Opinion
CAUSE NO. 3:23cr42 DRL
2023-12-20
UNITED STATES of America, Plaintiff, v. David REGALADO, Defendant.
Molly E. Donnelly, Government Attorney, U.S. Attorney's Office, South Bend, IN, Nathaniel L. Whalen, Government Attorney, U.S. Attorney's Office, Hammond, IN, for Plaintiff. George E. Horn, Jr., Sarah E. Brown, Daniel R. Obert, Barnes & Thornburg LLP, South Bend, IN, for Defendant.
Molly E. Donnelly, Government Attorney, U.S. Attorney's Office, South Bend, IN, Nathaniel L. Whalen, Government Attorney, U.S. Attorney's Office, Hammond, IN, for Plaintiff.
George E. Horn, Jr., Sarah E. Brown, Daniel R. Obert, Barnes & Thornburg LLP, South Bend, IN, for Defendant.
OPINION AND ORDER
DAMON R. LEICHTY, Judge.
David Regalado was charged with unlawfully possessing a firearm as a felon. 18 U.S.C. § 922(g)(1). He asks the court to dismiss the single-count indictment because it violates his rights under the Second Amendment and Fifth Amendment. See Fed. R. Crim. P. 12(b)(1), (b)(3). After briefing and oral argument, the court denies the motion.
The court commends counsel on both sides for the quality of briefing and argument.
FACTUAL FINDINGS
These facts emerge from the evidence, consistent with the court's prior ruling on the motion to suppress. See Fed. R. Crim. P. 12(d). On November 16, 2021, there was a domestic dispute at the Regalado home in Starke County, Indiana. Misty Regalado called 911 and reported that her husband (David Regalado) was intoxicated and battered her. She said he threatened her with a firearm and claimed he would kill her and the kids, so she fled the home with the children. She also advised that Mr. Regalado was a serious violent felon who was not allowed to possess a firearm.
After speaking with Ms. Regalado at a different location, Starke County Sheriff's Deputies Adam Kraning and Daniel Byrd went to the Regalado home. They parked their squad cars on the street and began to approach the home on foot. They heard a firearm discharge. The deputies called for backup. Chief Deputy Jon Lendermon and other officers arrived at the home. Chief Deputy Lendermon contacted Mr. Regalado several times via telephone, until he agreed to exit the residence and be placed into custody after a 45-minute standoff. The next day, law enforcement executed a search warrant and recovered multiple firearms, including pistols, a shot gun, and multiple assault rifles, as well as ammunition, marijuana, and drug paraphernalia, aside from methamphetamine in his wallet.
His wife was quite right about his felony status. Mr. Regalado had been convicted of felony intimidation in 2009, see Ind. Code § 35-50-2-7, and unlawful possession of ammunition by a felon in 2010, see 18 U.S.C. § 922(g)(1). Thereafter, on November 18, 2021, Mr. Regalado was charged in state court with a six-count information for intimidation, domestic battery (two counts), strangulation, criminal recklessness, and
methamphetamine possession. On September 1, 2022, he pleaded guilty to the last three counts—all felonies. See Ind. Code § 35-42-2-9(c) (strangulation); Ind. Code §§ 35-42-2-2(a), 35-42-2-2(b)(1)(A) (criminal recklessness); Ind. Code § 35-48-4-6.1(a) (methamphetamine possession).
Mr. Regalado was sentenced to consecutive terms of 30 months on each count until February 2023 when the Starke Circuit Court modified his total term of incarceration from 90 to 34 months. Before his projected release date of April 24, 2023, the federal government filed a federal complaint against him. An indictment soon followed on May 10, charging him with unlawfully possessing a firearm as a felon back on November 17, 2021. His motions ensued.
DISCUSSION
A. Second Amendment.
Mr. Regalado says 18 U.S.C. § 922(g)(1) violates the Second Amendment. He raises as-applied and facial challenges. To succeed on an as-applied challenge, he must show the statute is unconstitutional as applied to the particular facts here. See United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). To succeed on a facial challenge, he must show the statute is unconstitutional in all applications. City of Los Angeles v. Patel, 576 U.S. 409, 415, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015). The court decides the as-applied challenge first because if the as-applied challenge fails then the facial challenge necessarily fails. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir. 2012).
Mr. Regalado's argument rests on New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). Bruen reiterated a two-step analysis for determining whether a firearm regulation passes constitutional muster. The first step is textual—whether the Second Amendment's plain text covers a person's conduct such that the Constitution presumptively protects it. See id. at 2126. The second step is historical—whether the government can justify its regulation consistent with our Nation's historical tradition of firearm regulation. See id. This step ensures that the regulation fits within the same historical context that lends meaning to the Second Amendment right to bear arms in the first place. See id. at 2127; Dist. of Columbia v. Heller, 554 U.S. 570, 592, 620-25, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
Mr. Regalado calls Bruen a "marked and transformative shift in Second Amendment law," but it isn't. There is nothing truly new in Bruen. The text and its historical tradition are proven wayfinders to constitutional meaning. Bruen follows this very same convention from Heller and McDonald. See Bruen, 142 S. Ct. at 2128-29 ("Heller's methodology centered on constitutional text and history"); Heller, 554 U.S. at 595, 128 S.Ct. 2783 ("on the basis of both text and history, [] the Second Amendment conferred an individual right to keep and bear arms"); see also id. at 576, 592, 128 S.Ct. 2783 (repeating same); McDonald v. City of Chi., 561 U.S. 742, 767, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (majority opinion) (examining text and history); id. at 785, 130 S.Ct. 3020 (plurality opinion) ("judicial interest balancing" has been "expressly rejected"). And this convention emerges from an age-long custom of interpretation. Nothing in Bruen changed Heller—one fortified the other. Perhaps Bruen threshed the chaff that had grown, but the wheat that fed the law remained as it always had in Heller. The Second Amendment plainly confers "an individual right to keep and bear arms." Heller, 554 U.S. at 595, 128 S.Ct. 2783. "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 text covers the same conduct that this statute covers—possession of a firearm.
