Opinion
CASE NO. 1:23-cv-29
2023-08-07
John Willis ALEXANDER, Movant, v. UNITED STATES of America, Respondent.
Katryna Lyn Spearman, Lowther Walker LLC, Atlanta, GA, for Movant. Alexis Marie Sanford, Hagen Walter Frank, Andrew Byerly Birge, U.S. Attorney, Grand Rapids, MI, for Respondent.
Katryna Lyn Spearman, Lowther Walker LLC, Atlanta, GA, for Movant. Alexis Marie Sanford, Hagen Walter Frank, Andrew Byerly Birge, U.S. Attorney, Grand Rapids, MI, for Respondent. OPINION AND ORDER ROBERT J. JONKER, UNITED STATES DISTRICT JUDGE
John Willis Alexander pled guilty to Receipt of a Firearm by a Person Under Indictment. The Court imposed a sentence of 42 months. The Sixth Circuit affirmed in June 2022. In this Section 2255 motion (ECF No. 1), Movant Alexander contends that the statute of conviction, 18 U.S.C. § 922(n), is unconstitutional in light of the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). The Government has responded in opposition to the motion (ECF No. 9). The Court determines that an evidentiary hearing is unnecessary to the resolution of this case. See Rule 8, RULES GOVERNING 2255 PROCEEDINGS; see also Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (holding that an evidentiary hearing is not required when the record conclusively shows that the petitioner is not entitled to relief). For the following reasons, the Court denies the Section 2255 motion.
BACKGROUND
On June 3, 2021, Movant pled guilty to one count of illegal receipt of a firearm while under indictment. See 18 U.S.C. § 922(n); (Crim. ECF No. 39). The § 922(n) charge arose from a Michigan firearm retailer's report of three suspicious purchases in December 2020 and January 2021. United States v. Alexander, No. 21-2928, 2022 WL 2300240, at *1 (6th Cir. June 27, 2022). At the time of those purchases, Defendant was defending two State felony charges filed in November of 2019: (1) Dangerous Weapon - Miscellaneous Offense; and (2) Felony Financial Transaction Device (PSR ¶ 10, Crim. ECF No. 46, PageID.150). The State Court released Movant on bond and advised that his bond conditions prohibited him from possessing firearms and ammunition. (Id.). Movant violated his bond conditions by making the suspicious purchases. His conduct also triggered the federal criminal proceedings.
"Crim. ECF" refers to the docket in the underlying criminal case, United States v. Alexander, No. 21-cr-56 (W.D. Mich. 2021).
A. The Strawman Purchases
1. Movant Enlists a Strawman to Purchase a Glock Pistol
In particular, on December 18, 2020, Movant used a strawman to purchase a Glock Model 30 Gen 4 .45 caliber pistol at Not Just Guns. Later that day Movant purchased a magazine capable of holding twenty-six rounds of ammunition compatible with that firearm. (PSR ¶ 11). On January 2, 2021, Movant used his cellphone to take photographs of himself holding a firearm with an extended magazine. The firearm appeared to be the same make and model as the firearm purchased from Not Just Guns a few weeks earlier. (PSR ¶ 12).
Testimony at Movant's sentencing also indicated that the firearm was equipped with a "Glock switch" that permits the firearm to operate in a fully automatic capacity. These switches, which allow the firearm to operate as a machinegun, are illegal under federal law; see 26 U.S.C. § 5845; 18 U.S.C. § 922(o). Movant was not separately charged, however, for the Glock switch.
2. Movant Uses a Second Strawman to Buy Another Firearm
On January 14, 2021, Movant exchanged messages with another strawman over Facebook Messenger. In one of the messages, Movant stated that he "[m]ight need another one . . . Pipe [gun] from the store." (PSR ¶ 13). Later that day, the strawman went to Not Just Guns. After about twenty minutes, Movant entered the store as well. The strawman subsequently purchased a Glock 33 Gen 3, 357 sig handgun. The individual's background check did not immediately come back, and so the strawman did not actually obtain possession of the firearm that day. Movant purchased one box of Speer Ammo Gold Dot 357 Magnum ammunition. This ammunition is not compatible with the firearm that the strawman purchased. (PSR ¶ 14).
3. Movant Buys More Ammunition
On January 21, 2021, the strawman returned to Not Just Guns and took possession of the Glock 33 Gen 3, 357 sig handgun. The next day, January 22, 2021, Movant purchased one box of Hornady Critical Duty 357 Sig ammunition. This ammunition is compatible with the firearm the strawman had obtained the day before.
