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rejecting the constitutional challenge to Section 922(g) and finding that “[a]lthough not binding on this court, federal courts nationwide appear to have uniformly rejected constitutional challenges to § 922(g) in the wake of the Supreme Court's decision in Bruen.”
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2:20-cr-00301-DBB
11-09-2022
UNITED STATES OF AMERICA, Plaintiff, v. MATTHEW A. BAKER, Defendant.
MEMORANDUM DECISION AND ORDER DENYING [138] MOTION TO DISMISS COUNT 4 OF THE SUPERSEDING INDICTMENT
DAVID BARLOW UNITED STATES DISTRICT JUDGE
On September 20, 2022, Defendant Matthew A. Baker filed his Motion to Dismiss Count 4 of the Superseding Indictment. Count 4 charges Mr. Baker with unlawfully possessing ammunition as a felon in violation of 18 U.S.C. § 922(g)(1). In his motion, Mr. Baker argues that § 922(g)(1) violates the Second Amendment under the test announced in the Supreme Court's recent decision, New York State Rifle & Pistol Ass'n, Inc. v. Bruen. For the reasons stated below, Mr. Baker's motion is denied.
Def.'s Mot. to Dismiss, ECF No. 138, filed September 20, 2022.
Superseding Indictment, ECF No. 115, filed August 10, 2022.
142 S.Ct. 2111 (2002).
BACKGROUND
On March 26, 2019, Mr. Baker pleaded guilty and was convicted of two federal felony offenses in Case No. 2:19-cr-00094-DS. Specifically, Mr. Baker was convicted of one count of Health Care Fraud and one count of Destruction, Alteration, or Falsification of Records in a Federal Investigation. For those offenses Mr. Baker was sentenced to a period of imprisonment of twelve months and one day, followed by three years of supervised release.
United States v. Baker, 2:19-cr-00094-DS, ECF No. 14, Statement in Advance of Plea.
Id.
United States v. Baker, 2:19-cr-00094-DS, ECF Nos. 30, 32, Judgment and Amended Judgment.
On September 9, 2020, Mr. Baker was indicted by a federal grand jury and charged in this case, No. 2:20-cr-301-DBB, with Wire Fraud and other related offenses. On March 30, 2022, while Mr. Baker was on pretrial release in this case, No. 2:20-cr-301-DBB, and still on supervised release in Case No. 2:19-cr-00094-DS, officers with United States Probation and Pretrial Services (“USPO”) conducted a search of Mr. Baker's residence. During the search, USPO officers found two boxes of ammunition. The officers found a box containing approximately 40 rounds of .38 special ammunition in a dresser drawer of the master bedroom. The officers also found a box containing approximately 37 rounds of 9mm ammunition inside a duffel bag in the basement.
Sealed Indictment, ECF No. 1, filed September 9, 2020 (Indictment unsealed by ECF No. 7).
ECF No. 115 at 6; see also Transcript from Evidentiary Hearing held May 6, 2022, ECF No. 75 at 16.
Thereafter, on August 10, 2022, a federal grand jury returned a superseding indictment charging Mr. Baker with two counts of Wire Fraud in violation of 18 U.S.C. § 1343; Contempt, in violation of 18 U.S.C. § 401(3); and Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) states: “It 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.”
ECF No. 115.
In his motion, Mr. Baker seeks to have this court dismiss Count 4 of the superseding indictment. He argues that 18 U.S.C. § 922(g)(1) is no longer viable following the Supreme Court's recent decision in Bruen. Specifically, Mr. Baker contends that even though he is a felon the Second Amendment protects his right to bear arms, and that the government cannot satisfy its burden to show a longstanding American tradition prohibiting felons from possessing firearms.Mr. Baker also argues that § 922(g)(1) is unconstitutional as applied to him because his prior felony convictions were for non-violent offenses.
ECF No. 138 at 4-7; Def.'s Reply in Supp. of Mot. to Dismiss Indictment at 7, ECF No. 157, filed November 2, 2022.
ECF No. 157 at 12, 14.
DISCUSSION
The Second Amendment 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.”In District of Columbia v. Heller, the Supreme Court recognized an individual right under the Second Amendment to keep and bear arms, not merely a right tied to militia service. The Court clarified, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” The Heller Court stated, “[a]though we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .”The Heller Court characterized such regulations as “presumptively lawful regulatory measures.” Two years later, in McDonald v. Chicago, the Supreme Court reiterated this assurance. In the context of holding that the Second Amendment applies to the states through the Fourteenth Amendment's Due Process Clause, the Court stated: “We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons . . . .”
554 U.S. 570, 595 (2008).
Id. at 626.
Id.
Id. at 626-27 n.26.
561 U.S. 742 (2010).
McDonald, 561 U.S. At 786.
