Opinion
Criminal Action No. 5: 22-136-DCR
2023-02-02
UNITED STATES of America, Plaintiff, v. Sherman Kelvin COMBS, Defendant.
Francisco J. Villalobos, II, Ron L. Walker, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Lexington, KY, for Plaintiff. Thomas C. Lyons, Thomas C. Lyons Law Offices, Lexington, KY, for Defendant.
Francisco J. Villalobos, II, Ron L. Walker, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Lexington, KY, for Plaintiff. Thomas C. Lyons, Thomas C. Lyons Law Offices, Lexington, KY, for Defendant.
MEMORANDUM OPINION AND ORDER
Danny C. Reeves, Chief Judge
Defendant Sherman Combs has filed a motion to dismiss the Indictment, charging him with possession of a firearm while subject to a domestic violence order ("DVO") and knowingly making a false or fictitious statement to a federally licensed firearms dealer in violation of 18 U.S.C. §§ 922(g)(8) and 922(a)(6). Combs argues that 18 U.S.C. § 922(g)(8) fails the Second Amendment test recently established by the United States Supreme Court in New York State Rifle & Pistol Ass'n v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), and as a result, Combs furnished all material information required by section 922(a)(6). [Record No. 23] As a result, he claims he cannot be convicted under either Count 1 or 2 of the Indictment.
The United States appears to argue that Second Amendment protection is limited to law-abiding, responsible citizens based on the Second Amendment's plain language and precedent from the United States Supreme Court. [Record No. 25] Alternatively, the government contends that surety statutes and historical laws disarming "dangerous people" provide a sufficient historical analogue to satisfy Bruen's Second Amendment test. [Id.] But even if section 922(g)(8) is unconstitutional, the United States contends that "whether [Combs] was prohibited from possessing a firearm is irrelevant to falsely concealing his status during the acquisition of a firearm under [section] 922(a)(6)." [Id.]
The motion was referred to United States Magistrate Judge Matthew A. Stinnett for issuance of a Report and Recommendation ("R & R") pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Stinnett's R & R recommended denying Combs' motion to dismiss the indictment because he concludes that surety laws are adequately comparable to section 922(g)(8). [Record No. 27] Combs objected to this recommendation, maintaining that surety laws are insufficiently analogous and, therefore, his failure to disclose the DVO to a licensed firearms dealer is justified. [Record No. 29]
After careful review of the matter, the Court will grant Combs' motion to dismiss as it relates to the charge contained in Count 1 of the Indictment. As discussed more fully below, the United States has failed to provide a comparable historical analogue. The motion will be denied regarding the charge contained in Count 2 because knowingly making a false statement to a firearms dealer is independent of, and may be prosecuted separately from, section 922(g)(8)'s constitutional infirmity.
I. Background
On June 15, 2022, the Harrison County Family Court issued a DVO against Combs "after a hearing of which he received actual notice," and "an opportunity to participate." [Record No. 5] The parties acknowledge that DVO procedures within the Commonwealth of Kentucky do not require appointment of counsel for the respondent and a jury is not empaneled to resolve any factual disputes. In this case, the DVO prohibited Combs from "harassing, stalking, or threatening an intimate partner," and "explicitly prohibited the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury." [Id.] Combs allegedly purchased a .357 Magnum revolver from a licensed firearms dealer a few days later, and indicated on the purchase application that he was not subjected to a DVO. [Id.]
In Count 1, a federal grand jury charged Combs with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8). In Count 2, he was charged with knowingly making a false statement to a firearms dealer, "which statement was intended and likely to deceive said dealer as to a fact material to the lawfulness of the sale and acquisition of said firearm." [Record No. 1] Combs argues that the indictment against him should be dismissed because the United States Supreme Court's Bruen opinion renders 18 U.S.C. § 922(g)(8) unconstitutional and that, as a result, his false statement to the seller of the subject firearm cannot be material under 18 U.S.C. § 922(a)(6).
II. Legal Analysis
A. The Constitutionality of Section 922(g)(8) Post-Bruen
The Supreme Court's Bruen opinion reinforced a "text and history" approach to the Second Amendment. 142 S. Ct. at 2128-29. The Court held, "that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Id. at 2126. However, "the right secured by the Second Amendment is not unlimited." District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). "To justify its regulation, the government . . . must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." Bruen, 142 S. Ct. at 2126.
i. Plain Text of the Second Amendment
The Second Amendment of the United States Constitution states: "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." The Constitution's "words and phrases were used in their normal and ordinary as distinguished from technical meaning." United States v. Sprague, 282 U.S. 716, 731, 51 S. Ct. 220, 75 L. Ed. 640 (1931); see also Heller, 554 U.S. at 576, 128 S.Ct. 2783. "Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation." Heller, 554 U.S. at 576-77, 128 S.Ct. 2783.
The United States argues that "[t]he Supreme Court limited the Second Amendment to 'law-abiding, responsible citizens.' " [Record No. 25 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783)]. And a few other courts have been confronted with similar arguments. In United States v. Hill, the court considered whether 18 U.S.C. § 922(g)(1), which prohibits a felon from possessing a firearm, was unconstitutional in light of Bruen. No. 22-249, 2022 WL 17069855, at *1 (S.D. Tex. Nov. 17, 2022). It stated that, "[w]hile Heller and Bruen repeatedly discussed the Second Amendment in the context of law-abiding citizens, neither opinions [sic] clarified which groups qualified as 'the people,' as that term appears in the Second Amendment." Id. at *3. The court indicated that this has led to "dueling interpretations by district courts nationwide on the question of whether 'the people' should be read more broadly, such as in the context of the First and Fourth Amendments, or narrowly, such as in the case of voting rights." Id.
Similarly, in United States v. Perez-Garcia the court stated that "the distinction between law-abiding and non-law-abiding citizens in Heller, McDonald, and Bruen 'clarifies the bounds of the plain text of the Second Amendment.' " No. 3:22-CR-01581022, 628 F.Supp.3d 1046, 1053 (S.D. Cal. Sept. 18, 2022) (quoting United States v. Ingram, 623 F.Supp.3d 660, 664 (D.S.C. 2022)). There, the defendant had "been charged with a crime based on a finding of probable cause," and was not "considered a 'law-abiding' or responsible citizen, so he [was] outside the plain text of the Second Amendment." Id. at 1053.