B. Federal Proceedings
This series of events raised the suspicions of employees at Not Just Guns, and the employees reported the transactions to the ATF. Following an investigation, Movant was arrested on March 9, 2021. A search of his vehicle incident to his arrest uncovered multiple cell phones; a slide plate cover for a firearm; body armor; a firearm holster; the sales records for Glock Model 30, .45 caliber and Glock 33, .357 caliber firearms; an axe cover; and over $1,400 in U.S. currency. (PSR ¶ 17). A search of Movant's residence uncovered an additional polymer handgun; a round of 9mm ammunition; a spring for a firearm; empty rifle cases; and a marijuana grow operation. (PSR ¶ 18). Records subsequently obtained from Not Just Guns reflect that in addition to the strawman transactions, Movant purchased several boxes of ammunition on August 10, 2020, August 18, 2020, September 21, 2020, and September 28, 2020, while Movant was prohibited from possessing or receiving a firearm because he was either under felony indictment or had been convicted of a felony offense. (PSR ¶ 23).
A Superseding Indictment charged Movant for three violations of § 922(n) - one for receipt of a firearm while under indictment and two for receipt of ammunition while indictment. Alexander, 2022 WL 2300240, at *1. On June 3, 2021 - five days before his trial was scheduled to begin - Movant signed a plea agreement with the Government. (Crim. ECF No. 39). Movant agreed to plead guilty to the receipt of a firearm charge, and the Government agreed to dismiss the other two counts of receiving ammunition. Id. The Court accepted Movant's guilty plea following a thorough Rule 11 plea colloquy.
The PSR calculated Movant's guidelines at 51 to 60 months imprisonment. (LO 20 CHC IV). Movant objected to his base offense level and the two-level adjustment under USSG 2K2.1(a)(4)(B) for at least three firearms. The Court overruled the defense objection to the base offense level but sustained the defense objection to the two-level adjustment because the record was silent as to when Movant received the polymer gun. Because the charge was receipt of a firearm while under indictment, simple possession was not enough. Movant's final guideline range thus became 41 to 51 months (LO 18, CHC IV). The Court proceeded to sentence Movant to 42 months imprisonment. The Court of Appeals affirmed the Court's sentence on June 27, 2022, four days after the Supreme Court's decision in Bruen.
Movant timely filed the instant Section 2255 motion on January 6, 2023. (ECF No. 1). The motion contains one ground for relief - that § 922(n) is unconstitutional in light of the Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). The Government responds that under the Bruen framework, § 922(n) is constitutional (ECF No. 9). Movant has filed a reply brief. (ECF No. 11).
The Government has waived any procedural default defenses to the motion. (ECF No. 9, PageID.38). Thus, the Court will not address any procedural challenges.
LEGAL STANDARDS
1. Section 2255 Proceedings in General
A federal prisoner may challenge his sentence by filing in the district court where he was sentenced a motion under 28 U.S.C. § 2255. A valid section 2255 motion requires a movant to show that "the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Section 2255 affords relief for a claimed constitutional error only when the error had a substantial and injurious effect or influence on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Non-constitutional errors generally are outside the scope of section 2255 relief, and they should afford collateral relief only when they create a "fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process." Id. (internal quotation marks omitted). As a general rule, a claim not raised on direct review is procedurally defaulted and may not be raised on collateral review absent a showing of either (1) cause and actual prejudice; or (2) actual innocence. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Bousley v. United States, 523 U.S. 614, 621-22, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A motion to vacate under Section 2255 is not a substitute for direct appeal. United States v. Duhart, 511 F.2d 7 (6th Cir. 1975); DiPiazza v. United States, 471 F.2d 719 (6th Cir. 1973).
2. Second Amendment Framework
The Second Amendment to the United States Constitution provides "[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." U.S. CONST. amend. II. The Sixth Circuit Court of Appeals has "long held congressional regulation of firearms constitutional." United States v. Frazier, 314 F. App'x 801, 807 (6th Cir. 2008) (collecting cases); see also United States v. Helton, 86 F. App'x 889, 892 (6th Cir. 2004) (rejecting Second Amendment challenge to Section 924(c)). Following District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Sixth Circuit Court of Appeals adopted the two-prong approach used at the time by several other circuit courts to resolve Second Amendment challenges. See United States v. Greeno, 679 F.3d 510 (6th Cir. 2012).
Under that approach, courts first asked "whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood." Greeno, 679 F.3d at 518. If the Government could demonstrate "that the challenged statute 'regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment . . . then the analysis [could] stop [t]here[.]' " Id. (quoting Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011)). If the Government could not make this showing, however, the matter proceeded to the second prong, which involved an " 'inquiry into the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights.' " Id. (quoting Ezell, 651 F.3d at 703). If the law survived the applicable standard of scrutiny, then it was constitutional. If it did not, then the law was invalid. Id. Applying this test, the court in Greeno determined that the defendant's Second Amendment challenge to a dangerous weapon sentencing enhancement failed on the first prong.
In Bruen the Supreme Court rejected the two-pronged approach as "one step too many." Bruen, 142 S. Ct. at 2127. In 2022, the Supreme Court struck down a New York "may issue" firearm licensing regime. See New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). In doing so, Bruen established a new framework for evaluating the constitutionality of firearm regulations. The Supreme Court held "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation . . . the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." 142 S. Ct. at 2126. If the government makes that showing, then a court may "conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.' " Id. (quoting Konigsberg v. State Bar of Cal, 366 U.S. 36, 50 n.10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)). Expanding on its holding, the Court found that step one of the courts of appeals' two-pronged approach was "broadly consistent with Heller." Id. at 2127. But Heller and McDonald did not "support applying means-end scrutiny in the Second Amendment context." Id. "Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Id.
