Summary
noting that Range "goes against the weight of the authority analyzing § 922(g)'s constitutionality in Bruen's wake"
Summary of this case from United States v. RobertsOpinion
22-cr-231(DLI)
09-14-2023
UNITED STATES OF AMERICA, v. LAQUAN WARREN, Defendant.
MEMORANDUM AND ORDER
DORA L. IRIZARRY, UNITED STATES DISTRICT JUDGE
On August 1, 2023, Laquan Warren (“Defendant”) moved to dismiss the sole count in the indictment charging him with being a Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551 et. seq. on the ground that § 922(g)(1), which prohibits individuals with prior felony convictions from possessing firearms, is unconstitutional under the Second Amendment both on its face and as applied to him. See, Def.'s Mot. (“Mot.”), Dkt. Entry No. 51. The Government opposed. See, Gov't. Opp. (“Opp.”), Dkt. Entry No. 60. Defendant replied. See, Def.'s Reply. (“Reply”), Dkt. Entry No. 62. For the reasons set forth below, Defendant's motion is denied.
BACKGROUND
Familiarity with the facts and procedural history of this case is presumed and only those facts relevant to the disposition of the motion are repeated herein. In 2014, at the age of 21, Defendant was convicted of Criminal Possession of a Controlled Substance in the Fifth Degree in violation of N.Y. Penal Law (“NYPL”) § 220.06, and was sentenced to two years of imprisonment. See, Mot. at 1-2; Opp. at 1. Defendant was rearrested less than three months after his release and subsequently convicted in 2015 for Conspiracy in the Fourth Degree in violation of NYPL § 105.10 for which he was sentenced to an indeterminate term of imprisonment of one to three years. See, Mot. at 2; Opp. at 1. One year after his release for this latter conviction, Defendant was rearrested and subsequently, in 2018, convicted of Criminal Possession of a Controlled Substance in the Third Degree in violation of NYPL § 220.16 for which he was sentenced to three years of imprisonment. See, Mot. at 2: Opp. 1-2. Defendant was paroled in April 2021 and arrested for possession of a loaded firearm in connection with this case on October 26, 2021. See, Opp. at 2. On May 17, 2022, a grand jury of this district returned an indictment charging Defendant with one count of being a Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See, Indictment, Dkt. Entry No. 1.
In 2009, at the age of 14, Defendant was adjudicated a youthful offender for Robbery in the First Degree: Displaying What Appears to be a Firearm, in violation of NYPL § 160.15(4). See, Mot. at 1 n.1. Defendant asserts that his prior felony convictions are for nonviolent offenses and maintains that this “adjudication” cannot serve as a predicate for felon firearm dispossession under § 922(g)(1). Id. Whether or not there is merit to this claim does not affect the outcome of Defendant's motion and, therefore, the Court need not address it.
After Defendant's arrest and indictment in this case, on June 16, 2022, Defendant was convicted of Conspiracy in the Second Degree in violation of NYPL § 105.15, a Class B felony, and sentenced to an indeterminate term of imprisonment of 7 to 14 years, which conviction Defendant currently is appealing. See, Def.'s Mot. in Limine, Dkt. Entry No. 36; Parties' Joint Status Report dated Oct. 31, 2022, Dkt. Entry No. 17. This conviction does not affect the outcome of the instant motion as it occurred after the date of Defendant's alleged possession of a firearm.
LEGAL STANDARD
The Second Amendment provides that: “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. As the Supreme Court has held, the Second Amendment “confer[s] an individual right to keep and bear arms.” District of Columbia v. Heller, 554 U.S. 570, 595 (2008); See also, McDonald v. City of Chicago, 561 U.S. 742, 767-68, 778 (2010). In Heller, the Supreme Court upheld this right, finding unconstitutional a law that “ban[ned] handgun possession in the home.” 554 U.S. at 595, 598-99, 635. Thereafter, in McDonald, the Supreme Court reaffirmed Heller and extended the individual Second Amendment right to the states through the Fourteenth Amendment, invalidating a set of municipal statutes that had banned handguns in homes. 561 U.S. at 767-68, 778.
