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joining the several courts who have found, postBruen, that machineguns are not protected by the Second Amendment
Summary of this case from United States v. CousarOpinion
3:21-cr-00075-IM
08-07-2023
UNITED STATES OF AMERICA, v. DANIEL MATTHEW KITTSON, Defendant.
Natalie K. Wight, United States Attorney, Leah K. Bolstad, Nicole M. Bockelman, and Sarah Barr, Assistant United States Attorneys, United States Attorney's Office, Attorneys for the United States. Michael Charles Benson and C. Renee Manes, Assistant Federal Public Defenders, Attorneys for Defendant.
Natalie K. Wight, United States Attorney, Leah K. Bolstad, Nicole M. Bockelman, and Sarah Barr, Assistant United States Attorneys, United States Attorney's Office, Attorneys for the United States.
Michael Charles Benson and C. Renee Manes, Assistant Federal Public Defenders, Attorneys for Defendant.
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS
KARIN J. IMMERGUT, UNITED STATES DISTRICT JUDGE
Before this Court is Defendant Daniel Matthew Kittson's Motion to Dismiss Count One of the Indictment. ECF 43. On March 9, 2021, a federal grand jury returned an indictment charging Defendant with Illegal Possession and Transfer of a Machine Gun, in violation of 18 U.S.C. § 922(o) (“Count One”) and Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) (“Count Two”). ECF 1. Defendant now moves this Court to dismiss Count One of the indictment, arguing that possession of a machinegun is protected by the Second Amendment under N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S.Ct. 2111, 2129-30 (2022). Post-Bruen, several courts across the country have rejected this argument. This Court joins those decisions and finds that machineguns are not protected by the Second Amendment under Bruen. Defendant's motion is DENIED.
Although Defendant uses both “automatic firearm” and “machinegun” in his briefing, see generally ECF 43; ECF 48, for simplicity and consistency, this Court will use the term “machinegun” as referenced in 18 U.S.C. § 922(o), the statute challenged by Defendant. See also 26 U.S.C. § 5845(b) (defining machinegun). As stated in the indictment, Defendant is alleged to have knowingly possessed and transferred a machinegun. ECF 1 at 1.
LEGAL STANDARDS
In District of Columbia v. Heller, the Supreme Court struck down a District of Columbia law banning possession of handguns in the home. 554 U.S. 570, 635 (2008). In so doing, the Supreme Court concluded that the Second Amendment protects the individual right to bear arms. Id. at 625.
Following Heller, the Ninth Circuit, adopted a two-step means-end test to assess the constitutionality of firearms regulations. See Young v. Hawaii, 992 F.3d 765, 783-84 (9th Cir. 2021) (en banc). But in June 2022, the Supreme Court rejected this test as conflicting with Heller. See Bruen, 142 S.Ct. at 2131.
Instead, Bruen held that courts should analyze Second Amendment challenges 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.” Bruen, 142 S.Ct. at 2129-30.
Bruen's step one is a threshold question. It requires a textual analysis to determine whether the challenger is “part of ‘the people' whom the Second Amendment protects, whether the weapon at issue is ‘in common use' today for self-defense, and whether the ‘proposed course of conduct' falls within the Second Amendment.” United States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023) (quoting Bruen, 142 S.Ct. at. 2127, 2131-34) (internal quotation marks omitted).
Only if the first step is satisfied does a court proceed to Bruen's step two, which requires the government to “justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id. (quoting Bruen, 142 S.Ct. at. 2130). The government must “produce representative analogues to demonstrate that the challenged law is consistent with a historical tradition of regulation.” Id. (quoting Bruen, 142 S.Ct. at. 2127, 2131-33).
DISCUSSION
Defendant argues that machineguns are protected by the plain text of the Second Amendment, satisfying Bruen's first step and requiring the government to show that regulating the possession and transfer of machineguns is consistent with this Nation's history and tradition of firearm regulation. ECF 43 at 3-6. Defendant's argument conflicts with United States v. Henry, a pre-Bruen Ninth Circuit decision which held that machineguns are not arms protected by the Second Amendment. United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012).