Accordingly, Bruen requires courts to ask whether the "Second Amendment's plain text covers an individual's conduct." Id. at 2126. If so, the "Constitution presumptively protects that conduct." Id. Second, if the court determines that the Second Amendment's text covers the conduct at issue, the Government must show that the regulations are within the history and tradition of the Nation's firearm regulation. One district court summarized this process by stating:
Bruen teaches that the "historical inquiry that courts must conduct will often involve reasoning by analogy" and "determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are relevantly similar." Bruen, 142 S. Ct. at 2132 (internal citation omitted). The Court identified "two metrics"
that would render regulations relevantly similar under the Second Amendment: "how and why the regulations burden a law-abiding citizen's right to armed self-defense." Id. at 2132-33.United States v. Kays, 624 F.Supp.3d 1262, 1266 (W.D. Okla. 2022). Analogies are never perfect comparisons. Nor must an analogous law be a "historical twin." Bruen, 142 S. Ct. at 2133. "[A]nalogical reasoning under the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check." Id. Most importantly, the fundamental question for this court to consider is whether the two laws are "relevantly similar." Id. at 2132.
DISCUSSION
Movant argues that after the Supreme Court's ruling in New York State Rifle and Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), § 922(n) violates the Second Amendment both facially and as applied. This is so, he claims, because the Second Amendment's plain text covers the conduct in this case, and because the government cannot demonstrate that the statute is consistent with this Nation's historical tradition of firearm regulation.
The government disagrees. It first claims that Second Amendment protection does not apply to individuals under felony indictment. And even if it does, the government contends that § 922(n) is grounded in historical traditions regulating firearms. On this latter point, the government argues the statute is similar to historical laws detaining those under indictment before trial and disarming individuals the government found untrustworthy. The government thus argues that the statute survives a facial challenge to its constitutionality. And as applied, the statute survives scrutiny in the government's view because Movant qualifies as "an unvirtuous citizen . . . whose actions demonstrate disrespect for the rule of law."
This Court has not found a Supreme Court or Court of Appeals decision interpreting § 922(n)'s constitutionality under the Bruen framework. However, numerous district courts have grappled with the Supreme Court's new legal standard in the context of § 922(n). So far, the two district courts within the Sixth Circuit to have considered the issue have found that § 922(n) is constitutional under the Bruen framework. See United States v. Gore, No. 2:23-CR-04, 2023 WL 2141032 (S.D. Ohio Feb. 21, 2023); see United States v. Kelly, No. 3:22-CR-00037, 2022 WL 17336578 (M.D. Tenn. Nov. 16, 2022).
An unpublished Fifth Circuit case, United States v. Avila, No. 22-50088, 2022 WL 17832287 (5th Cir. Dec. 21, 2022), declined to review a § 922(n) challenge on direct appeal de novo and did not find plain error when the Second Amendment challenge was not raised in the district court. The Fifth Circuit will consider a Bruen challenge in United States v. Quiroz, No. 22-50834 (5th Cir.) on the government's appeal of the district court's order finding Section 922(n) facially violated the Constitution. Oral argument was held on February 8, 2023, and supplemental briefing has been submitted. As of the date of this decision, the Fifth Circuit has not yet ruled.
The overwhelming majority of district courts from outside the Circuit analyzing § 922(n) following Bruen have also found the statute to be constitutional. See, e.g., United States v. Kays, 624 F.Supp.3d 1262 (W.D. Okla. 2022) (finding "proper historical analogues for § 922(n)"); United States v. Alston., No. 5:23-CR-00021-FL-RN-1, 2023 WL 4758734, at *11 (E.D.N.C. July 18, 2023) ("Compared to this nation's historical tradition of allowing pretrial detention for serious offenses, § 922(n) imposes a lesser overall burden on the right to-armed self-defense. And like pretrial detention, § 922(n) requires a finding of probable cause by a grand jury before it can restrict an indicted individuals' liberties."); United States v. Rowson, 652 F.Supp.3d 436 (S.D.N.Y. 2023) (§ 922(n) is consistent with historical tradition of firearms regulation); United States v. Posada, No. EP-22-CR-1944(1)-KC, 670 F.Supp.3d 402 (W.D. Tex. Apr. 20, 2023) (same); United States v. Bartucci, 658 F.Supp.3d 794 (E.D. Cal. 2023) (same); see also United States v. Simien, 655 F.Supp.3d 540 (W.D. Tex. 2023); United States v. Stennerson, No. CR 22-139-BLG-SPW, 2023 WL 2214351 (D. Mont. Feb. 24, 2023); United States v. Rios, No. SA-20-CR-00396-JKP, 2023 WL 3687369 (W.D. Tex. May 26, 2023); United States v. Jackson, 661 F.Supp.3d 392 (D. Md. 2023). But see United States v. Quiroz, 629 F. Supp. 3d 511 (W.D.Tex. 2022) (holding § 922 unconstitutional post-Bruen), appeal docketed, No. 22-50834 (5th Cir. Sept. 19, 2022); United States v. Hicks, 649 F.Supp.3d 357 (W.D. Tex. 2023) (same), appeal docketed No. 23-50030 (5th Cir. Jan. 12, 2023); United States v. Stambaugh, 641 F.Supp.3d 1185 (W.D. Okla. 2022) (same), see also United States v. Holden, 638 F.Supp.3d 931 (N.D. Ind. 2022) (same), rev'd, 70 F.4th 1015 (7th Cir. 2023).
