No. 23-2808 ___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Jae Michael Bernard,

lllllllllllllllllllllDefendant - Appellant. ____________

Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________

Submitted: October 23, 2024 Filed: May 9, 2025 ____________ Before COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges. ____________ COLLOTON, Chief Judge.

Jae Michael Bernard appeals his conviction for unlawful possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. See 18 U.S.C. § 922(g)(9). Bernard moved to dismiss the indictment on the ground that § 922(g)(9) is unconstitutional on its face under the Second Amendment. The district court* denied the motion, and we affirm.

The prosecution in this case was premised on a previous conviction for a misdemeanor crime of domestic violence. In 2002, Bernard was convicted in Iowa state court of domestic abuse assault causing injury. Federal law prohibits a person who has been convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. Id.

In September 2021, investigators executed a search warrant at Bernard’s residence and seized six firearms, nearly fifty firearm magazines, and over four thousand rounds of ammunition. Bernard pleaded guilty in June 2022 to a violation of § 922(g)(9). Bernard later moved to withdraw his plea and to dismiss the indictment in light of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Bernard argued that § 922(g)(9) is unconstitutional on its face because there is no historical tradition supporting a categorical, lifetime ban on the possession of firearms by persons convicted of a misdemeanor offense. The district court denied the motion, and Bernard entered a conditional guilty plea, reserving his right to appeal the denial of his motion to dismiss. The court sentenced him to thirty-seven months’ imprisonment.

Bernard brought only a facial challenge to § 922(g)(9). A facial challenge “is the ‘most difficult challenge to mount successfully,’ because it requires a defendant to ‘establish that no set of circumstances exists under which the [statute] would be valid.’” United States v. Rahimi, 602 U.S. 680, 693 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). To prevail, the government must show only that § 922(g)(9) is constitutional in at least some of its applications. Id. The government

* The Honorable C.J. Williams, Chief Judge, United States District Court for the Northern District of Iowa.

-2- bears the burden to show that the challenged regulation “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. The challenged regulation must be “‘relevantly similar’ to laws that our tradition is understood to permit,” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29), but the regulation need not “precisely match its historical precursors” or constitute an “historical twin.” Id.

Section 922(g)(9) prohibits possession of a firearm by a person who has been convicted of a “misdemeanor crime of domestic violence.” The offense of conviction must have “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” against a person in an enumerated domestic relationship with the offender. Id. § 921(a)(33)(A)(ii). In other words, the crime “is one in which violence (actual or attempted) is an el