Opinion
22-CR-2456-GPC
05-17-2023
UNITED STATES OF AMERICA, Plaintiff, v. DAVID JACOB SAIS, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNTS TWO AND THREE OF THE INDICTMENT [ECF No. 31]
Hon. Gonzalo P. Curiel" United States District Judge
On April 21, 2023, Defendant Sais (“Defendant” or “Sais”) filed this Motion to Dismiss Counts Two and Three of the Indictment under the Second Amendment. ECF No. 31. On May 6, 2023, the Government filed a Response in Opposition. ECF No. 46. A hearing was held on May 17, 2023. For the reasons below, the Court DENIES Defendant's Motion.
BACKGROUND
Defendant moves to dismiss count two, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and count three, felon-inpossession of a firearm in violation of 18 U.S.C. § 922(g)(1), of the Indictment. Under the Supreme Court's recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111, 2126 (2022), to determine if a statute violates the Second Amendment, a court should: (1) determine whether the Second Amendment's “plain text” covers the individual's challenged conduct; and (2) if the plain text of the Second Amendment covers the individual's conduct, the regulation is valid only if the government shows the regulation is “consistent with this Nation's historical tradition of firearm regulation.” New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111, 2126 (2022). At a high level, Defendant argues that counts two and three “allege that Mr. Sais possessed a handgun in public, which is conduct covered by the Second Amendment's plain text” and that the Government has failed to show a historical tradition regulating his alleged possession of a handgun. ECF No. 31 at 7.
Page citations refer to CM/ECF pagination.
Although Bruen does not expressly overrule District of Columbia v. Heller, 554 U.S. 570 (2008), and in fact explicitly reiterates its consistency with the Heller decision, Defendant argues Bruen abrogated all case law that relied on the “presumptively lawful” regulations first identified in Heller, including regulations restricting firearm possession by felons. Id. at 11-14 (citing District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008)). Heller stated it did “not undertake an exhaustive historical analysis [] of the full scope of the Second Amendment” and that there would “be time enough to expound upon the historical justifications for the [presumptively lawful] exceptions” the Court identified. Heller, 554 U.S. at 635. According to Sais, Bruen was exactly this “exhaustive historical analysis” of the New York state licensing regime and that all courts post-Bruen should perform equivalent analysis for any challenged firearm regulation. ECF No. 31 at 13. Thus, Defendant asks this Court to not rely on Heller's “presumptively lawful” list of regulations and instead conduct new analysis which “look[s] to the Second Amendment's plain text or historical tradition.” Id. at 14.
Justice Thomas's majority opinion at the outset notes, “[w]e . . . now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” Bruen, 142 S.Ct. at 2122 (emphasis added). The Bruen decision reiterates numerous times that its holding is "in keeping with Heller." See id.; id. at 2126; id. at 2129 (stating “[i]n sum, the Courts of Appeals' second step is inconsistent with Heller's historical approach”). The Court viewed Bruen as an avenue to elucidate Heller's meaning and to reign in a two-step test developed in the Courts of Appeals, which the Court found “one step too many.” Id. at 2127. Specifically, the Bruen Court disagreed with “means-end scrutiny in the Second Amendment context.” Id.
Specifically, the Ninth Circuit in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) held § 922(g)(1) was constitutional and in United States v. Potter, 630 F.3d 1260 (9th Cir. 2011) held § 924(c)(1)(A) was constitutional.
Under the Bruen analysis, Defendant argues his conduct falls within the plain text of the Second Amendment. Id. Sais argues he is part of the “people” the Second Amendment protects. Id. He cites to Judge Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) for the proposition that felons are not “categorically excluded from our national community.” Kanter v. Barr, 919 F.3d 437, 453 (7th Cir. 2019) (Barrett, J., dissenting), overruled on other grounds by Bruen, 142 S.Ct. 2111 (2022). Sais states the plain text protects his “course of conduct” because counts two and three “rest solely on the possession of a gun,” and the Second Amendment protects an individual's right to “possess and carry weapons in case of confrontation.” ECF No. 31 at 15 (emphasis in original) (quoting Bruen, 142 S.Ct. at 2136).
As to Bruen's second step, Sais argues the Government cannot show these modernday regulations are “distinctly similar” to historical regulations because (1) historical regulations required an individualized assessment of a person's threat to society and not all people with a present-day felony conviction are violent; and (2) even those individuals historically deemed violent were still able to possess a weapon for self-defense purposes. Id. at 16-17. Sais also argues there is little evidence of a historical practice of prohibiting gun possession in furtherance of drug sales or any “distinctly similar” illegal commercial activity. Id. at 21.
The Bruen Court stated that “[w]hen a challenged regulation addresses a general societal problem that has persisted since the 18th century,” the Court's inquiry is whether a “distinctly similar historical regulation address[ed] the problem.” Bruen, 142 S.Ct. at 2131. However, if a law regulates “unprecedented societal concerns,” the Court's historical inquiry should “involve reasoning by analogy,” and a Court need only find that the historical regulation and present-day regulation are “relevantly similar.” Id. at 2132-33. Defendant argues the problems § 922(g)(1) and § 924(c)(1)(A) seek to address are “general societal problem[s]†that have persisted since the 18th century, and thus the Government must identify “distinctly similar historical regulation.†ECF No. 31 at 16. Because this Court finds historical analysis is not required in this case for the reasons discussed below, the Court does not answer whether the problems of felons possessing guns or the possession of guns in furtherance of drug trafficking constitute persistent, general societal problems or concerns of more recent vintage.
