has not alleged, much less proven, that § 922(g)(9) has any relationship to the "preservation and efficiency of a well-regulated militia." No fundamental right is implicated by the new law.
(2) Plaintiff argues next that imposing a firearm disability only on those who have committed domestic violence gives irrationally preferential treatment to people who have been convicted of other types of violent misdemeanors. Section 922(g)(9) must be upheld if the classification it establishes is "rationally related to achievement of a legitimate governmental interest," Department of Agriculture v. Moreno, 413 U.S. 528, 533, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973), and statutory classifications are presumptively valid. See Lyng v. Int'l Union, United Automobile, Aerospace and Agricultural Implement Workers, 485 U.S. 360, 370, 99 L. Ed. 2d 380, 108 S. Ct. 1184 (1988). The equal protection clause requires only a "reasonably conceivable state of facts that could provide a rational basis for the classification." F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993). Like other gun control provisions, the purpose of § 922(g)(9) is "keeping firearms out of the hands of categories of potentially irresponsible persons . . . ." Barrett v. United States, 423 U.S. 212, 220-21, 46 L. Ed. 2d 450, 96 S. Ct. 498 (1976). The state of facts which provides a rational basis for the classification at issue here is not only "reasonably conceivable" but was identified in the Senate: The sponsor of Section 922(g)(9), Senator Frank Lautenberg, observed that a person "who attempts or threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk." 142 Cong. Rec. S11227 (daily ed. Sept. 30, 1996). Indeed, Senator Lautenberg cited a study which concluded that "in households with a history of battery, the presence of a gun increases the likelihood that a woman will be killed threefold." 142 Cong. Rec. S11227 (daily ed. Sept. 25, 1996).
(3) Plaintiff goes on to argue that the statute disproportionately affects law enforcement officers who may be required to carry firearms as a condition of their employment. The disparate impact of a facially neutral law is of no constitutional significance unless the uneven effect is traced to a discriminatory purpose. See Personnel Admin. of Massachusetts v. Feeney, 442 U.S. 256, 272, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979) ("when the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern"); see also Washington v. Davis, 426 U.S. 229, 240-41, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). Because no discriminatory purpose has been alleged in this case, this claim must fail.
Section 922(g)(9) does not violate the Due Process Clause.
c. Tenth Amendment
The Supreme Court has explained that "if a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States. . . ." New York v. United States, 505 U.S. 144, 156, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992). Thus, the exercise by Congress of a power delegated to it by the Constitution does not violate the Tenth Amendment, and the conclusion that the 1996 amendment to the Gun Control Act is a valid exercise of the Commerce Clause, supra, disposes of plaintiff's Tenth Amendment claim. See United States v. Collins, 61 F.3d 1379, 1384 (9th Cir. 1995).
Plaintiff maintains, however, that the potential effects of the statute violate the Tenth Amendment -- that, in passing § 922(g)(9), Congress made "all the policy decisions for the States including determining [sic] the substantive criminal law by defining the offense, naming the punishment and the collateral firearm disability, defined [sic] the exceptions and commanded [sic] State and local officials to implement, enforce and pay for its choices." Pl. Mot. for Prelim. Inj. at 5.
That argument goes far beyond the Supreme Court's decision in Printz v. United States, supra, and misconstrues New York v. United States, supra. In the New York case, the Supreme Court struck down legislation that required states either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to such waste. Id. at 175-77. The statute was not constitutionally permissible because it directly required action on the part of the States. In contrast, § 922(g)(9) places no requirements on States or state officials. Congress has not compelled state regulation where "any burden caused by a State's refusal to regulate will fall on [individuals], rather than on the State as a sovereign." Id. at 174. The Tenth Amendment is not implicated by the new law, except to the extent that its purported requirements of CLEO's have already been invalidated by Printz.
For all the reasons explained above, plaintiff's motion for a preliminary injunction must be denied, and defendant's motion to dismiss, treated as a motion for summary judgment pursuant to F.R.Civ.P. 12(b), will be granted. An appropriate order accompanies this opinion.
United States District Judge
Dated: October 2, 1997
For the reasons set forth in the Memorandum Opinion issued today, it is this 2d day of October, 1997,
ORDERED that plaintiff's motion for preliminary injunction [# 3] is denied. And it is
FURTHER ORDERED that defendant's motion for summary judgment [# 10] is granted.
United States District Judge