Opinion
CR-24-197-PRW
11-21-2024
UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY LAWRENCE GRIZZARD, Defendant
ORDER
PATRICK R, WYRICK, UNITED STATES DISTRICT JUDGE.
Before the Court is Defendant's Motion to Dismiss the Indictment (Dkt. 20). The Motion has been denied (Dkt. 44). This opinion is in support of that denial.
I.
Defendant Anthony Grizzard has been charged with (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and (2) unlawful possession of a machinegun, in violation of 18 U.S.C. § 922(o), after being arrested by the Oklahoma City Police Department in possession of a Glock pistol equipped with a “Glock switch” that made the pistol capable of fully automatic fire.
Grizzard had numerous felony convictions at the time he was arrested. In 2012, he pleaded guilty to possession of a controlled dangerous substance with intent to distribute, possession of drug paraphernalia, possession of an offensive weapon (a firearm) while committing a felony, and possession of drug proceeds.He received a 10-year deferred sentence for three of those counts, and one year in custody for the fourth.
Oklahoma County District Court, Case No. CF-2010-8135.
In 2018, he pleaded guilty to two counts of possession of a controlled dangerous substance with intent to distribute and one count of possession of drug proceeds, for which he received a 12-year sentence for two of those counts, and a 10-year sentence for the third.As a condition of his probation in that case, Grizzard was ordered by his sentencing judge to “not possess or have in [his] immediate control any firearm nor ride in a vehicle that has a firearm in it.”He remained subject to this condition when he was arrested in this case.
Oklahoma County District Court, Case No. CF-2015-8057.
Rules and Conditions of Supervised Probation (Dkt. 29-1).
Grizzard argues that he was no longer subject to any conditions because his “active” supervision ended on February 1, 2021. Def's Reply (Dkt. 37), at 7. But even though Grizzard's “active” supervision ended, he remains under “inactive” supervision for the duration of his probationary sentence, which won't be discharged until September 18, 2030. He thus remains subject to the conditions of that sentence until that date, and he remains subject to having his sentence revoked or accelerated for any violations of the conditions happening before that date-a fact that is explicitly acknowledged by every supervisee when their “active” supervision is terminated via a standard form. See Okla. Dep't of Corr., Opening, Closing and Transferring Cases Under Supervision OP-160201 attach. I (“Notice of Termination of Active Probation Supervision”) (2022), https://oklahoma.gov/content/dam/ok/en/doc/documents/policy/section-16/160201ai.pdf.
Grizzard seeks dismissal of the felon in possession charge, arguing that 18 U.S.C. § 922(g)(1) violates his Second Amendment right to keep and bear arms.Grizzard relies on the United States Supreme Court's decisions in New York State Rifle and Pistol Association v. Bruenand United States v. Rahimi. In decisions both before and after Bruen, the Tenth Circuit has squarely addressed the question presented by Grizzard's motion, concluding in both cases that prohibiting felons from possessing firearms is consistent with the Second Amendment.
Grizzard challenges § 922(g)(1) both on its face and as applied to him.
597 U.S. 1 (2022).
602 U.S. ----, 144 S.Ct. 1889 (2024).
See United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009); Vincent v. Garland, 80 F.4th 1197, 1202 (10th Cir. 2023), cert. granted, judgment vacated, 144 S.Ct. 2708 (2024).
In Vincent v. Garland, the most recent of those decisions, a Tenth Circuit panel considered whether its pre-Bruen holding in United States v. McCane-that 18 U.S.C. § 922(g)(1) didn't violate the Second Amendment-remained good law after Bruen. The panel concluded that Bruen, despite having rejected the two-part balancing test adopted by the Tenth Circuit post-Heller and used by it in McCane, did not “indisputably and pellucidly” abrogate McCane.This Court has since relied on Vincent in rejecting challenges similar to this one. Vincent, however, has now been vacated and remanded by the Supreme Court, and the case is now pending at the Tenth Circuit as it reconsiders the case in light of Rahimi, per the Supreme Court's mandate.
Vincent, 80 F.4th at 1202.
The United States insists that despite all this, McCane remains good law that remains binding on this Court. The United States explanation for why this is so, however, is lacking. Rahimi, after all, reaffirmed the holding in Bruen, and applied the Bruen test in concluding that 18 U.S.C. § 922(g)(8) didn't violate the Second Amendment.The Vincent panel reached a similar conclusion with respect to § 922(g)(1), but with a different mode of analysis, one that didn't apply Bruen's new test.The vacating and remanding of Vincent, of course, doesn't tell us anything about the Supreme Court's view of either Vincent's result or its mode of analysis. All it tells us is that the Supreme Court wants the Tenth Circuit to re-evaluate the case in light of Rahimi.
