HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE

ORDER

HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE

Defendant Jason Raysean Broadbent was arrested in 2015 and charged with, among other crimes, being a felon in possession of firearms under 18 U.S.C. § 922(g)(1) (Counts Ten and Eleven) and possessing unregistered short-barreled machineguns under 26 U.S.C. § 5861(d) (Counts Thirteen and Fourteen). (Indictment (ECF No. 1).) Defendant now moves to dismiss Counts Ten, Eleven, Thirteen, and Fourteen pursuant to New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022). (Mot. (ECF. No. 55) at 1.)

For the reasons stated below, this Motion is DENIED.

I. Background

Defendant Jason Broadbent was arrested on November 19, 2015 for possession with intent to distribute methamphetamine, possession of unregistered weapons, and for being a felon in possession of firearms. (Indictment at 1-2.) While officers were executing a search warrant on the home of his girlfriend, Defendant, who was asleep in the bedroom, woke up and shot a firearm through the wall. (Mot. at 2.) He then proceeded to run out of the house and into the backyard, and allegedly pointed a gun at officers while scaling a fence. (Id.)

On September 5, 2019, the United States brought charges against Defendant for assault on a police officer (Counts One and Two), discharging a firearm during and in relation to a crime of violence (Count Three), brandishing a firearm during and in relation to a crime of violence (Count Four), possession with intent to distribute methamphetamine near a school (Count Five), possession with intent to distribute methamphetamine where children are present (Count Six), possession of a firearm in furtherance of a drug trafficking crime (Count Seven), possession with intent to distribute methamphetamine (Count Eight), possession of a firearm in furtherance of a drug trafficking crime (Count Nine), being a felon in possession of firearms (Counts Ten and Eleven), possession of an unregistered destructive device (Count Twelve), and possession of unregistered short-barreled machine guns (Counts Thirteen and Fourteen). (Indictment at 1.)

Defendant now moves the Court to dismiss Counts Ten, Eleven, Thirteen, and Fourteen. (Mot.) The Government has opposed the Motion (Opp'n to Mot. to Dismiss 10, 11, 13 and 14 (ECF No. 64).) Oral argument was heard on the Motion on October 5, 2023 with Mia Crager and Jerome Price appearing for Defendant, and David W. Spencer and Justin Lee appearing for the Government.

II. Second Amendment Jurisprudence

The Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). At the core of this guarantee is the right to keep and bear arms for the purpose of self-defense both inside and outside the home. Id. at 630; Bruen, 142 S.Ct. at 2122. The Supreme Court has noted, however, that right “is not unlimited.” Heller, 554 U.S. at 626. Instead, it is tempered by “presumptively lawful regulatory measures,” including but not limited to “longstanding prohibitions on the possession of firearms by felons.” Id. at 626-27 n.26.

In Bruen, the Supreme Court held, “consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home,” Bruen, 142 S.Ct. at 2122, but “decline[d] to adopt [the] two-part approach” many federal courts of appeals, including the Ninth Circuit, adopted following Heller to analyze Second Amendment challenges under which courts considered both history and “means-end scrutiny.” Id. at 2125-26; see, e.g., United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). In rejecting the two-step approach, the Supreme Court observed that while "[s]tep one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history,” “Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.” Bruen, 142 S.Ct. at 2127. Thus, the Supreme Court set forth the new historical test: “When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id. at 2129-30.

III. Analysis

A. Felon in Possession Law

Under 18 U.S.C. section 922(g)(1), it is unlawful for any person who has been convicted of a felony to possess a firearm or ammunition. See 18 U.S.C. § 922(g)(1). Defendant asks this Court to dismiss Counts Ten and Eleven of his Indictment under the new framework pronounced by Bruen, arguing (1) Bruen abrogates prior Ninth Circuit and other case law finding felon-in-possession laws constitutional, and (2) under the new Bruen test Plaintiff cannot meet its burden to establish that section 922(g)(1) is consistent with “the Nation's historical tradition of firearm regulation.” (Mot. at 2-3.) The Court agrees with Plaintiff, however, that Bruen did not effectively overrule Ninth Circuit or Supreme Court precedent upholding the validity of section 922(g)(1). (See Opp'n (ECF No. 64) at 1-3.) Thus, this Court is bound by such precedent and will deny Defendant's motion.

