Opinion
EP-22-CR-00634-FM
2022-10-18
UNITED STATES of America v. Zuley Jaczel MELENDREZ-MACHADO
Ellen Marie Denum, Kristal Melisa Wade, U.S. Attorney's Office, El Paso, TX, Patricia Josefina Acosta, Assistant U.S. Attorney, El Paso, TX, for United States of America. Erik Anthony Hanshew, Public Defender, Federal Public Defender, El Paso, TX, for Zuley Jaczel Melendrez-Machado.
Ellen Marie Denum, Kristal Melisa Wade, U.S. Attorney's Office, El Paso, TX, Patricia Josefina Acosta, Assistant U.S. Attorney, El Paso, TX, for United States of America. Erik Anthony Hanshew, Public Defender, Federal Public Defender, El Paso, TX, for Zuley Jaczel Melendrez-Machado. ORDER DENYING MOTION TO DISMISS INDICTMENT FRANK MONTALVO, UNITED STATES DISTRICT JUDGE
Before the court are "Defendant's Motion to Dismiss Indictment" ("Motion") [ECF No. 24], filed August 15, 2022 by Defendant Zuley Jaczel Melendrez-Machado ("Defendant"), "United States' Response in Opposition to Defendant's Motion to Dismiss Indictment" ("Response") [ECF No. 25], filed August 26, 2022 by the United States of America ("Government"), and "Defendant's Reply to Government's Response to Defendant's Motion to Dismiss" ("Reply") [ECF No. 29], filed September 2, 2022 by Defendant. After due consideration of the Motion, Response, Reply, and applicable law, the Motion is DENIED.
I. BACKGROUND
A. Factual and Procedural Background
On April 19, 2022, Defendant was stopped for secondary inspection while attempting to enter the United States from Mexico at the Paso Del Norte Port of Entry in El Paso, Texas. Agents searched Defendant's vehicle, discovered a lockbox in the trunk, and asked Defendant what was inside, to which Defendant responded "that's my gun." Defendant was arrested and a further search of the lockbox revealed an unloaded 9mm caliber pistol and ammunition. Defendant waived his Miranda rights and agreed to answer questions without the presence of an attorney. Defendant previously had three state felony convictions for theft of property worth less than $2,500 on his record and admitted to agents that he knew he possessed the firearm and also knew he was prohibited from possessing a firearm with a felony conviction.
"Criminal Complaint" 2, ECF No. 1, filed Apr. 20, 2022.
Id.
Id.
Id.
Id. at 2-3.
On May 18, 2022, a grand jury returned an indictment charging Defendant with a violation of 18 U.S.C. § 922(g)(1), as Defendant knowingly possessed a firearm that had been shipped and transported in interstate commerce after being convicted of a crime punishable by imprisonment of more than one year.
"Indictment" 1, ECF No. 10, filed May 18, 2022.
B. Parties' Arguments
Defendant argues the indictment should be dismissed as the Supreme Court's recent decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen renders § 922(g)(1) unconstitutional under the Second Amendment, both facially and as applied to Defendant. The Government argues that Defendant's motion to dismiss the indictment should be denied as Bruen does not affect the constitutionality of § 922(g)(1).
New York State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).
"Defendant's Motion to Dismiss Indictment" ("Mot.") 1, ECF No. 24, filed Aug. 15, 2022.
"United States' Response in Opposition to Defendant's Motion to Dismiss Indictment" ("Resp.") 1-2, ECF No. 25, filed Aug. 26, 2022.
II. APPLICABLE LAW
The Second Amendment to the United States Constitution states "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In District of Columbia v. Heller, the Supreme Court held the Second Amendment confers "an individual right to keep and bear arms." Two years later in McDonald v. City of Chicago, the Court incorporated the Second Amendment right recognized in Heller against the states through the Fourteenth Amendment. The McDonald Court emphasized that "the right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered liberty." Nonetheless, the Heller Court acknowledged the Second Amendment right "is not unlimited" and is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Id. at 778, 130 S.Ct. 3020.
Heller, 554 U.S. at 626, 128 S.Ct. 2783.
In particular, the Heller Court noted that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the sale of arms." The Court established that "these presumptively lawful regulatory measures" were identified "only as examples" instead of an exhaustive list. In McDonald, the Court "repeat[ed] those assurances," reiterating that the holding in Heller "did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possessions of firearms by felons and the mentally ill.' "
Id. at 626-27, 128 S.Ct. 2783 (emphasis added).
Id. at 627 n. 26, 128 S.Ct. 2783.
McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (citation omitted).
