Barry Michaels v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARRY MICHAELS,
Plaintiff-Appellant,
v.
JEFFERSON B. SESSIONS III*, Attorney
General; THOMAS E. BRANDON, Deputy
Director, Head of the Bureau of ATF,
Defendants-Appellees.
No. 17-15279
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
Submitted October 23, 2017***
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Barry Michaels appeals from the district court’s judgment dismissing his
* Jefferson B. Sessions III has been substituted for his predecessor,
Loretta E. Lynch, as United States Attorney General under Fed. R. App. P.
43(c)(2).
** This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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