Defendant argues that because Bruen overruled the previous Ninth Circuit test to determine whether a restriction violates the Second Amendment, this Court may not rely on Henry to conclude that the Second Amendment does not protect machineguns. ECF 43 at 6-8. In response, the government argues that Bruen did not disturb Heller, which the Ninth Circuit relied on in Henry. ECF 45 at 3-6. Thus, Heller and its progeny, including Henry, remain binding on this Court. Id. This Court agrees with the government and finds that Bruen did not disturb Henry's holding that machineguns are not protected by the Second Amendment.
“[W]here the reasoning or theory of [a] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority,” that precedent should be rejected as having been “effectively overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). “It 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.” Close v. Sotheby's, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (citation omitted). “So long as the court can apply [the] prior circuit precedent without running afoul of the intervening authority it must do so.” Id. (citation omitted).
In clarifying the test for assessing whether modern firearms regulations are consistent with the Second Amendment, Bruen stated that its holding is “in keeping with Heller.” 142 S.Ct. at 2126. Because Bruen left Heller undisturbed, this Court finds that it can apply Heller and Ninth Circuit precedent relying on Heller to determine the constitutionality of Section 922(o) without defying Bruen.
Heller recognized a “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” 554 U.S. at 627. The Heller Court struck down a law prohibiting handgun possession but noted that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Id. at 625. Although Heller did not specify the types of weapons that qualify as “dangerous and unusual,” the Supreme Court suggested that it would be “startling” for the Second Amendment to protect machineguns. Heller, 554 U.S. at 624. Relying on Heller, the Ninth Circuit in Henry held that machineguns are not protected by the Second Amendment because they qualify as “‘dangerous and unusual weapons' that are not ‘typically possessed by law-abiding citizens for lawful purposes.'” Henry, 688 F.3d at 640 (citing Heller, 554 U.S. at 625, 627).
Defendant argues that when Bruen overruled the Ninth Circuit's previous Second Amendment test, it also overruled Henry. ECF 48 at 6. But in concluding that “machineguns are highly ‘dangerous and unusual weapons' that are not ‘typically possessed by law-abiding citizens for lawful purposes,'” Henry employed the same standard established by Heller and confirmed in Bruen. See Henry, 688 F.3d at 640 (citing Heller, 554 U.S. at 625). Because Heller was undisturbed by Bruen, and Henry reached its holding by relying on Heller, Henry is binding precedent on this Court. See Close, 894 F.3d at 1073.
Further, post-Bruen, courts in the Ninth Circuit and across the country have rejected challenges to the constitutionality of Section 922(o) by concluding that machineguns are dangerous and unusual weapons not protected by the plain text of the Second Amendment. See, e.g., Cox v. United States, No. CR 11-00022RJB, 2023 WL 4203261, at *7 (D. Alaska June 27, 2023); United States v. Kazmende, No. 1:22-CR-236-SDG-CCB, 2023 WL 3872209, at *2 (N.D.Ga. May 17, 2023), report and recommendation adopted, No. 1:22-CR-00236-SDG, 2023 WL 3867792 (N.D.Ga. June 7, 2023); United States v. Dixon, No. 22 CR 140, 2023 WL 2664076, at *3 (N.D. Ill. Mar. 28, 2023); United States v. Simien, No. SA-22-CR-00379-JKP, 2023 WL 1980487, at *8 (W.D. Tex. Feb. 10, 2023), reconsideration denied, No. SA-22-CR-00379-JKP, 2023 WL 3082358 (W.D. Tex. Apr. 25, 2023).
Following Bruen, this Court finds that machineguns remain unprotected by the Second Amendment. Because Defendant has failed to satisfy Bruen's step one, this Court need not proceed to step two and consider Defendant's remaining arguments.
CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss the Indictment, ECF 43, is DENIED.
Having considered the parties' briefing, this Court has determined that oral argument is unnecessary for disposition of Defendant's motion. See United States v. Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980) (stating that no hearing is necessary for a motion to dismiss the indictment when filings show the defendant is not entitled to relief as a matter of law).
IT IS SO ORDERED.