Opinion
4:21CR3084
03-30-2023
UNITED STATES OF AMERICA, Plaintiff, v. MONTRAY QUINTIN PATTON, Defendant.
FINDINGS, RECOMMENDATION AND ORDER
Cheryl R. Zwart United States Magistrate Judge.
This matter is before the court on Defendant Montray Q. Patton's motion to dismiss. (Filing No. 58). For the reasons explained below, the motion should be denied.
BACKGROUND
The facts of this case are outlined in the court's prior order on Defendant's motion to suppress (Filing Nos. 35 and 37) and are not meaningfully disputed here. The court summarizes them as follows:
Defendant was a passenger in a rental vehicle traveling in Seward County, Nebraska, when law enforcement stopped the vehicle for a traffic violation. After various interactions between law enforcement and the occupants of the vehicle, a canine was deployed to walk around the exterior of the vehicle. The canine alerted and indicated to the odor of narcotics. Officers then searched the vehicle and found, among other things, six disassembled AR-15 style rifles with their serial numbers removed. According to Patton, when questioned about the rifles, he stated he had purchased them from a man in Kentucky, and he had not noticed that the serial numbers had been removed.
On July 22, 2021, Patton was indicted on one count of knowingly possessing firearms that had been shipped and transported in interstate commerce from which the manufacturer's serial numbers had been removed or obliterated, in violation of Title 18, U.S.C. § 922(k). (Filing No. 1).
ANALYSIS
Patton moves to dismiss the indictment, arguing that 18 U.S.C. § 922(k) is unconstitutional under the Supreme Court's ruling in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 1 42 S.Ct. 2111 (2022). (Filing No. 58). Citing Bruen, Patton argues that § 922(k) violates the Second Amendment because prohibiting possession of firearms with removed serial numbers is inconsistent with the nation's historical tradition of firearm regulation.
No federal court of appeals has yet addressed the constitutionality of § 922(k) in light of Bruen. Of the six district courts that have addressed the issue, five have held that § 922(k) is constitutional, and one has held that it is unconstitutional. United States v. Bradley, No. 2:22CR98, 2023 WL 2621352, (S.D W.Va. Mar. 23, 2023) (constitutional); United States v. Serrano, No. 3:21CR1590, 2023 WL 2297447 (S.D. Cal. Jan. 17, 2023) (constitutional); United States v. Tita, No. 1:21CR334, 2022 WL 17850250 (D. Md. Dec. 22, 2022) (constitutional); United States v. Reyna, No. 3:21CR41, 2022 WL 17714376 (N.D. Ind. Dec. 15, 2022) (constitutional); United States v. Holton, No. 3:21CR482, 2022 WL 16701935 (N.D. Tex. Nov. 3, 2022) (constitutional); and United States v. Price, No. 2:22CR97, 2022 WL 6968457 (S.D. W.Va. October 12, 2022) (unconstitutional). For the reasons stated below, the court agrees with the majority of district courts considering the question and finds that § 922(k) is constitutional. As such, Patton's motion should be denied.
Until recently, federal courts analyzing Second Amendment challenges applied a two-step approach that “combine[d] history with means-end scrutiny.” Bruen, 142 S.Ct. at 2125. Courts asked “if the restricted activity [was] protected by the Second Amendment in the first place; and then, if necessary, [would] ... apply the appropriate level of scrutiny.” United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017). This approach was developed following the Supreme Court's rulings in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), where the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for selfdefense.
However, rather than adopting the two-part test developed by the lower courts post-Heller, Bruen introduced a different two-part test. Under Bruen, “[w]hen the Second Amendment's plain text covers an individual's conduct, the constitution presumptively protects that conduct.” Bruen, 142 S.Ct. at 2126. To justify a regulation of such conduct, “the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.” Id. The test requires courts to “assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding.” Id. at 2131. As in Heller and McDonald, the Bruen Court determined at least two metrics will guide the inquiry: “how and why the regulations burden a law-abiding citizen's right to armed self-defense.” Id. at 2132-33.
Defendant argues § 922(k) is unconstitutional under the Bruen two-part test. Citing the Price decision entered by the District Court for the Southern District of West Virginia, Defendant argues § 922(k) is not a “mere commercial regulation” but instead “infringe[s] on one's right to possess a firearm” in a manner inconsistent with “the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Price, 2022 WL 6968457, at *3-6. The Government responds that the conduct prohibited by § 922(k) is not protected by the Second Amendment's plain text, and even if it was, § 922(k) is consistent with the historical tradition of firearms regulation.
