Opinion
2:22-cr-00267-JAD-EJY
07-17-2023
UNITED STATES OF AMERICA, Plaintiff, v. DAJUAN LAMAR GAMBLE, Defendant.
REPORT AND RECOMMENDATION
RE: MOTION TO DISMISS (ECF NO. 27)
ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE
I. Introduction and Summary.
Pending before the Court is the Motion to Dismiss a one count indictment charging Defendant with violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant argues the United States Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen renders unconstitutional the bar to firearm possession by felons found in § 922(g)(1). Defendant contends he is among the “people” entitled to own firearms under the Second Amendment irrespective of his prior felony convictions. Defendant submits that when the Bruen test for determining whether a statutory firearm restriction impermissibly burdens Second Amendment rights is applied to § 922(g)(1), the statute fails that test.
ECF No. 27. The Court notes that 18 U.S.C. § 924(a)(2) is mentioned only once in Defendant's Motion to Dismiss. Id. at 2. Defendant offers no argument contending this statute is unconstitutional. Further, § 924 of the United States Code is not cited at all in Defendant's Reply. ECF No. 33.
-- U.S. --, 142 S.Ct. 2111(2022).
ECF No. 27 at 5.
Id. at 6-7.
Id. at 8-20.
The United States responds to Defendant's Motion by first describing Defendant's long criminal history involving drug offenses, accessory to murder, prohibited ownership of firearms, prohibited use of firearms, and possession of stolen property. The government then argues neither Bruen nor holdings in Bruen's predecessor U.S. Supreme Court decisions render § 922(g)(1) unconstitutional. Simply stated, the government submits the Second Amendment does not protect a felon's right to possess a firearm. The government quotes the Supreme Court holding in Heller as establishing that Second Amendment rights do not undermine “longstanding prohibitions on the possession of firearms by felons ....” The government cites the 2010 Supreme Court decision in McDonald, reiterating the 2008 Heller decision, in which the Court stated that its “holding did not cast doubt on such longstanding regulatory measures as ‘prohibition on the possession of firearms by felons . ..'” The government also points to enumerable decisions inside and outside of the Ninth Circuit in which federal courts have determined 18 U.S.C. § 922(g)(1) is constitutional.
Hereinafter the “government.”
ECF No. 30 at 5-6.
Id. at 7-12; the predecessor cases include McDonald v. City of Chicagpo, 561 U.S. 742 (2010), and District of Columbia v. Heller, 554 U.S. 570 (2008).
ECF No. 30 at 9, citing Heller, 544 U.S. at 626.
Id. at 10 citing McDonald, 561 U.S. at 786 (internal citation omitted).
See citations at ECF No. 30 at 13.
II. Discussion
A. The Heller, McDonald, and Bruen Decisions.
The Second Amendment states: “A well regulated Militia, being necessary to the security of a free States, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. AMEND. II. In Heller, the Supreme Court found the Second Amendment “confers an individual right to keep and bear arms ... the core lawful purpose [of which] is self-defense.” However, the Heller Court made clear that this right “is not unlimited.” Heller refers to “law-abiding citizens” and “law abiding responsible citizens” when addressing to whom its holding applies. The Court further stated:
Heller, 554 U.S. at 622, 630.
Id. at 626.
Id. at 625 stating: “[f]or most of our history ... the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens”; and id at 635 noting: the Second Amendment protects “the right of lawabiding, responsible citizens to use arms in defense of hearth and home.”
Although 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 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.
Id. at 626-27 (emphasis added).
In 2010, the Supreme Court issued the McDonald decision holding the Second Amendment applies to the states as well as federal government.16 With respect to this case, the Court stated:
It 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 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 and the mentally ill, 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. ... We repeat those assurances here.
Id. at 786 (emphasis added) (internal citations and quote marks from Heller omitted).