However, at all times, the Supreme Court repeatedly has made clear that the Second Amendment right is “not unlimited.” Heller, 554 U.S. at 595; McDonald, 561 U.S. at 786 (noting that “[i]t is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose'”) (quoting Heller, 554 U.S. at 626). Indeed, as the Supreme Court explained in Heller, and reconfirmed in McDonald, “nothing in [its] opinion should be taken to cast doubt on” well established “presumptively lawful regulatory measures,” including “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 commercial sale of arms.” Heller, 554 U.S. at 626-27, n.26 (emphasis added); McDonald, 561 U.S. at 786 (“repeat[ing] those assurances”).
In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court reconfirmed that Heller and McDonald “recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” 142 S.Ct. 2111, 2122 (2022) (emphasis added). It then went on to hold that, “consistent with Heller and McDonald, [ ] the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home” as well. Id. at 2122 (emphasis added). Accordingly, Bruen found unconstitutional a New York state licensing regime that required individuals to demonstrate “a special need for self-defense” to obtain a public carry license. Id. As the Bruen Court explained, the regime violated the individual right “to carry a handgun for self-defense outside the home” protected under the Second Amendment. Id.
In so holding, the Bruen Court clarified that “the standard for applying the Second Amendment is as follows: 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. In this way, Bruen put an end to a “‘two-step' framework for analyzing Second Amendment challenges” that the Courts of Appeals had instituted in the years following Heller and McDonald, which had “combine[d] history with means-end scrutiny.” Id. at 2125; United States v. Hampton, 2023 WL 3934546, at *10, n.15 (S.D.N.Y. June 9, 2023) (explaining that, under the old “two-step” framework, courts first would “‘determine whether the challenged legislation impinges upon conduct protected by the Second Amendment,' and, if so, ‘the appropriate level of scrutiny to apply and evaluate the constitutionality of the law using that level of scrutiny'”) (quoting United States v. Jimenez, 895 F.3d 228, 232 (2d Cir. 2018)).
As the Bruen Court explained, “Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.” Bruen, 142 S.Ct. at 2127. Thus, “[i]n keeping with Heller,” Bruen “essentially remove[d] the second step[,] the means-ends balancing[,] from the inquiry,” instead focusing the inquiry on “textual and historical analysis alone.” Hampton, 2023 WL 3934546, at *10, n.15 (citing Bruen, 142 S.Ct. at 2127 (“Despite the popularity of this two-step approach, it is one step too many.”)); Bruen, 142 S.Ct. at 2126 (explaining that the approach set forth in Bruen is consistent with Heller and McDonald).
DISCUSSION
In light of the Supreme Court's recent Bruen decision, Defendant moves to dismiss the indictment on ground that § 922(g)(1) is an unconstitutional restriction on the Second Amendment right to keep and bear arms, both facially and as applied to Defendant, an individual with a history of nonviolent felony convictions.
Defendant contends that § 922(g)(1) cannot survive scrutiny under the new constitutionality test set forth in Bruen on three grounds: (1) the Second Amendment “presumptively protects” Defendant's conduct because, even convicted felons like him, are members of “the people” that the Second Amendment's “plain text” covers; (2) the Government must show that § 922(g)(1) “is consistent with the Nation's historical tradition of firearm regulation,” but cannot do so here because there is no historical tradition banning people with nonviolent felony convictions from owning guns; and (3) Supreme Court dicta finding “longstanding prohibitions” on felon firearm possession to be “presumptively lawful” does not “obviate the need for all lower courts . . . to engage in the independent analysis Bruen demands” and “pre-Bruen decisions treating [the Supreme Court's] ‘presumptively lawful' list as dispositive are no longer good law.” See generally, Mot. and Reply.