Other courts have "decline[d] to read into Bruen a qualification that Second Amendment rights belong only to individuals who have not been accused of violating any laws," because "[t]his argument ignores the Supreme Court's emphasis on an individual's conduct, rather than status, to decide if Second Amendment protection exists." United States v. Kays, 624 F.Supp.3d 1262, 1265 (W.D. Okla. 2022); see also United States v. Bernard, No. 22-CR-03, 2022 WL 17416681, at *7 (N.D. Iowa Dec. 5, 2022) ("The Court rejects the government's argument that the Second Amendment applies only to law-abiding citizens as a textual matter . . . the plain reading of the Second Amendment covers defendant who is a person under the Constitution.").
Heller provides guidance regarding this issue. Cf. Bruen, 142 S. Ct. at 2126 ("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."). In Heller, the United States Supreme Court analyzed whether the "right of the people" was a collective or individual right. 554 U.S. at 579-80, 128 S.Ct. 2783. To aid its analysis, it compared "the people" in the Second Amendment to other provisions of the Constitution, and "in all six other provisions of the Constitution that mention 'the people,' the term unambiguously refers to all members of the political community, not an unspecified subset." Id. The Court clarified:
"the people" seems to have been a term of art employed in select parts of the Constitution . . . . [Its uses] sugges[t] that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.Id. at 580, 128 S.Ct. 2783 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 108 L.Ed.2d 222 (1990)). The Court "start[ed] therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans." Id. at 581, 128 S.Ct. 2783.
Here, as stated by Magistrate Judge Stinnett, limiting "the people" to only law-abiding, responsible citizens does not match "the people" in the Fourth Amendment, protecting people from unreasonable searches and seizures by the government. [Record No. 27] It is "a definition that would negate the entire purpose of the Fourth Amendment." [Id. (citing Heller, 554 U.S. at 644, 128 S.Ct. 2783 (Stevens, J., dissenting)).]
The United States appears to also argue that limiting the Second Amendment right to "law-abiding, responsible citizens" is binding precedent—or at least persuasive—because "[t]his limitation was confirmed repeatedly by the Supreme Court in Bruen." [Record No. 25] But "[t]he issue of whether a non-law-abiding citizen qualifies for Second Amendment protection was not before the Court." United States v. Goins, No. 5:22-cr-00091, 647 F.Supp.3d 538, 545 (E.D. Ky. Dec. 21, 2022). "[T]he Court only stated that law-abiding citizens are part of the people protected by the Second Amendment," meaning it is sufficient but not "necessary to be law abiding to assert Second Amendment rights." Id. Thus, even assuming that Combs is not a law-abiding, responsible citizen, the Constitution presumptively protects his right to possess a firearm under the plain text of the Second Amendment.
In either event, the United States did not timely object to Magistrate Judge Stinnett's R&R. Although this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which timely objections are made, 28 U.S.C. § 636(b)(1)(C), "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Count one of Comb's indictment, therefore, must be dismissed unless "the government . . . demonstrate[s] that the regulation is consistent with this Nation's historical tradition of firearm regulation." Bruen, 142 S. Ct. at 2126.
ii. Historical Tradition
"If the district court concludes that [an individual's] proposed course of conduct is covered by the plain text of the Second Amendment, it should then determine whether historical evidence . . . demonstrates that the [regulation is] consistent with the nation's historical tradition of firearm regulation." Oakland Tactical Supply, LLC v. Howell Twp., No. 21-1244, 2022 WL 3137711, at *2 (6th Cir. Aug. 5, 2022) (citing Bruen, 142 S. Ct. at 2138); see also Goins, 647 F.Supp.3d at 548 ("To find that firearm activity is unprotected by the Second Amendment, a court must compare and contrast the modern law at issue to some historic analog."). Some "historical analogies . . . are relatively simple to draw, [but] other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach." Bruen, 142 S. Ct. at 2132. The United States Supreme Court did not "provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment," but "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." Id. at 2132-33.
The United States argues that surety statutes are sufficiently analogous to Section 922(g)(8). Bruen's second metric—why the regulation burdens an individual's right to armed self-defense—arguably supports the United States' argument. "In the mid-19th century, many jurisdictions began adopting surety statutes that required certain individuals to post bond before carrying weapons in public." Bruen, 142 S. Ct. at 2148. Massachusetts enacted the following surety law in 1836:
If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.Mass. Rev. Stat., ch. 134, § 16 (1836).
The Bruen Court explained that "the Commonwealth required any person who was reasonably likely to 'breach the peace,' and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm." 142 S. Ct. at 2148. It was "intended merely for prevention, without any crime actually committed by the party, but arising only from a probable suspicion, that some crime [was] intended or likely to happen." 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 249 (1769). Blackstone further stated of sureties in general that "[w]ives may demand it against their husbands; or husbands, if necessary, against their wives." Id. at 251.
The statute at issue in this case, 18 U.S.C. § 922(g)(8), prohibits a person who is subject to a domestic violence restraining order from possessing a firearm. A DVO is issued after a judge determines by a preponderance of the evidence that the individual is a "credible threat" or "real threat" to the safety of a child or partner. See United States v. Baker, 197 F.3d 211, 216 n.3 (6th Cir. 1999). Surety laws and section 922(g)(8) attempt to prevent known allegedly reckless individuals from using a firearm in furtherance of a crime. Cf. Bruen, 142 S. Ct. at 2149 (labeling those burdened by surety laws as "(allegedly) reckless" (quoting Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017))). Therefore, section 922(g)(8) and surety laws have an arguably similar social purpose for burdening an individual's right to bear arms under Bruen's second metric even though surety laws did not specifically address domestic violence. The United States heavily relies on the fact that "analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin." See Bruen, 142 S. Ct. at 2133.
The Court mentions that the statute does not prohibit an individual from obtaining other dangerous weapons but, other than in response to questions from the Court during oral arguments, the parties have not argued that the statute is underinclusive.
But Bruen's first metric—how the law burdens an individual's right to armed self-defense—is markedly different. Surety statutes required the individual to either show a need for self-defense or post a bond. "[T]he burden these surety statutes may have had on the right to public carry was likely . . . insignificant," and there is "little reason to think that the hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in the 19th century." Bruen, 142 S. Ct. at 2150.