Relying on Heller and McDonald, courts of appeals, including the Tenth Circuit, have uniformly upheld the constitutionality of § 922(g)(1). In United States v. McCane, the Tenth Circuit rejected the defendant's Second Amendment challenge to § 922(g)(1) explaining that “[t]he Supreme Court . . . explicitly stated in Heller that ‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.'” Then, in an unpublished majority decision in In re United States, the Tenth Circuit explained: “We have already rejected the notion that Heller mandates an individualized inquiry concerning felons pursuant to § 922(g)(1).” And, more recently, in United States v. Griffith, the Tenth Circuit reiterated that § 922(g)(1)'s prohibition of firearms by felons is constitutional. Simply put, post-Heller, the Tenth Circuit has not permitted either facial or as-applied challenges to § 922(g)(1).
See, e.g., United States v. Bogle, 717 F.3d 281, 282 n.1 (2d Cir. 2013) (collecting cases); see also, e.g., Folajtar v. Att'y General, 980 F.3d 897, 901 (3d Cir. 2020) (“Since Heller, we [the Third Circuit], along with every court to consider the issue, have rejected challenges that § 922(g)(1) on its face violates the Second Amendment”); see also United States v. Siddoway, No. 1:21-cr-205, 2022 WL 4482739, at *1 (D. Idaho Sept. 27, 2022) (providing that the courts of appeals, including the Ninth Circuit, “uniformly upheld the constitutionality of § 922(g)(1)” based on Heller).
McCane, 573 F.3d at 1047 (quoting Heller, 128 S.Ct. at 2816-17).
In re United States, 578 F.3d 1195 (10th Cir. 2009) (unpublished).
See United States v. Griffith, 928 F.3d 855, 871 (10th Cir. 2019); see also United States v. Gieswein, 887 F.3d 1054, 1064 n.6 (10th Cir. 2018) (confirming that Tenth Circuit precedent forecloses defendant's argument that § 922(g)(1) violates the Second Amendment).
Vincent v. Garland, No. 2:20-cv-883-DBB, Slip Copy, 2021 WL 4553249, at *2-3 (D. Utah Oct. 5, 2021) (rejecting “as-applied challenge under the Second Amendment to the felon-dispossession statutes” because such challenge was precluded by Tenth Circuit precedent); see, e.g., McCane, 573 F.3d at 1047; United States v. Molina, 484 Fed. App'x 276, 285 (10th Cir. 2012) (citing Heller and McDonald and concluding district court did not err in rejecting defendant's argument that § 922(g)(1) was unconstitutional).
In his motion, Mr. Baker argues that the Supreme Court's decision in Bruen rendered § 922(g)(1) presumptively invalid and requires this court to examine the constitutionality of the statute using the standard set forth in Bruen. Mr. Baker also asserts that when examining whether § 922(g)(1) is constitutional, this court should disregard the Supreme Court's dicta in Heller regarding the “longstanding prohibition[] on the possession of firearms by felons,” and must require the government to prove that “that the prohibition § 922(g)(1) imposes on Mr. Baker is consistent with ‘the Nation's historical tradition of firearm regulation.'”
ECF No. 138 at 4.
Mr. Baker urges this court to reject Heller's language addressing the presumptive lawfulness of the “longstanding prohibition” on the possession of firearms by felons on the basis this language is dicta. ECF No. 157 at 2-4. However, the Tenth Circuit has repeatedly instructed that we are “bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements.” Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (quoting Gaylord v. United States, 74 F.3d 214, 217 (10th Cir. 1996)); see McCane, 573 F.3d at 1047 (Tymkovich, J., concurring); see also Hengle v. Treppa, 19 F.4th 324, 347 (4th Cir. 2021) (“We routinely afford substantial, if not controlling deference to dicta from the Supreme Court.”); United States v. Huet, 665 F.3d 588, 600 n.11 (3d Cir. 2012) (“Although some of our sister circuits have classified the ‘presumptively lawful' language in Heller as dicta, . . . we disagree.”), abrogated on other grounds by United States v. De Castro, 49 F.4th 836 (3d Cir. 2022); Oyebanji v. Gonzales, 418 F.3d 260, 264- 65 (3d Cir. 2005) (warning that “lower federal court[s] … are advised to follow the Supreme Court's ‘considered dicta'”) (collecting cases); United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (stating that Heller's language regarding lawful long-standing gun restrictions on felons is not nonbinding dicta).
ECF No. 138 at 5.
