Summary
denying motion to dismiss § 922(g) count on Heller grounds
Summary of this case from U.S. v. WhiteOpinion
Criminal No. 2008-31.
July 15, 2008
Everard E. Potter, AUSA, St. Thomas, U.S.V.I., For the plaintiffs. Jesse A. Gessin, AFPD, St. Thomas, U.S.V.I., For the defendant..
ORDER
Before the Court is the motion of the defendant, Rupert Walters, Jr. ("Walters"), to dismiss the indictment.
Walters was charged in June, 2008 in a two-count indictment. Count One charges Walters with possession of a firearm within 1,000 feet of a school zone, in violation of Title 18, Section 922(q)(2)(A) of the United States Code ("Section 922"). Count Two charges Walters with unauthorized possession of a firearm, in violation of Title 14, Section 2253(a) of the Virgin Islands Code.
Walters now argues that both counts in the indictment should be dismissed because they violate the Second Amendment of the Constitution. In his motion, Walters neglects to substantiate that argument with citations to any authority. Instead, Walters points to District of Columbia v. Heller, No. 07-290, 2008 U.S. LEXIS 5268 (June 26, 2008), a case that was pending before the Supreme Court at the time his motion was filed. Walters states only that he "reserves the right to challenge" the indictment on Second Amendment grounds. (Def.'s Mot. to Dismiss 2.)
In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997), the Court of Appeals for the Third Circuit explained that "the Second Amendment furnishes no absolute right to firearms." Relying on its decision in Rybar, in United States v. Willaman, 437 F.3d 354, 356-57 (3d Cir. 2006), cert. denied, 547 U.S. 1208 (2006), the Third Circuit rejected the defendant's contention that Section 922 violates the Second Amendment. In reference to the defendant's argument that Rybar "is simply bad law," the Willaman Court stated that "plainly [Rybar] is binding on this panel." Id. at 357.
Like the defendant in Willaman, Walters does no more than argue that Rybar and Willaman "are wrongly decided." (Def.'s Mot. to Dismiss 2.) Like the Willaman Court, this Court is bound by those decisions.
Moreover, while the Supreme Court acknowledged in Heller the right of the individual to possess a firearm, the Court also held that that right is not unfettered. See 2008 U.S. LEXIS 5268, at *95 n. 26 (identifying "presumptively lawful regulatory measures" and noting that the Court's list of those measures "does not purport to be exhaustive").
The premises considered, it is hereby
ORDERED that the motion to dismiss is DENIED.