"[S]ureties, in their most potent form, were only a 'possible disarmament' if the person violated the surety," United States v. Perez-Gallan, No. 22-CR-00427, 640 F.Supp.3d 697, 709 (W.D. Tex. Nov. 10, 2022), but Section 922(g)(8) is a complete deprivation of an individual's ability to possess a firearm for the length of the DVO. The burden imposed by section 922(g)(8) is materially different from posting a bond or showing a special need for self-defense, which favors a finding of unconstitutionality. See Bruen, 142 S. Ct. at 2131 ("[I]f earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.").
The United States also has not provided any evidence that surety laws were enforced. See id. at 2149 ("That is surely too slender a reed on which to hang a historical tradition of restricting the right to public carry.").
The United States also argues that section 922(g)(8) is sufficiently analogous to historical laws "disarming dangerous persons," because the Framers were concerned with " 'virtuous citizens' retain[ing] the right to bear arms," not "those who act counter to society's welfare." [Record No. 25 (quoting Folajtar v. Attorney General, 980 F.3d 897, 909 (3d Cir. 2020)).] This section of the United States' argument is generalized, proffering various quotes in an effort to "[reflect] the well-established common-law principle that dangerous people could be disarmed." [Id.] Magistrate Judge Stinnett does not appear to base his decision on historical laws other than surety statutes, and the United States failed to timely object to Magistrate Judge Stinnett's R&R. However, the United States did not satisfy its burden even if its argument had not been not waived.
Under Bruen's first metric (i.e., how the regulation burdens an individual's right to armed self-defense), the United States contends that 922(g)(8) "is similar to historical statutes requiring an oath of allegiance for those deemed a threat to the political order or temporarily disarming those who terrorized the community." [Record No. 25] It is unclear how an oath is similar to section 922(g)(8)'s complete deprivation for the length of a DVO because "[t]hose 'willing to swear undivided allegiance to the sovereign' were permitted to keep their arms." Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting) (citing Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 LAW & HIST. REV. 139, 157 (2007)). The United States does not elaborate, failing to satisfy its burden. See Stevens v. Michigan State Ct. Admin. Off., No. 21-1727, 2022 WL 3500193, at *6 (6th Cir. Aug. 18, 2022) ("The Supreme Court recently confirmed that, in this search for analogues, courts should not 'resolve historical questions in the abstract,' but rather may 'follow the principle of party presentation' and 'decide a case based on the historical record compiled by the parties.' " (citing Bruen, 142 S. Ct. at 2130 n.6)). The law also does not satisfy Bruen's second metric (i.e., why the regulation burdens an individual's right) because "confiscation of guns from those who refused to swear an oath of allegiance was meant to 'deal with the potential threat coming from armed citizens who remained loyal to' another sovereign." Kanter, 919 F.3d at 457 (Barrett, J., dissenting) (quoting Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 FORDHAM L. REV. 487, 506 (2004)).
B. The Independent Nature of Section 922(a)(6)
Count two of the indictment alleges that Combs falsely indicated on a firearm purchase application that he was not subjected to a DVO in violation of 18 U.S.C. § 922(a)(6). The government argues this intentional misrepresentation was material.
Section 922(a)(6) provides:
It shall be unlawful . . . . for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter[.]
Combs does not contend that section 922(a)(6) is unconstitutional. Instead, he asserts that he "was truthful as to the material questions on the form," and "[i]f the section of 922(g) is unconstitutional, then the question eliciting information about that status is necessarily irrelevant." (emphasis added) [Record No. 26] Conversely, the United States argues that section 922(a)(6) is valid regardless of section 922(g)(8)'s constitutionality. [Record No. 25]
The Sixth Circuit has previously "decided that if a felony conviction is not disclosed at the time the firearm is purchased, there would be a violation of 922(a)(6) even though later the conviction is found to be infirm for constitutional reasons." United States v. Fryer, 545 F.2d 11 (6th Cir. 1976) (citing Cassity v. United States, 521 F.2d 1320, 1322 (6th Cir. 1975)); see also United States v. Enyinnaya, No. 85-5089, 774 F.2d 1164, 1985 WL 13769, at *1 (6th Cir. Sept. 27, 1985) (indicating that "the constitutionality vel non of" a state law prohibiting the sale of handguns to aliens "had no bearing" on the defendant's violation of section 922(a)(6)). The same holds true when an individual is subject to a DVO. Cf. United States v. Thomas, 605 F.Supp.3d 1038, 1040 (N.D. Ohio 2022) ("The pertinent question is whether [the defendant] knowingly made a false statement as to whether he was subject to any court protection order, not whether he believed he was subject to a valid court protection order.").
Combs also incorrectly states that the firearm store "would have been forced to complete the sale if § 922(g)(8) is unconstitutional, which it is." [Record No. 26] But there is no compulsion to sell a firearm even if a prospective purchaser is not subjected to a DVO.
III.
In summary, the Court having conducted a de novo review of the issues raised by Combs' objections [Record No. 29] to Magistrate Judge Stinnett's Report and Recommendation [Record No. 27], and having considered the arguments of the parties, it is hereby
ORDERED as follows:
1. The Report and Recommendation of Magistrate Judge Matthew A. Stinnett [Record No. 27] is ADOPTED, in part, and REJECTED, in part, as explained more fully herein.
2. Defendant Combs' objections [Record No. 29] to the Magistrate Judge's Report and Recommendation are SUSTAINED, in part, and OVERRULED, in part, consistent with this Memorandum Opinion and Order.
3. Defendant Combs' motion to dismiss Count 1 of the Indictment [Record No. 23] is GRANTED. The defendant's motion to dismiss Count 2 of the Indictment [Record No. 23] is DENIED.
4. A pretrial conference will be set by separate order, during which the Court will reassign this matter for trial regarding Count 2 of the Indictment.
REPORT & RECOMMENDATION
MATTHEW A. STINNETT, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Sherman Kelvin Combs's ("Combs") motion to dismiss both counts of the pending Indictment against him pursuant to Rule 12 of the Federal Rules of Criminal Procedure. [DE 23]. The Indictment charges Combs with possession of a firearm knowing he was subject to a domestic violence order ("DVO") in violation of 18 U.S.C. § 922(g)(8) and making false statements to a licensed firearms dealer about his eligibility to purchase a firearm in violation of 18 U.S.C. § 922(a)(6). [DE 5]. Combs argues that § 922(g)(8) is unconstitutional considering the United States Supreme Court's recent decision in New York State Rifle & Pistol Ass'n. v. Bruen, — U.S. —, 142 S. Ct. 2111, 2122, 213 L.Ed.2d 387 (2022). [DE 23]. He also asserts that if § 922(g)(8) is unconstitutional, the Court must dismiss the § 922(g)(6) charge. [Id.].