In 2022, the Supreme Court issued Bruen that stuck down a New York City licensing scheme in which applications for concealed carry permits could be denied based on an inability to prove “proper cause” to carry a handgun in public. The Bruen Court stated:
McDonald, 561 U.S at 750 (“We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.”).
In ... Heller... and McDonald ... 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.
Id. at 2122 (emphasis added).
The Court then held:
New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
Id. at 2156 (emphasis added).
A review of the Bruen Court decision shows it used the phrase “law-abiding citizen” on numerous occasions signaling a clear limitation on its holding. For example, the Supreme Court in Bruen: (i) stated Heller and McDonald “recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizens to possess a handgun in the home for self-defense”21; (ii) concluded the right to possess a handgun outside the home extended to “ordinary, law-abiding citizens”; (iii) instructed courts to consider “how and why .. regulations burden a law-abiding citizen's right to armed self-defense”23; (iv) described petitioners as “two ordinary, law-abiding, adult citizens”24; (v) noted there is no historical traditional “limiting public carry only to those lawabiding citizens who demonstrate a special need for self-defense”; (iv) concluded historical analogues advanced by New York fail because “none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose”; (vii) found no historical record requiring “law-abiding, responsible citizens” to demonstrate a need to obtain a license to carry; and (viii) held New York law violates the Second Amendment because it “prevents lawabiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Writing for the Court, Justice Thomas also stated:
Bruen rejected the two step approach adopted by the Ninth Circuit, and other federal appellate courts, for evaluating whether a statute impermissibly burdens Second Amendment rights. Bruen, 142 S.Ct. at 2125. The Bruen Court adopted a new legal test explaining that “when 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 the Nation's historical tradition of firearm regulation.” Id. 2126. After the government makes that showing a court may “conclude that the individual's conduct falls outside the Second Amendment's unqualified command.” Id. at 2126, 2130 (internal quote marks and citation omitted). To carry its burden, the government must point to “historical precedent from before, during, and after the founding [that] evinces a comparable tradition of regulation.” Id. at 2131-32 (internal quotation marks omitted). However, “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id. at 2118. The core question is whether the challenged law and proffered analogues are “relevantly similar.” Id. at 2132 (internal citation omitted). The government need not identify a “historical twin”; rather, a “well-established and representative historical analogue” suffices. Id. at 2133 (emphasis in original).
Id. at 2122.
Id.
Id. at 2133.
Id. at 2134.
[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' “shall-issue” licensing regimes, under which a general desire for selfdefense is sufficient to obtain a [permit]. ... Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. . Heller, 554 U.S. . [at] 635. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens”
Id. at 2138 n.9 (brackets in original, some internal citations and quote marks omitted).
The Court further stated: “[T]he Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” In his concurring opinion, Justice Kavanaugh reiterated the language from Heller in which Justice Scalia stated: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . ..”
Id. at 2138.
Id. at 2150.
B. United States v. Vongxay Was Not Abrogated by Heller, McDonald., or Bruen.
Defendant argues the holding in Bruen “abrogate[d] all prior Ninth Circuit decisions- indeed, all federal court of appeals decisions everywhere-about firearms restrictions,” including United States v. Vongxay . The government submits the Justices' “statements in Bruen ... confirm that it is not ‘clearly irreconcilable' with Vongxay.”
Id. at 2156.
Id.
The U.S. District Court for the District of Nevada is bound by Ninth Circuit precedent unless that precedent is “effectively overruled,” which occurs when “the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority.”34 “The clearly irreconcilable requirement is a high standard.” “[I]t is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent.”
Id. at 2133 (majority opinion); 2162 (Kavanaugh, J., Concurring).
