Robert D. Mariani United States-District Judge
MEMORANDUM OPINION
Robert D. Mariani United States-District Judge
I. Introduction and Procedural History
On April 5, 2022, a federal grand jury returned a one-count Indictment charging Defendant Victorious Minter with being a Felon in Possession of Firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant Minter subsequently filed a Motion to Dismiss (Doc. 26) on August 26, 2022, asserting that § 922(g)(1) is now unconstitutional in light of the Supreme Court's June 23, 2022, decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022). Defendant requests that the Court “declare § 922(g)(1) unconstitutional and dismiss the Indictment against him for failure to state an offense.” (Doc. 26, at 3). The Government timely filed a Brief in Opposition to Minter's Motion to Dismiss (Doc. 28), to which Defendant filed a Reply Brief (Doc. 31). Defendant's Motion to Dismiss is now ripe for resolution.
For the reasons set forth herein, the Court will deny the Motion to Dismiss (Doc. 26).
II. Analysis
The Second Amendment of the U.S. 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. In Bruen, the Supreme Court, consistent with its precedent, re-affirmed that “the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.” Bruen, 142 S.Ct. at 2125 (citing District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010)); see also, id. at 2122 (“In [Heller and McDonald] we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.”).
Although the Second Amendment confers an individual right to keep and bear arms, this right is “not unlimited”. Heller, 554 U.S. at 595, 626. As the Supreme Court in Heller explained:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-627 (internal citations omitted).
See also, McDonald, 561 U.S. at 786 (“We made it clear in
Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,' ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' We repeat those assurances here.”) (internal citation omitted).
In examining its precedent, the Supreme Court in Bruen set forth the appropriate test a Court must apply in determining whether a firearm regulation violates the Second Amendment:
In keeping with
Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command.
Bruen, 142 S.Ct. at 2126 (internal quotation marks omitted).
See id. at 2127 (“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.”);
Id. at 2130 (reiterating the standard for applying the Second Amendment). A Court must therefore first address the threshold question of whether the Second Amendment's plain text covers the individual's conduct at issue and, if it determines the conduct is covered, engage in an analysis of whether the Government has affirmatively demonstrated that the regulation at issue is consistent with this Nation's historical tradition of firearm regulation.
The Bruen Court provided guidance to aid courts in determining whether the
Government has affirmatively demonstrated that the regulation at issue is consistent with this Nation's historical tradition of firearm regulation, explaining that “[i]n some cases,” the inquiry that courts must undertake to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding “will be fairly straightforward”, Bruen, 142 S.Ct. at 2131.
For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.
Id.
Nonetheless, the Court in Bruen recognized that while some “historical analogies .. . are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” Id. at 2132. “The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution - and a Second Amendment - intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Id. at 2132 (internal quotation marks and citations omitted). Thus,
When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy - a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are "relevantly similar.” And because “[everything is similar in infinite ways to everything else,” one needs “some metric enabling the analogizer to assess which similarities are important and which are not[.]”
Bruen, 142 S.Ct. at 2132 (internal citations omitted). “[A]nalogical reasoning requires only that the government identify a well-established and representative historical
analogue, not a historical
twin." Id.
at 2133 (italics in original). Further, the Bruen Court, while declining to “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment”, reasoned that
Heller and
McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense. As we stated in
Heller and repeated in
McDonald, “individual self-defense is ‘the
central component' of the Second Amendment right.”
McDonald, 561 U.S. at 767,130 S.Ct. 3020 (quoting
Heller, 554 U.S. at 599,128 S.Ct. 2783); see
also id., at 628,
128 S.Ct. 2783 (“the inherent right of self-defense has been central to the Second Amendment right”). Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are '“
centrar considerations when engaging in an analogical inquiry.
Id. at 2132-2133 (italics in original).