Movant relies on the minority rule cases in his brief. These decisions, however, have generally been distinguished by more recent case law upholding the constitutionality of § 922(n). See United States v. Rowson, 652 F.Supp.3d 436, 470 (S.D.N.Y. 2023); Bartucci, 658 F.Supp.3d at 805 (explaining that the self-defense exception as discussed in Quiroz did not develop until after the nation's founding); see also Jackson, 661 F.Supp.3d at 412-14. Indeed, after Quiroz and Hicks, multiple cases coming from the Western District of Texas, the very same district, found § 922(n) to be constitutional. Simien, 655 F.Supp.3d at 551 (Quiroz notwithstanding, holding that § 922(n) is constitutional because it fits into the history and tradition of firearm regulation in this Nation); United States v. Posada, No. EP-22-CR-1944(1)-KC, 670 F.Supp.3d 402 (W.D. Tex. Apr. 20, 2023) ("Though two district courts within the Fifth Circuit have held the law unconstitutional, the Court respectfully disagrees with them for the reasons above"); United States v. Rios, No. SA-20-CR-00396-JKP, 2023 WL 3687369 (W.D. Tex. May 26, 2023) (holding that § 922(n) is constitutional for the reasons outlined in Simien).
Furthermore, another case that Movant cites, United States v. Holden, 638 F.Supp.3d 931 (N.D. Ind. 2022) was subsequently reversed by the Seventh Circuit. In reversing the district court, the Seventh Circuit in Holden did not directly address the Bruen inquiry as applied to Section 922(n). The defendant in Holden sought to purchase a firearm. He lied on an ATF form that he was not "under indictment or information" for any crime punishable by imprisonment for a year or more when, in fact, the defendant had been accused of battering a public safety official. The defendant initially pleaded guilty to a charge under 18 U.S.C. § 922(a)(6), which makes it a crime to knowingly make any false or fictitious oral or written statement likely to deceive a dealer as to any fact material to the lawfulness of a firearm sale. The defendant then sought to withdraw his plea on the basis that Section 18 U.S.C. § 922(n) violated the Second Amendment, and the district court granted the motion and dismissed the indictment. "The main problem" the Seventh Circuit held, with the district court's approach was that the defendant was not charged with violation Section 922(n). But the Court went on to observe that it would be unlikely "that § 922(n) would be held invalid across the board." Holden, 70 F.4th at 1017.
Numbers alone are not determinative. C.f. Heller, 554 U.S. at 621-624 & 624 n.24, 128 S.Ct. 2783 (addressing Justice Stevens' argument made in dissent that "hundreds of judges' had read the earlier case of United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) as holding that the Second Amendment did not protect the right to possess and use guns for purely private, civilian purposes and stating "[i]f so, they overread Miller."). But their analyses may be convincing, and this Court finds that decisions of those cases that have upheld § 922(n) under the Bruen framework are persuasive here. Thus, as explained more fully below, Movant's 2255 motion fails because § 922(n) is a constitutional firearm regulation under the Bruen framework.
1. Section 922(n) is facially constitutional following Bruen
a. Defendant and His Conduct are Covered by the Text of the Second Amendment.
Bruen's first step requires that courts determine whether the "Second Amendment's plain text covers an individual's conduct." Bruen, 142 S. Ct. at 2126. If the conduct is covered, then the "Constitution presumptively protects that conduct." Id. First, the Court concludes that Movant, although a felon indictee, is presumptively the type of person protected by the Second Amendment. Second, Movant's conduct - receiving a firearm - is covered by the Second Amendment's plain text.