Having fully considered the arguments raised by Combs [DE 23, 26] as well as those of the United States [DE 25], the undersigned recommends the Court find § 922(g)(8) constitutional and deny the motion.
I. BACKGROUND
According to the Indictment, Combs was subject to a DVO issued on June 15, 2022, by the Harrison County Family Court. [DE 5, Page ID# 10]. The DVO "was issued after a hearing of which [Combs] received actual notice, and at which he had an opportunity to participate, restraining him from harassing, stalking, or threatening an intimate partner, that by its terms explicitly prohibited the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury". [Id. at Page ID# 10]. On June 27, 2022, Combs was found in possession of a firearm that was transported in interstate commerce in violation of 18 U.S.C. § 922(g)(8). [DE 5, Page ID# 10]. Additionally, when he acquired the firearm on June 18, 2022, Combs did so by failing to disclose to the federal licensed firearms dealer that he was subject to a DVO, a separate violation of 18 U.S.C. § 922(a)(6). [DE 5, Page ID# 11].
II. ANALYSIS
A. LEGAL STANDARD
Parties may raise by pretrial motion "any defense, objection, or request that the court can determine without a trial on the merits." FED. R. CRIM. P. 12(b). At this stage, the Court's review of the Indictment is limited to legal questions. See United States v. Ali, 557 F.3d 715, 719 (6th Cir. 2009) ("A motion under Rule 12 is . . . appropriate when it raises questions of law rather than fact."). "An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006).
Combs does not dispute that the Indictment states an offense under § 922(g)(8), but instead challenges the statute as unconstitutional on its face. This issue can properly be decided as a matter of law before trial. B. NEW YORK STATE RIFLE & PISTOL ASS'N v . BRUEN
The Second Amendment 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 District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court affirmed that the Second Amendment guarantees the right of a person to possess a handgun in the home for self-defense.
Following Heller, the circuit courts consistently upheld the constitutionality of § 922(g) generally. See, e.g., United States v. Khami, 362 F. App'x 501, 507-08 (6th Cir. 2010) (collecting several circuit decisions upholding § 922(g)). In Khami, the Sixth Circuit followed dictum in Heller indicating that statutes such as § 922(g) were unaffected by the holding in Heller. Id. at 508, 128 S.Ct. 2783 ("Since Heller indicates that its holding does not bring into question the constitutionality of § 922(g)(1), and this Court has not been presented with any convincing argument that its dicta should not be very persuasive in this case, the district court did not err in denying Defendant's motion to dismiss Count IV."). Later, like many other circuits, the Sixth Circuit applied a two-step framework using a means-end analysis to determine the constitutionality of § 922(g)'s restrictions on Second Amendment rights. See, e.g., Stimmel v. Sessions, 879 F.3d 198, 204 (6th Cir. 2018) ("If the government offers 'historical evidence [that] is inconclusive or suggests that the regulated activity is not categorically unprotected,' however, then we must inquire 'into the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights.' Under this second prong, we determine and apply the appropriate level of heightened means-end scrutiny, given that the Supreme Court has rejected rational-basis review in this context.") (internal citations omitted).
More recently, in New York State Rifle & Pistol Assoc. v. Bruen, the Supreme Court affirmed that the Second Amendment protects "an individual's right to carry a handgun for self-defense outside the home." — U.S. —, 142 S. Ct. 2111, 2122, 213 L.Ed.2d 387 (2022). More importantly, Bruen altered how courts should examine the constitutionality of a statute that falls within the scope of activity governed by the Second Amendment. Namely, the Supreme Court rejected means-end scrutiny. Bruen, 142 S. Ct. at 2126-27. Rather, the Supreme Court adopted the following standard:
When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with this Nation's historical tradition of firearm regulation.Id. at 2129-30.
Considering this new standard set forth in Bruen, the Court now turns to Combs's challenges to the constitutionality of § 922(g)(8). C. CONSTITUTIONALITY OF § 922(G)(8)
1. The Second Amendment's Textual Application to § 922(g)(8)
Bruen's first step requires the Court to conduct a textual analysis to determine whether the challenged statute "infringe[s]" on "the right of the people to keep and bear Arms." U.S. CONST. amend. II. The Court concludes there is no plausible reading of the language of the Second Amendment that would not implicate 18 U.S.C. § 922(g)(8). Like many provisions of § 922, subsection (g)(8) prohibits individuals subject to a DVO from shipping, transporting, possessing, and receiving firearms and ammunition. By the simplest reading, § 922(g)(8) infringes upon a person's Second Amendment rights.
The United States disagrees, countering that the Second Amendment only applies to law-abiding citizens. As the United States frames it, a court has determined a person subject to a DVO is a serious threat to others, so that person is not a law-abiding citizen. Per Bruen, the Second Amendment "protect[s] the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense" and "an individual's right to carry a handgun for self-defense outside the home." Bruen, 142 S. Ct. at 2122. Even putting aside the issue of whether a person subject to a DVO is a law-abiding citizen, "[t]his argument ignores the Supreme Court's emphasis on an individual's conduct, rather than status, to decide if Second Amendment protection exists." United States v. Jackson, 622 F. Supp. 3d 1063, 1066, No. CR-22-59-D (W.D. Okla. Aug. 19, 2022). Although the Supreme Court in both Heller and Bruen referenced the long-standing precedent that the country has often had laws that restricted firearms from those who are not law-abiding citizens, the plain text of the Second Amendment is not limited only to law-abiding citizens. United States v. Perez-Gollan, 640 F. Supp. 3d 697, 707-08, No. PE22-cr-427-DC, (W.D. Tex. Nov. 10, 2022) (rejecting the same argument as to § 922(g)(8)). See also United States v. Goins, 647 F. Supp. 3d 538, 545-46, No. 5:22-cr-91-GFVT, (E.D. Ky. Dec. 21, 2022) (holding that the Second Amendment is not limited to "law-abiding citizens" as part of a post-Bruen analysis of § 922(g)(1)). As Justice Stevens points out in his dissent in Heller, to make such a limitation would mean that other rights for which the text is limited to those same persons would mean, for example, that the Fourth Amendment would only apply to law-abiding citizens, a definition that would negate the entire purpose of the Fourth Amendment. Heller, 554 U.S. at 644, 128 S.Ct. 2783 (Stevens, J., dissenting).
