Opinion
Case No. 8:21-cr-0048-KKM-TGW
2021-11-17
UNITED STATES of America v. Samuel STOREY
Charlie Dustin Connally, US Attorney's Office, Tampa, FL, for United States of America.
Charlie Dustin Connally, US Attorney's Office, Tampa, FL, for United States of America.
ORDER
Kathryn Kimball Mizelle, United States District Judge
Defendant Samuel Storey moves to dismiss the Indictment, (Doc. 37), arguing that the federal statute criminalizing possession of a firearm by a convicted felon is unconstitutional either on its face or as applied to him. See 18 U.S.C. § 922(g)(1). Section 922(g)(1) makes it unlawful for a person convicted of a crime punishable by more than one year in prison to "possess in or affecting commerce" a firearm or ammunition. Storey argues that the Commerce Clause of Article I does not give Congress authority to declare the purely intrastate possession of a firearm a federal offense. This is true, Storey argues, even if "the firearm crossed state lines at some time in the past" before it came into the possession of the defendant. (Doc. 37 at 1.) Stated otherwise, he argues § 922(g)(1) does not "ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce," and thus, the statute exceeds Congress's Commerce Clause power. United States v. Lopez , 514 U.S. 549, 561, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (holding 18 U.S.C. § 922(q) unconstitutional under the Commerce Clause); accord United States v. Morrison , 529 U.S. 598, 617, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (rejecting "the argument that Congress may regulate, noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce").
As Storey admits, the Eleventh Circuit has squarely and repeatedly rejected these same arguments. See, e.g. , United States v. Scott , 263 F.3d 1270, 1272–74 (11th Cir. 2001) ; United States v. Jordan , 635 F.3d 1181, 1189 (11th Cir. 2011) ; United States v. Williams , 855 F. App'x 635, 636–37 (11th Cir. 2021). These opinions are grounded in the Supreme Court's holding in Scarborough v. United States , 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).
Before Morrison and Lopez , the Supreme Court affirmed a conviction under the predecessor statute to § 922(g)(1). See Scarborough , 431 U.S. at 567, 97 S.Ct. 1963. The dispute in Scarborough centered on the meaning of the statutory phrase "in commerce or affecting commerce." Id. at 564, 97 S.Ct. 1963 (quotation omitted). After examining the statutory text and the legislative purpose, the Court concluded that Congress intended no more than a "minimal nexus" to interstate commerce and evidence that a gun moved in interstate commerce "at some time" satisfied that nexus. Id. at 575, 97 S.Ct. 1963.
Although "[n]o party alleged that the statute exceeded Congress’ authority, and the Court did not hold that the statute was constitutional," Alderman v. United States , 562 U.S. 1163, 131 S. Ct. 700, 701, 178 L.Ed.2d 799 (2011) (Thomas & Scalia, JJ., dissenting from denial of certiorari), the Eleventh Circuit has consistently held that Scarborough established a "minimal nexus" test for Commerce Clause challenges that survives the "substantial effects" test articulated in Lopez and Morrison . See, e.g., United States v. McAllister, 77 F.3d 387, 389–90 (11th Cir. 1996) ; see also United States v. Bron , 709 F. App'x 551, 553–54 (11th Cir. 2017) (observing that "no intervening Supreme Court decision has overruled or abrogated the holding of McAllister ").
Storey does not argue that the United States fails to satisfy the minimal nexus test.
The Court acknowledges that Lopez and Morrison —which concluded that non-economic, intrastate activities, like possession of a gun, do not fall within the Commerce Clause power—are in some tension with Scarborough's "minimal nexus" test. See Alderman , 131 S.Ct. at 702–03 (contending that "the lower courts’ reading of Scarborough " "cannot be reconciled with Lopez " and "could very well remove any limit on the commerce power"). This tension remains after Gonzalez v. Raich because the "minimal nexus" test seems to capture more non-economic activity than simply those activities that could be "regulated as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.’ " 545 U.S. 1, 36, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (Scalia, J., concurring) (quoting Lopez , 514 U.S. at 561, 115 S.Ct. 1624 ).
Even aside from the "considerable tension between Scarborough and ... the Supreme Court[’s] recent Commerce Clause cases," United States v. Patton , 451 F.3d 615, 636 (10th Cir. 2006), the minimal nexus test prompts concern. Under the original meaning of the Commerce Clause, § 922(g)(1) may represent "an incursion into the States’ general criminal jurisdiction and an imposition on the People's liberty," Gamble v. United States , ––– U.S. ––––, 139 S. Ct. 1960, 1980 n.1, 204 L.Ed.2d 322 (2019) (Thomas, J., concurring), because it encompasses activity—the mere intrastate possession of a gun—that "is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Lopez , 514 U.S. at 567, 115 S.Ct. 1624. Indeed, the prevailing "interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines." Alderman , 131 S. Ct. at 703. If so, that would go far to "convert congressional authority under the Commerce Clause [in]to a general police power of the sort retained by the States." Lopez , 514 U.S. at 567, 115 S.Ct. 1624. Nonetheless, so long as Scarborough's minimal nexus test remains controlling precedent in this Circuit, this Court is not at liberty to chart another course.
Additionally, the Court recognizes that § 922(g)(1) restricts what would otherwise be the Second Amendment right to "keep and bear arms." See generally District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Storey does not raise any Second Amendment concerns, yet federal courts must remain vigilant to ensure Congress does not exceed its limited powers by curtailing the enumerated liberties of the People. See Kanter v. Barr , 919 F.3d 437, 451–69 (7th Cir. 2019) (Barrett, J., dissenting). Accordingly, Storey's Motion to Dismiss the Indictment (Doc. 37) is DENIED. ORDERED in Tampa, Florida, on November 17, 2021.