The Government opposes maintaining that Defendant's constitutional challenge fails because: (1) Bruen did not overrule, but rather confirmed, Supreme Court dicta stating that felon firearm dispossession regulations were “presumptively lawful” and, thus, binding Second Circuit precedent that relied on said dicta in finding § 922(g)(1) constitutional remains good law; (2) under Bruen's textual inquiry, Defendant and other convicted felons are not included in “the people” afforded Second Amendment protection because they are not “law-abiding citizens;” and (3) even if Defendant is a member of “the people” that the Second Amendment protects, § 922(g)(1) survives Bruen's historical inquiry because the statute's prohibition of felon firearm possession is “consistent with the Nation's historical tradition of firearm regulation,” which includes regulations aimed at disarming groups who are perceived as dangerous or who have demonstrated disregard for the law. See generally, Opp.
For the reasons set forth below, this Court finds § 922(g)(1) constitutional, both on its face and as applied to Defendant, on the ground that Bruen did not disturb and, if anything, endorsed prior Supreme Court dicta assuring the validity of “longstanding prohibitions” of felon firearm possession, and, as such, the Second Circuit's incorporation of that dicta into binding Second Circuit precedent upholding the constitutionality of § 922(g)(1) remains in effect. Accordingly, Defendant's motion is denied.
On September 12, 2023, in a different case, this Court denied, for the same reasons set forth herein, a virtually identical motion to dismiss a § 922(g)(1) charge wherein the parties made arguments identical to those raised in the instant matter. See, United States v. Sternquist, Case Dkt. No. 22-cr-473(DLI), Dkt. Entry No. 86.
I. Precedent
Justice Thomas, writing for the majority in Bruen, set the stage for the issue to be decided and the breadth of its holding in the opinion's opening paragraph, making it abundantly clear that Bruen's holding was consistent with Heller and McDonald, all three of which concerned the rights of “ordinary, law-abiding citizens.”
In District of Columbia v. Heller . . . and McDonald v. Chicago . . ., we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, 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, 2134 (emphasis added). Most importantly, Justice Thomas did not state that either Heller or McDonald or both were being abrogated by Bruen in any way. Indeed, throughout the opinion, the Bruen majority repeatedly referred to the petitioners before it as two “ordinary” and “law-abiding” citizens with “ordinary self-defense needs” and repeatedly characterized its Second Amendment jurisprudence as providing “law-abiding” citizens with the right to possess handguns. Id. at 2122, 2125, 2131, 2133-34, 2138, 2150, 2156.
Relevantly and notably, the concurring opinions in Bruen clarify the majority opinion's limits. Justice Kavanaugh, in his concurring opinion, joined by Chief Justice Roberts, both of whose votes were necessary to Bruen's majority, expressly emphasized that “the Second Amendment allows a ‘variety' of gun regulations” as set forth in Heller and that “[n]othing in [the Court's] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 2162 (Kavanaugh, J., concurring) (citing Heller, 554 U.S. at 626-27, n.26).
Similarly, Justice Alito, in his concurring opinion, explained that Bruen does not “distur[b] anything . . . said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns” and “reiterat[ing]” that “[a]ll that [Bruen] decide[s] in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the [New York law at issue in Bruen]... is unconstitutional.” Id. at 2157-59 (Alito, J., concurring) (emphasis added).
Had the Bruen Court intended to abrogate or overturn Heller and/or McDonald, it would have done so explicitly. However, it did not do so. The Court oft has stated that “this Court does not overturn its precedents lightly” and “this Court has always held that ‘any departure' from the doctrine ‘demands special justification.'” Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798 (2014) (quoting Arizona v. Ramsey, 467 U.S. 203, 212 (1984)); See also, Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not normally overturn, or so dramatically limit, earlier authority sub silentio.”).