This court is bound, however, by Tenth Circuit precedent. Therefore, unless the Supreme Court's decision in Bruen superseded the Tenth Circuit's decision in McCane, or unless the Tenth Circuit or Supreme Court determines that § 922(g)(1) is not constitutional, this court is compelled to follow McCane. “This court's role is to apply Tenth Circuit precedent, not to reconsider it.” In the absence of clear Supreme Court precedent overruling [McCane], this [c]ourt will ‘follow the case which directly controls, leaving to the [Tenth Circuit] the prerogative of overruling its own decisions.'” In other words, Mr. Baker's motion turns on whether the Supreme Court's decision in Bruen constitutes an intervening decision that has clearly and unmistakably overruled Tenth Circuit precedent upholding the constitutionality of § 922(g)(1). Having carefully reviewed Bruen, the court concludes that it is not.
United States v. Carrero, 2:22-cv-00030-TC, 2022 WL 9348792, at *4 (D. Utah Oct. 14, 2022) (“This court is bound to follow Tenth Circuit precedent unless it is overturned by the Tenth Circuit or a superseding contrary decision by the Supreme Court.” (citing Burlington N. & Santa Fe Ry. Co. v. Burton, 270 F.3d 942, 947 (10th Cir. 2001))); see Vincent v. Garland, No. 2:20-cv-883-DBB, 2021 WL 4553249, at *2-3 (D. Utah Oct. 5, 2021) (rejecting “as-applied challenge under the Second Amendment to the felon-dispossession statutes” on the basis that such challenge was precluded by Tenth Circuit precedent).
United States v. Hay, No. 19-20044-JAR, 2022 WL 1421562, at *7 (D. Kan. May 5, 2022).
Id. (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)).
There is nothing in Bruen to indicate that either Heller, Tenth Circuit precedent based on Heller, or § 922(g)(1), are no longer valid. As in Heller and McDonald, the issue before the Court in Bruen concerned regulations that burdened “a law-abiding citizen's right to armed self-defense.” Specifically, the petitioners in Bruen were challenging New York's concealed carry licensing law, which required applicants to show “proper cause” (i.e., a special need for self-protection, distinguishable from the community's need) in order to get a license.
Bruen, 142 S.Ct. at 2133.
Id.
In the opening paragraph of Bruen, Justice Thomas, writing for the Court, expressly reaffirmed Heller and McDonald, and noted that both cases defined the right to bear arms as belonging to “law-abiding, responsible citizens.” The Court said:
See Id. at 2122.
In District of Columbia v. Heller, 554 U.S. 570, (2008), and McDonald v. Chicago, 561 U.S. 742, (2010), 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 self-defense. We too agree, and how 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.
Id. (emphasis added).
The Court noted that it was undisputed that the petitioners were “two ordinary law-abiding, adult citizens” who are “part of ‘the people' whom the Second Amendment protects.”Although the majority opinion did not specifically address Heller's treatment of laws prohibiting the possession of firearms by felons, that issue was simply not before the Court. Nonetheless, in keeping with Heller and McDonald, the Court reiterated throughout its opinion that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms for self-defense.” And in the concluding paragraph of the majority opinion, the Court repeated that the right to bear and keep arms belonged to “law-abiding citizens with ordinary self-defense needs.”
Id. at 2134.
See Id. at 2122, 2131, 2134, 2138, 2150, 2155.
Id. at 2156.
The concurrences and dissents in Bruen provide additional support for the conclusion that Bruen did not alter Heller, Tenth Circuit precedent based on Heller, or the constitutional status of § 922(g)(1). Both Justice Alito and Justice Kavanaugh, who was joined by Chief Justice Roberts, expressed in their concurring opinions their explicit intent to leave undisturbed government regulations prohibiting the possession of firearms by felons. For example, Justice Alito stated: “Our holding decides nothing about who may lawfully possess a firearm . . . . 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.” Justice Kavanaugh's concurring opinion, joined by Chief Justice Roberts, provided additional support for the endurance of felon in possession restrictions in the wake of Bruen, stating “Properly interpreted, the Second Amendment allows a ‘variety' of gun regulations” and quoting Heller's statement that “[n]othing in our opinion should be taken to cast doubt on ‘longstanding prohibitions on the possession of firearms by felons.'” The dissent clearly viewed the majority opinion the same way. Justice Breyer, joined by Justice Sotomayor and Justice Kagan, stated, “I understand the Court's opinion today to cast no doubt on” Heller's treatment of laws prohibiting firearm possession by felons.
Id. at 2157 (Alito, J., concurring).
Id. at 2162 (Kavanaugh, J., joined by Roberts, C.J., concurring).
Id. (quoting Heller, 554 U.S. At 626-27).
Id. at 2189 (Breyer, J., joined by Sotomayor, J., and Kagan, J., dissenting).
Based on this understanding of Bruen, the court concludes that the Tenth Circuit's decision in McCane remains good law and controls the disposition of Mr. Baker's motion to dismiss. The court is bound by McCane and its progeny which, as stated previously, have repeatedly upheld the constitutionality of § 922(g)(1). For this reason, Mr. Baker's motion to dismiss must be denied.
