Opinion
No. 17-15279
11-03-2017
BARRY MICHAELS, Plaintiff-Appellant, v. JEFFERSON B. SESSIONS III, Attorney General; THOMAS E. BRANDON, Deputy Director, Head of the Bureau of ATF, Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 2:16-cv-00578-JAD-PAL MEMORANDUM Appeal from the United States District Court for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Barry Michaels appeals from the district court's judgment dismissing his action challenging the constitutionality of 18 U.S.C. § 922(g)(1) under the Second Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). We affirm.
The district court properly dismissed Michaels's action because prior precedent forecloses Michaels's as-applied challenge to § 922(g)(1). See United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (stating that "felons are categorically different from the individuals who have a fundamental right to bear arms," and upholding § 922(g)(1) against a Second Amendment challenge); see also United States v. Phillips, 827 F.3d 1171, 1174-75 (9th Cir. 2016) (rejecting as foreclosed by precedent the argument that imposing § 922(g)(1) on non-violent felons violates the Second Amendment).
We reject as meritless Michaels's contention that the district court committed reversible error by failing to apply strict scrutiny. See United States v. Chovan, 735 F.3d 1127, 1136-38 (9th Cir. 2013) (holding that a statute "does not implicate this core Second Amendment right [if] it regulates firearm possession for individuals with criminal convictions").
We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.