Opinion
Case No. 4:22-cr-00099-SMR-HCA-3
2023-02-14
UNITED STATES of America, Plaintiff, v. David Burdette RANDALL, Defendant.
Jonathan Louis Holscher, Craig P. Gaumer, United States Attorney's Office, Des Moines, IA, for Plaintiff. Joseph G. Bertogli, Attorney at Law, Joseph Bertogli, Des Moines, IA, for Defendant.
Jonathan Louis Holscher, Craig P. Gaumer, United States Attorney's Office, Des Moines, IA, for Plaintiff. Joseph G. Bertogli, Attorney at Law, Joseph Bertogli, Des Moines, IA, for Defendant. ORDER ON MOTION TO DISMISS STEPHANIE M. ROSE, CHIEF JUDGE
I. FACTUAL BACKGROUND
On July 20, 2022, a grand jury indicted Defendant David Burdette Randall on three counts. [ECF No. 1 (Sealed Indictment)]. He was charged with one count of Conspiracy to Distribute a Controlled Substance in violation of 21 U.S.C. § 841(b)(1)(A). Id. at 1. The grand jury charged him with one count of Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). Id. at 3. It charged Defendant with Unlawful Drug User in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(3), 924(a)(2). Id. at 4.
On January 3, 2023, Defendant filed a Motion to Dismiss Count 6 of the Indictment. [ECF No. 87]. The Motion asserts that 18 U.S.C. § 922(g)(3), which prohibits unlawful drug users from possessing firearms, violates the Second Amendment to the United States Constitution following a decision by the United States Supreme Court in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). Id. The Motion contains a facial challenge and an as-applied challenge. Id. at 2. The Government partially resists, asserting the statute is facially constitutional and the Court must wait to decide the as-applied challenge. [ECF No. 101 at 2] (citing United States v. Turner, 842 F.3d 602, 604-05 (8th Cir. 2016)). Defendant filed his reply on January 17, 2023. [ECF No. 107].
For the reasons discussed below, this Court holds 18 U.S.C. § 922(g)(3) does not facially violate the Second Amendment to the United States Constitution. The Motion to Dismiss is therefore DENIED in part and DEFERRED in part.
The parties request the Court defer its ruling on the as-applied challenge until a later date. [ECF Nos. 87 at 2 n. 3; 101 at 13]. Deferment of a ruling on this matter is the appropriate outcome until further adjudication on the facts. United States v. Stephens, 594 F.3d 1033, 1039 (8th Cir. 2010) (declining to rule on an as-applied challenge because "[w]e know very little about Stephens - apart from the fact a grand jury found probable cause to believe [he committed a crime].").
II. GOVERNING LAW
A. Second Amendment
The Second Amendment to the United States Constitution provides that "[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. The United States Supreme Court has interpreted this language to confer upon an individual the "right to keep and bear arms." D.C. v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Supreme Court further examined the scope of these rights in Bruen, stating, "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." United States v. Black, CRIMINAL No. 22-133-01, 649 F.Supp.3d 246, 250 (W.D. La. Jan. 6, 2023) (quoting Bruen, 142 S. Ct. at 2126). To justify restrictions, the Government must show "the regulation is consistent with this Nation's historical tradition of firearm regulation." Fried v. Garland, Case No. 4:22-cv-164-AW-MAF, 2022 WL 16731233, at *4 (N.D. Fla. Nov. 4, 2022) (quoting Bruen, 142 S. Ct. at 2126). The Supreme Court has explained this analysis requires courts to find appropriate historical analogues to the challenged provision and reason by analogy. United States v. Seiwert, Case No. 20 CR 443, 2022 WL 4534605, at *2 (N.D. Ill. Sept. 28, 2022) (quoting Bruen, 142 S. Ct. at 2132); see United States v. Lewis, Case No. CR-22-368-F, 650 F.Supp.3d 1235, 1240-42 (W.D. Okla. Jan. 13, 2023).