In Bruen, the 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." The Court rejected the two-step approach of history and means-end scrutiny used by the courts of appeals to analyze Second Amendment challenges, noting that while step one is consistent with Heller, "Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context." The Court announced the standard for Second Amendment analysis is "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Then the government must "justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.' "
Bruen, 142 S. Ct. at 2122.
Id. at 2125-27.
Id. at 2129-30.
Id. at 2130 (citation omitted).
III. DISCUSSION
The central question and dispute between Defendant and the Government is whether Bruen affected the constitutionality of § 922(g)(1), which states "[i]t shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year [. . .] to [. . .] possess in or affecting commerce, any firearm or ammunition." The court is of the opinion that it did not.
A. Facial Challenge to § 922(g)(1)
Defendant first argues § 922(g)(1) facially violates the Second Amendment under the Bruen framework. The Government argues Defendant's facial challenge to § 922(g)(1) is unsuccessful under both steps of Bruen.
Mot. at 4.
Resp. at 6.
a. The plain text of the Second Amendment does not protect the possession of firearms by felons.
The first step of Bruen requires determining whether the plain text of the Second Amendment covers an individual's conduct. If it does, the conduct is presumptively protected by the Constitution.
Bruen, 142 S. Ct. at 2129-30.
Id. at 2130.
Defendant asserts the conduct restricted by § 922(g)(1) "is clearly covered by the plain text of the Second Amendment" and "impacts the core Second Amendment right to possess a firearm for self-defense." However, as noted by the Government, the Supreme Court's caselaw has made clear that the Second Amendment right is not unlimited. Heller stated the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Bruen concluded it was "undisputed" that the two petitioners in that case, as "law-abiding, adult citizens," were part of " 'the people' whom the Second Amendment protects." The Bruen Court reasoned that the plain text of the Second Amendment "presumptively guarante[ed]" these petitioners a right to bear arms for self-defense in public.
Mot. at 5.
See Resp. at 7.
Heller, 554 U.S. at 635, 128 S.Ct. 2783 (emphasis added).
Bruen, 142 S. Ct. at 2134 (emphasis added).
Id. at 2135.
Consequently, it is not as clear as Defendant suggests that "any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" falls under the plain text of the Second Amendment. The Second Amendment does not plainly protect possession of firearms by felons, the conduct prohibited by § 922(g)(1). Even assuming Defendant is correct about the plain text, the nation's historical tradition at step two of Bruen illustrates the bounds that have been placed on the Second Amendment.
See 18 U.S.C.§ 922(g)(1).
b. Prohibiting possession of firearms by felons is consistent with the nation's historical tradition.
When the plain text of the Second Amendment covers an individual's conduct, step two of Bruen shifts the burden to the government to demonstrate that its regulation "is consistent with the Nation's historical tradition of firearm regulation." If the government does so, then a court may conclude that the individual's conduct is outside the Second Amendment.
Bruen, 142 S. Ct. at 2130.
Id.
Defendant argues "there is no historical tradition from the founding era of criminalizing possession of firearms by felons." The courts have recognized that the historical question of disarming felons "has not been definitively resolved" and the historical evidence is "inconclusive." Nonetheless, the Government has met its burden of demonstrating that § 922(g)(1)'s prohibition on the possession of firearms by felons is consistent with the nation's historical tradition.
Mot. at 2.
United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010).
United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010).
Defendant and the Government both acknowledge that the first federal statute prohibiting felons from possessing firearms was enacted in 1938 for violent felons, was expanded in 1961 to include all felons, and to cover all possession in the Gun Control Act of 1968. The Bruen Court explained that for challenged regulations addressing general societal problems that have persisted since the eighteenth century, the lack of a "distinctly similar" historical regulation also addressing such problems is "relevant evidence" that the challenged regulation "is inconsistent with the Second Amendment." Meanwhile, cases that implicate "unprecedented societal concerns or dramatic technological changes" will involve analogical reasoning, and "whether a historical regulation is a proper analogue for a distinctly modern firearm regulation" requires determining whether they are "relevantly similar."
See Mot. at 9-10; Resp. at 3-4; see also United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010).
Bruen, 142 S. Ct. at 2131.
Id. at 2132 (citation and internal quotation marks omitted).