See Rahimi, 144 S.Ct. at 1898-1903.
See Vincent, 80 F.4th at 1201-02.
But with respect to the Government's argument, the bottom line is this: the Vincent judgment is now a nullity. That being so, this Court is left without post-Bruen circuit precedent with respect to the question presented here: in light of Bruen and Rahimi, is 18 U.S.C. § 922(g)(1) consistent with the Second Amendment? The Court must therefore answer that question.
II.
Bruen directs that a court first look to whether “the Second Amendment's plain text covers an individual's conduct,” and if so, “the Constitution presumptively protects that conduct.”The burden then shifts to the government to rebut that presumption by demonstrating that its regulation “is consistent with the Nation's historical tradition of firearm regulation.”
Id.
The elephant in the room is the dicta from District of Columbia v. Heller that the Vincent panel relied on in concluding that it needn't apply the Bruen test to § 922(g)(1).The Heller Court said that “[a]lthough 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 went on to describe these prohibitions as “presumptively lawful.”The Bruen Court didn't repeat this dicta (other than a passing reference to it in the context of discussing analogical reasoning),although a concurring justice quoted it in his separate opinion.But any notions that Bruen displaced the Heller dicta were dispelled in United States v. Rahimi, where the Court-in an 8-1 decision where the lone dissenter was in the majority in Heller-favorably quoted the Heller dicta.In other words, all nine justices have now joined opinions that approvingly reference the Heller dicta. It remains, therefore, “good dicta” (for whatever that is worth), and dicta with strong persuasive value.
See Vincent, 80 F.4th at 1201 (quoting District of Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008)).
Id. at 627 n.26.
See Bruen, 597 U.S. at 30 (quoting Heller, 554 U.S. at 626).
Id. at 81 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 626-27 & n.26).
144 S.Ct. at 1902 (“Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,' are ‘presumptively lawful.'” (quoting Heller, 554 U.S. at 626-27 & n.26)).
To be fair, the suggestion of a presumption in the government's favor in cases involving “longstanding prohibitions on the possession of firearms by felons” seems at first glance to be at odds with the Bruen framework, which creates a presumption against the government at the second step. But the Heller dicta is best understood as a suggestion that “longstanding prohibitions on the possession of firearms by felons” presumptively fit comfortably within the Nation's historical tradition of firearms regulation-i.e., that the Government can readily meet its burden at the second step.
But is 18 U.S.C. § 922(g)(1) one of those “longstanding” prohibitions that the Heller Court had in mind? It certainly is a “prohibition on the possession of firearms by felons,” but its lineage isn't long. The Federal Firearms Act of 1938 was the first federal law restricting felons' access to firearms. It made it unlawful for “any person” to ship or transport “in interstate or foreign commerce” any firearm or ammunition to anyone convicted of, or indicted for, a “crime of violence,” or any fugitive from justice.Those convicted of crimes of violence and fugitives likewise could not “receive any firearm or ammunition that had been shipped or transported in interstate or foreign commerce.”So the 1938 law was both broader and narrower than § 922(g)(1) in that it applied only to those “convicted of a limited set of violent crimes such as murder, rape, kidnapping, and burglary, but extended to both felons and misdemeanants convicted of [those] qualifying offenses.”
Ch. 850, §§ 1-9, 52 Stat. 1250 (repealed 1968) (originally codified as former 15 U.S.C. §§ 901-910, the provisions of which, as amended and supplemented, have been carried forward to 18 U.S.C. §§ 921-34).
Id. § 2(d).
Id. § 2(f).
United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011) (emphasis added).
Congress didn't extend the prohibition to all felons until 1961, when it enacted the predecessor to § 922(g)(1). So at least with respect to federal prohibitions on possession of firearms by all felons, § 922(g)(1) would be the longest standing, having been on the books in one form or the other for 63 years. Given the Bruen Court's emphasis on Founding- and Reconstruction-era sources, and its rejection of 20th century and late 19th century history as too “temporal[ly] distan[t]” from the Founding to “provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence,”it's hard to see how a 63-year-old law could be the type of “longstanding prohibition” that might illuminate the scope of the Second Amendment.
See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961).
Bruen, 597 U.S. at 66 (citing Heller, 554 U.S. at 614).
See Range v. Att'y Gen. United States of Am., 69 F.4th 96, 104 (3d Cir. 2023), cert. granted, judgment vacated sub nom. Garland v. Range, 144 S.Ct. 2706 (2024).