The Supreme Court has explicitly defined acceptable limitations in its prior decisions. The Second Amendment is limited to "law-abiding citizens." United States v. Sanchez, W-21-CR-00213-ADA, 646 F.Supp.3d 825, 826-27 (W.D. Tex. Dec. 19, 2022) (citing Bruen, 142 S. Ct. at 2122, 2125, 2131, 2133, 2134, 2138, 2150, 2156). The Second Amendment only protects weapons used for lawful purposes. Heller, 554 U.S. at 625, 128 S.Ct. 2783 (finding that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes."). Justices in Heller, McDonald, and Bruen, have emphasized that those decisions do not "cast doubt on longstanding traditions on possession of firearms by" individuals who are felons or are mentally ill. Bruen, 142 S. Ct. at 2162 (Kavanaugh, J. concurring). Courts since Bruen have found that alcoholics and felons were historically excluded from gun ownership. United States v. Daniels, 610 F.Supp.3d 892, 896 (S.D. Miss. 2022) (citing United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (discussing how states found habitual drug users to be "unfit to possess firearms.")); but see United States v. Harrison, Case No. CR-22-00328-PRW, 654 F.Supp.3d 1191 (W.D. Okla. Feb. 3, 2023) (holding that the prior exclusions were insufficient to justify the current restrictions under 18 U.S.C. § 922(g)(3)).
B. Facial Challenge
"A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications." Bucklew v. Precythe, — U.S. —, 139 S. Ct. 1112, 1127, 203 L.Ed.2d 521 (2019). "A plaintiff can only succeed in a facial challenge by "establish[ing] that no set of circumstances exists under which the Act would be valid." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). However, "facial challenges 'run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law . . . nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." TCF Nat'l Bank v. Bernanke, 643 F.3d 1158, 1162 (8th Cir. 2011) (quoting Wash. State Grange, 552 U.S. at 450, 128 S.Ct. 1184). After Heller, but before Bruen, the United States Court of Appeals for the Eighth Circuit upheld 18 U.S.C. § 922(g)(3) from a facial challenge under the Second Amendment. See generally United States v. Seay, 620 F.3d 919 (8th Cir. 2010).
III. ANALYSIS
Defendant maintains the facial challenge should succeed because "[t]here is no historical precedent . . . that disallows persons from possessing firearms based upon habit or status." [ECF No. 87-1 at 6]. The Government responds the law should be upheld because there are broad classes of unlawful drug users who are not protected by the Second Amendment and there is an adequate historical analogue in the form of prohibition of gun ownership by alcoholics and felons. [ECF No. 101 at 5]. There are circumstances where 18 U.S.C. § 922(g)(3) can be applied without implicating the Second Amendment and where it triggers Second Amendment review but survives.
A. Protection of Conduct
Defendant maintains behavior criminalized by 18 U.S.C. § 922(g)(3) falls within the scope of conduct protected by the Second Amendment. [ECF No. 107 at 4]. The Government maintains individuals who are not law abiding are not entitled to have their conduct covered by the Second Amendment. [ECF No. 101 at 3]. There are individuals whose conduct makes them ineligible for the Second Amendment's protections, which means 18 U.S.C. § 922(g)(3) can lawfully be applied to them. This is sufficient to defeat a facial challenge.
The first analytical step is for a court to consider whether "the Second Amendment's plain text covers an individual's conduct." Sanchez, 646 F.Supp.3d at 827 (quoting Bruen, 142 S. Ct. at 2134); United States of America v. Posey, Case No. 2:22-CR-83 JD, 2023 WL 1869095, at *5 (N.D. Ind. Feb. 9, 2023) (discussing whether conduct is covered by the Second Amendment). The Second Amendment states, "the right of the people to keep and bear Arms shall not be infringed." U.S. Const. amend. II. This phrase is interpreted to " 'guarantee[ ] the individual right to possess and carry weapons in case of confrontation.' " Bruen, 142 S. Ct. at 2127 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783). "[O]f the people" is limited to "ordinary, law-abiding, adult citizens." Id. at 2134 (holding that "Koch and Nash - two ordinary, law-abiding, adult citizens - are part of 'the people' whom the Second Amendment protects."). In essence, the Second Amendment does not protect individuals who are not law-abiding. Bruen, 142 S. Ct. at 2127.