Bruen removed a "means-end" scrutiny— that "one step too many"—that had developed only at the appellate level. See Bruen, 142 S. Ct. at 2127; see, e.g., Ezell v. City of Chi., 651 F.3d 684, 701, 703 (7th Cir. 2011) (finding that Heller and McDonald "require[] a textual and historical inquiry into original meaning," and then adding the extra step of means-end scrutiny); see also McDonald, 561 U.S. at 785, 130 S.Ct. 3020 (plurality opinion). One might then need to be cautious in relying on certain post-2008 and pre-2022 cases to the extent they discuss this extra step, but the court sees no reason to ignore the whole. See, e.g., United States v. Wigfall, 677 F.Supp.3d 791, ___, 2023 WL 4014183, 2023 U.S. Dist. LEXIS 104135, 5, 12-13 (N.D. Ind. June 15, 2023); see also Miller v. Smith, 2023 WL 334788, 2023 U.S. App. LEXIS 1506, 2 (7th Cir. Jan. 20, 2023) (calling Bruen "more explicit" but not new); but see Atkinson v. Garland, 70 F.4th 1018, 1019 (7th Cir. 2023) ("new approach").
The parties present competing points whether only law-abiding citizens enjoy the Second Amendment's protections. The court need not reach this issue today. See White v. Ill. State Police, 15 F.4th 801, 811 (7th Cir. 2021). And, in this court's view, this complicated status-based argument unduly confuses the conduct-based argument at step two that might prove the more constitutionally elucidating. Consistent with the wisdom of deciding constitutional questions on their narrowest ground, the court will assume the Second Amendment applies and proceed directly to the historical analysis—a not uncommon practice. See Miller v. Downey, 915 F.3d 460, 464 (7th Cir. 2019); see, e.g., White, 15 F.4th at 811.
See Atkinson, 70 F.4th at 1023 ("Bruen left this complicated issue unresolved."); see, e.g., Heller, 554 U.S. at 580, 128 S.Ct. 2783 ("the people" as used throughout the Constitution "unambiguously refers to all members of the political community, not an unspecified subset."); United States v. Meza-Rodriguez, 798 F.3d 664, 669-72 (7th Cir. 2015) (defining "the people" under the Second Amendment to mean members of the national community with substantial connections to our country); Range v. Att'y Gen. United States of Am., 69 F.4th 96, 101-03 (3d Cir. 2023) (en banc) (rejecting government's argument that "the people" includes only law-abiding citizens).
The "government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Bruen, 142 S. Ct. at 2127. In assessing what the government offers, the court must engage in a "fulsome analysis of the historical tradition" supporting § 922(g)(1) to determine whether "modern and historical regulations impose a comparable burden on the right of armed self-defense and whether [they justify] that burden." Atkinson, 70 F.4th at 1021-22 (quoting Bruen, 142 S. Ct. at 2133). The government offers two traditions: (1) historical laws authorizing capital punishment and estate forfeiture for felonies, and (2) as recast by the court, laws categorically prohibiting firearm possession by those deemed dangerous to the polity.
1. Laws Subjecting Felons to Capital Punishment and Estate Forfeiture.
The government argues one analogy: historical regulations from the colonies punishing felons through capital punishment and estate forfeiture. See 4 William Blackstone, Commentaries on the Laws of England 95 (1769) (a felony is "an offense which occasions a total forfeiture of either lands, or goods, or both, at the common
law; and to which capital or other punishment may be superadded, according to the degree of guilt."). Blackstone counted 160 acts to be "felonies without benefit of clergy" —that is "worthy of instant death" in England. See id. at 18.
The court begins with the original understanding of the word "felony." According to Blackstone, a felony "comprises every species of crime, which occasioned at common law the forfeiture of lands or goods." See id. at 94. It was a "total forfeiture." Id. at 95. The word "felony" often "puzzled the juridical lexicographers," though all agreed that the crime "works a forfeiture of all the offender's lands, or goods." Id. In recognizing this, Blackstone pinpointed its feudal origins, borrowing from Sir Henry Spelman's Teutonic or German derivation—namely, the words "fee" (meaning the fief or beneficiary estate) and "Ion" (meaning its price or value). Id. at 95. Felony thus meant "the consideration for which a man gives up his fief" or the "act by which an estate is forfeited." Id. at 95-96. The word "felony" literally meant a "feudal forfeiture." Id. at 96.