i. Felon Indictees are Covered by the Second Amendment
In Bruen, the Court favorably summarized the holdings of Heller and McDonald as recognizing the "Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense." Bruen, 142 S. Ct. at 2122. In claiming that the Second Amendment's plain text does not cover the conduct in this case, the government looks to this excerpt and argues the Second Amendment's plain text does not cover felon indictees because they are not "law-abiding citizens." Most courts thus far, however, have rejected this argument. See Gore, 2023 WL 2141032, at *2 ("[E]xclusion of individuals under indictment from the right of the people to keep and bear arms is inconsistent with the Amendment's plain text.") (quotation omitted); Kays, 624 F.Supp.3d at 1265 ("This Court declines to read into Bruen a qualification that Second Amendment rights belong only to individuals who have not been accused of violating any laws."); Rowson, 652 F.Supp.3d at 462 ("The Court, joining all others to consider the question squarely post-Bruen, accordingly holds that felony indictees are within the scope of "the people" who have Second Amendment rights."); Posada, 670 F.Supp.3d at 406 ("It appears that nearly every court that has considered whether felony indictees are part of "the people" within the meaning of the Second Amendment has held, or at least assumed, that they are."). But see United States v. Perez-Garcia, 628 F. Supp. 3d 1046, 1053 (S.D. Cal. 2022) (in considering challenge to standard condition of bail prohibiting possession of firearms noting "[a]s a person who has been charged with a crime based on a finding of probable cause, Mr. Perez-Garcia would not be considered a "law-abiding" or responsible citizen, so he is outside the plain text of the Second Amendment.") (internal footnote omitted).
The Court agrees with the majority of the other counts. The Second Amendment states that "the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. (emphasis added). In Heller, the Supreme Court clarified that there is a "strong presumption that the Second Amendment right is exercised individually and belongs to all Americans." Heller, 554 U.S. 570, 580, 128 S.Ct. 2783 (2008). Although, as the Government points out, the Second Amendment's scope may be limited to select individuals, at least for purposes of a facial challenge, the Government fails to persuade the Court "to treat the broad and eclectic category of persons under any type of pending felony indictment as, ex officio, lacking all Second Amendment rights." United States v. Rowson, 652 F.Supp.3d 436, 459 (S.D.N.Y. 2023).
Even pre-Bruen, courts rejected the argument that felon indictees lose all Second Amendment rights because of their status. United States v. Love, No. 20-20327, 2021 WL 5758940, at *3 (E.D. Mich. Dec. 3, 2021) ("The purchase of a firearm by a presumably innocent individual falls within the Second Amendment right as historically understood."). Indictees are not yet felons. A charging authority has simply found probable cause to bring a felony charge against them. That probable cause might not even rest on evidence admissible at trial. Indictees still enjoy the presumption of innocence until a jury decides to find them guilty beyond reasonable doubt based on admissible evidence. Without any binding authority to the contrary, the clear difference between indictees and convicted felons is enough to support the presumption that indictees continue to enjoy the protection of the Second Amendment.
Furthermore, multiple courts emphasize that the Bruen analysis focuses on a person's conduct, not status. Kays, 624 F.Supp.3d at 1265, 1265 n.4 (explaining that the government status argument "ignores the Supreme Court's emphasis on an individual's conduct, rather than status" and that an "individual's Second Amendment rights are not predicated on their classification, but rather, their conduct."); Rowson, 652 F.Supp.3d at 458 ("Nor . . . does any other aspect of the analysis in Bruen support the Government's argument at this step. On the contrary, the Court's focus on the 'conduct' of the person . . . .").
ii. The Second Amendment Covers Receipt of a Firearm.
Second, the plain text of the Second Amendment covers the conduct described in § 922(n). District courts are generally in accord that the conduct involved - shipping, transporting, and receiving firearms - is covered by the Second Amendment. See Kelly, 2022 WL 17336578, at *3 ("[T]he act that Kelly was actually indicted for—receipt—is impossible to separate from the concept of bearing a firearm.") (quotation omitted); Bartucci, 658 F.Supp.3d at 804 ("Defendant's conduct—receiving a firearm—is covered by the plain text of the Second Amendment"); Posada, 670 F.Supp.3d at 407 ("The Second Amendment clearly protects the act of receiving . . . ."); Simien, 655 F.Supp.3d at 551 ("Although the statute does not, for example, prohibit continued possession of a firearm the indictee previously owned, an indictee's Second Amendment rights are affected by § 922(n) because receipt is a necessary predicate to possession."); see also Quiroz, 629 F. Supp. 3d at 517 ("The Second Amendment's plain text does cover "receipt" and the Constitution presumptively protects such conduct.")
No one doubts that possessing a firearm is conduct covered by the Second Amendment. The concept of "bear[ing] arms" obviously connotes possession. The concept of "receipt" is not identical with possession but is a necessarily included concept. To possess a firearm, one must first receive it. See Receive, BLACK'S LAW DICTIONARY (11th ed. 2019) ("To come into possession of or get from some outside source."). There is no other way for someone to come into the possession of a firearm. As demonstrated in this case, Movant first had to receive the gun from an acquaintance before he possessed it. One district court within the Sixth Circuit sums this up by saying that receiving a firearm "is impossible to separate from the concept of bearing a firearm." Kelly, 2022 WL 17336578, at *3. Because felon indictees and receiving a firearm are covered by the Second Amendment, step two of the Bruen analysis is needed to justify the Constitutionality of § 922(n).
