Opinion
W-22-CR-00111-ADA-1
08-24-2023
UNITED STATES OF AMERICA, Plaintiff v. CHRISTOPHER DEONTA HEMPHILL, Defendant
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT
ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE.
Before the Court in the above-entitled and styled cause of action is Defendant Christopher Deonta Hemphill's (“Defendant”) Motion to Dismiss Indictment. ECF No. 22. Defendant is charged with knowing possession of a firearm by a felon, violating 18 U.S.C. § 922(g)(1). ECF No. 1. Defendant moves to dismiss the Indictment, asserting that 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment, both facially and as applied under the standard announced by the Supreme Court in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). ECF No. 22 at 1. After carefully considering the parties' briefing and the applicable law, the Court DENIES Defendant's Motion to Dismiss for the following reasons.
I. BACKGROUND
Defendant was charged by indictment for possession of a firearm by a Convicted Felon in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). ECF No. 1. Within the indictment, four separate prior felony convictions are alleged, including for burglary of a habitation, evading arrest with a prior, and possession of a firearm by a convicted felon, as well as the current charge that is the subject of this proceeding, Possession of a Firearm by a Convicted Felon. See id.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 12 allows a party to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” FED. R. CRIM. P. 12(b)(1). One available challenge is “a defect in the indictment,” including “failure to state an offense.” FED. R. CRIM. P. 12(b)(3)(B)(v). “A court may grant a motion to dismiss an indictment if the defect is one essentially a question of law,” and “[m]otions to dismiss that question the constitutionality of a statute are such questions of law that are proper for the court to review.” United States v. Perry, 2023 WL 3021074, at *2 (N.D. Tex. 2023) (citing United States v. Flores, 404 F.3d 32, 324 (5th Cir. 2005); United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011)).
The Second Amendment to the United States Constitution states, “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. Before Bruen, the Courts of Appeals “coalesced around a ‘two-step' framework for analyzing Second Amendment challenges that combine[d] history with means-end scrutiny.” 142 S.Ct. at 2125. Yet that two-step approach was “one step too many.” Id. at 2117. In Bruen, Court then “reiterate[d] 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. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.'” Id. at 2129-30.
III. DISCUSSION
Informed by the Supreme Court's decision in Bruen, the Fifth Circuit in Rahimi recently struck down § 922(g)(8), which criminalizes possession of a firearm while under a domestic abuse restraining order. See United States v. Rahimi, 61 F.4th 443, 461 (5th Cir.), cert. granted, 143 S.Ct. 2688 (2023). In its analysis, the Fifth Circuit concluded three things. First, Rahimi-who was not a convicted felon but was subject to an agreed restraining order in a civil proceeding-was “among ‘the people' entitled to the Second Amendment's guarantees.” Id. at 453. The Court also found that the Second Amendment covered Rahimi's conduct, possession of a pistol and rifle, and thus presumptively protected his right to keep those weapons in his home. Id. at 454. Lastly, the Court concluded that none of the historical examples offered by the Government showed that § 922(g)(8) aligned with historical traditions of firearm regulation. See id. at 457-60.
In the matter before this Court, Defendant alleges that § 922(g)(1) violates the Second Amendment, facially and as applied, because possession of a firearm commonly used for selfdefense is the most clearly protected conduct by the plain text of the Second Amendment. ECF No. 22 at 2. Defendant also asserts that no historical tradition from the founding era of criminalizing possession of firearms by felons exists. Id. at 2-3. The Court, in line with the Supreme Court's direction in Bruen and the Fifth Circuit's guidance in Rahami, addresses each argument in turn.
