1997), in which we found
that the government  had presented enough evidence to satisfy the
Hobbs Act  provision criminalizing robbery or extortion that
"obstructs,  delays, or affects commerce," 18 U.S.C. s 1951(a), and
made  clear that satisfaction of such a requirement would bring the 
statute safely within the Congress's commerce clause authori- ty.


Finally, to the extent that ATF missives on the subject may  be
disregarding the jurisdictional element, see ATF, "Misde- meanor Crime
of Domestic Violence: Questions and An- swers," Feb. 14, 1997, at 1
(saying that "law enforcement  officers and other Government officials
who have been con- victed of a disqualifying misdemeanor may not
lawfully pos- sess or receive firearms or ammunition for any purpose, 
including performance of their official duties"), such commu-
nications pose an issue of agency excess of statutory authori- ty,
which here would be dispositive before any constitutional  issue would


* * *


The district court's order granting summary judgment for  the defendant
is


Affirmed.




__________

n hook, but FOP has not challenged that provision, as its counsel 
conceded at oral argument on rehearing.