b. 922(n) Fits Within the History and Tradition of Firearm Regulation in the United States
The government contends that even if the Second Amendment covers those under indictment, § 922(n)'s restrictions are in line with historical tradition. Determining whether a firearm regulation fits within the historical and tradition of the United States requires a thoughtful review of our nation's history. The "historical inquiry that courts must conduct will often involve reasoning by analogy" and "determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are relevantly similar." Bruen, 142 S. Ct. at 2132 (internal citation omitted). To be a proper analogue for § 922(n), courts must determine that the laws impose a comparable burden on the Second Amendment (how) and whether the burden is comparably justified (why). See Bruen, 142 S. Ct. at 2133. The Government has the burden of proving that its firearm regulation is justified based on the history and tradition of firearm regulation in this Nation. See Bruen, 142 S. Ct. at 2129-30. The Government cites three "historical threads" that, it says, provide ample support to meet its burden: (1) historical liberty restrictions on indicted defendants; (2) historical laws restricting the gun rights of groups deemed dangerous or untrustworthy to obey the law; and (3) historical surety laws restricting the gun rights of people accused of posing a threat. See also Posada, 670 F.Supp.3d at 407-08 (analyzing the same three arguments).
i. Pretrial Detention Laws Show that § 922(n) is Within the History and Tradition of Firearm Regulation in this Nation.
The Government begins by comparing § 922(n) to historical laws allowing pretrial detention of indicted defendants. The Government posits that because it is constitutional to deprive indicted defendants of their liberty through pretrial detention, the necessary implication is that it is also constitutional to impose a lesser restriction of temporarily prohibiting the receipt of firearms while out on bond awaiting trial on the charges. After all, [t]here is no constitutional right to bail." Clara Kalhous, et al., Bail Pending Trial, Changing Interpretations of the Bail Reform Act & the Importance of Bail from Defense Attorneys' Perspective. 32 Pace L. Rev. 800, 800 (2012) (citing William Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 34 (1977)).
Laws governing pretrial detention restrict an indictee's constitutional rights in numerous ways. As one court states, "indictment already allows for a range of liberty restrictions . . . . it may lead to pretrial detention, which obviously strips a defendant of all Second Amendment rights and severely limits many other core constitutional rights, such as freedom of speech, freedom of association, and reasonable privacy expectations." Jackson, 661 F.Supp.3d at 413 (internal quotations omitted). Echoing these sentiments, the Posada court relies on pretrial detention laws as its only historical analogue to support 922(n)'s constitutionality. Posada, 670 F.Supp.3d at 408-11. (holding that pretrial detention laws and § 922(n) have a comparable burden and justification).
Similarly, this Court finds that the pretrial detention laws and § 922(n) have a comparable burden on Second Amendment rights and justification for that burden. During pretrial detention, a person necessarily loses not only Second Amendment rights but also the even more fundamental right of liberty. And deprivation of liberty comes with a restriction on numerous other constitutional rights. In these ways, pretrial detention laws are "far more burdensome than § 922(n) is." Posada, 670 F.Supp.3d at 410. Indeed, § 922(n) does not completely restrict Second Amendment rights because it allows for an indictee to continue to possess firearms that they already have. By its terms, it prohibits only receipt. And the restriction is temporary, lasting only through the resolution of the criminal proceeding. Pretrial detention precedent is sufficiently similar in type and justification to support the constitutionality of Section 922(n).
Second, one of the historical purposes of pretrial detention laws is to preserve the safety of the general public. Id. at 408-09. There is evidence that capital defendants were excluded from bail, since colonial days as a public safety measure. Sandra G. Mayson, Dangerous Defendants, 127 Yale L.J. 490, 502 (2018). Defendants may be detained pretrial when they "posed a risk of flight or danger to the community." Posada, 670 F.Supp.3d at 408. Similarly, prohibiting the receipt of firearms during the indictment period is aimed at protecting the public because indictment is "a volatile period during which the stakes and stress of pending criminal charges often motivate defendants to do violence to themselves or others raising a reasonable inference of threat to the public." Bartucci, 658 F.Supp.3d at 807 (internal quotations omitted). These precedents, like 922(n), are clearly aimed at accomplishing similar goals, and thus, have a comparable justification to satisfy the Bruen framework.
Analogous laws do not need to be a "historical twin." Bruen, 142 S.Ct. at 2133. The laws only need to be "relevantly similar," id. at 2132, and the Government has met that burden here. Thus, pretrial detention laws are a historical analogue demonstrating that § 922(n) fits within this Nation's tradition of firearm regulation.
ii. This Nation's Historical Laws Disarming Dangerous or Untrustworthy People also Provides an Analogue to § 922(n).
"History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns." Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, Circuit Judge, dissenting), majority decision abrogated by Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022). The government secondly argues that Section 922(n) squares with English and early American laws restricting certain individual's gun rights to promote public safety. The Court agrees.
