Ethan D. Delauder was indicted by a federal grand jury for two counts: possession of a firearm by a person convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9), and possession of an unregistered firearm. Delauder moved to dismiss the indictment, arguing that Section 922(g)(9) violated the Second Amendment both on its face and as applied to him, relying on the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen. The district court denied the motion to dismiss. Delauder subsequently entered a conditional guilty plea to the domestic violence firearm count and was sentenced to five years of probation. He appealed, maintaining that the statute is unconstitutional under the Second Amendment.
The Fourth Circuit reviewed the denial of the motion to dismiss de novo. Applying the framework established in Bruen, the court first determined whether the Second Amendment's plain text covers the conduct in question. The court then addressed whether the government justified the regulation as consistent with the nation's historical tradition of firearm regulation. The court held that Delauder's facial challenge to Section 922(g)(9) was foreclosed by the circuit's prior decision in United States v. Nutter, which found the statute consistent with historical tradition. Regarding the as-applied challenge, the court noted that Nutter had reserved the question of when such challenges could be made. However, the court concluded that Delauder had waived any as-applied challenge because he failed to develop the argument in his opening brief. Although Delauder claimed to raise both challenges, he did not mention specific facts of his case or explain why those facts supported a finding that the statute was unconstitutional as applied to him. The government's discussion of specific facts did not cure this deficiency because Delauder failed to respond to those arguments or point to other supporting facts.
The decision affirms the conviction and sentence of Ethan D. Delauder. It reinforces the binding precedent of United States v. Nutter regarding the facial constitutionality of 18 U.S.C. § 922(g)(9) under the Second Amendment. Practically, it signals that defendants in the Fourth Circuit cannot mount a facial challenge to this statute and must carefully develop specific factual arguments to preserve as-applied challenges, or risk waiver. The court dispensed with oral argument, indicating the legal conclusions were clear from the written record.