The Government opposes. The Government argues Bruen uses the term “lawabiding” 14 times in the majority opinion and describes the Second Amendment right as a right of “ordinary, law-abiding citizens.” ECF No. 46 at 10 (citing Bruen, 142 S.Ct. at 2122, 2125, 2131, 2133-34, 2135 n.8, 2138, 2150, 2156). Justice Alito's concurrence states that the Bruen holding “decides nothing about who may lawfully possess a firearm.” Id. at 10-11 (quoting Bruen, 142 S.Ct. at 2157 (Alito, J., concurring)). Justice Kavanaugh's concurrence states that “‘[n]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.'” Id. at 11 (quoting Bruen, 142 S.Ct. at 2162 (Kavanaugh, J., concurring)). The Government argues Sais wants this Court to “ignore-or second-guess-the Supreme Court's repeated use of that [law-abiding] qualifier unless the government can prove that the Supreme Court meant what it said” via historical analysis. Id. The Government argues Bruen does not abrogate Ninth Circuit precedent finding the statutes at issue constitutional, and thus historical analysis is unnecessary. Id. at 18.
DISCUSSION
The Court finds Bruen did not abrogate Ninth Circuit case law holding both § 922(g)(1) and § 924(c)(1)(A) constitutional, and thus this Court is bound by prior precedent to uphold Sais's Indictment as to counts two and three. Defendant argues that Bruen's mode of analysis is “clearly irreconcilable” with previous Ninth Circuit holdings in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) (§ 922(g)(1)), and United States v. Potter, 630 F.3d 1260 (9th Cir. 2011) (§ 924(c)(1)(A)), because these decisions did not undertake a full historical analysis. ECF No. 31 at 12. Defendant urges this Court to find that “Heller's preliminary list of exceptions do not bind future courts or prevent them from conducting a full historical review” and to hold that § 922(g)(1) and § 924(c)(1)(A) are not supported by historical tradition. Id at 13.
Although it is true the Bruen Court provided a new, “revamped” two-step test for Second Amendment challenges, the Court emphasized its primary intent was to abolish “means-end scrutiny” in the Second Amendment context and instead guide lower courts with a test grounded in the text and history of the Second Amendment. Bruen, 142 S.Ct. at 2126. Neither Vongxay nor Potter relied on means-end scrutiny to uphold the constitutionality of their respective laws. Vongxay relied on Heller's “presumptively lawful” exceptions and stated that “felons are categorically different from the individuals who have a fundamental right to bear arms ....” Vongxay, 594 F.3d at 1115. Potter similarly did not engage in means-end scrutiny and found that “the [Heller] Court made clear that its holding concerned the lawful possession and use of a firearm,” clearly drug trafficking is not a lawful activity. Potter, 630 F.3d at 1261 (emphasis in original).
Bruen did not undermine, and in fact reaffirmed, this threshold question-whether the law at issue affects an “ordinary, law-abiding citizen” engaging in lawful activities. Bruen, 142 S.Ct. at 2122. Defendant collapses the Bruen test into essentially one question-whether historical tradition supports the regulation-and disregards nearly everything else in the decision. Contrary to Sais's argument, courts post-Bruen need not engage in historical analysis each time a Second Amendment challenge is brought. Indeed, historical analysis is only the second, and last, step of Bruen's two-step test. Further, the Court agrees with the Government and declines to undertake historical analysis to determine if the Bruen Court “meant what it said.” ECF No. 46 at 11. The Court did not instruct lower courts to find historical support to justify each phrase in the Bruen decision. This Court can have faith that Bruen means what it says. Accordingly, the Court finds Bruen's two-part test is not applicable unless the Court first finds the Second Amendment right of law-abiding individuals engaged in lawful activities is infringed.
This finding is further supported by the fact that “presumptively lawful” regulations are not presumptively lawful under Heller because they withstand means-end scrutiny, but rather the Heller Court stated these regulations were presumptively lawful because they were “longstanding,” i.e., supported by historical tradition. Heller, 554 U.S. at 626. The Heller Court identified presumptive exceptions after analyzing cases and commentary “[f]rom Blackstone through the 19th-century ....” Id. at 626. Thus, Bruen's disagreement with means-end scrutiny in the Second Amendment context does not extend to this portion of Heller, or post-Heller case law relying on this portion of Heller. As such, the Court finds Defendant has not demonstrated to this Court why it should ignore settled Ninth Circuit law.
CONCLUSION
In sum, the Court does not find that Bruen's mode of analysis or its holding is irreconcilable with Ninth Circuit decisions upholding the constitutionality of the challenged statutes. Accordingly, this Court is bound by Ninth Circuit precedent, and DENIES Mr. Sais's Motion to Dismiss counts two and three of the Indictment.
IT IS SO ORDERED.