Here, the Court must treat 18 U.S.C. § 922(g)(8) as presumptively unconstitutional. Anything else creates a strained reading of both the Second Amendment and Bruen. See United States v. Riley, No. 1:22-cr-163, 2022 WL 7610264, at *9 n.9 (E.D. Va. Oct. 13, 2022) (collecting numerous cases addressing the constitutionality of various provisions of § 922, all of them uniformly holding that § 922 meets the first step of Bruen).
2. Historical Tradition of Firearm Regulation
The Court must next examine whether § 922(g)(8)'s regulation of the shipping, transporting, possessing, and receiving of firearms and ammunition by an individual subject to a DVO is consistent with the Nation's historical traditions of firearm regulation. Bruen, 142 S. Ct. at 2129-30. Bruen teaches that the "historical inquiry that courts must conduct will often involve reasoning by analogy" and "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.' " Bruen, 142 S. Ct. at 2132. Both the United States and Combs offer thorough evidence to support their respective positions.
For the United States, it highlights that there is a long-standing tradition of restricting or prohibiting certain persons from possessing firearms when they have demonstrated a proclivity of violence or danger towards the public or the government. [DE 25, Page ID# 69-76]. Citing opinions from the Third, Seventh, and Eighth Circuits, the United States emphasized that "[w]hat concerned the Framers was that 'virtuous citizens' retain the right to bear arms; they had no interest in extending the same guarantees to those who act counter to society's welfare." Folajtar v. Attorney General, 980 F.3d 897, 909 (3d Cir. 2020). See also Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) ("[F]oundingera legislatures categorically disarmed groups whom they judged to be a threat to the public safety.") (Barrett, J., dissenting); United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (holding that § 922(g)(8)'s prohibition is "consistent with a common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens. This is a category simultaneously broader and narrower than 'felons'—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness."). The United States relies upon the history of surety laws, something often discussed by the Supreme Court in Bruen. Namely, the United States puts forth the history compiled by Bruen and other courts pre-Bruen showing that surety laws date back to the Laws of England in which a party could seek a surety against another person perceived as a threat that would require, inter alia, that person to make "a money payment or pledge by others 'in support of his future good conduct.' " [DE 25, Page ID# 73-74 (quoting Young v. Hawaii, 992 F.3d 765, 791 n.12 (9th Cir. 2021) (en banc), vacated, — U.S. —, 142 S. Ct. 2895, 213 L.Ed.2d 1108 (2022))]. The United States then details how surety laws transferred to the new American colonies, from the 1759 New Hampshire Act through decisions discussing surety laws from the early 1800s. [DE 25, Page ID# 75]. Then, as noted in Bruen, "[i]n the mid-19th century, many jurisdictions [in the United States] began adopting surety statutes that required certain individuals to post bond before carrying weapons in public." Bruen, 142 S. Ct. at 2148. From this history, the United States analogizes that there has been a lengthy history and tradition in this country of private parties using civil remedies to restrict or remove firearms from those citizens who pose a verifiable threat to others in our society. [DE 25, Page ID# 75-76]. § 922(g)(8) is nothing more than an extension of the tradition of surety laws against. [DE 25, Page ID# 76]. Specifically, private citizens seek DVOs through a civil court against those they believe to be a threat to themselves or their children. [DE 25, Page ID# 76]. Although DVOs are limited to the subset of intimate partner violence, the United States contends the principle is still the same. [DE 25, Page ID# 76].
For Combs, he argues there is no history or tradition that supports removing firearms on the basis of intimate partner violence until the past fifty years. "[I]t was not until 1976 that restraining orders were adopted and took thirteen years before all fifty states and the District of Columbia used them. Barbara J. Hart, The Legal Road to Freedom, in Battering and Family Therapy: A Feminist Perspective 13, 18 (Marsali Hansen & Michele Harway eds., 1993))." [DE 23-1, Page ID# 54]. Prior to this, "[i]n the 17th and 18th centuries, these matters were of significantly low frequency and were typically left for the church, which employed public shaming as a deterrent. See Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-1980, 11 Fam. Violence 19, 27 (1989). Beginning in the 19th century, other modes of punishment were being used, but the most common was a fine. See Carolyn B. Ramsey, Domestic Violence and State Intervention in the American West and Australia, 1860-1930, 86 Ind. L.J. 185, 207 (2011)." [DE 23-1, Page ID# 55]. Accordingly, without some specific historical analogue to removal of firearms because of a DVO or intimate partner violence generally, Combs concludes § 922(g)(8) is unconstitutional under Bruen's framework.
The United States and Combs are both correct. There is a long-standing tradition of removing firearms from the possession of those individuals that society has deemed a danger. The Supreme Court in Bruen described this history in detail. Bruen, 142 S. Ct. at 2148-50 (discussing how surety laws dating back to antebellum America were enacted to require certain individuals to post a bond to carry a firearm). However, there is also little historical evidence specifically targeting the removal of firearms on the basis of the threat of intimate partner violence. As another recent district court explained:
Legal scholars have commented on the paucity of evidence that American traditions reached within the home to interfere with domestic relationships, particularly the marital relationship. Indeed, in the United States, the common law recognized until the mid-1800's a "right of chastisement" that allowed husbands to inflict corporal punishment on their wives.United States v. Jackson, 622 F. Supp. 3d 1063, 1067, No. cr-22-59 (W.D. Okla. Aug. 19, 2022) (internal citations omitted).
The real crux is how tight of an analogy to draw, as required by Bruen, between historical precedents and § 922(g)(8). As the United States advocates, the Court should utilize a broad lens to find removal of firearms from those society deems dangerous—a definition that has changed over time—as analogous. Combs, however, would advocate for a narrow lens demanding a historical analogue addressing domestic violence perpetrators specifically. This juxtaposition is best highlighted by the only two courts to address the constitutionality of § 922(g)(8) post-Bruen to date, with one utilizing the broad lens offered by the United States while the other took up the narrow lens offered by Combs.
The United States would point to United States v. Kays, 624 F. Supp. 3d 1262, No. CR-22-40-D (W.D. Okla. Aug. 29, 2022).
