Opinion
No. 20 CR 335 No. 21 CR 52 No. 21 CR 631 No. 21 CR 636-3 No. 22 CR 380
2024-02-07
UNITED STATES of America, v. Russell NEAL, Defendant. United States of America, v. Christopher Coleman, Defendant. United States of America, v. Kenyon Savage, Defendant. United States of America, v. Rodolfo Ortega, Defendant. United States of America, v. Donzell Williams, Defendant.
AUSA, Assistant U.S. Attorney, United States Attorney's Office, Chicago, IL, Cornelius Adrian Vandenberg, III, Assistant U.S. Attorney, USAO, Chicago, IL, Pretrial Services, Probation Department, for United States of America in No. 20 CR 335. Mikiko Akemi Thelwell, Riley Safer Holmes & Cancila LLP, Chicago, IL, William Hardwicke, Public Defender, Federal Defender Program, Chicago, IL, for Defendant in No. 20 CR 335. Michael Joseph Kelly, Assistant U.S. Attorney, Office of General Counsel, Washington, DC, AUSA, Scott M. Edenfield, Assistant U.S. Attorneys, Michelle Kramer, United States Attorney's Office, Chicago, IL, Anne Louise Yonover, DOJ-USAO, Chicago, IL, Pretrial Services, for United States of America in No. 21 CR 52. Matthew John McQuaid, Chicago, IL, for Defendant in No. 21 CR 52. AUSA, Paul Joseph Mower, Jimmy Lorenzo Arce, Assistant U.S. Attorneys, United States Attorney's Office, Chicago, IL, Pretrial Services, for United States of America in No. 21 CR 631. William Hardwicke, Public Defender, Federal Defender Program, Chicago, IL, for Defendant in No. 21 CR 631. AUSA, Assistant U.S. Attorney, United States Attorney's Office (NDIL — Chicago), Chicago, IL, Jennifer S. Chang, Assistant U.S. Attorney, DOJ-USAO, Chicago, IL, Pretrial Services, Probation Department, Megan DeMarco, Assistant U.S. Attorney, United States Attorney's Office, for United States of America in No. 21 CR 636. Michael Eric Baker, Spector & Baker, Chicago, IL, for Defendant in No. 21 CR 636. Kaitlin Grace Klamann, Assistant U.S. Attorney, DOJ-USAO, Washington, DC, AUSA, Elie Thomas Zenner, Erin Elaine Kelly, Assistant U.S. Attorneys, United States Attorney's Office, Chicago, IL, Pretrial Services, for United States of America in No. 22 CR 380. Akane Tsuruta, Public Defender, Federal Defender Program, Chicago, IL, for Defendant in No. 22 CR 380.
AUSA, Assistant U.S. Attorney, United States Attorney's Office, Chicago, IL, Cornelius Adrian Vandenberg, III, Assistant U.S. Attorney, USAO, Chicago, IL, Pretrial Services, Probation Department, for United States of America in No. 20 CR 335.
Mikiko Akemi Thelwell, Riley Safer Holmes & Cancila LLP, Chicago, IL, William Hardwicke, Public Defender, Federal Defender Program, Chicago, IL, for Defendant in No. 20 CR 335.
Michael Joseph Kelly, Assistant U.S. Attorney, Office of General Counsel, Washington, DC, AUSA, Scott M. Edenfield, Assistant U.S. Attorneys, Michelle Kramer, United States Attorney's Office, Chicago, IL, Anne Louise Yonover, DOJ-USAO, Chicago, IL, Pretrial Services, for United States of America in No. 21 CR 52.
Matthew John McQuaid, Chicago, IL, for Defendant in No. 21 CR 52.
AUSA, Paul Joseph Mower, Jimmy Lorenzo Arce, Assistant U.S. Attorneys, United States Attorney's Office, Chicago, IL, Pretrial Services, for United States of America in No. 21 CR 631.
William Hardwicke, Public Defender, Federal Defender Program, Chicago, IL, for Defendant in No. 21 CR 631. AUSA, Assistant U.S. Attorney, United States Attorney's Office (NDIL — Chicago), Chicago, IL, Jennifer S. Chang, Assistant U.S. Attorney, DOJ-USAO, Chicago, IL, Pretrial Services, Probation Department, Megan DeMarco, Assistant U.S. Attorney, United States Attorney's Office, for United States of America in No. 21 CR 636.
Michael Eric Baker, Spector & Baker, Chicago, IL, for Defendant in No. 21 CR 636.
Kaitlin Grace Klamann, Assistant U.S. Attorney, DOJ-USAO, Washington, DC, AUSA, Elie Thomas Zenner, Erin Elaine Kelly, Assistant U.S. Attorneys, United States Attorney's Office, Chicago, IL, Pretrial Services, for United States of America in No. 22 CR 380.
Akane Tsuruta, Public Defender, Federal Defender Program, Chicago, IL, for Defendant in No. 22 CR 380.
OPINION AND ORDER
SARA L. ELLIS, United States District Judge.
Defendants Russell Neal, Christopher Coleman, Kenyon Savage, Rodolfo Ortega, and Donzell Williams all face criminal charges in separate indictments for allegedly violating 18 U.S.C. § 922(g)(1), which criminalizes the possession of a firearm by a convicted felon. As has become common in § 922(g)(1) cases after the Supreme Court issued its opinion in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), these Defendants have separately filed motions to dismiss their indictments. Defendants argue that under the standard the Supreme Court articulated in Bruen, § 922(g)(1) violates the Second Amendment either facially or as applied to non-violent felons. Because all of Defendants' motions raise a legal challenge for which the specific facts underlying each Defendant's charge are largely irrelevant, the Court addresses them together, delving directly into the legal analysis. ANALYSIS
In a second superseding indictment, Ortega was charged with willfully engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A) and being a felon in possession in violation of § 922(g)(1). On February 15, 2023, Ortega pleaded guilty to the § 922(g)(1) charge. Prior to sentencing, Ortega filed a motion to withdraw his plea and dismiss the indictment on Second Amendment grounds, arguing that he is legally innocent of the crime charged because § 922(g)(1) is unconstitutional as applied to him. Rule 11 allows a defendant to withdraw a guilty plea between the time the Court accepts it and sentencing if the defendant can show "a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). Legal innocence provides such a basis, United States v. Groll, 992 F.2d 755, 758 (7th Cir. 1993), with the Seventh Circuit further explaining that "some authority [exists] for the proposition that a post-guilty plea, pre-sentence change in Supreme Court precedent that bears on a defendant's legal innocence may constitute a fair and just reason for permitting the withdrawal of the plea," United States v. Mays, 593 F.3d 603, 607 (7th Cir. 2010). Ortega entered his guilty plea after Bruen. But at least one other court in this district has allowed a defendant to withdraw a guilty plea entered after Bruen because the Seventh Circuit decided Atkinson v. Garland, 70 F.4th 1018 (7th Cir. 2023), which recognized the abrogation of prior Seventh Circuit precedent holding § 922(g)(1) constitutional and the need to reconsider the issue in light of Bruen, after the defendant's guilty plea. See United States v. Phillips, No. 1:22-CR-00596, 2023 WL 9001124, at *14 (N.D. Ill. Dec. 28, 2023). The Court agrees with this reasoning, exercises its discretion to allow Ortega to withdraw his guilty plea, and proceeds to consider the merits of his challenge to § 922(g)(1)'s constitutionality. Id.; see also United States v. Reed, 859 F.3d 468, 471 (7th Cir. 2017) ("Whether to allow withdrawal [of a guilty plea] is 'left to the sound discretion of the district court[.]'" (citation omitted)).