This understanding of felony matriculated to the colonies and early colonial laws. See United States v. Jackson, 69 F.4th 495, 503 (8th Cir. 2023) (citing early laws for forfeiture, including for even non-violent offenses in New York, Virginia, and Maryland). For instance, a 1743 Rhode Island law determined those convicted of knowingly passing counterfeiting bills, a felony, be imprisoned, pay double damages, and "forfeit the remaining Part of his Estate (if he hath) both real and personal, to and for the Use of the Colony." Acts and Laws of the English Colony of Rhode Island and Providence-Plantations in New-England in America 33-34 (1767). A 1750 Massachusetts law punished rioters who refused to disperse with forfeiture of all their land, goods, and chattels, along with one year imprisonment and numerous lashes. See 3 Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay 545 (1878). In 1777, Virginia adopted a law for the punishment of forgery, stating that anyone convicted of forging, counterfeiting, or presenting for payment a wide range of forged documents "shall be deemed and holden guilty of felony, shall forfeit his whole estate, real and personal, shall receive on his bare back, at the publick whipping post, thirty nine lashes." 9 The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature 302-03 (1821). In 1788, New York imposed "estate forfeiture for crimes such as burglary, robbery, arson, malicious maiming and wounding, and counterfeiting." United States v. Mackey, 2023 WL 8093071, 3, 2023 U.S. Dist. LEXIS 208459, 8 (S.D. Ohio Nov. 21, 2023); see also 2 Laws of the State of New York Passed at the Sessions of the Legislature (1785-1788) 664-66 (1886) ("That every person who shall in due form of law be convicted or attained of any manner of treason, murder, rape, buggery, burglary, robbery or other felony [...] shall forfeit to the people of this State, all his, or her goods and chattels, and also all such lands, tenements, and herereditaments"); United States v. Rice, 662 F.Supp.3d 935, 948 (N.D. Ind. 2023) ("There is also some historical evidence that felons were precluded from owning property or chattels, and this broad prohibition on possessing property inherently means they could also not possess a firearm."); United States v. Coombes, 629 F. Supp.3d. 1149, 1158 (N.D. Okla. 2022) ("in the province of New York, persons convicted of a felony could not own property or chattels") (citing Julius Goebel, Jr. & T. Raymond Naughton, Law Enforcement in Colonial New York 718-19 (1944)). "Forfeiture [] resulted at common law from conviction for felonies and treason." Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). It "was a part, or at least a consequence, of the judgment of conviction" at common law. The Palmyra, 25 U.S. 1, 12 Wheat. 1, 6 L.Ed. 531 (1827). The court appreciates that forfeiture at the federal level was abolished for several types of crimes, including certain felonies like piracy or murder on the high seas, by the First Congress. See Act of Apr. 30, 1790, ch. 9, § 24, 1 Stat. 117 (1790); see also Austin v. United States, 509 U.S. 602, 613, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) ("First Congress also abolished forfeiture of estate as a punishment for felons"); Calero-Toledo, 416 U.S. at 682, 94 S.Ct. 2080 (same). It seems this largely remained true, at the federal level, until the Racketeer Influenced and Corrupt Organizations Act of 1970. See 18 U.S.C. § 1963; United States v. Ginsburg, 773 F.2d 798, 800 (7th Cir. 1985). Neither side today addresses this issue, or argues why it might support or dilute the historical analogue advocated by the government, but estate forfeiture's absence federally at the Founding and thereafter doesn't do away with the historical tradition among the States. Just as though one historical example won't an analogue make, one historical example won't that analogue defeat.
The court winnows its focus to forfeiture. The government argues the prospect of capital punishment for certain felonies, but that perhaps invites more criticism than answers. For one, which felonies? For another, why should a loss of life be considered analogous to the penalty of living a life, albeit disarmed? Just on its face, one punishment seems vastly different than fairly analogous.
For instance, the First Congress (who also drafted the Second Amendment) made a variety of felonies punishable by death, including forgery and counterfeiting a public security. See An Act for the Punishment of Certain Crimes Against the United States, 1 Stat. 112-15 (1790). In 1788, a New York law provided for the death penalty for counterfeiting, burglary, robbery, arson, and malicious maiming and wounding. 2 Laws of the State of New York Passed at the Sessions of the Legislature (1785-1788), at 664-65 (1886). But "felony" wasn't historically the measure for whether someone was subject to capital punishment. Offenders who committed non-felonies could be put to death; and offenders who committed some felonies were not subject to death. This was true early on: "capital punishment does by no means enter into the true idea and definition of felony." 4 Blackstone, Commentaries at 97 (providing examples).
Some have argued that, if a felon was subject to capital punishment, then he was dispossessed of a firearm in the absolute sense. See Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1587 (2002) ("The framers could not have intended Second Amendment guarantees to apply to felons if, as a rule, all the felons were dead."). But 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." Range v. Att'y Gen. United States of Am., 69 F.4th 96, 105 (3d Cir. 2023) (en banc). And the historical record is incomplete insofar as that was a necessary corollary or that it would be a punishment for all felonies.
The marker of a felony historically, according to Blackstone and the historical tradition among the States in early America, was forfeiture—the loss of property
ownership, not always the loss of life. The court agrees that, in 1791 and thereafter, the prevailing and historical tradition was that someone convicted of a felony faced estate forfeiture, without the understanding that they would be entitled still to possess firearms. See Jackson, 69 F.4th at 503-04 (quoting Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019)) ("it is difficult to conclude that the public, in 1791, would have understood someone facing [] estate forfeiture to be within the scope of those entitled to possess arms"); Folajtar v. Att'y Gen. of the United States, 980 F.3d 897, 904-05 (3d Cir. 2020) (same).