A. Defendant has not established that § 922(g)(1) facially violates the Second Amendment.
Defendant is charged with violating 18 U.S.C. § 922(g)(1), which makes it “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 ... any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” As the Government concedes, the conduct prohibited by § 922(g)(1) - i.e., possession of a firearm- is covered by the plain text of the Second Amendment. See ECF No. 26 at 4; see also, e.g., United States v. Robinson, No. 3:21-CR-00159-N, 2023 WL 4304762, at *1 (N.D. Tex. June 29, 2023); United States v. Charles, 633 F.Supp.3d 874, 877 (W.D. Tex. 2022). Because possession is covered by the Second Amendment's plain text, Bruen makes a felon's possession of a firearm “presumptively constitutional.” 142 S.Ct. at 2125. Accordingly, this Court must next consider whether regulations prohibiting felons from possessing a firearm are consistent with the Nation's historical tradition of firearm regulation. See id; see also Rahimi, 61 F.4th at 457-60.
To meet its burden under Bruen to show § 922(g)(1)'s constitutionality, the Government must provide historical examples to show a tradition of broadly prohibiting conduct in the manner of section 922(g)(1). See Bruen, 142 S.Ct. at 2130, 2138. Since Bruen, the Fifth Circuit has not addressed a renewed constitutional challenge to § 922(g)(1). Historically, however, the Supreme Court has recognized “longstanding prohibitions on the possession of firearms by felons” as lawful limitations on the right to bear arms. District of Columbia v. Heller, 554 U.S. 570, 626 (2008). And the Fifth Circuit recently confirmed that the Supreme Court's decisions in Heller and in Bruen support that convicted felons have traditionally fallen outside the protections of the Second Amendment and that prohibiting them from possessing firearms is well-rooted in the nation's history and tradition of firearm regulation. See Rahimi, 61 F.4th at 452.
Defendant, however, asserts that the Government cannot show that the statute is consistent with historical traditions. ECF No. 22 at 15. The Government responds in opposition by analogizing the Second Amendment with other constitutional provisions. See ECF No. 26. Its analysis tracks closely with Judge Counts' opinion in Charles, where the court upheld the constitutionality of § 922(g)(1). See 633 F.Supp.3d at 888. First, the Government explains that Congress began prohibiting felons from possessing firearms in 1938, when it passed the Federal Firearms Act (“FFA”), prohibiting those convicted of “a crime of violence” from shipping or transporting any firearms or ammunition in interstate commerce. ECF No. 26 at 4-5. Though it notes that the historical analysis isn't necessarily straightforward, the Government contends that courts can still find a historical analogue that is “relatively similar” to the modern regulation. Id. at 7. The Government points to the Supreme Court's decision in Heller that, as Judge Counts explained, narrowed the definition of “the people” to those with the rights of the “political community.” Heller, 554 U.S. at 580; see also Charles, 633 F.Supp.3d at 880. Courts post-Heller have also followed Heller's implication that “the people” means only those with political rights. See United States v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011) (holding that Second Amendment rights do not extend to undocumented immigrants because they are not among “the people” of that amendment).
The Government then explains how, analogous to the Second Amendment, constitutional provisions bestowing rights to “the people” implies that the phrase is limited to those with political rights. ECF No. 26 at 10-12 (noting restrictions on the power of “the people” to vote in Section 2, Article 1 and the First Amendment's Assembly-and-Petition clause granting rights to “the people” to assemble). Thus, it asserts that in the Second Amendment context, those convicted of a crime may properly be excluded from its protections. Id. at 12.
Defendant, however, insists that this type of reasoning conflicts with the Supreme Court's direction in Bruen. ECF No. 27 at 3. He argues that this “nuanced approach” asserted by the Government does not involve looking to “relevantly similar” “historical regulations” of firearms as in Bruen, but to examples of other constitutional rights that could be taken away from felons. Id. Though the Court acknowledges this argument, it also notes that Justice Thomas analogized the Second Amendment with other constitutional provisions to support his “historical tradition” framework, stating that this “Second Amendment standard accords with how we protect other constitutional rights.” See Bruen, 142 S.Ct. at 2130 (comparing the freedom of speech in the First Amendment to the right to keep and bear arms, as the Court did in Heller). He made clear that analogical reasoning requires only that the Government identify a well-established and representative historical analogue, not a historical twin. Id. at 2133.