In a facial challenge, "the claimed constitutional violation inheres in the terms of the statute, not its application," with a successful facial attack "mean[ing] the statute is wholly invalid and cannot be applied to anyone." Ezell v. City of Chicago, 651 F.3d 684, 698 (7th Cir. 2011). An as-applied challenge "is one that charges an act is unconstitutional as applied to a [defendant's] specific activities even though it may be capable of valid application to others." Surita v. Hyde, 665 F.3d 860, 875 (7th Cir. 2011). Although leaving the door open to an as-applied challenge, the Seventh Circuit has never upheld such a challenge to § 922(g). See Kanter v. Barr, 919 F.3d 437, 443 (7th Cir. 2019), abrogated by Bruen, 597 U.S. at 19, 142 S.Ct. 2111. The government contends that Defendants' challenges do not have merit, whether construed as facial or as-applied challenges. And those Defendants who bring only as-applied challenges based on their contention that they have been convicted only of non-violent felonies do not fully develop this argument, instead making general arguments about the unconstitutionality of § 922(g)(1). Because the analysis is largely the same whether construed as a facial or as-applied challenge, the Court considers the facial challenge first.
The Second Amendment 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. For many years, this Amendment was understood to protect a collective, not an individual, right to bear arms. The Supreme Court endorsed this understanding in its 1939 United States v. Miller decision. 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Miller focused on the meaning of the word "Militia" in the Second Amendment, noting that the purpose of the Second Amendment was to "assure the continuation [of the Militia] and render possible the effectiveness of such forces." Id. at 178, 59 S.Ct. 816. Following Miller, courts routinely understood the Second Amendment to "protect[] the right to keep and bear arms for certain military purposes, but [not to] curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." District of Columbia v. Heller, 554 U.S. 570, 637-38 & n.2, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (Stevens, J., dissenting) (collecting cases holding "that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes"). Indeed, some scholars described Miller's "Militia-based rationale" "as perhaps 'the most firmly established proposition in American constitutional law.'" United States v. Bullock, 679 F.Supp.3d 501, 510 (S.D. Miss. June 28, 2023) (quoting Keith A. Ehrman and Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 40 (1989)).
That fundamental understanding of the Second Amendment changed in 2008, however, with the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In Heller, writing for a divided Court, Justice Scalia concluded that the text and history of the Second Amendment actually supports an individual right to keep and bear arms, subject to certain limitations. Id. at 595, 626-27, 128 S.Ct. 2783.
The Supreme Court extended this interpretation of the Second Amendment to state regulation of guns two years later in McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ("We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.").
After Heller, courts, including the Seventh Circuit, developed a two-step framework for evaluating Second Amendment challenges. See Bruen, 597 U.S. at 17-18, 142 S.Ct. 2111. First, courts considered "whether the regulated activity f[ell] within the scope of the Second Amendment." Kanter, 919 F.3d at 441 (citation omitted). If the government "establish[ed] that the challenged law regulate[d] activity falling outside the scope of the right as originally understood," then the law survived the
Second Amendment challenge. Id. (citation omitted). But "if the historical evidence [was] inconclusive or suggest[ed] that the regulated activity is not categorially unprotected," then the second step came into play, in which courts evaluated "the regulatory means the government ha[d] chosen and the public-benefits end it [sought] to achieve." Id. (citation omitted). The Seventh Circuit described this second step as "akin to intermediate scrutiny," requiring "the government to show that the challenged statute is substantially related to an important governmental objective." Id. (citation omitted). Under this two-step framework, every federal court of appeals addressing a challenge to § 922(g)(1) concluded that § 922(g)(1) did not violate the Second Amendment on its face. Id. at 442 (collecting cases).
Fourteen years after Heller, in Bruen, the Supreme Court called this universal understanding into question by changing the lens through which courts evaluate firearms restrictions. No longer can courts apply "means-end scrutiny in the Second Amendment context." Bruen, 597 U.S. at 19, 142 S.Ct. 2111. Instead, Bruen instructs courts faced with Second Amendment challenges to solely focus on the question of whether a "firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Id.; see also Atkinson, 70 F.4th at 1020 ("Bruen leaves no room for doubt: text and history, not a means-end analysis, now define the controlling Second Amendment inquiry."). In other words, a new two-step test governs. But see Bruen, 597 U.S. at 19, 142 S.Ct. 2111 ("Despite the popularity of th[e] two-step approach [that courts used pre-Bruen], it is one step too many."). First, courts must determine whether the "Second Amendment's plain text covers an individual's conduct," in which case "the Constitution presumptively protects that conduct." Id. at 17, 142 S.Ct. 2111. At that point, to justify a regulation, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." Id.
Bruen's new framework for evaluating Second Amendment challenges supplanted the Seventh Circuit's settled precedent upholding § 922(g)(1), prompting Defendants to file the motions to dismiss now before the Court. See Atkinson, 70 F.4th at 1022 (noting that the Seventh Circuit's pre-Bruen precedent "moved straight to the means-end analysis"). Before delving into Bruen's two-step test, however, the Court makes several preliminary observations about the current state of affairs.
Initially, while Heller and Bruen are the law of the land and the Court must follow them, the Court disagrees with Heller's holding, on which Bruen stands, that the Second Amendment protects an individual, instead of a collective, right to bear arms. Heller cherry-picked elements of this Nation's history and tradition to reach its ideologically-motivated holding. As Justice Breyer noted in his Bruen dissent, "[m]any experts" have concluded that "the Court got it wrong [in Heller] in a number of ways." Bruen, 597 U.S. at 110, 142 S.Ct. 2111 (Breyer, J., dissenting); see also United States v. Bullock, No. 3:18-CR-165, 2022 WL 16649175, at *2 (S.D. Miss. Oct. 27, 2022) ("Simply put, '[t]he firearms history that appears in law journals and court briefs is not the firearms history familiar to many mainstream historians.'" (alteration in original) (quoting A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment 187 (Jennifer Tucker et al. eds., 2019))). To take one example, "[s]ince Heller was decided, experts have searched over 120,000 founding-era texts from between 1760 and 1799, as well as 40,000 texts from sources dating as far back as 1475, for historical uses of the phrase 'bear
arms,' and they concluded that the phrase was overwhelmingly used to refer to 'war, soldiering, or other forms of armed action by a group rather than an individual.'" Bruen, 597 U.S. at 109, 142 S.Ct. 2111 (Breyer, J., dissenting). If not for Heller's initial misinterpretation of the historical evidence, the question of § 922(g)(1)'s constitutionality would be a non-starter. See, e.g., Kanter, 919 F.3d at 451 ("[E]very federal court of appeals to address the issue has held that § 922(g)(1) does not violate the Second Amendment on its face." (collecting cases from ten sister circuits unanimously upholding § 922(g)(1))).
