Opinion
Case No. 3:18-cr-00136-SLG
2022-10-04
UNITED STATES of America, Plaintiff, v. Michael Angelo DELPRIORE, Jr., Defendant.
A. James Klugman, Seth W. R. Brickey-Smith, Charisse Marie Arce, Assistant U.S. Attorneys, Kelly A. Cavanaugh, U.S. Attorney's Office, Anchorage, AK, for Plaintiff. A. Cristina Weidner Tafs, Susitna Law, LLC, Anchorage, AK, for Defendant.
A. James Klugman, Seth W. R. Brickey-Smith, Charisse Marie Arce, Assistant U.S. Attorneys, Kelly A. Cavanaugh, U.S. Attorney's Office, Anchorage, AK, for Plaintiff. A. Cristina Weidner Tafs, Susitna Law, LLC, Anchorage, AK, for Defendant. ORDER REGARDING MOTION TO DISMISS COUNT 4 Sharon L. Gleason, UNITED STATES DISTRICT JUDGE
Before the Court at Docket 278 is defendant Michael Angelo Delpriore, Jr.'s Motion to Dismiss 18 U.S.C. § 922(f)(1) Count under the Second Amendment. The government responded in opposition at Docket 285. The Court issued a Preliminary Order denying the motion. Since the Preliminary Order issued, this case was tried to a jury, which convicted Mr. Delpriore of each count. The Court now issues this supplemental order explaining the basis for its determination of the motion.
Docket 287.
Mr. Delpriore seeks an order dismissing Count 4, which charges him with being a Felon in Possession of a Firearm, in light of the Supreme Court's recent decision in New York State Rifle & Pistol Association v. Bruen. In Bruen, the Supreme Court held that
— U.S. —, 142 S. Ct. 2111, 2126, 213 L.Ed.2d 387 (2022).
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.Mr. Delpriore, who is a felon, makes a facial challenge to 18 U.S.C. §§ 922(g)(1) and 924(a)(2), asserting that the statute burdens his Second Amendment right to keep and bear arms. According to Mr. Delpriore, the Second Amendment's " 'plain text' does not differentiate between convicted felons and other members of 'the people,' and a total prohibition on firearm possession by felons therefore presumptively violates the Second Amendment." Mr. Delpriore asserts that "[t]here was no 'historical tradition,' as of 1791, of barring felons from possessing firearms, and more recent legislative enactments cannot supplant the understanding of the right to keep and bear arms that prevailed when the Second Amendment was enacted."
142 S.Ct. 2111, 2126 (2022).
Docket 278 at 2.
Docket 278 at 14.
Docket 278 at 14.
The government responds that Ninth Circuit precedent, which holds that felon-in-possession statutes do not violate the Second Amendment, "has not been overruled by an en banc court or the Supreme Court." The government asserts that "the historical record supports the conclusion that felons are not entitled to Second Amendment protection." I. Second Amendment jurisprudence prior to Bruen
Docket 285 at 5.
Docket 285 at 7.
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." Like other constitutionally protected rights, the right to bear arms is "subject to certain reasonable, well-defined restrictions." In. other words, "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Limitations on the Second Amendment were recognized prior to Bruen; as relevant here, the Supreme Court and the Ninth Circuit have consistently acknowledged that the Second Amendment's protections do not extend to the possession of firearms by felons.
U.S. Const. Amend. II.
Bruen, 142 S. Ct. at 2156 (citing District of Columbia v. Heller, 554 U.S. 570, 581, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)).
District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
In District of Columbia v. Heller, the Supreme Court extensively reviewed the pre- and post-Second Amendment history of firearms rights in the United States. The Supreme Court held that Washington, D.C.'s ban on handgun possession within the home violated the Second Amendment. In so holding, the Supreme Court emphasized that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." The Supreme Court stated that the prohibition on the possession of firearms by felons was "presumptively lawful." Two years later, in McDonald v. City of Chicago, the Supreme Court explained that "[w]e 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 . . . ."
Id. at 635, 128 S.Ct. 2783.
Id. at 626, 128 S.Ct. 2783.
Id. at 626, n.26, 128 S.Ct. 2783.
McDonald v. City of Chicago, 561 U.S. at 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783).
The Ninth Circuit has relied on Heller and McDonald to uphold the constitutionality of Sections 922(g)(1) and 924(a)(2). In United States v. Vongxay, the Circuit held that "§ 922(g)(1) does not violate the Second Amendment as it applies to Vongxay, a convicted felon." The Circuit recognized that "the historical question has not been definitively resolved," but noted that "most scholars of the Second Amendment agree that the right to bear arms was 'inextricably . . . tied to' the concept of a 'virtuous citizen[ry]' that would protect society through 'defensive use of arms against criminals, oppressive officials, and foreign enemies alike,' and that 'the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals).' " In Van Der Hule v. Holder, the Circuit held that "§ 922(g)(1) continues to pass constitutional muster." In United States v. Phillips, the Ninth Circuit stated that, "under Supreme Court precedent and our own," the court "must" "assum[e] the propriety of felon firearm bans."