Thus, while Defendant would have this Court believe that Bruen “deem[ed] one of Heller's ‘presumptively lawful' measures to be unconstitutional” and abrogated any prior case law that might have relied on Heller's list of “presumptively lawful” firearm regulations, that view finds no support in Bruen. The regulation at issue in Bruen required “law-abiding citizens” with “ordinary self-defense needs” to show “proper cause” in order to obtain a license to carry a handgun publicly in New York. See, Bruen, 142 S.Ct. at 2150. Restrictions on public carry, such as the one at issue in Bruen, were not included among Heller's list of presumptively lawful regulations. See, Heller, 554 U.S. at 626-27, n.26 (listing as presumptively lawful “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 commercial sale of arms”). Defendant's view of Bruen's impact is overly broad, misses the mark, and misstates the plain meaning and intent of the Bruen holding.
Of particular note, contrary to Defendant's assertions, courts across the country denying post-Bruen challenges to § 922(g)(1) have observed that “the Bruen majority opinion makes abundantly clear that Heller and McDonald stand as controlling precedents” and that Bruen itself is “consistent” with those precedents. See, United States v. King, 634 F.Supp.3d 76, 83 (S.D.N.Y. 2022) (citing Bruen, 142 S.Ct. at 2134); United States v. Davila, 2023 WL 5361799, at *2 (S.D.N.Y. Aug. 22, 2023); Hampton, 2023 WL 3934546, at *10, n.14, 11 (explaining that “Bruen reaffirms the holdings of Heller and McDonald,” collecting excerpts from Bruen that exemplify this reaffirmation, and noting that courts “around the country” have concluded the same). More specifically, and of particular significance here, courts interpreting § 922(g)(1) in Bruen's wake have observed that, “the Supreme Court's decisions in Heller, McDonald, and Bruen have left the felon disarmament laws undisturbed.” United States v. Barnes, 2023 WL 2268129, at *1 (S.D.N.Y. Feb. 28, 2023) (emphasis added); Accord, Davila, 2023 WL 5361799, at *2 (“. . . as three members of the Bruen majority separately emphasized, the Supreme Court's holding did not ‘disturb [ ] anything that [it] said in Heller or McDonald.” (citing Bruen at 2157 (Alito, J. concurring))); United States v. Garlick, 2023 WL 2575664, at *4 (S.D.N.Y. Mar. 30, 2023) (“There is nothing in Bruen that suggests the Court saw that explication of the reach of the Second Amendment as disturbing the Supreme Court's dicta that ‘longstanding prohibitions on the possession of firearms by felons' remain constitutional.”); Hampton, 2023 WL 3934546, at *11 (“Throughout its modern Second Amendment jurisprudence, the Supreme Court has consistently limited its recognition of Second Amendment rights to ‘law-abiding citizens' and has noted its approval for felon-inpossession laws.”); King, 634 F.Supp.3d at 83 (S.D.N.Y. 2022) (“The Supreme Court unequivocally validated the felon disarmament laws in McDonald [ ] and Heller [ ], twice reassuring that its decisions interpreting the Second Amendment should not ‘be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]'”) (quoting Heller, 554 U.S. at 635).
While it “may be true” that this Supreme Court authority constitutes dicta, “that debate is of little consequence” because, in 2013, the Second Circuit “turned what [Defendant] characterizes as ‘dicta' in Heller and McDonald into binding precedent” when, in United States v. Bogle, 717 F.3d 281, 281-82 (2d Cir. 2013) (per curiam), the Circuit upheld the constitutionality of § 922(g)(1) under those two decisions. Hampton, 2023 WL 3934546, at *12 (analyzing Bogle in rejecting similar argument in the face of a post-Bruen challenge to § 922(g)(1)); Accord, Davila, 2023 WL 5361799, at *2 (upholding the constitutionality of § 922(g)(1) under Bogle's “binding” precedent).