Next, the Court finds it especially problematic that the Supreme Court places the Second Amendment right to bear arms on a pedestal, with little acknowledgment that its jurisprudence has made the Second Amendment first among equals in relation to the other rights the Constitution protects. See Bullock, 679 F.Supp.3d at 504-05, 537-38 (although pre-Heller, pro-gun rights advocates complained that "the Second Amendment was treated as a 'second-class' right, post-Bruen, the Second Amendment "is the brightest star in the Constitutional constellation" (citation omitted)). In Bruen, the Supreme Court enshrined this right by cabining legitimate gun restrictions to those with a tradition dating back to the founding era, a time when many currently recognized constitutional rights, which are now often taken for granted, did not exist. And in rejecting the use of means-end balancing for Second Amendment regulations, claiming its text and history approach "accords with how we protect other constitutional rights," see Bruen, 597 U.S. at 22-26, 142 S.Ct. 2111, the Supreme Court ignored the many constitutional rights subject to means-end scrutiny, see id. at 106-07, 142 S.Ct. 2111 (Breyer, J., dissenting) (collecting examples where means-end scrutiny is used to evaluate constitutional rights, including restrictions on speech and the free exercise of religion under the First Amendment, race- and sex-based classifications under the Equal Protection Clause, and searches and seizures under the Fourth Amendment). As Justice Breyer noted, "applying means-end scrutiny to laws that regulate the Second Amendment right to bear arms would not create a constitutional anomaly. Rather, it is the Court's rejection of means-end scrutiny and adoption of a rigid history-only approach that is anomalous." Id. at 107, 142 S.Ct. 2111. The Court fears the results if the Supreme Court continues down the history-and-tradition-only path for other Constitutional rights. See Range v. Att'y Gen., 69 F.4th 96, 113 (3d Cir. 2023) (Ambro, J., concurring) ("It is incongruous to believe history displaces meansends balancing for the Second Amendment only. The Court's approach here will affect our ability to pass any rights-burdening law—whether the right be protected by the First, Second, Fourth, or Sixth Amendment—that lacks a neat historical basis.").
The Court next observes that Bruen's approach has thrust the Court into a role for which it is ill-suited: playing historian. See Bruen, 597 U.S. at 107, 142 S.Ct. 2111 (Breyer, J., dissenting) ("The Court's near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law's objectives (its 'ends') against the methods used to achieve those objectives (its 'means'). Judges are far less accustomed to resolving difficult historical questions."). As other judges grappling with the same issues have observed:
[Judges] lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.
Bullock, 2022 WL 16649175, at *1 (citation omitted). Given the "serious disconnect" that exists "between the legal and historical communities" related to the Second Amendment, id. at *2, the Court has concerns that "it risks making incorrect historical findings because it lacks knowledge about other potentially pivotal historical, academic, or legal information." United States v. Hill, 703 F.Supp.3d 729, 747 (E.D. Va. Nov. 28, 2023). This is particularly so in the § 922(g)(1) context, where the Seventh Circuit acknowledged even before Bruen that "scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms." United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (collecting authorities); see also United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (Sykes, J., dissenting) ("[S]cholars disagree about the extent to which felons—let alone misdemeanants— were considered excluded from the right to bear arms during the founding era.").
Given the difficulties district courts face in conducting the required Bruen inquiry and the Court's concerns about misreading the historical record, the Court invited the parties' positions as to the appointment of an independent historian. Neither side agreed to the Court's proposal, however. Defendants take the position that the burden rests on the government to prove that § 922(g)(1) falls within the historical tradition and, because the government has failed to do so, the Court should not go out of its way to help the government's case. The government takes the position that not only should the Court not appoint an expert historian but that the government does not need expert testimony to carry its burden because Bruen depends on "legislative facts," which are "simply a part of the judicial reasoning process." See, e.g., Coleman, No. 21 CR 52, Doc. 70 at 9-10 (citations omitted). Further, the government contends that the use of a historian would "produce 'a number of undesirable practical consequences'" because the historical material could vary from case to case. Id. at 15 (citation omitted). Indeed, unless and until the Supreme Court resolves these challenges, the Bruen inquiry will lead to undesirable and inconsistent results due to the different sources on which the government will rely in different cases, competing readings of the historical record, and divergent views of what Bruen dictates. See Hill, 703 F.Supp.3d at 748-52 (questioning "whether cases built on likely materially different records can ensure the consistent and uniform development and application of the law"); Worth v. Harrington, 666 F.Supp.3d 902, 917 (D. Minn. 2023) (expressing "reservations about the required historical inquiry" and noting that "relying too heavily on party presentation to resolve a dispute about constitutional history opens the door to other problems" such as having "courts faced with virtually identical issues ... easily reach[ing] different conclusions based not on a complete or accurate picture of the relevant aspects of the nation's history and tradition of firearms regulation, but on something as ahistorical as expert witness availability or the researching acumen of the litigants appearing before them"). These inconsistencies do not necessarily flow from the suggested use of an expert historian, however, but rather from the Supreme Court's intention that the Bruen inquiry depend on "party presentation." Bruen, 597 U.S. at 25 n.6, 142 S.Ct. 2111 (noting that courts are "entitled to decide a case based on the historical record compiled by the parties"). Thus, the Supreme Court's guidance incentivizes a results-driven
approach to historical inquiry rather than an honest one.
Ultimately, despite the Court's awareness that the parties will present biased history and that the government's refusal to obtain expert testimony on the topic means the record is incomplete, the Court nonetheless presses on and decides Defendants' challenges based solely on the record the parties created, no matter its insufficiencies. To the extent this Court's understanding of that record differs from those of other courts, that intended by the Supreme Court, or the actual historical truth, that is a problem of the Supreme Court's own making and will require its attention to resolve.
The Court acknowledges that the Supreme Court has before it a chance to at least clarify Bruen's framework in United States v. Rahimi , No. 22-915. Below, the Fifth Circuit held that § 922(g)(8), prohibiting the possession of firearms by someone subject to a domestic violence order, violates the Second Amendment. United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). The Supreme Court heard oral argument in Rahimi on November 7, 2023, but it has not yet issued its decision. Although the Solicitor General and Justice Kagan discussed the potential for the Court to provide "useful guidance ... to lower courts about the methodology that Bruen requires be used and how that applies to cases" outside of Rahimi and § 922(g)(8), see Transcript of Oral Argument at 38-41, United States v. Rahimi , No. 22-915 (Nov. 7, 2023), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-915_986b.pdf, the Court does not find it appropriate to further delay its decision in these cases given Defendants' speedy trial rights and the fact that several of the Defendants are in custody, see Hill, 703 F.Supp.3d at 747 (noting the tension between "Bruen's necessarily thorough historical review and Mr. Hill's (or any defendant's) speedy trial rights").