594 F.3d 1111, 1118 (9th Cir. 2010).
Id. at 1118 (quoting Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986)) (citations omitted); see also id. at 1117 (stating that "[f]elons are often, and historically have been, explicitly prohibited from militia duty") (citation omitted).
759 F.3d 1043, 1051 (9th Cir. 2014).
827 F.3d 1171, 1175 (9th Cir. 2016).
Prior to Bruen, other circuits also recognized that federal statutes criminalizing felons possessing firearms do not violate the Second Amendment. After Heller, the Courts of Appeals have unanimously upheld the constitutionality of § 922(g)(1) against facial attacks. II. The Bruen framework
See, e.g., United States v. Bogle, 717 F.3d 281, 282 n.1 (2d Cir. 2013) (collecting cases).
After Heller, many circuits used a two-step test when considering whether a statute or regulation comported with the Second Amendment. In Bruen, however, the Supreme Court held that the two-step test was "one step too many" and instead announced a single-step analysis:
See Bruen, 142 S. Ct. at 2126-27 for a discussion of the two-step analysis.
Id. at 2127.
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.Despite this change in the Second Amendment analytical framework, nothing in Bruen indicates that the Supreme Court has repudiated its earlier pronouncements that the Second Amendment's protections do not extend to felons. The Bruen Court explained that Heller does not support the two-step means-ends scrutiny applied by the circuit courts, but it did not alter Heller's statement that the prohibition of firearms by felons is "longstanding" and "presumptively lawful." Indeed, the Bruen majority noted that the holding is "in keeping with Heller." Justice Kavanaugh, joined by Chief Justice Roberts, stated that Bruen does not disturb what the Court said in Heller about the restrictions imposed on possessing firearms, namely the "longstanding prohibitions on the possession of firearms by felons." Justice Alito stated in his concurrence: "Nor have we disturbed anything that we said in Heller or McDonald." Justice 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.
Id. at 2126.
Id. at 2127.
See United States v. Ingram, 623 F.Supp.3d 660, 662-64 (D.S.C. 2022) ("The Court agrees with the government that Bruen clarified and 'reiterated,' rather than modified, the constitutional ruling in Heller.").
561 U.S. at —, 142 S.Ct. at 2126.
Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring).
Id. at 2157 (Alito, J., concurring).
Id. at 2189 (Breyer, J., dissenting).
No Circuit Court of Appeals has yet had the opportunity to assess the constitutionality of §§ 922(g)(1) and 924(a)(2) since Bruen was issued. However, two other district courts within the Ninth Circuit have considered the constitutionality of the felon in possession statutes in light of Bruen, and each has concluded that it was bound by Ninth Circuit precedent that upheld the relevant statute as constitutional. In United States v. Hill, the Southern District of California concluded that "the reasoning of Vongxay and Heller—on which Vongxay relies—are not 'clearly irreconcilable with the reasoning or theory' of Bruen. Accordingly, Bruen did not 'effectively overrule' Vongxay and this Court is bound by Vongxay and its progeny." In United States v. Siddoway, the District of Idaho concluded that "[t]he Ninth Circuit's reasoning in Vongxay is consistent with that critical second prong. The court determined that 'our examination of historical gun restrictions lends credence to the post-Heller viability of the previous determination that 18 U.S.C. § 922(g)(1) does not violate the Second Amendment.' " The District of Idaho concluded that it was thus bound by Vongxay. This Court has not identified any district court that has found the federal felon in possession statutes to be unconstitutional when applying the analytical framework set forth in Bruen.
Case No. 21cr107WQH, 2022 WL 4361917, at *3 (S.D. Cal. Sept. 20, 2022). The District Court was also "persuaded by the historical analysis performed by the Court of Appeals for the D.C. Circuit in Medina v. Whitaker, 913 F.3d 152, 158-60 (D.C. Cir. 2019), which 'look[ed] to tradition and history' and concluded that 'the historical evidence and the Supreme Court's discussion of felon disarmament laws leads us to reject the argument that non-dangerous felons have a right to bear arms.' " Id.
Case No. 1:21-cr-00205-BLW, 2022 WL 4482739, at *2 (D. Idaho Sept. 27, 2022) (quoting Vongxay, 594 F.3d at 1116).
Id.
CONCLUSION
The Court finds that the Supreme Court's previous emphasis on the validity of prohibitions on the possession of firearms by felons continues after Bruen. Because 18 U.S.C. §§ 922(g)(1) and 924(a)(2) criminalize the possession of firearms by felons, this Court determines that the statutes would be upheld by the Supreme Court using the interpretation method pronounced in Bruen. For that reason, the Court denied the motion at Docket 278.