Mr. Regalado raises the concern that estate forfeiture wasn't lifetime forfeiture. He says, repeating Range, that "a felon could repurchase arms after successfully completing his sentence and reintegrating into society" so "government confiscation of the instruments of crime (or a convicted criminal's entire estate) differs from a status-based lifetime ban on firearm possession." Range, 69 F.4th at 104 (quotations omitted). But § 922(g)(1) doesn't erect a lifetime ban either. It is a ban for as long as one is a felon, a felon who has not successfully reintegrated into society.
There are mechanisms by which a person can change his or her felony status, and this federal firearm regulation highlights these mechanisms in its statutory language: "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction [that] 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." 18 U.S.C. § 921(a)(20). This firearm regulation thus taketh away and giveth —consistent with our Nation's historical tradition.
Expungement means to erase all evidence of the event as if it never occurred. Am. Jur. 2d, Criminal Law § 1219. Nearly forty states have some type of expungement procedure for otherwise-valid adult convictions. See J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2463 (June 2020). Requirements differ from state to state, but generally these statutes allow for expungement of misdemeanor or felony convictions (sometimes dependent on the crime type or severity or number of convictions) after a waiting period, either by petition or automatically. Expungements are often considered acts of statutory grace, see, e.g., State v. Hamilton, 75 Ohio St.3d 636, 665 N.E.2d 669, 672 (1996); Polk v. State, 150 So.3d 967, 968 (Miss. 2014), and are used "to give individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction," In re The Expungement, 65 N.E.3d 1054, 1059 (Ind. Ct. App. 2016) (citations and quotations omitted). At the federal level, expungements are available to a narrow group—individuals convicted of a simple possession offense under the Controlled Substances Act who were less than twenty-one years old at the time of the offense, see 18 U.S.C. § 3607(c)—but
For a catalogue of expungement laws, see 50-State Comparison: Expungement, Sealing & Other Record Relief, Collateral Consequence Resource Ctr., https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/; see also Compare States, Clean Slate Clearinghouse, https://cleanslateclearinghouse.org/compare-states/.
§§ 921 and 922 defer also to state law in defining a qualifying felony.
Pardons have a similar effect. "A pardon is an act of grace by which an offender is released from the consequences of his offense [...] It gives to him a new credit and capacity, and rehabilitates him to that extent in his former position." Knote v. United States, 95 U.S. 149, 153, 24 L.Ed. 442 (1877). At the federal level, the President has the power to pardon. U.S. Const. art. II, § 2, cl. 1. There is but one restriction (in cases of impeachment) and neither of the other two branches can check the President in his or her use of this power. See, e.g., United States v. Wilson, 32 U.S. 150, 161, 7 Pet. 150, 8 L.Ed. 640 (1833) (the power to pardon is the private and official act of the President); Ex Parte Garland, 71 U.S. 333, 380, 4 Wall. 333, 18 L.Ed. 366 (1866) (presidential pardoning power is not subject to legislative controls). Just last year, the President issued a full, unconditional, and categorical pardon for prior federal simple possession of marijuana offenses. See A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana (October 6, 2022). State pardons may also be granted, often by the governor, sometimes in consultation with a pardon board, and in some states by an independent pardon board. Pardons, like expungements, can restore convicted felon to their status as it was before the felony. Thus § 922(g)(1) should not be viewed as necessarily a lifetime ban on firearm possession.
Indeed, the statutory scheme still retains another mechanism by which one could apply to regain the right to possess a firearm, though the mechanism has become materially defunct without funding from Congress. A felon once could apply to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for relief of his or her federal firearms dispossession under 18 U.S.C. § 925(c). A 1965 amendment to the Federal Firearms Act first allowed for felons to petition the ATF for relief from the "disability" of not being able to purchase or possess firearms. See Act of Sept. 15, 1965, Pub. L. No. 89-184, 79 Stat. 788 (1965). Though still statutorily on the books, this mechanism has become effectively inoperative since 1992 due to a lack of funding. See Hatfield v. Barr, 925 F.3d 950, 952 (7th Cir. 2019); see also Logan v. United States, 552 U.S. 23, 28 n.1, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007). That lack of funding should not alter the rather longstanding statutory understanding that this firearm regulation, in various ways, wasn't and isn't a lifetime ban on firearm possession, particularly given the definition of felony in § 921(a)(20) and the other mechanisms for restoring one's right to possess firearms. In short, the government has met its burden of showing § 922(g)(1) is consistent with the Nation's historical tradition and is thereby constitutional.
This statute provides: "A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." The Director of the ATF has been delegated the authority to approve or deny the application. See 27 C.F.R. § 178.144(d). District courts may then review denials. See 18 U.S.C. § 925(c).
2. Laws Prohibiting Firearm Possession by Those Deemed Dangerous to the Polity.
From its beginnings, our country recognized and continued a historical tradition
of categorically disarming those individuals within society who legislatures perceived as dangerous to the political community. These laws emerged in the colonial period (and even sooner), prevailed during the Founding and then the Second Amendment's ratification in 1791, and endured through Reconstruction when the Fourteenth Amendment in 1868 applied this understanding to state regulations. The history may not all be rosy, but it predominantly exists as a fair analogue today.
In 1689, England disarmed classes of people who, in the legislature's view, could not be trusted to obey the law, including at that time non-Anglican Protestants and Catholics. See 1 W. & M., Sess. 1, c. 15 in 6 The Statutes of the Realm 71-73 (1688); see also Jackson, 69 F.4th at 502; Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting). The Stuart Kings, Charles II (1649-1685) and James II (1685-1688), until the latter's deposition in the Glorious Revolution, used militias to suppress political dissidents in part by disarming them. See Heller, 554 U.S. at 592-93, 128 S.Ct. 2783.