Preliminary comments aside, the Court finally turns to the task at hand: determining whether § 922(g)(1) is consistent with the Second Amendment right to bear arms. Many other courts across the country have grappled with similar post-Bruen challenges to § 922(g)(1). These courts have taken various approaches to the question. See Bullock, 679 F.Supp.3d at 518-19 (surveying post-Bruen cases). Regardless of the approach, the majority of cases considering the issue have upheld § 922(g)(1)'s constitutionality. See Vincent v. Garland, 80 F.4th 1197, (10th Cir. 2023) (Bruen did not abrogate the Circuit's prior decisions upholding § 922(g)(1)); United States v. Jackson, 69 F.4th 495, 505 (8th Cir. 2023) (rejecting as-applied challenge to § 922(g)(1)); United States v. Ball, 2023 WL 8433981, at *4 (N.D. Ill. Dec. 5, 2023) (collecting cases concluding that § 922(g)(1) remains constitutional after Bruen). But see Range, 69 F.4th at 106 (upholding as-applied challenge to § 922(g)(1)); United States v. Taylor, No. 23-cr-40001, 2024 WL 245557, at *5 (S.D. Ill. Jan. 22, 2024) (finding § 922(g)(1) unconstitutional "facially and as applied"); United States v. Griffin, No. 21-CR-00693, 704 F.Supp.3d 851, 858-60 (N.D. Ill. Nov. 30, 2023) (finding § 922(g)(1) unconstitutional as applied to a defendant because his "criminal record, containing no improper use of a weapon, as well as the nonviolent circumstances of his arrest do not support a finding that he poses a risk to public safety such that he cannot be trusted to use a weapon responsibly"); United States v. Prince, No. 22 CR 240, 700 F.Supp.3d at 675 (N.D. Ill. Nov. 2, 2023) ("Because this court determines that defendant is a member of 'the people' protected by the Second Amendment, and because neither type of historical regulation offered by the government satisfies its burden to show a history and tradition of 'relevantly similar' analogues to § 922(g)(1)'s permanent, categorical firearm dispossession of all felons, the court is forced to grant defendant's motion to dismiss
the indictment against him under Bruen, regardless of whether he is challenging the statute as applied or on its face."); Bullock, 679 F.Supp.3d at 536-37 (dismissing § 922(g)(1) charge against the defendant because the government had not established the required historical tradition to support his permanent disarmament). The Court has studied this issue carefully, reviewing the parties' briefing, the historical sources they cite, and the many district and appellate court opinions that have addressed the same question post-Bruen. Despite its deep misgivings about Bruen's approach and the results it requires, the Court finds with great reluctance that a faithful application of Bruen compels the conclusion that history does not support § 922(g)(1)'s blanket prohibition on the possession of firearms by all felons. Section 922(g)(1) is thus unconstitutional on its face.
A. Conduct Falling Within the Second Amendment
Bruen instructs that the "Constitution presumptively protects" an individual's conduct if the "Second Amendment's plain text covers" it. 597 U.S. at 17, 142 S.Ct. 2111. The government focuses on the use of the phrase "law-abiding, responsible citizens" in the Supreme Court's recent Second Amendment jurisprudence to argue that Defendants are not "law-abiding" citizens and therefore not included in the "people" entitled to "keep and bear Arms." See, e.g., id. at 8, 142 S.Ct. 2111 ("[W]e recognized [in Heller and McDonald] 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."); Heller, 554 U.S. at 635, 128 S.Ct. 2783 (the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home"). But these passing references to law-abiding citizens in the Supreme Court's opinions do not delineate the Second Amendment's reach, as the Seventh Circuit recognized pre-Bruen with respect to whether the Second Amendment's reference to "the people" includes non-citizens. See United States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2015) ("While some of Heller's language does link Second Amendment rights with the notions of 'law-abiding citizens' and 'members of the political community,' those passages did not reflect an attempt to define the term 'people.' We are reluctant to place more weight on these passing references than the Court itself did." (citation omitted)); see also Kanter, 919 F.3d at 445 (because the Heller court "never actually addressed the historical pedigree of felon dispossession laws," the Seventh Circuit has "refused to read too much into the Court's precautionary language" linking Second Amendment rights to "law-abiding citizens").
Indeed, despite its use of the favored term "law-abiding" throughout its recent Second Amendment opinions, the Supreme Court in Heller started its textual analysis of the Second Amendment by noting that, "in all six other provisions of the Constitution that mention 'the people,' the term unambiguously refers to all members of the political community, not an unspecified subset." See Heller, 554 U.S. at 580-81, 128 S.Ct. 2783 ("We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.'"). Following this guidance pre-Bruen, the Seventh Circuit concluded that the Second Amendment's use of "the people" has the same meaning as in other parts of the Bill of Rights: members of the national community or those with substantial connections with the United States. Meza-Rodriguez, 798 F.3d at 669-70 ("Heller noted the similarities
between the Second Amendment and the First and Fourth Amendments, implying that the phrase 'the people' (which occurs in all three) has the same meaning in all three provisions."); see also Kanter, 919 F.3d at 453 (Barrett, J., dissenting) ("Neither felons nor the mentally ill are categorically excluded from our national community.... [T]he question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather than whether they possess the right at all.").
The Seventh Circuit noted in Atkinson that Bruen left open the "complicated issue" of whether the plain text of the Second Amendment covers felons. 70 F.4th at 1022-23. But nothing in Bruen suggests that the Court should depart from the Seventh Circuit's conclusion in Meza-Rodriguez that "the people" referenced in the Second Amendment encompasses all members of the national community. See United States v. Carbajal-Flores, No. 20-cr-00613, 2022 WL 17752395, at *3 (N.D. Ill. Dec. 19, 2022) ("Contrary to the government's argument, Bruen's characterization of petitioners as 'law-abiding citizens' does not control this Court's interpretation of 'the people' covered by the Second Amendment."); United States v. Jackson, 622 F. Supp. 3d 1063, 1066 (W.D. Okla. 2022) ("This Court declines to read into Bruen a qualification that Second Amendment rights belong only to individuals who have not violated any laws."). But see United States v. Dixon, No. 22 CR 140, 2023 WL 2664076, at *3-4 (N.D. Ill. Mar. 28, 2023) ("Bruen repeated Heller's conclusion that the Second Amendment applies only to law-abiding citizens over ten times."); United States v. Price, 656 F. Supp. 3d 772, 775 (N.D. Ill. 2023) ("Section 922(g)(1) is a constitutional restriction on firearms possession because convicted felons— whether their underlying felony was violent or not—are, by definition, not law-abiding and therefore do not fall within the textual purview of the Second Amendment." (footnote omitted)). Following this analysis, the Court concludes that "the people" to which the Second Amendment
In fact, the meaning of "the people" was not at issue in Bruen because no one disputed that the petitioners—"two ordinary, law-abiding, adult citizens—are part of 'the people' whom the Second Amendment protects." 597 U.S. at 31-32, 142 S.Ct. 2111; cf. id. at 72, 142 S.Ct. 2111 (Alito, J., concurring) ("Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.").