1. Second Amendment's plain text
Under the Bruen framework, the Court must first determine whether § 922(k) regulates conduct protected by the Second Amendment. Bruen, 142 S.Ct. at 2126; 2134-35. That is, does the plain text of the Second Amendment protect Patton's conduct-possessing firearms with removed or obliterated serial numbers?
The Second Amendment guarantees that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. When analyzing the plain text of the Second amendment, the Supreme Court in Bruen relied on its Heller analysis. See Bruen, 142 S.Ct. at 2134-35. As explained in Heller, the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Bruen, 142 S.Ct. at 2134 (citing Heller, 554 U.S. at 592). Moreover, it protects the right of ordinary, law-abiding citizens to possess firearms for self-defense. Bruen, 142 S.Ct. at 2133.
As the majority of district courts have held, while § 922(k) prohibits transporting, shipping, receiving, and possessing firearms with altered or removed serial numbers, it does not infringe on an individual's right to possess and carry a weapon for self-defense-the “central component” protected by the Second Amendment. Bruen, 142 S.Ct. at 2134. See also Holton, 2022 WL 16701935 at *4. “The presence of a serial number does not impair the use or functioning of a weapon in any way[.] ... [A] person is just as capable of defending himself with a marked firearm as with an unmarked firearm.” Id. (citing U.S. v. Marzzarella, 614 F.3d 85, 94 (3d Cir. 2010). A serial number is a “nonfunctional characteristic” of a gun-“keeping a serial number doesn't reduce a gun's usefulness for self-defense, and obliterating a serial number doesn't make a gun more useful for self-defense.:” Reyna, 2022 WL 17714376, at *4-5.
The court in Price broadly reasoned that § 922(k) regulates “mere possession” of a firearm because a person can lawfully purchase or transfer a firearm, but that person is in violation of § 922(k) the moment the serial number is destroyed. Price, 2022 WL 6968457, at *3. As regulating possession, the Price court found § 922(k) “squarely within the Second Amendment's plain text.”
This approach is too broad. The Supreme Court has consistently evaluated Second Amendment regulations with specificity. In Heller, the challenged regulation prohibited handgun regulation in the home, so the court evaluated the regulated conduct as possession in the home. See Heller, 554 U.S. at 628. Likewise, in Bruen, where the challenged regulation prohibited carrying a handgun in public without first proving “proper cause” for doing so, the Court evaluated whether the regulation unlawfully restricted the right to publicly carrying a handgun. See Bruen, 142 S.Ct. at 2134. Neither case broadly categorized the protected conduct as mere possession. “The regulated conduct must be defined specifically enough that it can meaningfully compare to the Second Amendment's plain text- a plain text that is more complex than mere possession.” Reyna, 2022 WL 17714376, at * 4.
Importantly, the Second Amendment “is not a right to keep and carry any weapon whatsoever in any manner whatsoever.” Heller, 554 U.S. at 626. And § 922(k) does not infringe on an individual's right to carry a weapon for self-defense. Simply put, the plain text of the Second Amendment does not encompass the conduct prohibited by § 922(k).
2. Historical tradition of firearm regulation
Alternatively, even if the Second Amendment does protect the conduct regulated by § 922(k), the statute is nonetheless “consistent with this Nation's history of firearm regulation,” and is constitutional. See Bruen, 142 S.Ct. at 2130.
When examining present-day firearm regulations, the “historical inquiry that courts must conduct will often involve reasoning by analogy.” Bruen, 142 S.Ct. at 2132. The court must determine if a historical regulation and modern regulation are “relevantly similar” by considering “how and why the regulations burden a lawabiding citizen's right to armed self-defense.” Id. “Whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central' considerations when engaging in an analogical inquiry.” Id. at 2133 (citing McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 599))). When considering whether a regulation withstands constitutional muster, the government need only identify a “historical analogue, not a historical twin.” Id. at 2133.
The modern regulation, the Gun Control Act of 1968 from which § 922(k) originates, is intended “to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.” Serrano, 2023 WL 2297447, at *13 (citing Barrett v. United States, 423 U.S. 212, 218 (1976)). “The goal of § 922(k), in particular, is to assist law enforcement by making it possible to use the serial number of a firearm recovered in a crime to trace and identify its owner and source.” Marzzarella, 614 F.3d at 98.