Defendant argues the "distinctly similar" standard applies because the danger posed by felons is a general societal problem that has existed since the founding. However, the "relevantly similar" standard applies here, as the Federal Firearms Act of 1938 was a response to an unprecedented societal concern, specifically an "increase in organized crime and gangster violence." The prohibition on possessing firearms was expanded to all felons in 1961 as part of legislation likewise designed to address increased crime, particularly "the infiltration of racketeering into our society and the exploding crime rate [that] have increasingly become a cause for national concern." These unprecedented societal concerns were further followed by the assassinations of Martin Luther King Jr. and Robert F. Kennedy, which prompted the Gun Control Act of 1968.
Mot. at 9.
See Conrad Kahn, Challenging the Federal Prohibition on Gun Possession by Nonviolent Felons, 55 S. TEX. L. REV. 113, 115-16 (2013).
See Jeffrey Giancana, The "Scourge" of Armed Check Fraud: A Constitutional Framework for Prohibited Possessor Laws, 51 U. MICH. J. L. REFORM 409, 416 (2018) (citing H.R. REP. No. 87-1202, at 3068 (1961)).
See Kahn, supra note 42, at 116.
The Bruen Court acknowledged it did not provide "an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment," yet pointed to Heller and McDonald for "at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense." Thus "whether modern and historical regulations impose a comparable burden" on this right and "whether that burden is comparably justified" is a central consideration in the Second Amendment analogical inquiry. The Bruen Court emphasized that "analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check," meaning that courts should not uphold every modern law with a historical analogue, but also that "analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin."
Bruen, 142 S. Ct. at 2132-33 (emphasis added).
Id. at 2133.
Id. (emphasis in original).
Here, the Government has identified appropriate historical analogues to § 922(g)(1), specifically of restricting the right to bear arms of "unvirtuous" citizens. "[M]ost scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm 'unvirtuous citizens.' " Under this approach, scholars argue "the most accurate way to describe the dominant understanding of the right to bear arms in the Founding era is as a civic right. Such a right was not something that all persons could claim, but was limited to those members of the polity who were deemed capable of exercising it in a virtuous manner." As a result, "unvirtuous citizens (i.e., criminals) or those who, like children or the mentally unbalanced, are deemed incapable of virtue" could be disarmed by gun laws. Therefore felons would not fall under founding era understandings of a "virtuous citizenry" possessing the right to bear arms.
See Resp. at 9-12.
United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (collecting sources).
Saul Cornell, "Don't Know Much About History" The Current Crisis in Second Amendment Scholarship, 29 N. KY. L. REV. 657, 679 (2002) (emphasis added).
Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS. 143, 146 (1986); see also Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 480 (1995).
The Government also points out proposals at state ratifying conventions that reinforce founding era understandings about limitations on the right to bear arms based on criminality. For example, The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, which "Heller identified [. . .] as a 'highly influential' 'precursor' to the Second Amendment," reflected the understanding that citizens have a right to bear arms "unless for crimes committed, or real danger of public injury." Similarly, an amendment offered by Samuel Adams at the Massachusetts ratifying convention recommended that the Constitution should not be construed to authorize Congress "to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Consequently, as this Circuit noted in Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, "[i]n the view of at least some members of the founding generation, disarming select groups for the sake of public safety was compatible with the right to arms specifically and with the idea of liberty generally."
See Resp. 9-10; see also Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 266 (1983) (arguing that "[a]ll the ratifying convention proposals which most explicitly detailed the recommended right-to-arms amendment excluded criminals and the violent").
Skoien, 614 F.3d at 640 (quoting Heller, 554 U.S. at 604, 128 S.Ct. 2783) (internal citation omitted).
Id. (quoting The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, reprinted in 2 Bernard Schwartz, The Bill of Rights: A Documentary History 662, 665 (1971) (emphasis added)).
The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, reprinted in 2 Bernard Schwartz, The Bill of Rights: A Documentary History 662, 681 (1971) (emphasis added).
Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 200 (5th Cir. 2012) (citation omitted), abrogated by Bruen, 142 S. Ct. 2111.
Additionally, some scholars argue felons "simply did not fall within the benefits of the common law right to possess arms," as the common law punished felons with forfeiture of goods and death. As noted by the D.C. Circuit in Medina v. Whitaker, "it is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms." On this note, the Third Circuit in Folajtar v. Att'y Gen. of the U.S. observed that "the eighteenth-century American's right to bear arms was intimately tied to long-standing practices that explicitly separated the class of armed law-abiding citizens from felons."
Kates, supra note 52, at 266.
Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019).
Folajtar v. Att'y Gen. of the U.S., 980 F.3d 897, 905 (3d Cir. 2020).