Here, in light of the Supreme Court's decision in Bruen, Defendant Minter invites this Court to set aside over 10 years of Supreme Court and Circuit Court precedent and to examine, on a blank slate, the constitutionality of § 922(g)(1). However, Bruen does not, as Defendant suggests, invalidate or overturn the legal principles and analysis set forth in Heller and McDonald, and much of the legal reasoning in Circuit decisions since Heller remains intact. The Supreme Court's decision in Bruen did not alter the analyses set forth in Heller and McDonald, but instead, relying extensively on those two cases, clarified the appropriate test that must be applied in addressing Second Amendment challenges to firearms regulations. In Bruen, the Court rejected the “‘two-step' framework for analyzing Second Amendment challenges that combines history with means-end scrutiny” that had been applied by the lower courts after Heller and McDonald, holding that the second-step -application of a “means-end” analysis - “is one step too many.” Bruen, 142 S.Ct. at 21262127. In so doing, the Court emphasized that “[s]tep one of the predominant framework [determining whether regulated conduct falls beyond the Second Amendment's original scope] is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.” Id. at 2127. The Supreme Court in Bruen took great effort to not undermine its prior decisions in Heller and McDonald and to repeatedly underscore the continued validity of those decisions. See e.g., Bruen, 142 S.Ct. at 2131 (“The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding.”); id.”Heller itself exemplifies” the straightforward inquiry into the Second Amendment's text and historical understanding); Id. at 21322133 (“Heller and McDonald point toward at least two metrics [to assess whether a historical regulation is a proper analogue for a modern firearm regulation]: how and why the regulations burden a law-abiding citizen's right to armed self-defense.”).
Thus, the Court here need not engage in an original analysis of whether the Second Amendment's plain text covers the possession of a firearm by a felon, and if so, whether the Government has affirmatively demonstrated that § 922(g)(1) is consistent with this Nation's historical tradition of firearm regulation, where the Supreme Court in Bruen has already signaled the answer to this question.
The Court in Heller made clear that the rights secured by the Second Amendment are not unlimited, enumerating a number of examples including the “longstanding prohibitions on the possession of firearms by felons”. Heller, 554 U.S. at 626-627.Despite Defendant Minter's assertions to the contrary, the Bruen Court's decision did not undermine Heller's statement. Bruen, quoting Heller, re-iterated that “[t]he Second Amendment ‘is the very product of an interest balancing by the people' and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense. It is this balance - struck by the traditions of the American people - that demands our unqualified deference.” Bruen, 142 S.Ct. at 2131 (quoting Heller, 554 U.S. at 635) (italics in original; underline added). The Bruen Court further stated that “throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms.” Id. at 2138. This observation in Bruen is entirely consistent with Heller's recognition of the legality of the “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government building...” Heller, 554 U.S. at 626-627.
The conclusion that Bruen does not disturb the prior analyses of Heller and McDonald is further supported by the concurrences and the dissent in Bruen. Justice Alito, in his concurrence, specifically noted the following:
Our holding [in
Bruen] decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess.
Nor have we disturbed anything that we said in Heller
or [McDonald]
about restrictions that may be imposed on the possession or carrying of guns.
Bruen, 142 S.Ct. at 2157 (Alito, J., concurring) (underline added);
see also, id. at 2161
(“Heller correctly recognized that the Second Amendment codifies the right of
ordinary law abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun.”) (underline added). Justice Kavanaugh, with whom Chief Justice Roberts joined, wrote separately “to underscore two important points about the limits of the Court's decision” in
Bruen. The second point reads as follows:
Second, as
Heller and
McDonald established and the Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check.” . . . Properly interpreted, the Second Amendment allows a “variety” of gun regulations.
Heller, 554 U.S. at 636,
128 S.Ct. 2783. As Justice Scalia wrote in his opinion for the Court in
Heller, and Justice ALITO reiterated in relevant part in the principal opinion in
McDonald:
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]...