The same Parliament that authorized disarmament adopted the English Bill of Rights that memorialized the legislature's ability to determine which citizens could "have arms ... by Law." See An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1 W. & M., Sess. 2, c. 2, § 7 (1689); see also Bruen, 142 S. Ct. at 2141-42; Jackson, 69 F.4th at 502. An all too important moment in history this was because the 1689 English Bill of Rights enshrined basic civil liberties and preceded our Second Amendment—without English citizens ever claiming an individual right to firearms beforehand. Bruen, 142 S. Ct. at 2141-42; see Heller, 554 U.S. at 593, 128 S.Ct. 2783; Atkinson, 70 F.4th at 1031 (Wood, J., dissenting). The right began as a limited one—restricted to Protestants— and the English ensured that Parliament retained the power, which it exercised, to allow certain broad classes of the citizenry to have firearms and to prohibit others from doing so. Bruen, 142 S. Ct. at 2142.
The American colonies continued this tradition. The colonies liberally disarmed Native Americans and Black people, and eventually Catholics, because they too were believed dangerous to the polity—a tradition that persisted from the 1630s to the Founding. See Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America 28-29 (2006) ("Laws disarming groups such as slaves, freed blacks, Indians, and those of mixed-race ancestry were common."); Laws and Ordinances of New Netherland, 1638-1674 18-19 (1868) (1639 New Netherland law forbidding sale of firearms to Native Americans, subject to capital punishment); 1 The Statutes at Large; Being A Collection of All the Laws of Virginia 255-56 (1823) (1642 Virginia law forbidding sale of firearms to Native Americans, subject to estate forfeiture); 2 Records of the Colony of Rhode Island and Providence Plantations 561 (1857) (1677 Rhode Island law disarming Native Americans); Grants, Concessions, and Original Constitutions of the Province of New Jersey: The Acts Passed During the Proprietary Governments, and Other Material Transactions Before the Surrender Thereof to Queen Anne 341 (1753) (1694 New Jersey law disarming enslaved people); 1 The Laws of Maryland, With The Charter, The Bill of Rights, The Constitution of the State, and Its Alterations, The Declaration of Independence, and The Constitution of the United States, and its Amendments 117-18 (1811) (1715 Maryland law dispossessing Black and enslaved persons); 6 The Public Records Of The Colony Of Connecticut 381-82 (1872) (1723 Connecticut
law dispossessing Native Americans); 6 The Statutes at Large of Pennsylvania from 1682 to 1801, at 319-20 (1899) (1763 Pennsylvania law forbidding sale of firearms to Native Americans); Digest of the Laws of the State of Georgia From Its First Establishment as a British Province Down to the Year 1798, Inclusive, and the Principal Acts of 1799, at 153-55 (1800) (1768 Georgia law disarming enslaved people); see also Atkinson, 70 F.4th at 1035 n.2 (Wood, J., dissenting) (citing "laws that disarmed persons found guilty of treason and members of native tribes"). In the 1630s, Massachusetts disarmed supporters of a preacher "not because those supporters had demonstrated a propensity for violence" but because "the authorities concluded their conduct evinced a willingness to disobey the law." Range, 69 F.4th at 123 (Krause, J., dissenting) (collecting sources). In 1756, Virginia disarmed Catholics who refused to take a loyalty oath. See 7 The Statutes at Large; Being A Collection of All the Laws of Virginia 35-39 (1820).
Similar disarmament laws continued to be passed throughout the Revolutionary War era. In 1776, the Continental Congress recommended that the colonies disarm those who "are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, the[] United Colonies[.]" 4 Journals of the Continental Congress 1774-1789 205 (1906). At least six colonies enacted legislation that prohibited the possession of firearms by people who refused to declare an oath of loyalty. See Jackson, 69 F.4th at 503 (collecting sources from the Continental Congress, Massachusetts, Virginia, Pennsylvania, Rhode Island, North Carolina, and New Jersey); 5 The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay 479-84 (1886) (1776 Massachusetts law punishing those who refuse to join the war with estate forfeiture); 7 Records of the Colony of Rhode Island and Providence Plantations in New England 567 (1862) (1776 Rhode Island law disarming those who refuse to take loyalty oath); 9 The Statutes at Large of Pennsylvania from 1682 to 1801, at 112-13 (1903) (1777 Pennsylvania law doing same). These regulations too continued a historical tradition of categorically disarming groups—specifically those deemed dangerous to the polity —into the time of the Second Amendment's ratification in 1791.
Our modern constitutional sensibilities react strongly to these laws. But the law cannot recast history any more than it can tell the sun not to rise. Choosing to tell a portion of history and not the whole risks converting a historical understanding into a modern preference. One has to be careful with reclassifying this history to suit modern preferences rather than to glean original meaning. The court cannot look over a historical crowd and pick out just its friends. See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 36 (1997). History teaches what it teaches; and, if it be our guide, then we must follow where it leads. These laws weren't always about people who were actually violent or dangerous, but instead those who as a group the legislature perceived as dangerous to the polity. Indeed, no one could reasonably say pacifists like the Quakers were demonstrably dangerous, any more than Catholics, or Black people, or a host of other dispossessed classes. Devolving into this distinction risks ushering a means-end analysis through the backdoor after it has been shown the exit through the front door.