In colonial times, when manufacturer-stamped serial numbers did not exist, various colony or state regulations provided varying means of tracing the transfer of guns and the identity of a gun's owner. Colonial governments “substantially controlled the firearms trade.” Teixeira v. Cnty. Of Alameda, 873 F.3d 670, 685 (9thCir. 2017). “The government provided and stored guns, controlled the conditions of trade, and financially supported private firearms manufacturers.” Id. Colonial governments enacted criminal laws restricting the sale of firearms or ammunitions to individuals they considered dangerous. Id. at 685 (citing 17th-century laws from Massachusetts, Connecticut, Maryland and Virginia restricting sales to Native Americans). New York law restricted the trading of guns, gun powder, and lead by private individuals; Virginia law required the recording of all “arms and munitions” arriving in the colony; and Connecticut prohibited selling firearms outside the colony. Id. (citing Robert Spitzer, Gun Law History in the United States and the Second Amendment Rights, 80 L. & Contemp. Probs. 557 (2017)).
To assist in assuring the gun regulations and laws were being followed, the Founders implemented “mandatory musters” which required individuals with a gun to “show up and register their firearm.” Holton, 2022 WL 16701935, at * 5 (citing Meg Penrose, A Return to the States' Rights Model: Amending the Constitution's Most controversial and Misunderstood Provision, 46 Conn.L.Rev. 1463, 1483 (2014)). And in some states, including New Hampshire and Rhode Island, government officials conducted door-to-door surveys of gun ownership, sometimes temporarily seizing the gun from its owner. See Adam Winkler, Gunfight: The Battle Over the Right to Bear Arms in America, 113 (W.W. Norton & Co. 2011). Shortly after the Second Amendment's ratification, Massachusetts and Maine required gun barrels to be marked in a permanent manner and imposed fines for failing to do so. (Filing No. 63 at CM/ECF pp. 11-12); see also Massachusetts-Perpetual Laws of the Commonwealth, at 259-61 (1801-1807); Laws of the State of Maine, at 546 (1830).
The court takes judicial notice of the two laws referenced by the government, attached hereto for the convenience of the District Judge as Attachments 1 and 2. See McIndoo v. Burnett, 494 F.2d 1311, 1313 (8th Cir. 1974) (“[T]he law of any state of the Union, whether depending upon statutes or upon judicial opinions is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof.”).
The founding fathers enacted gun control laws to confirm who owned guns, to monitor the transfer of gun ownership, and to regulate who could legally own guns, with penalties assessed for unlawful gun sales. These goals, historically accomplished by, for example, door-to-door inspections or reporting for muster, are now accomplished by registering and tracing serial numbers affixed to the weapon itself. See Marzzarella, 614 F.3d at 98 (discussing the purposes of the Gun Control Act of 1968 to include keeping firearms away from dangerous persons and assisting law enforcement in tracing and identifying the source and owner of firearms used in crimes). Compared to the personal inspections performed during colonial times, requiring serial numbers on guns is far less burdensome on a lawabiding person's ability to possess a gun for self-defense. Bruen, 142 S.Ct. at 2133 (requiring modern and historical regulations to impose only a “comparable burden” on the right of armed self-defense); see also Holton, 2022 WL 16701935, at *5 (noting “requiring individuals to purchase firearms with serial numbers imposes little to no burden on an individuals' right to bear arms.”).
18 U.S.C. § 922(k) is “consistent with the Second Amendment's text” and with “historical understanding.” Bruen, 142 S.Ct. at 2131.The statute is constitutional. Defendant's motion to dismiss should be denied.
Accordingly, IT THEREFORE HEREBY IS RECOMMENDED to the Honorable John M. Gerrard, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b), that the motion to dismiss (Filing No. 58) be denied.
The defendant is notified that failing to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court's adoption of the recommendation.
IT IS FURTHER ORDERED:
1) A telephonic conference with counsel will be held before the undersigned magistrate judge at 11:30 a.m. on April 18, 2023 to discuss setting any change of plea hearing, or the date of the jury trial and deadlines for disclosing experts as required under Rule 16. Counsel for all parties shall use the conferencing instructions provided by the court to participate in the call.
2) The time between today's date and April 18, 2023 shall be deemed excludable time in any computation of time under the requirements of the Speedy Trial Act, because although counsel have been duly diligent, additional time is needed to adequately prepare this case for trial and failing to grant additional time might result in a miscarriage of justice. 18 U.S.C. § 3161(h)(1) & (h)(7). Failing to timely object to this order as provided under this court's local rules will be deemed a waiver of any right to later claim the time should not have been excluded under the Speedy Trial Act.