But here's the rub. If not this felon-in-possession law, to what other felon-inpossession laws could the Heller dicta have been referring? Some have pointed to a smattering of early 20th century state laws banning firearm possession by felons, but again, Bruen rejected just such sources as too recent,and in any event, they barely predate the original federal prohibition. That leaves lower courts like this one scratching their collective heads. In this Court's view, if the Heller dicta is to be taken at face value, it must be referring to prohibitions like § 922(g)(1)-at least as applied to the violent criminals to whom the predecessor to § 922(g)(1) applied-even if that conclusion seems at first glance to be at odds with Bruen's preference for Founding- and Reconstruction-era sources. But as the Court will explain at step two, the squaring of this circle is at least partially possible in a case involving a felon like Grizzard.
See id. at 104 n.8.
Bruen, 597 U.S. at 66 n.28.
A.
Applying the Bruen framework, the Court must first determine whether the plain text of the Second Amendment applies to Grizzard and his possession of this automatic pistol.
The Government skips past this first step in its response, seemingly conceding the point to Grizzard. Understandably so. The Supreme Court has held that “‘the people' . . . unambiguously refers to all members of the political community, not an unspecified subset,”further explaining that the term refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The Supreme Court thus concluded that there is a “strong presumption” that the Second Amendment right to keep and carry handguns publicly for self-defense “belongs to all Americans.”Here, no one disputes that Grizzard is a United States citizen residing in Oklahoma, which under Supreme Court precedent would make him part of the “national community,” and thus part of “the people” to whom the Second Amendment guarantees the right to keep arms.
Heller, 554 U.S. at 580.
Id. (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).
Id. at 581; Bruen, 597 U.S. at 70 (“The Second Amendment guaranteed to ‘all Americans' the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.” (quoting Heller, 554 U.S. at 581)).
The same would also be true with regard to whether the plain text of the Second Amendment covers possession of a machinegun.Again, this is a question of Congress' power to regulate the scope of the right, which is resolved at the second step of the Bruen inquiry.For example, when the Bruen Court mentioned the Heller dicta about sensitive place regulations, it did so in the context of explaining the analogical reasoning that occurs at the second step.The same holds true for the question of regulation of possession of firearms by felons, or the regulation of unusual firearms. To be sure, whether a first step or second step inquiry, the result will usually be the same, but resolving these questions at the second step is the better approach not only because it is consistent with Heller and Bruen, but also because it is the approach most consistent with the original public meaning of the Second Amendment as an individual right to possess firearms for both self and collective defense.
Bruen tells us to determine whether “the Second Amendment's plain text covers an individual's conduct.” 597 U.S. at 24. What isn't clear is whether that means the individual's actual conduct, or the conduct proscribed by the regulation. That makes a difference. Grizzard was actually in possession of a fully automatic handgun. But § 922(g)(1) proscribes possession of any firearm, so proving that this particular handgun was capable of fully automatic fire won't be necessary to secure a conviction on this count. If the actual conduct is what matters, however, that injects into the second step of the Bruen analysis a second question, whether prohibiting Grizzard from possessing a handgun capable of fully automatic fire is consistent with our historical tradition of firearms regulation. Having not challenged the constitutionality of count two of the Indictment, Grizzard has conceded that it is.
Recall that the Second Amendment didn't create a new right; it merely protected a preexisting right from federal intrusion. The Bruen Court confirmed as much when it reiterated what it had said in Heller: that “‘it has always been widely understood that the Second Amendment . . . codified a pre-existing right.' The Amendment ‘was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.'” 597 U.S. at 20 (omission and emphasis in original) (internal citation omitted) (quoting Heller, 554 U.S. at 592, 599).
See Bruen, 597 U.S. at 30.
See Robert Leider, The Individual Right to Bear Arms for Common Defense 5-18 (2024), https://ssrn.com/abstract=4918009.
Because the Second Amendment's plain text covers Grizzard's conduct, “the Constitution presumptively protects that conduct.”
Bruen, 597 U.S. at 24.
B.
The burden now shifts to the Government to demonstrate that § 922(g)(1)'s prohibition on firearm possession by felons is consistent with the Nation's historical tradition of firearm regulation.
As to Gizzard's facial challenge to § 922(g)(1), this is an easy task. In light of the “presumptive lawfulness” of longstanding prohibitions on the possession of firearms of felons, it is clear that at least some felons can be stripped of their right to possess a firearm. Gizzard has offered nothing to rebut that presumption; his facial challenge thus fails.
The as-applied challenge requires more work. Recall that Heller did not place an absolute stamp of approval on felon-in-possession laws: those prohibitions are merely “presumptively lawful,” implying that some could be unconstitutional in some circumstances.But this is not one of those circumstances.
See 554 U.S. at 627 n.26.