In 2023, other constitutional provisions likely have something to say about these old categorical bans, but "to fully understand the scope of the regulatory authority the Framers thought they had, one must
actually consider the gun laws that they did pass, even if we would reject those laws (perhaps for other constitutional reasons) today." Joseph Blocher & Caitlan Carberry, Historical Gun Laws Targeting "Dangerous" Groups and Outsiders 13 (Duke L. Sch. Pub. L. & Legal Theory Series No. 2020-80) (June 4, 2023). The court won't gloss over uncomfortable history today when step two of Bruen directs the court to examine it. See id. at 3 ("Should embarrassing ancestors be cropped out of the historical picture entirely, or might they still have something to teach[?]").
Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3702696. Publication of this paper among others by the Oxford University Press in New Histories of Gun Rights and Regulation: Essays on the Place of Guns in American Law and Society is forthcoming.
At the same time, the court must identify a historical analogue; and offering an historical argument that puts the law on a different slope that theoretically creates a blank check for Congress to erode the Second Amendment each time it perceives a group of individuals to be merely untrustworthy would have the natural effect of rendering the Second Amendment meaningless in the end. One cannot call an example that would write out the Second Amendment a fair historical analogue. Whether the government has articulated a convincing endgame, the court need not decide today what that entails because Mr. Regalado falls well within constitutional contours.
Not all persons disarmed under historical precedents were actually violent or dangerous persons. The tradition included those deemed "untrustworthy" or "distrusted," though, the court emphasizes, always with an eye toward the risk of violence they posed to the sovereign. See Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 18-19, 122 (1994) (explaining that Protestants feared revolt, massacre, and counter-revolution from Catholics); see also Adam Winkler, Gunfight: The Battle Over the Right to Bear Arms in America 115 (2011) (explaining that Parliament disarmed Catholics because the Protestant majority found them "untrustworthy"); C. Kevin Marshall, Why Can't Martha Stewart Have a Gun? 32 Harv. J.L. & Pub. Pol'y 695, 723 ("In short, the stated principle supporting the disability was cause to fear that a person, although technically an English subject, was because of his beliefs effectively a resident enemy alien liable to violence against the king.").
At times, convicted felons have argued for partitioning—that § 922(g)(1) applies constitutionally to "violent" felons, but not others or to their less than violent felonies—not least when one recalls that § 922(g)(1) in its original form only applied to certain felonies, but not all. See Federal Firearms Act §§ 1(6), 2(f), Pub. L. No. 75-785, 52 Stat. 1250, 1250-51 (1938). Constitutional questions aren't answered based on mere efficiency, much less judicial efficiency, see, e.g., Nat'l Lab. Rel. Bd. v. Canning, 573 U.S. 513, 579, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014) (Scalia, J., concurring), but constitutional due process requires fair notice of criminal prohibitions, see Johnson v. United States, 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Today convicted felons know that they cannot possess a firearm. Without more, injecting a distinction between "violent" and "non-violent" crimes—particularly given the number of felonies and the variable, often less-than-intuitive nature of ever-evolving jurisprudence in this arena with other statutory and constitutional questions—would make it difficult, if not
challenging beyond measure, for any one citizen to know whether his felony constituted the type that would be classified as "violent." That is not just a practical question of enforcement, when the government must prove that a person knew he was in a dispossessed status, see Rehaif v. United States, 588 U.S. 225, 139 S. Ct. 2191, 2194, 204 L.Ed.2d 594 (2019), but a constitutional concern of due process, see Johnson, 576 U.S. at 595, 135 S.Ct. 2551; see also Atkinson, 70 F.4th at 1027 (Wood, J., dissenting) (distinction "would lead to an arbitrary patchwork of decisions"). A statute can be unconstitutionally vague when it "fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner." Fuller ex rel Fuller v. Decatur Pub. School Bd. of Educ. Sch. Dist. 61, 251 F.3d 662, 666 (7th Cir. 2001). An individualized analysis, whether element-based or fact-based, see United States v. Dixon, 27 F. 4th 568 (7th Cir. 2022) (discussion of categorical approach); Kanter, 919 F.3d at 451 (Barrett, J., dissenting) ("Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence."), would seem to require more definition than merely that to afford fair notice.
Mr. Regalado takes issue with the government's historical examples. First, he says the earlier examples, before the Revolutionary War era, are of limited value. Though "historical evidence that long predates" the ratification "may not illuminate the scope of the right," English law is relevant because the Second Amendment "codified a right inherited from our English ancestors." Bruen, 142 S. Ct. at 2136; Heller, 554 U.S. at 599, 128 S.Ct. 2783. That said, the "pertinent question [] is what the Founders understood the Second Amendment to mean" so the court cannot give "too much weight to laws passed before or after the Founding[.]" Atkinson, 70 F.4th at 1020. These laws, as much as those near the Founding, originate in the same tradition that informs the Second Amendment. See Bruen, 142 S. Ct. at 2130.
Mr. Regalado also says the colonial loyalty laws, though from the Founding era, are not analogous, citing to two cases from outside this circuit that considered other provisions of § 922(g). See United States v. Rahimi, 61 F.4th 443, 457 (5th Cir. 2023), cert. granted, ___ U.S. ___, 143 S. Ct. 2688, 216 L.Ed.2d 1255 (2023) ("[W]e question at a threshold level whether colonial and state laws disarming categories of 'disloyal' or 'unacceptable' people present tenable analogues to § 922(g)(8)"); United States v. Daniels, 77 F.4th 337, 354-55 (5th Cir. 2023) (finding that loyalty laws are not good analogue for modern-day marijuana users when considering § 922(g)(3)'s constitutionality). But Bruen "requires only that the government identify a well-established and representative historical analogue, not a historical twin." Bruen, 142 S. Ct. at 2133. The government has convincingly shown a historical tradition of disarming individuals perceived as dangerous to the polity, aside from the tradition of forfeiture.