The relevant statute states "[i]t shall be unlawful for any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(3). The statute prohibits individuals from "receiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Id. The key language is "an unlawful user," which refers to individuals whose conduct violates the Controlled Substances Act. This statute prohibits gun ownership by those who use illegal drugs. 21 U.S.C. § 802(6) (noting that the term "controlled substance" includes drugs in "schedule I, II, III, IV, or V of part B of this subchapter."). By virtue of their conduct, many individuals are not law-abiding for the purposes of the Second Amendment. Bruen, 142 S. Ct. at 2134. These individuals who are not law-abiding are not entitled to the Second Amendment's protection. Id. at 2138 n. 9 ("nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' 'shall-issue' licensing regimes . . . [that] ensure only that those bearing arms in the jurisdiction are, in fact 'law-abiding responsible citizens.' "); Seiwert, 2022 WL 4534605, at *2 (Seiwert was not covered under the Second Amendment, because he "us[ed] a controlled substance mere hours before his arrest.").
There are classes of individuals charged under the statute who are not entitled to the Second Amendment's protection. This means 18 U.S.C. § 922(g)(3) criminalizes conduct not protected by the Second Amendment. By extension, the law has constitutional applications. This defeats a facial challenge to the law. United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).
B. Historical Analogue
Defendant asserts there is no historical analogue of laws that prohibited firearm possession by drug users or individuals addicted to drugs, which means the law is unconstitutional in every application. [ECF No. 87-1 at 3-4]. The Government responds there are appropriate historical analogues that kept firearms out of the hands of felons or alcoholics. [ECF No. 101 at 8-9]. The historical analogues to 18 U.S.C. § 922(g)(3), in the form of laws that prohibited possession of firearms by felons and alcoholics, are sufficient to justify the law under Bruen.
A court must consider whether laws precluding individuals from firearms are "consistent with this Nation's historical tradition." See Bruen, 142 S. Ct. at 2126. The inquiry will " 'involve reasoning by analogy, which 'requires a determination of whether the two regulations are 'relevantly similar.' " Black, 649 F.Supp.3d at 250 (quoting Bruen, 142 S. Ct. at 2132). For the law to survive this analysis, the government must "identify a well-established and representative historical analogue, not a historical twin." Bruen, 142 S. Ct. at 2133. Laws "pass constitutional muster" if it is "analogous enough . . . [to] historical precursors." Id. The burden falls on the government. See Lewis, 650 F.Supp.3d at 1240-42 (citing Bruen, 142 S. Ct. at 2133).
The laws within the United States have long excluded individuals with mental illness from gun ownership. Heller, 554 U.S. at 626, 128 S.Ct. 2783; McDonald v. City of Chicago, Ill., 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). There is extensive history of states barring alcoholics from possessing firearms due to "heightened danger to the public." Lewis, 650 F.Supp.3d at 1241. It is difficult to believe "a colonial legislature would have seen much difference between the hazard presented by an armed 'lunatic' . . . or an armed and intoxicated person versus the hazard presented by an armed habitual user of illegal drugs." Id. This comparison is further appropriate because "[t]he manner in which the modern restriction burdens Second Amendment rights is comparable to how the intoxication statutes burdened those rights." Fried, 2022 WL 16731233, at *7 (noting alcoholics were permanently disarmed, while individuals who use illicit substances are prohibited from ownership only while they are "a current user of a controlled substance."). Based on this comparison, the Court is satisfied the Government has met its burden through presentation of a historical twin. See Bruen, 142 S. Ct. at 2133.
Even presuming the conduct of an individual charged with violating 18 U.S.C. § 922(g)(3) was covered by the Second Amendment, there are classes of individuals whose restricted access to firearms had a similar historical comparator. This means that there are circumstances where the application of 18 U.S.C. § 922(g)(3) is constitutional under the Second Amendment. This is sufficient to defeat a facial challenge to the law. Stevens, 559 U.S. at 472, 130 S.Ct. 1577.
IV. CONCLUSION
As discussed in detail above, the Court holds that Defendant's facial challenge to 18 U.S.C. § 922(g)(3) under the Second Amendment to the United States Constitution does not succeed. The Motion to Dismiss on this ground is DENIED. A decision on the Motion to Dismiss on the ground that 18 U.S.C. § 922(g)(3) is unconstitutional as applied to Defendant is DEFERRED.
IT IS SO ORDERED.