The Court respectfully disagrees with those courts that have confined the definition of "the people" to "law-abiding, responsible citizens." As evidenced by the exchanges between the Justices and the Solicitor General during oral argument in United States v. Rahimi , the phrase is incapable of precise definition and could lead to absurd results. See Transcript of Oral Argument at 8-15, United States v. Rahimi , No. 22-915 (Nov. 7, 2023), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-915_986b.pdf (discussing definitional problems posed by the phrase "law-abiding, responsible citizens," with Chief Justice Roberts remarking that "the problem with responsibility is that it's extremely broad" and that what seems "irresponsible to some people might seem like, well, that's not a big deal to others"); Range, 69 F.4th at 102 ("[T]he phrase 'law-abiding, responsible citizens' is as expansive as it is vague.... As for the modifier 'responsible,' it serves only to undermine the Government's argument because it renders the category hopelessly vague. In our Republic of over 330 million people, Americans have widely divergent ideas about what is required for one to be considered a 'responsible' citizen."); United States v. Hicks, 649 F. Supp. 3d 357, 361-62 (W.D. Tex. 2023) ("The Government surely doesn't believe that someone ticketed for speeding—thus, not abiding by the law—should lose their Second Amendment rights. Nor should the person who negligently (irresponsibly) forgets to set out the 'Wet Floor' sign after mopping lose their Second Amendment rights. Of course not. Whether intended or not, the absurd consequences are there all the same.").
refers includes all members of the national community, including felons like Defendants, and so the Second Amendment presumptively protects their right to bear arms.
Some courts have found that the Second Amendment does not cover a felon's possession of a firearm in furtherance of criminal conduct because the Second Amendment does not protect the purpose of the possession. See, e.g., United States v. James, No. 23 CR 345, 2024 WL 168119, at *3 (N.D. Ill. Jan. 16, 2024) ("The Supreme Court has repeatedly made clear that mere possession of a firearm is insufficient to bring an individual's conduct within the gambit of the Second Amendment.... [P]roper analysis of whether conduct is covered by the Second Amendment's plain text involves inquiring not only into firearm possession, but also the purpose of that possession. Put differently, an individual suffers no constitutional injury if the government dispossesses them of weapons they had no lawful purpose for owning."); United States v. Adams, No. 3:23CR122, 2024 WL 54112, at *7 (M.D. Pa. Jan. 4, 2024) (rejecting as-applied challenge to § 922(g)(1) and § 924(c)(1)(A) because "the Second Amendment does not apply to the proposed use of firearms for criminal exploits" but rather only to "the core lawful purpose of self-defense" (citations omitted)). The parties in these cases do not argue that Defendants' purpose in possessing a firearm removes § 922(g)(1) from the Second Amendment's purview. And so, while the Court need not address this question here, it only notes that the circumstances of a felon's possession do not impact the elements of § 922(g)(1), which prohibits a felon from possessing a firearm regardless of their purpose. See United States v. Harper, 689 F.Supp.3d 16, 28 (M.D. Pa. Sept. 1, 2023) ("The crux of the Section 922(g)(1) charge is that the mere possession of a firearm is a criminal act due to the defendant's status as a convicted felon. Other than to address a Second Amendment challenge, there is no reason to require a defendant accused of illegal possession of a firearm pursuant to Section 922(g) to state his purpose for possessing the firearm. That is because the circumstances surrounding the possession do not impact the elements of the offense."). And because requiring a defendant to state their purpose in possessing a firearm would require the defendant to admit to the element of possession, the Court would not find it appropriate to add such a purpose-driven inquiry into the question of whether the plain text of the Second Amendment covers the conduct regulated by § 922(g)(1). See United States v. Quailes, No. 1:21-CR-0176, 688 F.Supp.3d 184, 196 (M.D. Pa. Aug. 22, 2023) (rejecting "a requirement for the defendant to state his purpose for possessing the firearm" in order for his conduct to be covered by the Second Amendment). But see James, 2024 WL 168119, at *4-5 (finding as-applied challenge to § 922(g)(1) premature because "the reason why [the defendant] possessed [a] firearm is an initial showing [the defendant] must make to succeed on his constitutional challenge," which would also require the defendant to "conced[e] key elements necessary to establishing [the defendant's] guilt").
B. History and Tradition
Therefore, the Court must determine whether § 922(g)(1) is "consistent with the Nation's historical tradition of firearm regulation." Bruen, 597 U.S. at 24, 142 S.Ct. 2111. But before doing so, the Court briefly addresses the government's argument that the fact that the Heller majority and the Bruen concurrences have described prohibitions on the possession of firearms by felons as "presumptively lawful," see Heller, 554 U.S. at 626-27 & n.26, 128 S.Ct. 2783; Bruen, 597 U.S. at 81, 142 S.Ct. 2111 (Kavanaugh, J., concurring), means that the Court need not engage in this inquiry. As the Seventh Circuit recognized in Atkinson, "[n]othing allows us to sidestep Bruen in the way the government invites." 70 F.4th at 1022. Instead, the Court must "undertake the text-and-history inquiry the Court so plainly announced and expounded upon at great length." Id.
The government bears the burden of establishing that § 922(g)(1) is consistent with the historical tradition of firearms regulation. Bruen, 597 U.S. at 19, 142 S.Ct. 2111. Although not a model of clarity,
Bruen provided courts with some guidance as to how to determine whether the government has met its burden, setting forth different inquiries depending on whether the challenged regulations address a general problem that existed at the time of this Nation's founding or instead a modern-day problem. Id. at 26-31, 142 S.Ct. 2111. Specifically, the Supreme Court indicated that the inquiry should be "fairly straightforward" where "a challenged regulation addresses a general societal problem that has persisted since the 18th century." Id. at 26, 142 S.Ct. 2111. In such a case, "the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment." Id. (emphasis added). Further, "if earlier generations addressed the societal problem but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional," as could be the rejection of analogous proposals during the relevant timeframe on constitutional grounds. Id. at 26-27, 142 S.Ct. 2111.
For "modern regulations that were unimaginable at the founding," however, Bruen indicated that courts should use analogical reasoning, with only a "relevantly similar" historical regulation required to justify the challenged law. Id. at 28-29, 142 S.Ct. 2111 (emphasis added). The Court acknowledged that it did not "provide an exhaustive survey of the features that render regulations relevantly similar," choosing instead to point to "two metrics" that should guide the inquiry: "how and why the regulations burden a law-abiding citizen's right to armed self-defense." Id. at 29, 142 S.Ct. 2111. In other words, a court's main considerations in determining relevant similarity should be "whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified." Id. The Court further remarked that "analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check" and cautioned against requiring a "historical twin" for a modern-day regulation. Id. at 30, 142 S.Ct. 2111 ("So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.").
The parties in these cases agree that § 922(g)(1) addresses a general societal problem that existed in the 18th century, although they diverge as to how they frame that problem. Defendants urge the Court to view the problem as combating crime and recidivism. Apparently recognizing that no "distinctly similar" historical regulation exists if framed in this way, the government instead frames § 922(g)(1) as relating more generally to "the disarmament of individuals who, like felons, are untrustworthy adherents to the rule of law." Doc. 79 at 30.