Bruen, 142 S.Ct. at 2162 (Kavanaugh, J., concurring). Justice Breyer, in his dissenting opinion, agreed with Justice Kavanaugh, stating that “[l]ike Justice KAVANAUGH, I understand the Court's opinion today to cast no doubt on th[e] aspect of
Heller's holding” addressing presumptively lawful firearm restrictions, including the prohibition of the possession of a firearm by a felon,
Id. at 2189 (Breyer, J., dissenting).
The concurrences and dissent in Bruen underscore that the Supreme Court foresaw the legal challenges which may arise as a result of Bruen, including the issue now raised in the present motion to dismiss by Minter. That Justices Kavanaugh, Roberts, and Alito each determined the need to highlight the particular language in Heller setting forth certain presumptively lawful “longstanding prohibitions” demonstrates a desire to make clear the limits of the Supreme Court's decision in Bruen and to emphasize the remaining viability of the Supreme Court's statements in Heller and its progeny as to specific conduct which falls outside of the protection of the Second Amendment and which may be properly curbed by gun regulations. Although this Court acknowledges the possible accuracy of Justice Breyer's statement in dissent that an apparent “disconnect” exists between the “presumptively lawful regulatory measures” identified in Heller, most of which arguably have clearer origins in the 20th century, and the Supreme Court's test requiring that a firearm regulation must be consistent with this Nation's historical tradition of firearm regulation in order to not violate the Second Amendment (see Bruen, 142 S.Ct. at 2189 (Breyer, J., dissenting)), six Justices nonetheless warned that the Bruen decision should not be read as
If that is true, there is cause for concern.”). Although Justice Kavanaugh concurred with the majority, he wrote separately, stating that while he agreed that the claim for injunctive relief was moot, he “agree[d] with Justice Alito's general analysis of Heller and McDonald" and “share[d] Justice Alito's concern that some federal and state courts may not be properly applying Heller and McDonald." Id. at 1527 (Kavanaugh, J., concurring). Justices Alito and Kavanaugh's statements in this 2020 precursor to Bruen further support a finding that the Supreme Court did not intend anything in Bruen to be interpreted as overturning or modifying its decision in Heller, including Heller's “recognition] that history supported the constitutionality of some laws limiting the right to possess a firearm, such as laws ... prohibiting possession by felons and other dangerous individuals”, Id. at 1540-1541 (Alito, J., dissenting). casting doubt on the validity of certain firearms regulations, including those identified in Heller. Specifically, Justices Alito, Kavanaugh, and Roberts, in concurring, all made explicit reference to Heller's enumerated lawful firearm restrictions and emphasized that the decision in Bruen did not disturb this statement in Heller. Additionally, the dissent, Justices Breyer, Sotomayor, and Kagen, also noted agreement that the majority in Bruen did not “cast... doubt” on Heller's identification of “presumptively lawful firearm” restrictions. Cf. United States v. Gonzalez, 2022 WL 4376074 (7th Cir., Sept. 22, 2022) (acknowledging that “the historical evidence is mixed about barring all felons from possessing guns” but, citing to Heller and Bruen, noting that “the [Supreme Court Justices] have declined to question laws requiring background checks or barring felons from possessing firearms”) (italics in original).
Where Bruen did not overturn, abrogate, or otherwise suggest that the longstanding prohibitions identified in Heller, including the prohibition of possession of firearms by felons, may no longer be lawful, this Court is bound by the Supreme Court's decision in Heller, its progeny, and the Third Circuit cases addressing the constitutionality of § 922(g)(1).