If it is true that “legislatures have the power to prohibit dangerous people from possessing guns,”-and Rahimi's holding confirms as much-then those convicted of felonies that demonstrate dangerousness can in some circumstances be stripped of their right to possess a firearm. A felony conviction, after all, involves an individualized adjudication by a neutral magistrate (or jury) with all the trappings of due process, even more so than the adjudication at issue in Rahimi.
Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019), abrogated by New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022) (Barrett, J., dissenting).
144 S.Ct. at 1903 (“An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”).
To be sure, not all felony convictions are created equal. It is difficult to conceive how a felony conviction for opening a bottle of ketchup at the store and placing it back on the shelf or reading someone else's email without permission might possibly demonstrate dangerousness-and those are actual felonies.Moreover, blanket deference to legislative judgments about what constitutes felonious conduct runs headlong into Bruen's explicit rejection of such deference as inappropriate in the context of this fundamental right.
See Folajtar v. Att'y Gen. United States of Am., 980 F.3d 897, 921 (3d Cir. 2020) (Bibas, J., dissenting) (citations omitted) (identifying these examples and making the broader point that “today, a felony is whatever the legislature says it is. The category is elastic, unbounded, and manipulable by legislatures and prosecutors.”).
Bruen, 597 U.S. at 26 (“But while that judicial deference to legislative interest balancing is understandable-and, elsewhere, appropriate-it is not deference that the Constitution demands here.”).
But Grizzard's convictions, and the judge-imposed conditions he was subject to as a result of those convictions, demonstrate that at the time he possessed this gun, he presented a continuing dangerousness to the public if in possession of a firearm. First, his convictions aren't for outlier felonies. As the Government points out, Grizzard's possession of cocaine with intent to distribute, for example, has been deemed a felony by every state legislature and Congress.
Gov't's Resp. (Dkt. 29), at 12.
Second, even if possession of drugs with intent to distribute, possession of drug paraphernalia, possession of drug proceeds, and possession of a firearm while in the commission of a felony aren't the sort of “violent” crimes that were covered by § 922(g)(1)'s earliest predecessor, they are certainly the type of felonies that-like violent crimes-demonstrate dangerousness. After all, “drugs and guns are a dangerous combination.”Courts and Congress have long recognized that drug trafficking presents inherent dangers to the community that distinguish it from mere possessory offenses or non-violent property crimes, which is precisely why trafficking crimes generally carry much harsher potential penalties. Moreover, drug trafficking frequently involves violence or threats of violence. Indeed, the very nature of the illegal drug trade-involving large sums of money, valuable contraband, and the absence of legal dispute resolution mechanisms-creates strong incentives for participants to arm themselves. And that is precisely what Grizzard did, not only with the “spray-and-pray” fully-automatic Glock pistol he possessed here, but also with the firearm he was previously convicted of possessing while in the commission of possession of drugs with intent to distribute.
Smith v. United States, 508 U.S. 223, 240 (1993).
Compare 21 U.S.C. § 841(b) (providing the penalties for drug trafficking crimes), with 21 U.S.C. § 844(a) (providing the penalty for simple possession).
In short, Grizzard's demonstrated willingness to combine firearms with drug trafficking activities establish that his continued involvement in the inherently dangerous drug trade was far from theoretical. This is not a case of a single non-violent offense or technical violation, but rather a pattern of conduct that places both Grizzard and others at heightened risk when he possesses firearms. This point likely seemed obvious to the state court judge who made an individualized determination that a condition of Grizzard's suspended sentence be that he not possess a firearm. And that individualized determination by a neutral magistrate is akin to the individualized determination of dangerousness that the Rahimi court viewed as clearly justifying a temporary stripping of the right to possess a firearm.And if the temporary stripping of the right that was effectuated by the conditions of his suspended sentence is permissible-and Grizzard doesn't argue otherwise-then at the moment of his possession here, Grizzard had no right to possess a firearm (and certainly not a fully automatic Glock pistol that is an unusual weapon for either self- or collective defense) for a reason independent of his mere status as a felon.
The Rahimi holding is perhaps more narrow in that it pointed to an individualized determination of dangerousness to “another,” though it isn't clear whether that means “another specific individual” or any member of the public at large. See 144 S.Ct. at 1901. But again, the Heller dicta endorses the broader conception of the requisite threat embodied by categorical restrictions like § 922(g)(1).
In sum, both as a consequence of his dangerousness-demonstrating prior felony convictions and a consequence of the well-justified conditions imposed on him by a judge, Grizzard was a prohibited person, and that prohibition is consistent with the Second Amendment.
***
For these reasons, the Motion to Dismiss Count One of the Indictment is denied.
IT IS SO ORDERED.