In the Court's view, this outcome is consistent with constitutional text, history, common sense and the holding of Bruen itself. Bruen framed its holding narrowly to invalidate New York's "may issue" licensing regime as a violation of an individual's constitutional "right to carry a handgun for self-defense outside the home." 142 S. Ct. at 2122. The majority expressly rejected any suggestion that the holding called into question "shall issue" licensing schemes in effect in most states, id. at 2138 n.9, and concurring Justices emphasized that nothing in the decision should "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 . . . ." 142, S. Ct. at 2162 (concurring Opinion of the Justice Kavanaugh and the Chief Justice, quoting Heller and McDonald).
Section 922(n) presents an a fortiori case for longstanding prohibitions that are unaffected by Bruen: namely, receipt of a firearm while under indictment including, here, charges for possession of a dangerous weapon. Section 922(n) is a temporary restriction, not a lifelong status bar. And it prohibits only receipt, not continuing possession. Nothing in Bruen suggests a limit on the power of Congress to criminalize using firearms to spread violence in the communities. To the contrary, the majority's exhaustive history of early firearms regulation in England and colonial America highlight a general "thread" of statutory prohibitions on "bearing arms in a way that spreads 'fear' or 'terror' among the people." 142 S. Ct. at 2145. Section 922(n) is a natural descendent of these longstanding prohibitions, and entirely different than the "may issue" licensing regime invalidated in Bruen.
iii. Founding-Era Surety Laws are a Relevantly Similar Analogue to § 922(n)
Finally, the government compares § 922(n) to colonial-era surety laws and claims that the similarities sufficiently satisfy the Bruen framework. Several courts have agreed in this analysis. See Gore, 2023 WL 2141032 at *4 ("Because it imposes a comparable burden and has a comparable justification to historical surety laws, § 922(n) is facially valid under the Second Amendment."); Kays, 624 F.Supp.3d at 1268 ("The Court thus finds that the surety laws discussed in Bruen are proper historical analogues for § 922(n)."); Bartucci, 658 F.Supp.3d at 807 ("[T]his Court finds that it is sufficiently analogous to pass constitutional muster."); Simien, 655 F.Supp.3d at 552 ("[T]he Court finds the Government met its burden to show § 922(n) is consistent with historical traditions of firearms restrictions in the form of surety laws."); Rowson, 652 F.Supp.3d at 469 ("[T]he surety laws, considered collectively, are "relevantly similar" to § 922(n).") Jackson, 661 F.Supp.3d at 414 ("§ 922(n) restricts access to firearms as to persons accused by a grand jury, and is consistent with laws such as surety laws."). This Court agrees that surety laws are an adequate historical analogue to 922(n).
Surety laws required that individuals likely to "breach the peace" post a bond before publicly carrying a firearm. Rowson, 652 F.Supp.3d at 467. The American version of these laws derived from the longstanding English tradition of seizing guns from people who acted in a way that threatened the public. Id. As one district court notes, "surety laws in the United States did not require a formal conviction; instead, a showing of 'reasonable cause' by another citizen or 'upon view' of a judge or justice of the peace was sufficient." Gore, 2023 WL 2141032, at *4 (quoting Rowson, 652 F.Supp.3d at 467-69).
a. Surety Laws and § 922(n) have a Comparable Burden on Second Amendment Rights
Surety laws and § 922(n) impose a comparable burden. Both "presume[ ] that all individuals have a right to keep and carry firearms but imposes a burden on that right for a limited time upon a finding by a judicial officer or other legal process that an individual has participated in dangerous, disruptive, or otherwise felonious conduct." Gore, 2023 WL 2141032 at *4.
Neither surety laws nor § 922(n) require a conviction. Indictment only requires a showing of probable cause. Similarly, surety laws only needed "probable suspicion, that some crime was intended or likely to happen." 4 William Blackstone, Commentaries on the Laws of England 249 (1769); see United States v. Rahimi, 61 F.4th 443, 459 (5th Cir. 2023), cert. granted, — U.S. —, 143 S.Ct. 2688, 216 L.Ed.2d 1255 (2023). Thus, under both statutes, a person not convicted of any crime could have their Second Amendment rights restricted as long as there was some evidence to give a judge "reasonable cause" to suspect dangerous behavior. Gore, 2023 WL 2141032, at *4.
Furthermore, although the mechanisms may be different, both § 922(n) are temporary restrictions. See United States v. Simien, 655 F.Supp.3d 540, 551 (W.D. Tex. 2023). For surety laws, the prohibition on firearms lasts only until the bond is paid. For § 922(n), the prohibition on firearms lasts only while the person is under indictment, and it would expire at the conclusion of a trial. The temporary nature of these restrictions adds additional weight to the "relevantly similar" requirement of Bruen's second step. Bruen, 142 S. Ct. at 2132.