On the other side of the historical debate, it has been argued that scholars have been unable to identify founding era laws dispossessing all felons of firearms. However, as noted by the Bruen Court, "even if a modern-day regulation is not a dead ringer for historical precursors, it may still be analogous enough to pass constitutional muster." Consequently, the Government's proposed historical analogues to § 922(g)(1) are "relevantly similar" enough to satisfy Bruen's mandate of being consistent with the nation's historical tradition of regulating firearms.
Kanter v. Barr, 919 F.3d 437, 454, 462 (7th Cir. 2019) (Barrett, J., dissenting) (noting that "scholars have not identified eighteenth or nineteenth century laws depriving felons of the right to bear arms"), abrogated by Bruen, 142 S. Ct. 2111; Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 HASTINGS L.J. 1371, 1374 (2009) (identifying the author's determination that "no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms"); see generally C. Kevin Marshall, Why Can't Martha Stewart Have A Gun?, 32 HARV. J.L. & PUB. POL'Y 695, 698-728 (arguing that bans on felon firearm possession are not longstanding or supported by common law).
Bruen, 142 S. Ct. at 2133.
Furthermore, the Government correctly argues that Bruen does not cast doubt on the longstanding regulations referenced in Heller. Defendant concedes the language in Heller about not calling into question prohibitions on the possession of firearms by felons, but argues this is dicta. However, every federal court of appeals has relied on the "presumptively lawful" language in Heller and McDonald and held that § 922(g)(1) does not facially violate the Second Amendment. While Bruen abrogated some of these cases to the extent they employed means end scrutiny, the Bruen framework does not suggest calling into question the "longstanding regulatory measures" declared presumptively lawful in Heller and McDonald. Importantly, the Bruen Court characterized itself as "ma[king] the constitutional standard endorsed in Heller more explicit," not abrogating or overturning Heller or McDonald.
See Resp. at 11.
Mot. 3 n. 3; "Defendant's Reply to Government's Response to Defendant's Motion to Dismiss" 5 n. 5, ECF No. 29, filed Sept. 2, 2022.
See Kanter, 919 F.3d at 442 (collecting cases), abrogated by Bruen, 142 S. Ct. 2111.
See Resp. at 11.
Bruen, 142 S. Ct. at 2134.
See Resp. at 1-2.
Two of the concurring opinions in Bruen even emphasized the presumptively lawful regulations referenced in Heller and McDonald. Justice Kavanaugh's concurrence reiterated language from Heller and McDonald about "longstanding prohibitions on the possession of firearms by felons and the mentally ill" and asserted "[p]roperly interpreted, the Second Amendment allows a 'variety' of gun regulations." Justice Alito's concurrence clarified the Court's holding in Bruen "decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. [. . .] Nor have we disturbed anything that we said in Heller or McDonald v. Chicago [. . .] about restrictions that may be imposed on the possession or carrying of guns." Alito confirmed the Court's decision "does not expand the categories of people who may lawfully possess a gun."
Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (citations and quotation marks omitted).
Id. at 2157 (Alito, J., concurring) (internal citations omitted).
Id.
B. As-Applied Challenge to § 922(g)(1)
Defendant next argues § 922(g)(1) violates the Second Amendment as applied to him. Defendant contends "he has not been convicted of a serious or violent crime," as the predicate felonies are three theft of property convictions for less than $2,500. Defendant concedes the predicate offenses qualify as state jail felonies due to prior misdemeanor convictions.
Mot. at 11.
Id. at 12.
Id.
Defendant relies on the Third Circuit's framework for analyzing as applied challenges to § 922(g)(1) in Binderup v. Att'y Gen. U.S. However, as noted by the Government, that decision is not binding on this court. Defendant's as applied challenge ultimately fails for similar reasons to his facial challenge. As previously discussed, historical tradition from the founding era supports disarming unvirtuous individuals who have committed crimes. In Binderup itself, the court made clear that Heller recognized " 'longstanding prohibitions on the possession of firearms by felons,' not just violent felons," and "[t]he category of 'unvirtuous citizens' is thus broader than violent criminals; it covers any person who has committed a serious criminal offense, violent or nonviolent." Moreover, as noted by this Circuit in United States v. Everist, "[i]rrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens."
See id.; see generally Binderup v. Att'y Gen. U.S., 836 F.3d 336 (3d Cir. 2016).
Resp. at 13.
Binderup, 836 F.3d at 348 (citations omitted).
United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004).
IV. CONCLUSION
For the foregoing reasons, Defendant's facial and as applied challenges to § 922(g)(1) are both unsuccessful. Accordingly, it is HEREBY ORDERED that "Defendant's Motion to Dismiss Indictment" [ECF No. 24] is DENIED.