Significantly, as the Government notes here, Bogle did not apply the “means-end interest balancing” analysis rejected by Bruen in affirming § 922(g)(1)'s constitutionality. See, Opp. at 910; Hampton, 2023 WL 3934546, at *12; United States v. Harrison, 2023 WL 4670957, at *8 (N.D.N.Y. July 20, 2023)(concurring with Hampton). Instead, “the Second Circuit reasoned purely from language in Heller and McDonald expressly affirming ‘longstanding prohibitions on the possession of firearms by felons.'” Hampton, 2023 WL 3934546, at *12 (citing Bogle, 717 F.3d at 281 (internal quotation marks omitted)); Harrison, 2023 WL 4670957, at *7 (noting that, in Bogle, “a unanimous panel of the Second Circuit relied on the ‘assurances' from Heller and McDonald to ‘join every other circuit to consider the issue in affirming that § 922(g)(1) is a constitutional restriction on the Second Amendment rights of convicted felons'”) (citing Bogle, 717 F.3d at 281-82).
Thus, for the reasons set forth above, this Court joins the other district courts in this Circuit that have considered post-Bruen challenges to § 922(g)(1)'s constitutionality in light of Bogle in finding that “nothing in Bruen [ ] alters the rationale of Bogle” and, “[w]ith Heller and McDonald still in full force after Bruen, Bogle remains binding precedent within this Circuit on the constitutionality of [§] 922(g)[(1)].” Garlick, 2023 WL 2575664, at *5 and Hampton, 2023 WL 3934546, at *1, 12 (respectively); See also, Harrison, 2023 WL 4670957, at *8 (finding that the district court cases in this Circuit “persuasively demonstrate that Bogle remains binding precedent in this Circuit on the constitutional question of felon disarmament under § 922(g)(1)”); King, 634 F.Supp.3d at 83 (referencing Bogle's precedential effect in denying defendant's motion to dismiss the indictment charging a § 922(g)(1) violation); Barnes, 2023 WL 2268129, at *2 (same); Davila, 2023 WL 5361799, at *2 (same).
Accordingly, this Court finds that § 922(g)(1) is constitutional on its face and does not violate the Second Amendment under established Second Circuit precedent. Defendant's challenge to the statute as applied “also has no merit [as he] has [multiple] felony convictions, . . . which are crimes punishable by imprisonment for a term exceeding one year [that] fall squarely within [§] 922(g)(1).” King, 634 F.Supp.3d at 83 (internal citations and quotation marks omitted).
As such, “[§] 922(g)(1) is not unlawful as applied to [him]” either. Id.; Harrison, 2023 WL 4670957, at *8 (denying defendant's motion to dismiss indictment and finding § 922(g)(1) constitutional as applied to defendant with prior “federal drug conviction”).
In finding § 922(g)(1) constitutional under Second Circuit precedent, this Court joins the courts in this Circuit that have ended their analysis of § 922(g)(1)'s constitutionality based on Bogle's binding effect and it need not engage in Bruen's textual and historical inquiries. See, e.g., Garlick, 2023 WL 2575664, at *5; Barnes, 2023 WL 2268129, at *2; King, 634 F.Supp.3d at 83.
II. Range
This Court concludes by briefly addressing Defendant's request that this Court follow the reasoning of the Third Circuit in Range v. Attorney General, a recent decision in which the Third Circuit, sitting en banc, sustained a post-Bruen constitutional challenge to § 922(g)(1) as applied to an individual with a prior nonviolent felony. 69 F.4th 96, 106 (3d Cir. 2023); See generally, Reply. Defendant contends that he had a right to arm himself in self-defense because he never has been convicted of a violent felony and, “under the government's own theory of the case, armed himself after sprinting away from the scene of a shooting, where he stood as an unarmed bystander.” Reply at 14.
Defendant urges this Court to follow Range, a decision that: (1) is not binding in this Circuit; (2) is an outlier amongst courts across the country analyzing post-Bruen constitutional challenges to § 922(g)(1); and (3) most importantly, was limited in precedential value by the Range Court itself to the specific and unusual facts of that case, which, contrary to Defendant's contention, bear absolutely no similarity to the facts before this Court. Id.; See, Range, 69 F.4th at 106 (“Our decision today is a narrow one.”). For these reasons, as well as the foregoing analysis, this Court declines Defendant's invitation to follow Range.