Although the historical record regarding domestic violence prohibitions is problematic, that does not prevent the government from carrying its burden here. Those subject to a domestic violence protective order should logically be denied weapons for the same reasons that domestic violence misdemeanants are. Like § 922(g)(9), § 922(g)(8)'s prohibition is consistent with the longstanding and historical prohibition on the possession of firearms by felons. See Heller, 554 U.S. at 626, 128 S. Ct. 2783. Therefore, the Court finds that the government's reliance on general historical tradition is sufficient to satisfy its burden to justify the firearm regulation of § 922(g)(8) and thus declines to hold that § 922(g)(8) violates the Second Amendment.Id. at 1267. Combs would counter with United States v. Perez-Gollan, 640 F. Supp. 3d 697, 707-09, No. PE22-cr-427-DC, (W.D. Tex. Nov. 10, 2022).
How strictly or flexibly a court reads Bruen impacts its conclusion. Bruen's mandate is that a gun regulation's constitutionality hinges solely on the historical inquiry. According to Bruen, that can be this Court's only consideration. . . . Thus, after sifting through the history above, this Court finds that the Government did not prove that § 922(g)(8) aligns with this Nation's historical tradition of firearm regulation and declines the Government's invitation to insert its own public policy concerns rather than following Bruen. As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen's framework.Id. at 716.
Considering the historical analysis as set forth by the parties and the conflicting decisions by other courts, this Court turns to its analysis. As noted above, Bruen requires the Court to conduct a "historical inquiry" and determine if there is a "relevantly similar" analogue in history that would justify the current infringement upon the Second Amendment. Bruen, 142 S. Ct. at 2132. The Supreme Court identified "two metrics" that would render regulations relevantly similar under the Second Amendment: "how and why the regulations burden a law-abiding citizen's right to armed self-defense." Id. at 2132-33. The historical inquiry will "often involve reasoning by analogy." Id. at 2132. This "analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin." Id. at 2133. "[E]ven if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster." Id.
a. The How
For the how, § 922(g)(8) requires that only a person subject to a DVO is prohibited from transporting, receiving, or generally possessing a firearm. The DVO must have been "issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate" and includes findings "that such person represents a credible threat to the physical safety of such intimate partner or child" or "by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]" 18 U.S.C. § 922(g)(8). Thus, unlike an emergency protective order that is entered by a court before notice and service to the party, a DVO permits the target of the DVO the right to contest its promulgation. Moreover, by its very nature, a DVO is temporary. See, e.g., KY. REV. STAT. § 403.740(4) ("A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each."). Finally, a DVO is a civil remedy, not criminal.
The mechanics, or the how, of a DVO most closely resemble the traditions of surety laws. "In short, [surety statutes] required any person who was reasonably likely to 'breach the peace,' and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm." Bruen, 142 S. Ct. at 2148. These statutes can be traced to the mid-19th century. See id. ("In the mid-19th century, many jurisdictions began adopting surety statutes"). Although these laws were not "bans on public carry," they did restrict it. Id. at 2149. For instance, in 1836, Massachusetts enacted a law which "required any person who was reasonably likely to breach the peace . . . to post a bond before publicly carrying a firearm." Id. at 2148 (internal citation omitted). From 1838 to 1871, "nine other jurisdictions adopted variants of the Massachusetts law." Id. To be sure, Bruen ultimately rejected surety laws as an analogue to New York's permitting requirements. In the Bruen Court's view, "the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of reasonable cause to fear an injury, or breach of the peace[.]" Id. By contrast, the New York law at issue "presumes that individuals have no public carry right without a showing of heightened need." Id. (internal quotation omitted). The surety laws restricted an individual's carrying of arms "only when 'attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them.' " Id. (quoting William Rawle, A View of the Constitution of the United States of America 126 (2d ed. 1829)).
Combs counters that the Bruen Court considered surety laws but "gave no weight to these statutes since there is little evidence to support their actual enforcement and it considered them to not impose 'substantial restrictions.' " [DE 26, Page ID# 94]. But this assertion ignores the differences between the statutes at issue in Bruen and in this case, and it misrepresents the Bruen Court's basis for rejecting surety laws as a proper historical analogue.
The Bruen Court mentioned that there was little evidence surety laws were enforced, but the Supreme Court's ultimate rejection of surety laws as a suitable historical analogue to the statutes at issue had little to do with enforcement evidence. Instead, the Court rejected surety laws because they did not impose a comparable burden on the right to public carry when compared to the New York statutory regime at issue, which imposed an outright ban on public carry unless an individual could demonstrate that "proper cause exists." Bruen, 142 S. Ct. at 2123. Importantly, the Court explained that, while the New York statutes presumed "that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of 'reasonable cause to fear an injury, or breach of the peace.' " Id. at 2148 (quoting MAS. REV. STAT., Ch. 134, § 16 (1836)). Put another way, unlike the New York statutory regime's absolute ban on public carry, the surety laws' burden on public carry was imposed "only after an individual was reasonably accused of intending to injure another or breach the peace." Id. at 2148-49.
By contrast, 922(g)(8)'s temporary prohibition on firearm possession during the time in which an individual is subject to a DVO is not an outright ban on protected conduct. Unlike the New York statute at issue in Bruen, § 922(g)(8) does not restrict rights of every citizen and does not even do so permanently. Rather, § 922(g)(8) targets only those individuals who, after a hearing, are determined to pose a direct and imminent threat against specific intimate partners and children. Likewise, surety laws permit infringement upon a person's Second Amendment rights after "a specific showing of reasonable cause to fear an injury, or breach of the peace." Bruen, 142 S. Ct. at 2148 (internal citation omitted). Moreover, a DVO is limited in time and narrow in its impact. See United States v. Kelly, No. 3:22-cr-37, 2022 WL 17336578, at *5-6 (M.D. Tenn. Nov. 16, 2022) (upholding the constitutional challenge against § 922(n) based, in part, upon the fact that the restrictions of § 922(n) only last from indictment to conviction or acquittal). Like the surety laws that requires those "reasonably accused" to "show a special need in order to avoid posting a bond" before carrying a firearm, a DVO only limits a person from carrying the firearm while the temporary order is in place and after a full hearing. Bruen, 142 S. Ct. at 2149. The burden imposed by § 922(g)(8) is therefore distinguishable from the one imposed by the New York statutes the Bruen Court found incomparable to surety laws.