As the Third Circuit noted in 2020, “[s]ince Heller, we, along with every court to consider the issue, have rejected challenges that § 922(g)(1) on its face violates the Second Amendment.” Folajtar v. Att'y Gen., 980 F.3d 897, 901 (3d Cir. 2020). In Folajtar, although not “fully repeat[ing] the historical analysis in [its] precedents”, the Third Circuit identified the history of restricting the possession of firearms by certain individuals, including those who lacked “virtuousness” or had committed a serious crime. Id. at 907-909. In so doing, the Third Circuit explained that “[w]hat concerned the Framers was that ‘virtuous citizens' retain the right to bear arms...; they had no interest in extending the same guarantee to those who act counter to society's welfare, whether by violent or non-violent acts.” Id. at 909 (internal citation omitted). Prior to Folajtar, in Binderup v. Attorney General, the Third Circuit “look[ed] to the historical justification for stripping felons, including those convicted of offenses meeting the traditional definition of a felony, of their Second Amendment rights,” 836 F.3d 336, 348 (3d Cir. 2016). The Court noted that “[t]he view that anyone who commits a serious crime loses the right to keep and bear arms dates back to our founding era” and concluded as “[t]he takeaway: persons who have committed serious crimes forfeit the right to possess firearms much the way they forfeit other civil liberties, including fundamental constitutional rights.” Id. at 349 (internal quotation marks omitted).
Defendant Minter cites to Judge Bibas' dissent in Folajtar and Judge Hardiman's partial concurrence in Binderup in support of his position that Judges in the Third Circuit “have noted the lack of relevant historical precedent for felon disarmament statutes like § 922(g)(1),” (Doc. 27, at 12). Although Defendant's characterization of Judge Bibas and Judge Hardiman's opinions are correct, as is his citation to the opinions of other Circuit Court judges outside the Third Circuit, the District Court is nonetheless bound to follow the majority reasoning and holding in the cited opinions. Even assuming that the Third Circuit in Folajtar and Binderup incorrectly applied some form of means-end scrutiny, the majority in Folajtar and the plurality in Binderup nonetheless also engaged in an analysis of the historical tradition of preventing felons from possessing firearms. This Court is not free to set aside this historical analysis and reasoning. See Allegheny Gen. Hosp. v. N.L.R.B., 608 F.2d 965, 970 (3d Cir. 1979) (“A decision by this court, not overruled by the United States Supreme Court, is a decision of the court of last resort in this federal judicial circuit.”), overruled on other grounds by St. Margaret Mem'l Hosp. v. N.L.R.B., 991 F.2d 1146 (3d Cir. 1993). Further, the Third Circuit's majority/plurality reasoning as to the historic basis for the enactment of firearm regulations prohibiting felons from possessing firearms is not unique -it finds support in the decisions of other Circuit Courts. See Medina v. Whitaker, 913 F.3d 152,159 (D.C. Cir. 2019).
Finally, although not binding on this Court, the Court notes that federal courts nationwide have, as of the date of this memorandum opinion, uniformly rejected facial and as-applied constitutional challenges to § 922(g)(1) arising from the Supreme Court's decision in Bruen. See e.g., United States v. Ingram, 2022 WL 3691350 (D.S.C., Aug. 25, 2022); United States v. Cockerham, 2022 WL 4229314 (W.D. Miss., Sept. 13, 2022); United States v. Jackson, 2022 WL 4226229 (D. Minn., Sept. 13, 2022); United States v. Hill, 2022 WL 4361917 (S.D. Cal., Sept. 20, 2022); United States v. Coombes, 2022 WL 4367056 (N.D. Okla., Sept. 21, 2022); United States v. Collette, 2022 WL 4476790 (W.D. Tex., Sept. 25, 2022); United States v. Siddoway, 2022 WL 4482739 (D. Idaho, Sept, 27, 2022); United States v. Charles, 2022 WL 4913900 (W.D. Tex. Oct. 3, 2022); United States v. Price, -F.Supp.3d-, 2022 WL 6968457 (S.D. W.Va., Oct. 12, 2022). See also, United States v. Gonzalez, 2022 WL 4376074 (7th Cir., Sept. 22, 2022).
III. Conclusion
For the reasons set forth herein, Defendant Minter's Motion to Dismiss (Doc. 26) will be denied. A separate Order follows.