Even more importantly, § 922(n) is less burdensome than surety laws on Second Amendment rights because of the statute's narrowness. Gore, 2023 WL 2141032, at *4. Section 922(n) only prohibits the transporting, shipping, or new receipt of firearms. It does not prohibit the possession of firearms that the indictee already had before indictment. Thus, § 922(n) does not completely restrict Second Amendment rights, leaving room for indictees to exercise a more limited version of Second Amendment rights. Surety laws, however, were a complete ban on firearm possession. See Rowson, 652 F.Supp.3d at 470 ("Unlike the surety laws, which deprived citizens of the right to possess firearms, § 922(n) does not disturb the indictee's right to continued possession of a firearm."). Because Section 922(n) imposes restrictions less burdensome than the surety precedents, it fits within the history and tradition of the firearm regulation in this country.
It is true that the Supreme Court rejected "means-end" analysis in Bruen. "Common sense analysis," however, is still a viable practice. Kelly, 2022 WL 17336578 at *6 (noting that courts should not read Bruen "as wholly forbidding courts from engaging in this narrower type of supplemental common-sense reasoning"); United States v. Adger, No. CR 122-102, 2023 WL 3229933, at *5 (S.D. Ga. May 3, 2023), report and recommendation adopted, No. CR 122-102, 2023 WL 3627840 (S.D. Ga. May 24, 2023). This would be especially true when the analysis is directly tied to the "history and tradition" element of the Bruen framework, as seen here.
b. Surety Laws and § 922(n) have a Comparable Justification for Burdening Second Amendment Rights
Both surety laws and § 922(n) have a comparable justification for their burden on the Second Amendment - public safety. When evaluating the comparable justification for both surety laws and § 922(n), one court states:
[S]urety laws were in place for public safety and were "intended merely for prevention . . . [of] some crime [ ] intended or likely to happen." Rahimi, 2023 WL 1459240, at *9. Likewise, Section 922(n) is intended to prevent crime because the period during the indictment process is "a volatile period during which the stakes and stress of pending criminal charges often motivate defendants to do violence to themselves or others" raising a reasonable inference of threat to the public.Bartucci, 658 F.Supp.3d at 807. Bartucci's analysis shows the striking similarities between the fundamental justifications for each law. Each law recognizes that specific circumstances in a person's life may give rise to a higher probability of violent behavior. Thus, preventing these individuals from obtaining guns, or even possessing guns, is a logical precaution aimed at protecting the general welfare of the public.
Because surety laws and § 922(n) have a similar burden on the Second Amendment and a comparable justification, surety laws are sufficiently analogous to conclude that § 922(n) is within the history and tradition of firearm regulation in this Nation.
2. Section 922(n) is Constitutional as Applied
Movant also contends that Section 922(n) is unconstitutional as applied to him. An "as applied" challenge to a statute requires the reviewing court to determine, on a case-by-case basis, whether the regulation as applied to the facts of the case abridges the First Amendment. Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758-59, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Movant's argument here is undeveloped, but to the extent the Court needs to reach the issue, the Court concludes that Movant's as-applied challenge to Section 922(n) fails as well.
The exact parameters of what an as-applied review looks like are still somewhat uncertain. See Rowson, 652 F.Supp.3d at 455 n.12 (questioning what the focus of an as-applied inquiry should be); see also Holden, 70 F.4th at 1017-18 (in finding it unlikely that Section 922(n) would be held invalid across the board looking to nature of underlying charges of indictment). Here, one of the charges Movant was facing when he conducted the strawman purchases was dangerous-weapon—miscellaneous offense. And when Movant received the firearms in this case, there was a marijuana grow operation in the basement of his residence. Movant also possessed a separate firearm in the laundry basket next to his bed, consistent with someone possessing firearms in furtherance of drug trafficking. Thus, as reflected in the PSR, the conduct in this case involves conduct implicating public safety. For this reason, the Court concludes Movant's as-applied challenge fails.
CONCLUSION
For the foregoing reasons, § 922(n) is a constitutional firearm regulation. Because § 922(n) is a constitutional firearm regulation under the Bruen framework, Movant was not convicted and sentenced pursuant to an unconstitutional law. Thus, his motion under Section 2255 must be denied.
Before Movant may appeal the Court's dismissal of his Section 2255 motion, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(B); FED. R. APP. P. 22(b)(1). The Federal Rules of Appellate Procedure extend to district judges the authority to issue certificates of appealability. FED. R. APP. P. 22(b); see also Castro v. United States, 310 F.3d 900, 901-02 (6th Cir. 2002). Thus, the Court must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); FED. R. APP. P. 22(b)(1); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make the required "substantial showing," Movant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Although the Court does not believe that reasonable jurists could disagree, it recognizes that the issues are new and constantly developing. And they will continue to develop after this judgment is entered. Some districts courts have already disagreed with this Court's judgment, and no Court of Appeals, including the Sixth Circuit, has clearly addressed this issue post-Bruen. Given these unique circumstances, the Court grants the certificate of appealability.
ACCORDINGLY, IT IS ORDERED:
1. Movant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 1) is DENIED.
2. Movant's request for a certificate of appealability is GRANTED.