Although not a "historical twin", the burden imposed by § 922(g)(8) through the operation of a DVO more than "remotely resembles" the burden imposed by surety laws. Thus, the Court finds the operation of surety laws to be comparable to that of § 922(g)(8).
b. The Why
For the why, the Court first frames the purpose of § 922(g) broadly, then turns to the specifics of § 922(g)(8). Section 922(g) creates a specified list of individuals that Congress has determined should not transport, receive, or generally possess a firearm. Those people include previous convicted felons ((g)(1)), fugitives from justice ((g)(2)), illegal aliens ((g)(5)), and those convicted of the misdemeanor crime of domestic violence ((g)(9)). As other courts have highlighted, such an effort is consistent with the history and traditions of this country. Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) ("[F]ounding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.") (Barrett, J., dissenting); Folajtar v. Attorney General, 980 F.3d 897, 909 (3d Cir. 2020) ("[D]angerousness was one reason to restrict firearms, but it hardly was the only one"); United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (holding that § 922(g)(8)'s prohibition is "consistent with a common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens. This is a category simultaneously broader and narrower than 'felons'—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness."). Section 922(g)(8)'s legislative history is fully consistent with this notion. See Tom Lininger, A Better Way to Disarm Batterers, 54 Hastings L.J. 525, 538-44 (2003) (concluding legislative history of § 922(g)(8) indicates passage was in response to Congress' concern about the great dangers posed by firearms in the hands of domestic abusers and "that, under present law, the possibility of disarming batterers depended too much on the discretion of individual judges and prosecutors; a uniformly enforced gun ban was necessary to protect battered women and children"). In fact, § 922(g)(8) explicitly includes the "why" in its text by requiring any DVO to include either "a finding that such person represents a credible threat to the physical safety of such intimate partner or child" or "explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury".
Surety laws had the same purpose as both § 922(g) generally and § 922(g)(8) more specifically. Again, "[i]n short, [surety statutes] required any person who was reasonably likely to 'breach the peace,' and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm." Bruen, 142 S. Ct. at 2148. Surety statutes required a "specific showing of 'reasonable cause to fear an injury, or breach of the peace.' " Id. (citing MASS. REV. STAT., ch. 134, § 16 (1836)). The why simply remains the same from surety laws in antebellum America through modern statutory creatures such as § 922(g).
Combs suggests any historical analogue must expressly include or address domestic violence like § 922(g)(8) to overcome the second part of Bruen. [See DE 26, Page ID# 91]. This assertion is not logically sound. To reframe Combs's argument, he is conceding that surety laws existed and would support broad civil remedies restricting Second Amendment rights of the public generally, but a law restricting firearms against a specific, targeted group (e.g., felons, fugitives, etc.) is unconstitutional unless the historical analogue was equally targeted. Such a reading of Bruen would not only render it untenable but would fly in the face of Bruen's efforts to limit the impacts on Second Amendment rights, not expand it. Construing Bruen in this way would only allow the legislative branch's ability to target a societal concern if it was specifically targeted at our founding. Bruen stated that "analogical reasoning under the Second Amendment is [not] a regulatory straightjacket . . . ." Bruen, 142 S. Ct. at 2133. Requiring a perfect, targeted match between a modern-day regulation and historical regulation would likely render Bruen's analogical historical reasoning exactly this "regulatory straightjacket." Surety laws attempted to address general threats to the safety of the public as determined by a court. Domestic violence is not a different threat but a more specific iteration of that threat. In this way, evidence showing surety laws applied to the general public is certainly relevant to determining whether § 922(g)(8) is consistent with the Second Amendment.
c. Perez-Gollan's Rejection of Surety Laws
Overall, Combs rejects surety laws as an analog, adopting the analysis set forth in United States v. Perez-Gollan. There, the Western District of Texas rejected surety laws as an analogue for three reasons. First, surety laws, at least those from England, did not include private "vices", such as "spousal disputes". Perez-Gollan, 2022 WL 16858516, at *9 (citing 4 W. Blackstone, Commentaries on the Laws of England 42 (1769)). Second, surety laws only permitted "possible disarmament" as opposed to § 922(g)(8)'s absolute prohibition. Id. Third, the surety statute permitted posting of a bond to keep a firearm while § 922(g)(8) has no such safeguards. Id.
This Court is unconvinced. First, even assuming that surety laws in England were limited to private vices and those limitations went forward in America's surety laws, the suggestion of private vices and spousal disputes is misleading. Perez-Gollan relies upon W. Blackstone's Commentaries on the Laws of England from 1769 to support the conclusion that surety laws did not apply to spousal disputes. But the example given by Blackstone of private vices is drunkenness "committed privately and alone." Id. at n.89. From this, Perez-Gollan leaps to the notion that domestic and intimate partner violence is something like the vice of drinking to excess in private and alone. Any survivor of domestic violence would find this idea to be a farce. By its very definition, intimate partner violence never occurs alone. Where excessive drinking in private is a legal, victimless act, domestic violence is an act that involves assault (or much worse criminal behavior when a firearm is involved) to a specific victim(s) that always spills into the public square, directly and/or indirectly. The pre-Bruen cases that apply the former means test demonstrate again and again the serious aim of "keep[ing] firearms out of the hands of people who have been judicially determined to pose a credible threat to the physical safety of a family member, or who have been ordered not to use, attempt to use, or threaten to use physical force against an intimate partner or child that would reasonably be expected to cause bodily injury." United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010). "Congress enacted § 922(g)(8) in light of evidence that domestic violence presents a pervasive problem in American society. See Antonia C. Novello et al., From the Surgeon General, U.S. Public Health Service: A Medical Response to Domestic Violence, 267 JAMA 3132 (1992) ('Domestic Violence may touch as many as one fourth of all American families.'), cited in H.R.Rep. No. 103-395, at 25 (1993). That firearms cause injury or death in domestic situations has been established by empirical studies that are catalogued in opinions such as Skoien, 614 F.3d at 643-44, and United States v. Reese, 627 F.3d 792, 802-03 (10th Cir. 2010). See also United States v. Hayes, 555 U.S. 415, 427, 129 S. Ct. 1079, 172 L.Ed.2d 816 (2009) ('Firearms and domestic strife are a potentially deadly combination nationwide.')." Bena, 664 F.3d at 1184. Domestic violence and its impact are far from private and far from just "spousal disputes". Surety laws, as designed, would have applied to violence perpetrated against anyone in the community, including one's own intimate partner.