By framing the problem so broadly, the government is transparently manipulating the historical record and Bruen inquiry to avoid the implications of the lack of historical regulations of felons' possessions of firearms. As with the government's arguments concerning the Supreme Court's use of "law-abiding, responsible citizens," treating the issue as the disarmament of those who "are untrustworthy adherents to the rule of law" creates a definitional problem. Cf. Bruen, 597 U.S. at 30-31, 142 S.Ct. 2111 (rejecting attempt to define "sensitive places" as all "places where people
The Court notes that by using this framing, the government apparently seeks to avoid arguments about whether the touchstone for the inquiry should instead be dangerousness, which could exclude some non-violent felons. See Kanter, 919 F.3d at 454 (Barrett, J., dissenting) ("[N]one of these rationales supports the proposition that the legislature can permanently deprive felons of the right to possess arms simply because of their status as felons. The historical evidence does, however, support a different proposition: that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category simultaneously broader and narrower than 'felons'—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness."); United States v. Jones, No. 3:23-CR-74, 2024 WL 86491, at *1 (S.D. Miss. Jan. 8, 2024) ("If 'the dispositive lens of historical disarmament' is dangerousness rather than felony status, perhaps Mr. Jones can lawfully be disarmed—maybe even permanently." (citation omitted)). The Court acknowledges that the government pays lip service to the idea that dangerousness may also provide a historical rationale for disarmament. See, e.g., Neal, No. 20 CR 335, Doc. 79 at 34-35 (stating that "although the government has emphasized the historical rationale for disarming groups perceived as an overall threat to the social order, a historical rationale for disarmament based on perceived danger supplies another helpful analogue," and including two high-level paragraphs on the issue). But because this alternative argument has not been properly developed and would require more nuanced considerations of how to define dangerousness and whether all felons fit into such a category or whether individualized adjudications are permissible, the Court does not consider that question here.
typically congregate and where law-enforcement and other public-safety professionals are presumptively available" because such a definition "would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense"); Range, 69 F.4th at 102-03 ("[T]he Government's claim that only 'law-abiding, responsible citizens' are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from 'the people.' We reject that approach because such 'extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.'" (citation omitted)). To avoid that definitional problem, the Court must instead consider § 922(g)(1)'s specific focus on prohibiting felons from possessing firearms, which ties concerns about recidivism to felons' access to guns. Because the founders were familiar with issues surrounding crime and recidivism, the appropriate inquiry is thus whether a distinctly similar historical regulation to § 922(g)(1)'s prohibition on felons' possession of firearms exists. Cf. United States v. Daniels, 77 F.4th 337, 344 (5th Cir. 2023) (rejecting argument that the founders' familiarity with intoxication with alcohol meant that the founders also had occasion to consider
The government does not argue, as some other courts have found, that § 922(g)(1) addresses unprecedented social concerns. See, e.g., Range, 69 F.4th 96, 120 (3d Cir. 2023) (Krause, J., dissenting) (Section 922(g)(1) is a modern-day regulation implicating "unprecedented societal concerns" because "the lethality of today's weaponry, the ubiquity of gun violence, the size and anonymity of the population, and the extent of interstate travel were unknown at the Founding"); United States v. Self, No. 4:23-CR-74, 2024 WL 55487, at *7 (N.D. Miss. Jan. 4, 2024) (Section 922(g)(1) addresses "unprecedented social concerns" because its precursor "was passed in response to increased organized crime and gang violence that took root in America during Prohibition" and it was expanded due to the "infiltration of racketeering into [] society and the exploding crime rate [that had] increasingly become a cause for national concern" (alterations in original) (citation omitted)). Given the government's concession, the Court does not find it appropriate to undertake the analogical reasoning analysis these other courts have found justifies § 922(g)(1). In this respect, the Court also respectfully disagrees with those courts that have refused to read Bruen as setting forth different inquiries depending on the genesis of the problem being addressed and have instead considered the government's proposed analogous regulations when evaluating a general societal problem that existed in the 18th century. See, e.g., Bell, 2023 WL 8433981, at *8 (rejecting the defendant's argument that Bruen "established a two-tier system for evaluating firearm regulations, depending on whether the societal concern being addressed existed at the Founding").
intoxication via marijuana, noting that "[a]lthough marihuana might be comparable in some ways to alcohol or tobacco, merely by making the comparison we have moved past the hunt for a distinctly similar law and are engaged in analogical reasoning").
Framed properly, then, the government cannot meet its burden to show a distinctly similar historical regulation to § 922(g)(1). Although the problem of firearm-related violence existed in the 18th century, scholars have not identified any "founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose"—lifetime disarmament based on an individuals' status as a felon. Kanter, 919 F.3d at 454 (Barrett, J., dissenting); Prince, 700 F.Supp.3d at 669 ("There is no evidence of any law categorically restricting individuals with felony convictions from possessing firearms at the time of the Founding or ratification of the Second or Fourteenth Amendments."). Instead, such lifetime bans arose only in the 20th century. Congress enacted § 922(g)(1)'s precursor in 1938, which disqualified certain violent felons and misdemeanants from firearm possession, and adopted the current ban on firearm possession by all felons in 1961. Skoien, 614 F.3d at 640; see also United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011) (Section 922(g)(1) "is firmly rooted in the twentieth century and bears little resemblance to laws in effect at the time the Second Amendment was ratified."). In other words, the absence of such regulations in the 18th century strongly suggests "that the challenged regulation is inconsistent with the Second Amendment." Bruen, 597 U.S. at 26, 142 S.Ct. 2111.