Before Bruen, the Ninth Circuit relied on Heller to repeatedly uphold the constitutionality of laws prohibiting felons from possessing firearms. See, e.g., United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (holding that section 922(g)(1) “does not violate the Second Amendment as it applies to Vongxay, a convicted felon”); Van Der Hule v. Holder, 759 F.3d 1043, 1051 (9th Cir. 2014) (“§ 922(g)(1) continues to pass constitutional muster”); United States v. Phillips, 827 F.3d 1171, 1174-75 (9th Cir. 2016) (“[U]nder Supreme Court precedent and our own” the Ninth Circuit must “assum[e] the propriety of felon firearm bans”). This Court is bound by Vongxay and its progeny unless they have been “effectively overruled.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). “A prior decision is effectively overruled if intervening higher authority has so ‘undercut the theory or reasoning underlying the prior circuit precedent' as to make the precedent ‘clearly irreconcilable' with the intervening authority.” Close v. Sotheby's, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (quoting Miller, 335 F.3d at 900). “The clearly irreconcilable requirement is a high standard,” and “[i]t is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent.” Id. (citations and quotation omitted). Bruen requires courts to determine whether a regulation is “consistent with this Nation's historical tradition of firearm regulation.” Id. at 2126. In Heller, the Supreme Court affirmed the constitutionality of “longstanding prohibitions on the possession of firearms by felons” and others. 554 U.S. at 626-27. The Supreme Court did not hold otherwise in Bruen, but rather invoked Heller in stating the Second Amendment protects the rights of “law-abiding, responsible citizens” to carry arms. Bruen, 142 S.Ct. at 2138 n.9 (quoting Heller, 554 U.S. at 635).

Consistent with the test pronounced in Bruen, the Ninth Circuit in Vongxay did not rely on means-end scrutiny in upholding the constitutionality of section 922(g)(1), but instead relied on Heller's statements that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful.” Vongxay, 594 F.3d at 1115, 1118. The court further noted that “[n]othing in Heller can be read legitimately to cast doubt on the constitutionality of § 922(g)(1),” and that Heller's “examination . . . of historical gun restrictions . . . lend[ed] credence to post-Heller viability” of the court's pre-Heller ruling that Section 922(g)(1) does not violate the Second Amendment. Id. at 1114, 1116. Specifically, the court observed that although “the historical question has not been definitively resolved,” “[d]enying felons the right to bear arms is [] consistent with the explicit purpose of the Second Amendment to maintain the security of a free State . . . [as] [f]elons are often, and historically have been, explicitly prohibited from militia duty,” and most

scholars of the Second Amendment agree that the right to bear arms was inextricably . . . tied to the concept of a virtuous citizen[ry] that would protect society through defensive use of arms against criminals, oppressive officials, and foreign enemies alike, and that the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals) . . . .

Defendant has attempted to argue that Bruen undercut Heller by abrogating its ruling on one of the "presumptively lawful” categories, meaning that a historical analysis must be newly conducted for every regulation listed as presumptively lawful in Heller. Justice Kavanaugh's concurrence in Bruen instructs otherwise. Justice Kavanaugh emphasized that the New York law at issue was not the type of law which Heller found presumptively lawful; it was an unusual, “outlier ‘may-issue' licensing regime” which was used by only handful of states, in contrast to the typical "shall-issue” regimes, which the Justice reiterated, continue to be presumptively lawful. Bruen, 142 S.Ct. 2111,2162-63 (Kavanaugh, J. concurring). Accordingly, Bruen should not be read to undermine the established presumptively lawful regulations outlined in Heller.