Finally, this court is unaware of any court finding § 922(g)(1) unconstitutional post-Bruen. Although not binding on this court, federal courts nationwide appear to have uniformly rejected constitutional challenges to § 922(g)(1) in the wake of the Supreme Court's decision in Bruen.
Not all district courts have followed the same approach. Some courts have upheld the constitutionality of § 922(g)(1) after applying the test set forth in Bruen, some courts have upheld the constitutionality of § 922(g)(1) after concluding that Bruen did not alter binding circuit precedent, and some courts have relied on both grounds. See, e.g., United States v. Carrero, No. 2:22-cr-30-TC, 2022 WL 9348792 (D. Utah Oct. 14, 2022) (denying defendant's motion to dismiss after concluding that § 922(g)(1) survives the Bruen test and also because Bruen did not alter Tenth Circuit precedent); United States v. Coombes, No. 22-cr-189, 2022 WL 4367056 (N.D. Okla. Sept 21, 2022) (concluding that § 922(g)(1) is constitutional after performing a rigorous historical analysis and also because the court is arguably bound by precedent); see also, e.g., United States v. Butts, No. CR22-33-M, 2022 WL 16553037 (D. Mont. Oct. 31, 2022) (concluding that Bruen did not disturb the felon in possession component of Heller and Bruen did not overrule binding Ninth Circuit precedent); United States v. Paris Deautuan Grant, No. 3:22-cr-161 (D.S.C. Oct. 28, 2022) (concluding that nothing in Bruen altered the prohibition on possession of firearms by felons); United States v. Minter, No. 3:22-cr-135, 2022 WL 10662252 (M.D. Pa. Oct. 18, 2022) (“[T]he Court here need not engage in an original analysis of whether the Second Amendment's plain text covers the possession of a firearm by a felon, and if so, whether the Government has affirmatively demonstrated that § 922(g)(1) is consistent with the Nation's historical tradition of firearm regulation, where the Supreme Court in Bruenhas already signaled the answer to this question.”); United States v. Trinidad, No. 21-298, 2022 WL 10067519 (D.P.R. Oct. 17, 2022) (rejecting facial and as-applied challenge based on binding First Circuit precedent); United States v. Price, No. 2:22-cr-97, 2022 WL 6968457 (S.D. W.Va. Oct. 12, 2022) (finding it unnecessary to engage in the historical test articulated in Bruen as to § 922(g)(1) because “I am convinced that the Supreme Court left generally undisturbed the regulatory framework” that prohibits the possession of firearms by felons); United States v. King, No. 21-cr-255, 2022 WL 5240928 (S.D.N.Y. Oct. 6, 2022) (rejecting defendant's facial and as applied challenge to § 922(g)(1) because Bruen “makes abundantly clear” that Heller and McDonald remain controlling precedent and Second Circuit precedent provides that § 922(g)(1) is constitutional); United States v. Charles, No. 22-cr-154, 2022 WL 4913900 (W.D. Tex. Oct. 3, 2022) (finding § 922(g)(1) constitutional on its face and as applied under Bruen's framework); United States v. Siddoway, No. 1:21-cr-205, 2022 WL 4482739 (D. Idaho Sept. 27, 2022) (declining to “scrutinize the history of felon-in-possession statutes” because Bruen did not overrule Heller and court was bound by Ninth Circuit precedent upholding the constitutionality of § 922(g)(1)); United States v. Collette, No. 22-cr-141, 2022 WL 4476790 (W.D. Tex. Sept. 25, 2022) (finding § 922(g)(1) constitutional on its face and as applied under Bruen's framework); United States v. Hill, No. 21-cr-107, 2022 WL 4361917 (S.D. Cal. Sept. 20, 2022) (finding § 922(g)(1) constitutional based Ninth Circuit precedent and stating that in any event the court is persuaded by historical analysis previously done by Ninth Circuit); United States v. Cockerham, No. 5:21-cr-6, 2022 WL 4229314 (S.D.Miss. Sept. 13, 2022) (upholding § 922(g)(1) based on Fifth Circuit precedent because Bruen did not invalidate as unconstitutional § 922(g)(1)); United States v. Jackson, No. CR 21-51, 2022 WL 4226229 (D. Minn. Sept. 13, 2022) (“While Jackson would like this Court to scrutinize the history of felon-in-possession statutes, such examination is unnecessary at this time.”); United States v. Ingram, No. 18-cr-557, 2022 WL 3691350 (D.S.C Aug. 25, 2022) (denying motion to dismiss because Bruen did not overrule Heller).
CONCLUSION
For the foregoing reasons, Mr. Baker's motion to dismiss Count 4 of the superseding indictment is DENIED.