Facing an uphill battle, the government sets forth two categories of founding-era laws and proposals that bear on the Court's inquiry: (1) failed proposals from state ratification conventions and (2) laws authorizing capital punishment and estate forfeiture for felonies. The Court considers these in turn. 1. The Ratifying Conventions
The government also provides examples of "laws categorically disqualifying groups who were untrustworthy adherents to the law from possessing firearms," focusing on laws disarming Catholics, nonconformist Protestants, Native Americans, slaves, and individuals considered disloyal to the colonial governments. See, e.g., Neal, No. 20 CR 335, Doc. 79 at 18. These laws would be relevant if the problem before the Court required analogical reasoning, given the distinctions between felons and these other groups of individuals. But, as already stated, because the government must provide a distinctly similar regulation, analogical reasoning does not apply here. Moreover, even if relevant to the analysis, the Court would not find that the government's examples imposed a comparable burden as or had a comparable justification to § 922(g)(1). The justification for these laws, many of them abhorrent and unconstitutional today, had less to do with general violence prevention and more to do with the views of those in power that the disarmed group of people posed a threat to their power. See Daniels, 77 F.4th at 351, 354 (rejecting the government's analogies, noting that "each disarmament had its own unique political or social motivations" such as to disarm "political traitors," "potential insurrectionists," or "minorities who the Founders thought threatened violent revolt"); Griffin, 704 F.Supp.3d at 858-60 (refusing to consider discriminatory laws as comparably justified to § 922(g)(1)). But see United States v. Johnson, No. 18 CR 00458, 2023 WL 6690388, at *7-8 (N.D. Ill. Oct. 12, 2023) ("Their rationale (social order and respect for the rule of law) matches that of § 922(g)(1) (preventing violence and lawlessness)."). Similarly, the Court does not find that the government has shown that § 922(g)(1) and the categorical disqualification laws on which the government relies impose comparable burdens on those subjected to the bans. See Prince, 700 F.Supp.3d at 673 (concluding that § 922(g)(1)'s permanent prohibition on felons' firearm possession "imposes a far greater burden on the right to keep and bear arms than the historical categorical exclusions from the people's Second Amendment right"). The Court acknowledges that certain routes for restoration of a felon's right to possess a firearm do exist. See 18 U.S.C. § 921(a)(20) ("Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."); id. § 925(c) (providing an administrative route to relief from § 922(g) prohibition on firearm possession). But in reality, the opportunity for expungement of the majority of felony convictions and restoration of felons' firearm rights is illusory. See Atkinson, 70 F.4th at 1035 n.3 (Wood, J., dissenting) (acknowledging that "Congress has never chosen to activate" § 925(c), rendering that provision unavailable); J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2502 (2020) (surveying Michigan statistics on expungement and noting that "the great majority of people with records are ineligible for expungement"); Amy Shlosberg et al., Expungement and Post-exoneration Offending, 104 J. Crim. L. & Criminology 353, 355-62 (2014) (surveying state and federal expungement policies and noting the substantial barriers that exist to expungement). This contrasts with the historical regulations on which the government relies, under which individuals could possess firearms under specific circumstances or regain the ability to possess them. See Prince, 700 F.Supp.3d at 671-74 (collecting examples showing that historical disarmament laws included restoration or similar provisions, noting that while loyalty oath laws "allowed individuals deemed 'untrustworthy' to regain their right to keep and bear arms by swearing an oath to a state or the United States or by renouncing their faith," § 922(g)(1) does not provide a similar opportunity "for felons to regain their rights after demonstrating their ability to abide by the rule of law").
The Court also notes that, while the government does not rely on 18th and 19th century surety laws to justify § 922(g)(1), if anything, the existence of such surety laws, under Bruen, would support finding § 922(g)(1) unconstitutional because these surety laws addressed the problem of preventing "(allegedly) reckless" individuals from using firearms in a materially different manner. See Bruen, 597 U.S. at 55-59, 142 S.Ct. 2111 ("[T]he burden these surety statutes may have had on the right to public carry was likely ... insignificant[.]"); Hicks, 649 F. Supp. 3d at 365 (noting that the existence of surety laws, which the government had used to support a historical tradition of disarming those under indictment, actually served as evidence that § 922(n) departs from the historical tradition of firearm regulation because the surety laws allowed an accused to post bond to keep firearms, whereas § 922(n) contains no similar manner for an indictee to overcome the restriction on gun possession, thus treating the general societal problem that those accused would unlawfully use their firearm in a "materially different" manner).
First, the government argues that the history of the Second Amendment's adoption demonstrates that the founders understood that legislatures could curtail felons' right to bear arms. The government highlights three proposals made during the state ratifying conventions. The Pennsylvania Antifederalists proposed a constitutional amendment providing that "no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals." 2 Bernard Schwartz, The Bill of Rights: A Documentary History 665 (1971). At the Massachusetts ratifying convention, Samuel Adams proposed an amendment that the "Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Id. at 681. In New Hampshire, the ratifying convention proposed an amendment providing that "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion." Id. at 761.
None of these proposals became law, however, and only New Hampshire's proposal received majority support. Kanter, 919 F.3d at 455 (Barrett, J., dissenting). Disagreement exists among scholars and
judges as to how to interpret the omission of the proposed language. See Bullock, 679 F.Supp.3d at 527 ("Maybe the Framers deleted the mention of law-abiding citizens from the Second Amendment because they wanted all persons to retain their 'natural right of resistance and self-preservation.' Or maybe the Framers deleted law-abiding citizens from the Second Amendment because it was so widely understood that only the virtuous could keep arms that they need not waste precious words to codify popular understanding." (citations omitted) (collecting authorities)). But as Heller cautions, "[i]t is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process." 554 U.S. at 590, 128 S.Ct. 2783; see also Daniels, 77 F.4th at 352 ("The predecessors of the Second Amendment gave concrete language to possible limits on the right to bear arms. Yet that language was not adopted. Instead, the People ratified the unqualified directive: 'shall not be infringed.' Usually, when the relevant lawmaking body does not adopt language in a draft, we presume that the stricken language was not intended." (citation omitted)). More importantly, Bruen suggests that the Second Amendment's silence with respect to the ability to disarm felons, despite the recognition of the potential issue felons' possession of firearms posed during three state ratifying conventions, should be treated as evidence that the public did not support such a restriction. Bruen, 597 U.S. at 26-27, 142 S.Ct. 2111; Daniels, 77 F.4th at 344.
The Court posits a third, and perhaps more historically grounded, alternative: that these proposals at the three ratifying conventions were not adopted because the founders understood the Second Amendment to apply only to a collective right to bear arms, making it obvious that legislatures could pass regulations precluding any individual from possessing firearms for non-Militia purposes. Heller, however, precludes such a judicial interpretation.
To the extent these three proposals demonstrate the obviousness of the ability to disarm felons specifically, as the government argues, Bruen questioned whether "three colonial regulations could suffice to show a tradition of public-carry regulation," 597 U.S. at 46, 142 S.Ct. 2111, and so suggests that these three failed proposals may not be enough to show a historical tradition, see Bullock, 679 F.Supp.3d at 527-28; see also Kanter, 919 F.3d at 455 (Barrett, J., dissenting) ("[P]roposals from other states that advocated a constitutional right to arms did not contain similar language of limitation or exclusion. And finally, similar limitations or exclusions do not appear in any of the four parallel state constitutional provisions enacted before ratification of the Second Amendment."). Additionally, the language of two of the proposals does not neatly match § 922(g)(1)'s disarmament of all felons. The New Hampshire proposal of disarming citizens who "are or have been in Actual Rebellion" targeted "those bent on over-throwing" the government, following "a well-established practice in both England and the colonies." Kanter, 919 F.3d at 455 (Barrett, J., dissenting). This proposal, then, "does not say anything about disarming those who have committed other crimes." Id. Similarly, while the Massachusetts proposal limited the right to bear arms to "peaceable citizens," at the time, "'peaceable citizens' was not a synonym for 'non-felons' or even 'non-criminals.'" Id. at 456.
Thus, because none of the restrictive language from these proposals made its way into the Second Amendment, the Court cannot find that their existence demonstrates that the founders expected that the right to bear arms could be curtailed through felon-dispossession laws.
See Bullock, 679 F.Supp.3d at 527-29 (rejecting argument that the ratifying conventions provide historical support for § 922(g)(1)). Instead, the Second Amendment's silence on the issue suggests that such a restriction was not supported at the time of the founding.