Id. at 2162 (Kavanaugh J. Concurring) citing Heller, 554 U.S. at 626-27 and n.26 (citations and quote marks omitted), and McDonald, 561 U.S. at 786 (plurality opinion). See also Justice Alito's concurring opinion in which he states “[n]or have we disturbed anything that we said in Heller or McDonald ...” Id. at 2157 (Alito, J., Concurring) (citation omitted). Further, to the extent that the above cited statements by the Supreme Court are considered dicta, this Court finds the repeated dicta is of significant importance as strongly demonstrating the likelihood of the Court's future holding. United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (quoting Zal v. Steppe, 968 F.2d 924, 935 (9th Cir. 1992) (Noonan, J., Concurring and Dissenting) (“Supreme Court dicta have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold,” and courts can “not blandly shrug them off because they were not a holding.”).
As other district courts in the Ninth Circuit have found, this Court finds Vongxay is not clearly irreconcilable with Heller, McDonald or Bruen as nothing in these opinions “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” There is nothing in these opinions that is irreconcilable with finding 18 U.S.C. § 922(g)(1) is constitutional- the holding adopted in Vongxay.
594 F.3d 1111 (9th Cir. 2010); ECF No. 27 at 4.
ECF No. 30 at 12.
The analysis scheme adopted by Bruen requires the determination of whether the plain text of the Second Amendment covers the conduct at issue-here, a felon's right to possess a firearm.The Supreme Court decisions in Heller and McDonald unmistakably portend, the plain text of the Second Amendment does not reach protection of a felon's firearm possession. The Bruen decision confirms this interpretation of the Amendment through Justices Kavanaugh and Alito's adoption of Heller and McDonald's language signaling what the Court would hold if presented with a § 922(g)(1) challenge. Nonetheless, even if the language in Heller, adopted by McDonald and Bruen, was misinterpreted by the Ninth Circuit in Vongxay, the court justified the statute by demonstrating “it is consistent with the Nation's historical tradition of firearm regulation.”
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
Close v. Sotheby's, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (internal citation and quote marks omitted).
Id. (internal citation and quote marks omitted).
Heller, 554 U.S. at 626; Bruen, 142 S.Ct. at 2162 (Kavanaugh, J., Concurring). See also McDonald, 561 U.S. at 786.
While it is true the court in Vongxay did not explicitly discuss whether the plain text of the Second Amendment reaches felons in possession, the court performed the second part of the Bruen test, which was done to demonstrate § 922(g)(1) is consistent with the Nation's historical regulations of firearms. The court in Vongxay noted “no court that has examined Heller has found 18 U.S.C. § 922(g)(1) constitutionally suspect.” The court discussed that prohibiting felons from bearing arms is “consistent with the explicit purpose of the Second Amendment to maintain ‘the security of a free State.'” And, the court stated:
Vongxay, 594 F.3d at 1116 (“[o]ur examination ... of historical gun restrictions ... lends credence to the post Heller viability” of the previous determination that 18 U.S.C. § 922(g)(1) does not violate the Second Amendment) (citation omitted).
See n.18.
We observe that most scholars of the Second Amendment agree that the right to bear arms was “inextricably ... tied to” the concept of a “virtuous citizen[ry]” that would protect society through “defensive use of arms against criminals, oppressive officials, and foreign enemies alike,” and that “the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. Criminal) ”
Vongxay, 594 F.3d at 1118 (quoting Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986)); and Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995).
The District Court of Idaho observed that “[a]t least five justices indicated their explicit intent contrary” to Defendant's argument that Bruen overruled Vongxay. The Idaho court also noted the Ninth Circuit's “reasoning in Vongxay” adopts a two step approach “consistent with the critical second prong” of the Bruen test. That court went on to state “[m]ore importantly, Bruen's reasoning is not clearly irreconcilable with the reasoning in Vongxay and Heller.” The Districts of Montana and Nevada agree that Bruen did not overrule Vongxay. These decisions, along with the discussion in Vongxay summarized above, confirm the holding in Vongxay is not clearly irreconcilable with and, therefore, was not abrogated by Bruen.
Heller, 554 U.S. at 266; McDonald, 561 U.S. at 786
See n.31.
Bruen, 142 S.Ct. at 2126
Vongxay, 594 F.3d at 1117 (citations omitted).