Although the historical analysis of whether § 922(g)(1) is consistent with the Nation's historical tradition of firearm regulation isn't necessarily straightforward, the Court finds affirmation in the “virtual unanimity among the of district courts in the Fifth Circuit upholding § 922(g)(1) in light of Bruen.” United States v. Schnur, No. 1:23-CR-65-LG-BWR-1, 2023 WL 4881383, at *10 (S.D.Miss. July 31, 2023). As our sister court recently explained, “Rahimi left unresolved whether Heller and Bruen should be interpreted to mean that individuals convicted of felonies are excluded from the Second Amendment's coverage altogether, or that their disarmament is constitutionally permissible so long as the Government demonstrates historical support for the specific regulation.” See United States v. Robinson, No. 3:21-CR-00159-N, 2023 WL 4304762, at *2 (N.D. Tex. June 29, 2023) (upholding the constitutionality of § 922(g)(1)). There is not yet consensus governing which approach to follow. See id. (comparing Charles, 633 F.Supp.3d at 877 (taking the former approach based on the “historical tradition of excluding felons from the rights of ‘the people' ” and the practical difficulties of the historical comparison otherwise required by Bruen) with Zelaya Hernandez, 2023 WL 4161203, at *4 (“[T]he Court is hesitant based on current case law and other practical anomalies to definitively conclude felons are outside of the scope of the Second Amendment by way of the term ‘the people,'” and “18 U.S.C. § 922(g)(1) plainly implicates the Second Amendment, as it flatly prohibits the possession of any firearm.”)). But regardless of this lack of resolution, this Court joins with the many other district courts upholding § 922(g)(1) as constitutional under Bruen and in accordance with the Fifth Circuit's well-established line of precedent. See, e.g., United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010); United States v. Darrington, 351 F.3d 632, 633 (5th Cir. 2003). Accordingly, the Court rejects Defendant's facial challenge to the statute.
See Montes v. United States, No. 5:21CV38, 2023 WL 3688015, at *1 (S.D. Tex. May 26, 2023) (collecting cases upholding section 922(g)(1) after Bruen); United States v. Isaac, No. SA-22-CR-37-XR, 2023 WL 2467886, at *1 (W.D. Tex. Mar. 9, 2023) (observing that “[a]ll district courts within the Fifth Circuit” had until that point upheld the constitutionality of section 922(g)(1) under Bruen); United States v. Jordan, No. EP-22-CR-01140-DCG-1, 2023 WL 157789, at *8 (W.D. Tex. January 11, 2023)(“[T]his Court would follow the weight of postBruen authority from district courts in this Circuit rejecting identical as-applied challenges to Section 922(g)(1).”) (citation omitted); United States v. Hill, No. H-22-249, 2022 WL 17069855, at *5 (S.D. Tex. Nov. 17, 2022) (“Finally, while not dispositive, this Court notes that, as far as it knows, every other federal court that has assessed the facial or as-applied constitutionality of 18 U.S.C. § 922(g)(1) in the wake of Bruen has upheld its constitutionality.”) (citation omitted); United States v. Cockerham, No. 5:21CR6-DCB-FKB, 2022 WL 4229314, at *2 (S.D.Miss. Sep. 13, 2022) (“Federal courts nationwide have rejected similar facial constitutional challenges to the felon-inpossession statute.
B. Defendant has not established that § 922(g)(1) violates the Second Amendment as applied to him.
Defendant also asserts that even if the Court determines that there are circumstances under which section 922(g)(1) would be constitutional, so as to not invalidate it facially, the statute also violates the Second Amendment as applied to Defendant. ECF No. 22 at 32. But for the same reasons as the Court found for denying Defendant's facial challenge, Defendant similarly cannot show that he prevails on his as-applied challenge. This argument is foreclosed by binding Fifth Circuit precedent, and the Court finds that Defendant's constitutional challenges to the statute under which he has been indicted, 18 U.S.C. § 922(g)(1), lack merit.
IV. CONCLUSION
The Court holds 18 U.S.C. § 922(g)(1) is constitutional. It is therefore ORDERED that Defendant Christopher Deonta Hemphill's Motion to Dismiss Indictment (ECF No. 22) is DENIED.