2. Capital Punishment and Estate Forfeiture
The Court turns to the government's other relevant argument—that because capital punishment and estate forfeiture were common punishments for felonies in the 18th century, see Baze v. Rees, 553 U.S. 35, 94, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (Thomas, J., concurring) (noting that capital punishment was the "standard penalty for all serious crimes" in the late 18th century (citation omitted)), the Second Amendment does not protect felons' possession of firearms. In other words, the government contends that because felons faced severe punishment by way of death for certain felonies, these punishments subsumed disarmament and indicate that the founders would not have objected to dispossessing felons of their firearms. See Kanter, 919 F.3d at 458 (Barrett, J., dissenting) ("Because felons were routinely executed or stripped of all rights, the argument goes, explicit provisions depriving them of firearms would have been redundant.").
"The obvious point that the dead enjoy no rights does not tell us what the founding-era generation would have understood about the rights of felons who lived, discharged their sentences, and returned to society." Id. at 462. And as now-Justice Barrett recognized in her Kanter dissent, "[t]he premise of this argument—that the states permanently extinguished the rights of felons, either by death or operation of law, in the eighteenth and nineteenth centuries—is shaky." Id. at 458; see also id. at 459 ("Throughout the seventeenth and eighteenth centuries, capital punishment in the colonies was used 'sparingly,' and property crimes including variations on theft, burglary, and robbery 'were, on the whole, not capital.' ... Death ... no longer inevitably followed a felony conviction." (citations omitted)). Instead, felons during the founding era could "repurchase arms" after they discharged their sentence, undermining the suggestion that the founders understood a felony conviction to include the permanent dispossession of firearms. Range, 69 F.4th at 105; see also Kanter, 919 F.3d at 461 (Barrett, J., dissenting) ("Felons serving a term of years did not suffer civil death; their rights were suspended but not destroyed."); Bullock, 679 F.Supp.3d at 528-29 ("If America's historical tradition permitted a felon to repurchase firearms after completing their sentence, why can't Mr. Bullock today?"). Because "[t]hose who ratified the Second Amendment would not have assumed that a free man, previously convicted, lived in a society without any rights and without the protection of law.... the basis for the permanent and pervasive loss of all rights cannot be tied generally to one's status as a convicted felon or to the uniform severity of punishment that befell the class." Kanter, 919 F.3d at 461 (Barrett, J., dissenting); see also Range, 69 F.4th at 105 ("That Founding-era governments punished some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue—lifetime disarmament —is rooted in our Nation's history and tradition. The greater does not necessarily include the lesser: founding-era governments' execution of some individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess arms if he was not executed."); United States v. Leblanc, No. CR 23-00045, 707 F.Supp.3d 617, 631 (M.D. La.
Dec. 19, 2023) ("[N]ot all felons were put to death or permanently stripped of their 'estates' at the Founding, enabling at least some felons to re-possess firearms after they served their punishments. Founding era laws punishing some felons with death are not a sufficient basis to justify permanent disarmament of all felons under § 922(g)(1)."). Thus, the prevalence of capital punishment and estate forfeiture at the founding, taken alone or together with the rejected proposals at the ratifying conventions, does not provide the required historical tradition to support § 922(g)(1).
C. Summary and Concluding Thoughts
In summary, the Court finds that the government has not carried its burden to show that § 922(g)(1) "is consistent with the Nation's historical tradition of firearm regulation." Bruen, 597 U.S. at 24, 142 S.Ct. 2111. Therefore, while this conclusion diverges from the majority of courts across the country that have considered the issue, under its reading of Bruen, the Court must hold that § 922(g)(1) is facially unconstitutional.
The Court does not reach this conclusion lightly. The Court is painfully aware of the potential consequences that its holding will have on the mounting epidemic of gun violence in this country, an epidemic that has exacted a heavy toll on our cities, schools, and places of worship. On January 23, 2024, after police had allegedly resolved a disturbance at a high school on the south side of Chicago, shots rang out and killed an eighteen-year-old student, Maurice Clay, with police recovering shell casings from two guns, one of which could have been a rifle. Then, on January 26, 2024, at half-past-noon, mere blocks away from this Court's chambers, two high school students, Robert Boston, aged sixteen, and Monterio Williams, aged seventeen, were gunned down in an ambush-style attack as they left school for the day. And only days later, a teenager, sixteen-year-old Daveon Gibson, was killed and two seriously injured as they left campus in another brazen daylight attack on the north side of Chicago. At the vigil held for Daveon shortly after his death, witnesses to the shooting described how his classmates attempted to perform CPR on Daveon while a neighbor, who heard the commotion in front of her home and dashed outside, cradled Daveon in her arms and comforted this child while he died. The blood-soaked sidewalks outside Chicago's schools—hardly five weeks into this new year—are silent witnesses to the price we all pay for the unquestioning devotion to an unfettered right to keep and bear arms grounded in dubious historical precedence.
Striking down § 922(g)(1) will inevitably lead to more gun violence, more dead citizens, and more devastated communities. And yet, despite its deeply visceral misgivings, this Court remains bound by its oath to uphold the Constitution—as interpreted by the Supreme Court—and thus must adhere to Bruen's directive. The lack of a distinctly similar regulation from the founding era prohibiting felons from possessing firearms means that § 922(g)(1) cannot pass constitutional muster, at least for now. See Prince, 700 F.Supp.3d at 676 ("Although there are strong policy reasons for doing everything possible to keep guns off our streets and out of our communities —policies that could be addressed by legislation rather than judicial edict—this court can find no such historical analog.").
The Court encourages the Supreme Court to take up the issue and clarify— better, reconsider—its militant adherence to the text-and-history approach to Second Amendment regulations, as the unintended consequences and unworkability of this approach have quickly become clear. See
Hill, 703 F.Supp.3d at 743 n.22 (encouraging the Supreme Court to consider modifying or clarifying the Bruen test, noting that "[g]iven that the Second Amendment jurisprudence we address 'enshrines an individual right' that developed in 2008 under Heller ... a tweaking of this test based on new experience would not necessarily be transformational." (citation omitted)). Until the Supreme Court does so, however, it must reckon with the knowledge that every day that Bruen requires courts to give primacy to the 18th-century history of gun regulation over the present-day consequences of gun violence is another day that the people of this Nation will bear the cost of its constitutional misadventure, none more so than those who knew and loved Maurice, Robert, Monterio, and Daveon. These four children, their families, their friends, their classmates, and their neighbors deserve far more from our government — thoughts and prayers bring little comfort and even less protection as they attempt to simply go about their days.
CONCLUSION
For the foregoing reasons, the Court holds that § 922(g)(1) is facially unconstitutional. The Court grants Defendants' motions to dismiss [No. 20 CR 335, Doc. 77; No. 21 CR 52, Doc. 51; No. 21 CR 631, Doc. 48; No. 21 CR 636-3, Doc. 167; No. 22 CR 380, Doc. 45]. The Court allows Ortega to withdraw his guilty plea and dismisses the § 922(g)(1) charges against Neal, Coleman, Savage, Ortega, and Williams.