C. 18 U.S.C. § 922(g)(1) is Not Unconstitutional.
Defendant contends his indictment for unlawful possession of a firearm must be dismissed because he is one of the “people” covered by the Second Amendment, and 18 U.S.C. § 922(g)(1) impermissibly infringes on this constitutional right. In contrast, three Supreme Court decisions regarding Second Amendment rights, Heller, McDonald, and Bruen, state that nothing about these decisions is meant to be interpreted as undermining the longstanding prohibitions on the possession of firearms by felons.51 The Ninth Circuit decision in Vongxay reached this same conclusion albeit based solely on Heller, which was later adopted by McDonald and Bruen. Vongxay was affirmed in 2016, after the 2010 McDonald decision, at which time the Ninth Circuit stated: “Our decision in Vongxay forecloses ... [the defendant's] argument, and we accordingly affirm the district court's denial of ... [the defendant's] motion to dismiss the indictment” under 18 U.S.C. § 922(g)(1). In 2023, the Eastern District of California cited Heller as “affirm[ing] . the constitutionality of ‘longstanding prohibitions on the possession of firearms by felons” and stated “[t]he [Supreme] Court did not hold otherwise in Bruen.” In addition to these cases, there are numerous others federal court decisions rejecting constitutional challenges to § 922(g) before and after Bruen.
Id. quoting U.S. CONST. AMEND. II.
United States v. Siddoway, Case No. 1:21-cr-00205-BLW, 2022 WL 4482739, at *1 (D. Idaho Sept. 27, 2022).
Id. at *2.
Id. See also United States v. Chatman, Case Nos. 22-cr-00453-CRB-1, 14-cr-00552-CRB-1, 2023 WL 3509699 (N.D. Cal. May 16, 2023); United States v. Davis, Case No. 1:21-cr-00206-ADA-BAM-1, 2023 WL 2505039, at **3-4 (E.D. Cal. Mar. 14, 2023).
See United States v. Butts, -- F.Supp.3d --, 2022 WL 16553037, at *4 (D. Mt. Oct. 31, 2022) citing Siddoway, 2022 WL 4482739, at *2; United States v. Martinez, Case No. 2:21-cr-00219-APG-DJA, 2023 WL 3687726, at *3 (D. Nev. May 22, 2023) (“Even before Bruen, the Ninth Circuit examined the historical tradition of gun regulation to conclude that Section 922(g)(1) is consistent with the Second Amendment. See Vongxay, 594 F.3d at 1116-18. This Court finds that Bruen is not clearly irreconcilable with the reasoning in Heller or Vongxay.”) (Internal citation altered).
Ultimately, the government correctly argues the plain text of the Second Amendment does not protect gun possession by felons; however, even if it does, § 922(g)(1) is consistent with the Nation's historical tradition of firearms regulation. First, the government points to the Crimes Act of 1790 §§ 3 and 8-10, 1 Stat. 113-14 in which serious offenses of murder and robbery were punishable by death. The government makes the logical argument that given such punishment, it was unnecessary to adopt “a collateral consequence” of forfeiting the right to gun ownerships. The government then looks to the reasoning in Heller in which the Supreme Court rejected the notion that the Second Amendment ever reached the right to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Heller Court also stated, “[f]or example, the majority of 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
As stated above, other than one mention of 18 U.S.C. § 924(a)(2) under which Defendant is also charged, Defendant offers no analysis of this statute under any Supreme Court decision. See ECF No. 267, generally.
See n.37.
Id.; Vongxay, 594 F.3d at 1116.
United States v. Phillips, 827 F.3d 1171, 1174 (9th Cir. 2016).