Range does not support Defendant's contentions that he is similarly situated to the defendant in Range because that individual had a very different criminal background and a most peculiar situation in that his offense of conviction actually was classified under Pennsylvania law as a misdemeanor with a possible maximum five-year prison sentence. “Unlike the food stamp fraudster [in Range] who [pled] guilty to an unusual state law misdemeanor, [Defendant's] prior misconduct [here] involves ...actual . . . felon[ies].” See, Harrison, 2023 WL 4670957, at *8 (distinguishing the defendant in Range from a defendant with an “an actual federal felony,” particularly a “federal drug conviction”) (emphasis added).
Moreover, as noted above, the Third Circuit's en banc decision in Range goes against the weight of the authority analyzing § 922(g)(1)'s constitutionality in Bruen's wake. As another district court in this Circuit observed in a recent, post-Range decision upholding the constitutionality of § 922(g)(1), “the list of post-Bruen precedent that is actually favorable to defendant's Second Amendment text-and-history argument basically begins and ends with the en banc opinion in Range.” Harrison, 2023 WL 4670957, at *8. While the Second Circuit has not spoken on the issue yet, “multiple [other] circuits [already have] considered and rejected” Bruen challenges to § 922(g)(1) and “[s]o too have about 140 district courts.” Id. at *6. Most notably, in United States v. Jackson, the Eighth Circuit declined the defendant's invitation to consider his personal history to determine the statute's validity as applied to him and, instead, upheld § 922(g)(1), both facially and as applied to nonviolent felons, citing the assurances of Heller, McDonald, and Bruen, as well as “the history that supports them.” 69 F.4th 495, 501-02, 504-06 (8th Cir. 2023). This Court concurs with the Eight Circuit's analysis.
Any attempt by Defendant to minimize the precedential value of Jackson on the ground that it relied on the reasoning of the panel opinion in Range that was overturned by the en banc court several days after the Eighth Circuit decided Jackson fails for two reasons. First, Jackson engaged in its own survey of our Nation's historical tradition of firearm regulation and, in doing so, considered the Range panel's historical inquiry as well as its own, finding that § 922(g)(1) passes muster under either inquiry. Id. at 503-506. Second, and most fatally to an attack on Jackson's precedential value, after the en banc decision in Range was issued, the Eighth Circuit affirmed its decision in Jackson in upholding § 922(g)(1)'s constitutionality in the face of yet another Bruen challenge involving an individual with prior, nonviolent felony convictions. See, United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023).
Furthermore, the Fifth Circuit, while not directly speaking on the issue or undertaking its own historical analysis, has rejected several post-Bruen challenges to § 922(g)(1)'s constitutionality, albeit on plain error review, both before and after Range. See, e.g., United States v. Garza, 2023 WL 4044442, at *1 (5th Cir. June 15, 2023) (finding no plain error on appeal of § 922(g)(1) conviction because “there is no binding precedent explicitly holding that § 922(g)(1) is unconstitutional on its face or as applied and because it is not clear that either Bruen or Rahimi dictate such a result” either); United States v. Johnson, 2023 WL 3431238, at *1-2 (5th Cir. May 12, 2023) (finding no plain error on appeal of § 922(g)(1) conviction because “there is no binding precedent explicitly holding that § 922(g)(1) is unconstitutional and because it is not clear that Bruen dictates such a result” either); United States v. Pickett, 2023 WL 3193281, at *1 (5th Cir. May 2, 2023) (same).
