PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEVON WENDALL BAER,

Defendant-Appellant,	No. 00-1102

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 88-CR-147-B)

Submitted on the briefs:

Devon Wendall Baer, Pro Se.

Thomas L. Strickland, United States Attorney and Sean Connelly, Assistant U.S. Attorney, Denver, Colorado, for Appellee.

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

SEYMOUR, Chief Judge.

Devon Wendall Baer was convicted by a jury of one count of possessing firearms after a felony conviction in violation of 18 U.S.C. § 922(g)(1), and one count of possessing firearms with obliterated serial numbers in violation of 18 U.S.C. § 922(k). He appeals, arguing that he has the right to bear arms under the Utah state constitution, that the federal statutes under which he was convicted are beyond Congress' power under the Commerce Clause and in violation of the Second, Ninth and Tenth Amendments, and that he was the object of vindictive prosecution.1 Concluding that his arguments are without merit, we affirm.2

We first address Mr. Baer's contention that his federal weapons prosecution was improper because the Utah constitution gives him the right to bear arms. We agree with the government that we need not consider this issue because under the Supremacy Clause, state constitutional provisions cannot override federal criminal statutes unless incorporated into federal law.3

Mr. Baer also appears to make the separate but related argument that he holds full civil rights under the state constitution despite his prior felony conviction, thus making him ineligible for prosecution under sections 922(g)(1) and 921(a)(20). Section 922(g)(1) provides that a person convicted of a felony in state or federal court cannot "ship or transport in interstate . . . commerce, or possess in or affecting commerce, any firearm or ammunition; or . . . receive any firearm or ammunition which has been shipped or transported in interstate . . . commerce."4 Under 18 U.S.C. § 921(a)(20), a prior felony conviction cannot be used as a predicate felony for purposes of section 922(g) if it has been expunged or set aside, or if it is one for which a person has been pardoned, or if the person has had civil rights restored. United States v. Flower, 29 F.3d 530, 533 (10th Cir. 1994).

In Flower, as in the instant case, the defendant relied on various provisions of the Utah constitution to argue that his civil rights had been restored. We pointed out that under the law of this circuit, a defendant must show that his rights to vote, serve on a jury, hold public office and possess firearms have all been restored. See id. at 536. Here, the government presented undisputed evidence that Mr. Baer's state conviction had not been expunged or pardoned, and that none of his civil rights had been restored. We note in particular that Utah law expressly forbids convicted felons from serving on juries, one of the rights that must be restored in order to escape the provisions of section 922(g). See id. (quoting Utah Code Ann. § 78-46-7(2)). Mr. Baer's bare assertion that the various state statutes relied on by the government and the trial court violate the state constitution, as he construes it, is unsupported by any legal authority and without merit. Accordingly, we reject his argument that his state law felony does not support his section 922(g)(1) conviction.5

Mr. Baer further argues that Congress exceeded its authority under the Commerce Clause in enacting sections 922(g)(1) and 922(k). He relies on United States v. Lopez, 514 U.S. 549 (1995), to assert that the acts forbidden by those statutes do not have a sufficient impact on interstate commerce. We have rejected this argument, holding to the contrary that "[s]ection 922(g)'s requirement that the firearm have been, at some time, in interstate commerce is sufficient to establish its constitutionality under the Commerce Clause." United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995) (internal quotation omitted). Lopez is distinguishable from cases addressing statutes such as sections 922(g) and 922(k) because those statutes, unlike the one at issue in Lopez, require a nexus with interstate commerce in order to establish jurisdiction. See id; see also United States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999); United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998); United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir. 1995). We thus find no merit in Mr. Baer's Commerce Clause challenge.6

Mr. Baer contends that sections 922(g)(1) and 922(k) are unconstitutional as violative of the Ninth Amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX. The circuits have uniformly rejected the argument that the Ninth Amendment encompasses "an unenumerated, fundamental, individual right to bear firearms." San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996); see also United States v. Wright, 117 F.3d 1265, 1275 (11th Cir. 1997), vacated in part on other grounds 133 F.3d 1412 (11th Cir. 1998); United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir. 1996). We agree and reject Mr. Baer's contention that the federal firearms statutes violate the Ninth Amendment.

Mr. Baer also makes the time-worn argument that his conviction violates the Second Amendment. The Supreme Court has long held that "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia.'" Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (quoting United States v. Miller, 307 U.S. 174, 178 (1939)). The Court in Lewis concluded that federal legislation regulating the receipt and possession of firearms by felons "do[es] not trench upon any constitutionally protected liberties," including those guaranteed by the Second Amendment. Id. In light of this authority, the circuits have consistently upheld the constitutionality of federal weapons regulations like section 922(g) absent evidence that they in any way affect the maintenance of a well regulated militia. See, e.g., Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); see also Wright, 117 F.3d at 1271-74 (upholding 18 U.S.C. § 922(o), which bars possession of machine gun, against Second Amendment challenge); United States v. Hale, 978 F.2d 1016, 1018-1020 (same); United States v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988) (upholding Switchblade Knife Act, 15 U.S.C. § 1242, against Second Amendment challenge); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (upholding 26 U.S.C. § 5861(d), which bars possession of unregistered machine gun, against Second Amendment challenge). Mr. Baer's prosecution did not violate the Second Amendment.

Finally, we turn to Mr. Baer's argument that he was the victim of vindictive prosecution. "To establish a claim of prosecutorial vindictiveness, the defendant must prove either (1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness." United States v. Lampley, 127 F.3d 1231, 1245 (10th Cir. 1997). If the defendant meets this burden, the government must present legitimate reasons to justify its decision to prosecute. Id.

A brief review of the record pertinent to Mr. Baer's claim reveals that the indictment in this case was originally filed in 1988. However, Mr. Baer fled the jurisdiction and began living in Florida under an assumed name. Once the government discovered his whereabouts after he was arrested on gun charges, he was brought to Colorado and tried on the instant charges. Mr. Baer believes that the instant prosecution was undertaken at the behest of Florida officials.7 The government countered with a representation by the prosecuting attorney made as an officer of the court that he had not been urged by anyone to proceed with the case and that he made the decision to pursue prosecution solely on the basis of Mr. Baer's outstanding indictment.

Mr. Baer has offered nothing other than conjecture and speculation to support his contention, and his theories fall far short of proving either actual vindictiveness or a reasonable likelihood of vindictiveness. The trial court therefore properly rejected this claim.

We AFFIRM Mr. Baer's convictions.