The government submits history demonstrates “gun rights of certain groups have been categorically limited to promote public safety.” The government points the Court to the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, in which the report stated: “citizens have a personal right to bear arms unless for crimes committed, or real danger of public injury.” The government goes on to cite a similar amendment offered by Samuel Adams to the Massachusetts convention to ratify the U.S. Constitution, and a Seventh Circuit case stating “[m]any of the states, who own constitutions entitled citizens to be armed, did not extend this right to persons convicted of crime.” Finally, the government points out that conviction of a crime has led to curtailment of other rights including the fundamental right to vote, the right to serve on a jury, and the right to hold public office. Based on the foregoing, the Court finds the government has met its burden to justify 18 U.S.C. § 922(g)(1) it is consistent with the Nation's historical tradition of firearm regulation and there is not unconstitutional. The conduct with which Defendant is charged falls outside the Second Amendment's unqualified command.
United States v. Guthery, Case No. 2:22-cr-00173-KJM, 2023 WL 2696824, at *4 (E.D. Cal. Mar. 29, 2023). See also Davis, 2023 WL 2505039, at **3-4.
Martinez, 2023 WL 3687726, at *3; United States v. Isaac, Case No. 5:22-cr-117-LCB-HNJ-1, 2023 WL 1415597 (N. D. Ala. Jan. 31, 2023); United States v. Gray, Case No. 22-cr-00247-CNS, 2022 WL 16855696 (D. Colo. Nov. 10, 2022); United States v. Young, -- F.Supp.3d --, 2022 WL 16829260 (W.D. Pa. Nov. 7, 2022); Butts, 2022 WL 16553037 at *4; Siddoway, 2022 WL 4482739; United States v. Minter, -- F.Supp.3d --, 2022 WL 10662252 (M.D. Pa. Oct. 18, 2022); United States v. Delpriore, -- F.Supp.3d --, 2022 WL17490771 (D. Alaska Oct. 4, 2022); United States v. Charles, -- F.Supp.3d --, 2022 WL 4913900 (W.D. Tex. Oct. 3, 2022); United States v. Campbell, Case No. CR-22-cr-138, 2022 WL 17492255 (W.D. Okla. Sept. 27, 2022); United States v. Perez, Case No. 3:21-cr-508, 2022 WL 17484969 (S.D. Cal. Sept. 26, 2022); United States v. Collette, Case No. 22-cr-141, 2022 WL 4476790 (W.D. Tex. Sept. 25, 2022); United States v. Cockerham, Case No. 5:21-cr-6, 2022 WL 4229314 (S.D.Miss. Sept. 13, 2022); United States v. Doty, Case No. 5:21-cr-21, 2022 WL 17492260 (N.D. W.Va. Sept. 9, 2022); United States v. Burrell, Case No. 3:21-cr-20395, 2022 WL 4096865 (E.D. Mich. Sept. 7, 2022); United States v. Nevens, Case No. 2:19-cr-774, 2022 WL 17492196 (C.D. Cal. Aug. 15, 2022); United States v. Ramos, Case No. 2:21-cr-395, 2022 WL 17491967 (C.D. Cal. Aug. 5, 2022); United States v. Hill, 629 F.Supp.3d 1027 (S.D. Cal. 2022); United States v. Ingram, 623 F.Supp.3d 660 (D.S.C. 2022). Most recently the Southern District of Florida also considered the issue finding that “every federal judge who has considered this question since Bruen has upheld the continued validity of § 922(g)(1).” United States v. Meyer, Case No. 22-10012-CR, 2023 WL 3318492, at *1 (S.D. Fla. May 9, 2023) (emphasis in original).
ECF No. 30 at 14.
Id. at 15.
III. Conclusion
Based on (1) the totality of the information presented, (2) the consistent statements by the Supreme Court that its decisions in Heller, McDonald, and Bruen did not alter the longstanding prohibition against felons possessing firearms, and (3) the Heller, McDonald, and Bruen did not brogate the Ninth Circuit's holding in Vongxay, the Court finds 18 U.S.C. § 922(g)(1), and by extension § 924(a)(2), are not unconstitutional burdens on Defendant's Second Amendment rights.
IV. Recommendation
IT IS THEREFORE RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 27) be DENIED.
NOTICE
Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).