United States v. Carlton

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Docket Number

23-094

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

Plaintiff,

ELTEYVIONNE ZACHARY

CARLTON,

Defendants. Case No. 3:23-cr-00094-SLG-MMS

ORDER ON MOTION TO DISMISS

Before the Court at Docket 79 is Defendant Elteyvionne Carlton's Motion and Memorandum to Dismiss. The Government responded in opposition to the motion at Docket 80.

BACKGROUND

On October 18, 2023, the Government charged Mr. Carlton in an indictment with possession of a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(8).¹The indictment identifies five prior State of Alaska convictions from earlier in 2023.²The indictment also includes a criminal forfeiture allegation.³

1 Docket 1 4 at 1 .

2 Docket 14 at 2 .

3 Docket 14 at 2-3 .

Page 2 of 5

Mr. Carlton now seeks dismissal of the felon-in-possession charge pursuant to the Second Amendment, contending that "18 U.S.C. § 922(g)(1) is an unconstitutional abridgement of the right to bear arms, both facially and as applied to Mr. Carlton's conduct."⁴He relies on New York State Rifle & Pistol Ass'n, Inc.

v. Bruen, which the Supreme Court decided in 2022.⁵Mr. Carlton maintains that

"Bruen adopted a new approach to the Second Amendment, overruling contrary Ninth Circuit precedent," and "the United States cannot meet its burden to show a historical tradition of restricting people with felonies from possessing firearms."⁶

DISCUSSION

Before Bruen, in District of Columbia v. Heller, the Supreme Court struck down a District of Columbia law banning possession of firearms by homeowners, finding that the Second Amendment protects the individual right to bear arms.⁷ The Supreme Court noted that the right is not unlimited and that "nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons," which was "presumptively lawful."⁸ Subsequently, in McDonald v. City of Chicago, the Supreme Court stated that

4 Docket 79 at 1.

5 Docket 79 at 1-25 ; 5 97 U.S. 1 (2022).

6 Docket 79 at 1, 3.

7 554 U.S. 57 0, 595, 636 (2008).

8 Id. at 626, 627 n.26.

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Heller "did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons.'"⁹ Applying Heller, and before Bruen, in United States v. Vongxay, the Ninth Circuit upheld the constitutionality of § 922(g)(1).¹⁰The Vongxay court held that Heller "[did] not render § 922(g)(1) unconstitutional," and that a consensus of case law indicated that, "even given the Second Amendment's individual right to bear arms, felons' Second Amendment rights can be reasonably restricted."¹¹ In Bruen, the Supreme Court explained that the two-step means-ends scrutiny applied by the circuit courts was not supported by Heller and clarified the proper analysis to determine the constitutionality of a law implicating Second Amendment rights.¹²But Bruen did not alter Heller's statement that the prohibition of firearms by felons is "longstanding" and "presumptively lawful."¹³Indeed, the Bruen majority noted that its holding was "[i]n keeping with Heller."¹⁴Justice Kavanaugh, joined by Chief Justice Roberts, stated that Bruen does not disturb what the Court stated in Heller about the restrictions imposed on possessing firearms, namely the "longstanding prohibitions on the possession of firearms by

9 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626).

10 594 F.3d 1111, 1118 (9th Cir. 2010 ).

11 Id. at 11 15, 11 17.

12 See Bruen, 597 U.S. at 20-24.

13 Heller, 554 U.S. at 626-27 & n.26.

14 Bruen, 597 U.S. at 17.

Page 4 of 5

felons."¹⁵Justice Alito stated in his concurrence: "Nor have we disturbed anything that we said in Heller or McDonald."¹⁶Justice Breyer, joined by Justices Kagan and Sotomayor, stated that Bruen "cast[s] no doubt on" Heller's treatment of laws prohibiting firearms possession by felons.¹⁷

While Bruen clarified the Second Amendment analytical framework, nothing in Bruen indicates that the Supreme Court repudiated its earlier pronouncements that the Second Amendment's protections do not extend to felons. Indeed, Bruen did not overrule the precedents on which Vongxay relied and, given the Bruen Court's careful intent to preserve Heller, its holding is not "clearly irreconcilable"

with Heller, Vongxay, or other pre-Bruen Ninth Circuit cases that have relied on Heller's "presumptively lawful" language to uphold the constitutionality of felon disarmament laws.¹⁸As such, Vongxay remains binding precedent on this Court.

15 Id. at 81 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 626-27).

16 Id. at 72 (Alito, J., concurring).

17 Id. at 129 (Breyer, J., dissenting).

18 Ninth Circuit precedent is only "effectively overruled" when "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority." Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc); see also Close v. Sotheby's, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) ("The clearly irreconcilable requirement is a high standard. . . . [I]t is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent." (internal quotation marks and citations omitted)). Further, the Supreme Court recently upheld the constitutionality of 18 U.S.C. § 922(g)(8), which prohibits individuals subject to a domestic violence restraining order from possessing a firearm. United States v. Rahimi, 144 S. Ct. 1889, 1903 (2024) ("An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.").

Page 5 of 5

As the Court remains bound by Vongxay, the Court finds that 18 U.S.C. § 922(g)(1) is constitutional and therefore DENIES Mr. Carlton's Motion and Memorandum to Dismiss at Docket 79.

DATED this 6th day of May, 2025, at Anchorage, Alaska. /s/ Sharon L. Gleason

UNITED STATES DISTRICT JUDGE

United States v. Carlton

United States v. Carlton

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