Second, § 922(g)(8)'s prohibition of firearm possession is temporary in nature; it applies only so long as an individual is "subject to" a DVO. While surety laws did not prohibit firearm possession outright, instead requiring only that an accused arms-bearer post a bond before publicly carrying a firearm, the burden is not so dissimilar to that of § 922(g)(8). DVOs are almost always limited in time. See Jane K. Stoever, Enjoining Abuse; The Case for Indefinite Domestic Violence Protection Orders, 67 VAND. L. REV. 1015, 1046 (2014) (conducting fifty-state survey of state protection order statutes and concluding that such orders are effective for only a limited interval in most states). See also, e.g., KY. REV. STAT. § 403.740(4) ("A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each."). And DVOs are subject to judicial modification or termination; they can typically be vacated or modified for good cause. See Stoeyer, supra, at 1079. See also, e.g., KY. REV. STAT. § 403.745(5) (allowing either party to amend a protection order).
Such a temporary prohibition operates only for a finite period, and only for the purpose of preventing harm to intimate partners or children in acute moments of turmoil. "Although the record includes no historical deep-dive establishing that such a distinction should necessarily have constitutional significance, it seems likely that history would support the general assumption that temporary, situational restrictions are, though not necessarily permissible, at least less constitutionally suspect than permanent, unyielding ones." United States v. Kelly, No. 3:22-cr-37, 2022 WL 17336578, at *5 (M.D. Tenn. Nov. 16, 2022) (upholding the constitutional challenge against § 922(n) based, in part, upon the fact that the restrictions of § 922(n) only last from indictment to conviction or acquittal). And, in assessing the constitutionality of § 922(n), at least one other court has concluded that the temporary nature of that provision's firearm prohibition renders it similar enough to the burden imposed by surety laws such that it passes constitutional muster under Bruen. See Kays, 624 F. Supp. 3d 1262, 1267-68, No. CR-22-40-D (W.D. Okl. Aug. 29, 2022) (upholding the constitutional challenge against § 922(n) because, like a surety, "it simply limits an individual's right to receive a firearm during the pendency of an indictment"); but see United States v. Quiroz, PE:22-CR-00104-DC, 2022 WL 4352482, at *7-8 (W.D. Tex. Sept. 19, 2022) (finding surety laws to be an insufficient historical analogue to § 922(n) under Bruen); United States v. Holden, NO. 3:22-CR-30 RLM-MGG, 2022 WL 17103509, at *2-5 (N.D. Ind. 2022) (same); United States v. Stambaugh, No. CR-22-00218-PRW-2, 2022 WL 16936043, at *3-6 (E.D. Okla. Nov. 14, 2022) (same). Again, while not a dead ringer, § 922(g)(8)'s burden more than "remotely resembles" the burden imposed by surety laws. Bruen, 142 S. Ct. at 2133.
Third, § 922(g)(8) expressly incorporates safeguards for those who are under a DVO. As already stated, § 922(g)(8) requires that the DVO "was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate[.]" Like the surety law that requires those "reasonably accused" to "show a special need in order to avoid posting a bond" before carrying, a DVO only limits a person from possessing the firearm after a full hearing. Bruen, 142 S.Ct. at 2149. Moreover, even after a DVO is issued, nothing prohibits the person from seeking removal of the DVO. See Stoever, supra, at 1079 (explaining that protection orders, like other permanent injunctions, are subject to judicial modification or termination). § 922(g)(8) is targeted only after a court finds that a person poses a direct an imminent threat against intimate partners and children. Likewise, surety laws permit infringement upon a person's Second Amendment rights after "a specific showing of reasonable cause to fear an injury, or breach of the peace." Bruen, 142 S. Ct. at 2148 (internal citation omitted).
In conclusion, as the court in Perez-Gollan noted, "[h]ow strictly or flexibly a court reads Bruen impacts its conclusion." 2022 WL 16858516, at *15. And yet, the same court that advocated for a narrow lens in Perez-Gollan concluded only a month earlier that courts should use a broad lens when applying Bruen to § 922(g)(1). "[I]f the historical analysis must be so tightly constrained to historical analogies involving categorial restrictions of only felons and firearms, like Defendant argues here, there are likely very few (if any) modern firearm regulations that would survive." United States v. Charles, No. 22-cr-154-DC, 2022 WL 4913900, at *8 (W.D. Tex. Oct. 3, 2022). As stated earlier, the crux of the dispute is how broad or narrow of a historical lens does a court utilize in applying Bruen. In the wake of Bruen and until the appellate courts have a chance to clarify Bruen's new framework, it falls on district courts to try to find some principled way to apply Bruen's framework to the thousands of prosecutions that it may call into question. Under the circumstances currently presented, where the effect of the Supreme Court's decision in Bruen on longstanding criminal prohibitions such as § 922(g) remains unclear, this Court declines to hold that § 922(g)(8) violates the Second Amendment. The Court finds the United States has met its burden of showing that § 922(g)(8) is consistent with this Nation's historical tradition of firearm regulation.
The Department of Justice filed firearms-related charges in upwards of 13,000 criminal cases during the 2021 fiscal year. Executive Office for United States Attorneys, U.S. Dept. of Justice, Annual Statistical Report Fiscal Year 2021 at 15 (Table 3C), available at https://www.justice.gov/usao/page/file/1476856/download (last visited Jan. 20, 2023).
Accordingly, the undersigned recommends the District Judge deny Combs's motion to dismiss with respect to the § 922(g)(8) charge. D. COMBS'S § 922(A)(6) CHARGE
Finally, having recommended that the District Judge find § 922(g)(8) constitutional, the undersigned also recommends denying Combs's motion to dismiss the § 922(a)(6) charge. Given that § 922(g)(8) constitutionally prohibited Combs from possessing or receiving a firearm by operation of the pending DVO, the Indictment's allegation that Combs represented he was not subject to a DVO is sufficient to survive a motion to dismiss under Rule 12. Combs does not challenge the constitutionality of § 922(a)(6), and, thus, the Court will not entertain such an analysis.
III. CONCLUSION
For the reasons thoroughly discussed above, the Court RECOMMENDS that the District Judge DENY Combs's Motion to Dismiss [DE 23]. The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights concerning this recommendation, issued under subsection (B) of the statute. Upon agreement of the parties [DE 25, Page ID# 84; DE 26, Page ID# 98], within five days after being served with a copy of this recommended decision, any party may serve and file written objections to any or all portions for consideration, de novo, by the District Court.