Thus, this Court holds that Bruen is not clearly irreconcilable with the reasoning in Heller or Vongxay. While some courts have questioned the constitutionality of section 922(g)(1) following Bruen, see, e.g., Range v. Att'y Gen. United States, 69 F.4th 96, 105-06 (3d Cir. 2023) (holding section 922(g)(1) was unconstitutional as applied to the defendant, whose prior crime was "making a false statement on an application for food stamps”); United States v. Bullock, No. 18-CR-165-CWR-FKB, 2023 WL 4232309, at *4 (S.D.Miss. June 28, 2023) (finding that Bruen "abrogated Fifth Circuit precedent” and performing a Bruen analysis to conclude that section 922(g)(1) was unconstitutional as applied to the particular defendant), this Court is persuaded by the numerous other district courts in the Ninth Circuit that have addressed the same issue post-Bruen and have upheld the constitutionality of section 922(g)(1).

Defendant tries to further argue that one of the felony convictions he has been convicted of is not an appropriate predicate for 18 U.S.C. 992(g)(1) because there is no historical tradition of disarming someone convicted of cruelty to animals. (Mot. at 10.) The Ninth Circuit does not draw a distinction between the type of felonies to which section 922(g)(1) applies and instead views all felons as “categorically different from the individuals who have a fundamental right to bear arms.” Vongxay, 594 F.3d at 1115. Defendants are therefore foreclosed from bringing an “as-applied” challenge to section 922(g)(1). See Michaels v. Sessions, 700 Fed.Appx. 757, 758 (9th Cir. 2017); U.S.A. v. Nevens, No. CR 19-774-DMG, 2022 WL 17492196, at *3 (C.D. Cal. Aug. 15, 2022) (rejecting argument that there was no historical practice of barring non-violent felons from possessing firearms because Heller did not draw any such distinction).

For these reasons, this Court is bound to find section 922(g)(1) constitutional and deny Defendant's Motion to Dismiss Counts Ten and Eleven.

B. Unregistered Firearm Law

Under 26 U.S.C. § 5861(d), it is unlawful for any person to possess a firearm as defined in 26 U.S.C. § 5845(a)(8) and (f) which is not registered to that person in the National Firearms Registration and Transfer Record. See 26 U.S.C. § 5861(d). Defendant asks this Court to dismiss Counts Thirteen and Fourteen of his Indictment under Bruen because firearm registration requirements burden his Second Amendment right to possess firearms and there is no historical tradition of requiring firearms to be registered.

As an initial matter, the type of firearms regulated by 26 U.S.C. § 5861(d), and which Defendant is charged with possessing, do not fall within the ambit of the Second Amendment because they are considered “dangerous and unusual weapons.” Heller, 554 U.S. at 625, 627. Section 5816(d) only prohibits possession of unregistered firearms as defined by section 5845(a) including “short-barrel shotguns, short-barrel rifles, machineguns, silencers, and destructive devices” not “basic handguns, revolvers, or long guns.” See United States v. Sredl, No. 3:22-CR-71 RLM-MGG, 2023 WL 3597715, at *3 (N.D. Ind. May 23, 2023). The Supreme Court in Heller recognized that machineguns and short-barreled shotguns are not protected by the Second Amendment because they are “dangerous and unusual weapons” which are “not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625, 627. The Ninth Circuit has adopted this reasoning and determined that “there is no Second Amendment right to possess a machine gun.” United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012). And the Ninth Circuit has upheld section 5861 in the face of a second amendment argument post-Heller. United States v. Hatfield, 376 Fed.Appx. 706, 707 (9th Cir. 2010).

As discussed above, Bruen does not upset this prior precedent. Far from overruling Heller, Bruen expanded and clarified the Heller analysis. Bruen, 142 S.Ct. at 2128-29 (noting that the Heller court did not engage in means-end scrutiny and instead only engaged in a historical analysis). In fact, the Bruen court reiterated Heller's determination that there is a “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Id. at 2128 (quoting Heller, 554 U.S. at 627) (internal quotations omitted). “Whatever changes N.Y. State Rifle v. Bruen brought to the Second Amendment landscape, inclusion of dangerous and unusual weapons in the Second Amendment right isn't one such change.” Sredl, 2023 WL 3597715, at *3.

For these reasons, this Court is bound to find section 5861(d) constitutional and deny Defendant's Motion to Dismiss Counts Thirteen and Fourteen.

IV. Conclusion

IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Counts Ten, Eleven, Thirteen, and Fourteen (ECF No. 55) is DENIED.

IT IS SO ORDERED.