Mr. Regalado suggests the government needs to provide examples of Founding-era statutes that allowed for the disarmament of those who commit domestic violence, but his predicate offense was intimidation, not domestic battery. In addition, his argument invites the court to wade into a classification process of the predicate offense that neither Heller nor Bruen has directed. See e.g., Bruen, 142 S. Ct. at 2127 ("government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear
arms") (emphasis added). The regulation the court is examining under Bruen's step two is unlawfully possessing a firearm as a felon, not intimidation. The court's proper lens is whether this statute—which regulates felons (as a category)—fits within our Nation's historical tradition, and it does. "Governments may keep firearms out of the hands of dangerous people who are apt to misuse them," United States v. Holden, 70 F.4th 1015, 1017 (7th Cir. 2023) (citing Bruen, 142 S. Ct. at 2131), including "the sort of person who cannot be trusted with guns (say, someone under indictment for using violence against a domestic partner)," id. at 1018. Mr. Regalado fits this mold even if intimidation would not classify as a violent felony under other approaches in the law. See Portee v. United States, 941 F.3d 263, 273 (7th Cir. 2019).
The court finds that the government has satisfied its burden under Bruen, so Mr. Regalado's as-applied challenge, and thus his facial challenge, to the constitutionality of 18 U.S.C. § 922(g)(1) fail. This decision is bolstered by numerous post-Bruen decisions from sister courts in this circuit finding § 922(g)(1) constitutional, even if not always in the same form. See United States v. Young, 2023 WL 8697936, 2023 U.S. Dist. LEXIS 223560 (N.D. Ind. Dec. 15, 2023); United States v. Bell, 2023 WL 8475814, 2023 U.S. Dist. LEXIS 217901 (N.D. Ill. Dec. 7, 2023); United States v. Sloat, 705 F.Supp.3d 862, 2023 WL 8455112, 2023 U.S. Dist. LEXIS 217355 (S.D. Ill. Dec. 6, 2023); United States v. Ball, 2023 WL 8433981, 2023 U.S. Dist. LEXIS 215942 (N.D. Ill. Dec. 5, 2023); United States v. Vaughns, 2023 WL 8258575, 2023 U.S. Dist. LEXIS 212150 (N.D. Ill. Nov. 29, 2023); United States v. Washington, 2023 WL 8258654, 2023 U.S. Dist. LEXIS 212149 (N.D. Ill. Nov. 29, 2023); United States v. Brown, 2023 WL 8236918, 2023 U.S. Dist. LEXIS 211123 (N.D. Ill. Nov. 28, 2023); United States v. Sherls, 2023 WL 8185665, 2023 U.S. Dist. LEXIS 210196 (N.D. Ind. Nov. 27, 2023); United States v. Nance, 2023 U.S. Dist. LEXIS 223610 (W.D. Wis. Nov. 17, 2023); United States v. King, 702 F.Supp.3d 755, 2023 U.S. Dist. LEXIS 206701 (N.D. Ill. 2023); United States v. Brown, 2023 WL 8004290, 2023 U.S. Dist. LEXIS 206310 (N.D. Ill. Nov. 17, 2023); United States v. Hall, 2023 WL 8004291, 2023 U.S. Dist. LEXIS 206307 (N.D. Ill. Nov. 17, 2023); United States v. Drake, 2023 WL 8004876, 2023 U.S. Dist. LEXIS 206726 (N.D. Ind. Nov. 16, 2023); United States v. Brady, 2023 WL 7553859, 2023 U.S. Dist. LEXIS 203521 (N.D. Ind. Nov. 13, 2023); United States v. Johnson, 2023 WL 7279353, 2023 U.S. Dist. LEXIS 197650 (E.D. Wis. Nov. 3, 2023); United States v. Jackson, 700 F.Supp.3d 651, 2023 U.S. Dist. LEXIS 195005 (N.D. Ill. 2023); United States v. Hardy, 2023 WL 6795591, 2023 U.S. Dist. LEXIS 184025 (N.D. Ill. Oct. 13, 2023); United States v. Johnson, 2023 WL 6690388, 2023 U.S. Dist. LEXIS 183582 (N.D. Ill. Oct. 12, 2023); United States v. Watson, 2023 WL 6623774, 2023 U.S. Dist. LEXIS 182631 (E.D. Wis. Oct. 11, 2023); United States v. Agee, 2023 U.S. Dist. LEXIS 177970 (N.D. Ill. Oct. 3, 2023); United States v. Johnson, 2023 WL 6276562, 2023 U.S. Dist. LEXIS 171452 (N.D. Ill. Sept. 26, 2023); United States v. Gates, 2023 WL 5748362, 2023 U.S. Dist. LEXIS 157274 (N.D. Ill. Sept. 6, 2023); United States v. Crawford, 2023 WL 5559031, 2023 U.S. Dist. LEXIS 152201 (N.D. Ind. Aug. 29, 2023); United States v. Davis, 2023 WL 4532836, 2023 U.S. Dist. LEXIS 120329 (E.D. Wis. July 13, 2023); United States v. Ware, 673 F.Supp.3d 947, 2023 WL 3568606, 2023 U.S. Dist. LEXIS 88478 (S.D. Ill. May 19, 2023); United States v. Cummings, 2023 WL 3023608, 2023 U.S. Dist. LEXIS 69054 (N.D. Ind. Apr. 20, 2023); United States v. Rice, 662
F.Supp.3d 935 (N.D. Ind. 2023); United States v. Tribble, 2023 WL 2455978, 2023 U.S. Dist. LEXIS 40551 (N.D. Ind. Mar. 10, 2023); United States v. Clark, 2023 WL 2346284, 2023 U.S. Dist. LEXIS 35675 (N.D. Ind. Mar. 2, 2023); United States v. Braster, 2023 WL 2346282, 2023 U.S. Dist. LEXIS 35669 (N.D. Ind. Mar. 2, 2023); United States v. Price, 656 F.Supp.3d 772 (N.D. Ill. 2023); United States v. Farley, 2023 WL 1825066, 2023 U.S. Dist. LEXIS 21146 (C.D. Ill. Feb. 8, 2023); United States v. Rush, 2023 WL 403774, 2023 U.S. Dist. LEXIS 12948 (S.D. Ill. Jan. 25, 2023); United States v. Garrett, 650 F.Supp.3d 638 (N.D. Ill. 2023).