On the district court level, the landscape is similar. As noted above, district courts “both in this Circuit and around the country” have continued to “uphold [§] 922(g)(1) in the wake of Bruen.” See, e.g., Hampton, 2023 WL 3934546, at *10, n.14 (collecting examples); Harrison, 2023 WL 4670957, at *6 (stating that “multiple [other] circuits have already considered and rejected” Bruen challenges to § 922(g)(1)'s constitutionality and “[s]o too have about 140 district courts.”). Within this Circuit alone, district courts have held § 922(g)(1) constitutional in response to both facial and as applied challenges raised in Bruen's wake, both before and after Range. Notably, some courts in this Circuit have held the statute constitutional under Bogle, while others have held it constitutional under Bruen's historical analysis. See, e.g., Davila, 2023 WL 5361799, at *1-5 (rejecting Range and denying motion to dismiss indictment, finding § 922(g)(1) constitutional in light of Bogle and under Bruen's historical inquiry); Harrison, 2023 WL 4670957, at *8 (same as applied to defendant with prior “federal drug conviction”); Hampton, 2023 WL 3934546, at *10-13, n.14 (rejecting Range and denying motion to acquit after finding § 922(g)(1) constitutional in light of Bogle); Garlick, 2023 WL 2575664, at *4-5 (denying motion to dismiss indictment, finding § 922(g)(1) constitutional on its face and as applied to defendant in light of Bogle); Barnes, 2023 WL 2268129, at *1-2 (same); King, 634 F.Supp.3d at 82-83 (same as to facial challenge); United States v. Martin, 2023 WL 1767161, at *2-3 (D. VT. Feb 3. 2023) (denying motion to dismiss indictment after finding § 922(g)(1) passes muster under Bruen's historical inquiry); Campiti v. Garland, 2023 WL 143173, at *3-5 (D. CT. Jan. 1, 2023) (finding § 922(g)(1) consistent with “the Nation's historical tradition of firearm regulation”).
Defendant urges that “[t]his Court simply cannot ignore Bruen or the numerous circuit and district court cases recognizing that it dramatically changed the Second Amendment analysis.” Reply at 2, n.2 (collecting cases). Ironically, however, Defendant ignores the overwhelming body of case law set forth above that has found § 922(g)(1)'s constitutionality undisturbed and even is supported by Bruen itself and the historical inquiry that it demands. Moreover, the “numerous circuit and district court cases” that Defendant cites to consist of eight nonbinding decisions from outside the Second Circuit, only two of which concern § 922(g)(1). Id.
Notably, six of the cases relied upon by Defendant consist of one 5th Circuit case and five district courts within the 5th Circuit that were decided prior to the 5th Circuit cases discussed in the next to last paragraph above that upheld the constitutionality of § 922(g)(1), thus further casting doubt as to their precedential value.
One such decision concerning § 922(g)(1) is Atkinson v. Garland, a Seventh Circuit decision that remanded a § 922(g)(1) challenge for reconsideration by the district court, finding that both the government and defendant lacked sufficient detail in their historical analyses for it to reach a conclusion. 70 F.4th 1018, 1020-24 (7th Cir. 2023). Notably, however, the Atkinson Court stated that it had “no doubt” that the “historical details” the government did provide “may prove relevant on remand” and went as far as to state that, “on remand, [the government] may also develop its contention that the plain text of the Second Amendment does not protect felons and other offenders impacted by § 922(g)(1).” Id. at 1022, 1024.
The other decision concerning § 922(g)(1) relied on extensively by Defendant is United States v. Bullock, a district court decision from the Southern District of Mississippi that appears to be an outlier amongst many other district courts in the Fifth Circuit that have found § 922(g)(1) constitutional after Bruen. 2023 WL 4232309 (S.D. MS. June 28, 2023); See, e.g., United States v. Robinson, 2023 WL 4304762, at *2 (N.D. TX. June 29, 2023) (finding § 922(g)(1) “consistent with the Nation's historical tradition of firearm regulation” and noting that “despite numerous challenges to section 922(g)(1) in the wake of Bruen, the Court is aware of only two decisions” finding the statute unconstitutional: Range and Bullock).
In sum, the Court finds unpersuasive and rejects Defendant's arguments that it should follow Range, an outlier decision, that not only is inconsistent with Bruen for the reasons set forth in Section I above, but also is not binding precedent for courts in this Circuit.
CONCLUSION
For the reasons set forth above, Defendant's motion to dismiss the Indictment is denied.
SO ORDERED.