The government provides an index of nearly 200 cases from around the country making a similar finding.
The court adds that Heller addressed the same issue: "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," Heller, 554 U.S. at 626, 128 S.Ct. 2783, noting that felon disarmament statutes are "presumptively lawful regulatory measures," Id. at 627 n.26, 128 S.Ct. 2783. McDonald reiterated this assurance that Heller "did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons." McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (quotations and citations omitted). Though Mr. Regalado is right that these statements don't permit the court to forego its duty of identifying a historical analogue, see Atkinson, 70 F.4th at 1022, that doesn't mean they cannot add to the punch. After all, this court isn't accustomed to calling anything said by our highest court mere dicta. See Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120 n.8 (7th Cir. 1989) (even dicta by Supreme Court entitled to weight). And it only reemphasizes what the court has said already—that Bruen truly is nothing new, as an echo of Heller. Accordingly, the court denies the motion to dismiss the indictment on Second Amendment grounds.
B. Challenge Under Fifth Amendment Due Process.
Mr. Regalado also challenges the indictment under the Fifth Amendment. The Fifth Amendment says "[n]o person shall ... be deprived of life, liberty or property without due process of law." It protects criminal defendants from "lengthy preindictment delay" on the government's part. United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see also United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). To show a due process violation based on preindictment delay, a defendant "must show that they delay caused him actual and substantial prejudice." Aleman v. Honorable Judges of Cir. Ct. of Cook Cnty., 138 F.3d 302, 309 (7th Cir. 1998). The burden then shifts to the government to "come forward with a justification for the delay." Id. From there, the court balances the government's reasons against the defendant's prejudice to determine whether the defendant was denied due process. See United States v. Sowa., 34 F.3d 447, 451 (7th Cir. 1994).
Mr. Regalado's state charges were brought just after the incident at his home, on November 18, 2021. He was sentenced on September 1, 2022. His federal criminal complaint was filed on April 21, 2023, days before he was released from state custody on April 24, 2023. His federal indictment
was filed on May 10, 2023, nearly 18 months after the incident.
Mr. Regalado argues his position under the sentencing guidelines, but they are advisory. See Hughes v. United States, 584 U.S. 675, 138 S. Ct. 1765, 1772, 201 L.Ed.2d 72 (2018). "[A]llegations of actual and substantial prejudice [must] be specific, concrete, and supported by evidence"—a "monumental hurdle." Sowa, 34 F.3d at 450-51 (quotations and citation omitted). Though creative, Mr. Regalado has not satisfied his burden as the prejudice he claims is merely speculative. No one today can say what sentence might come, particularly when he is presumed innocent of this federal charge. And the law stands firmly against his position in positing prejudice from any lost opportunity to serve his state sentence and any future sentence concurrently. See United States v. Fuzer, 18 F.3d 517, 520 (7th Cir. 1994) (defendant failed to show actual prejudice based on "his speculative contention that if the government had prosecuted him promptly, he could have served his state and federal sentences concurrently"); see also United States v. Madden, 682 F.3d 920, 929 (10th Cir. 2012) ("he argues the preindictment delay caused actual prejudice because the sentence he received in this case is consecutive to, rather than concurrent with, the sentence he received for the state drug convictions" but "[t]he prejudice [defendant] claims he suffered is speculative"); United States v. Uribe-Rios, 558 F.3d 347, 358 (4th Cir. 2009) (defendant's lost chance of serving state and federal sentences concurrently "cannot be used to establish prejudice for purposes of challenging pre-indictment delay"); United States v. McCoy, 977 F.2d 706, 711 (1st Cir. 1992) (rejecting as speculative defendant's claim that he was prejudiced because the preindictment "delay diminished the opportunity to serve concurrent time on the state and federal sentences"); United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1051 (9th Cir. 1990) (rejecting defendants' claim that he would have received concurrent federal and state sentences had he been tried sooner as "entirely speculative"). The court denies the motion to dismiss based on the Fifth Amendment.
CONCLUSION
Accordingly, the court DENIES Mr. Regalado's motion to dismiss the indictment under the Second and Fifth Amendments [31]. The court will set a trial and final pretrial conference by separate order.
SO ORDERED.