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concluding that Bena remains good law because it "essentially foreshadowed Bruen by focusing on text and history and declining to engage in means-end scrutiny"
Summary of this case from United States v. LeOpinion
No. 4:22-cr-00177-SHL-HCA
2023-02-15
UNITED STATES of America, Plaintiff, v. Tyler Christian HAMMOND, Defendant.
MacKenzie Benson Tubbs, United States Attorney's Office, Des Moines, IA, for Plaintiff. Joseph D. Herrold, Melanie S. Keiper, Nova Danielle Janssen, Public Defenders, Federal Public Defenders Office, Des Moines, IA, for Defendant.
MacKenzie Benson Tubbs, United States Attorney's Office, Des Moines, IA, for Plaintiff. Joseph D. Herrold, Melanie S. Keiper, Nova Danielle Janssen, Public Defenders, Federal Public Defenders Office, Des Moines, IA, for Defendant.
ORDER DENYING MOTION TO DISMISS COUNT 1 AND RELATED NOTICE OF FORFEITURE
STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE
In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court held that firearms restrictions are constitutional only if they are "consistent with this Nation's historical tradition of firearm regulation." — U.S. —, 142 S. Ct. 2111, 2126, 213 L.Ed.2d 387 (2022). Defendant Tyler Christian Hammond argues that 18 U.S.C. § 922(g)(9), which criminalizes the possession of firearms by persons convicted of a misdemeanor crime of domestic violence, does not pass muster under Bruen. The Court disagrees and therefore DENIES Hammond's Motion to Dismiss Count 1 and Related Notice of Forfeiture.
I. Background.
On November 15, 2022, a grand jury in the Southern District of Iowa returned a two-count Indictment charging Hammond with: Count 1: Domestic Violence Misdemeanant in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(9); and Count 2: Unlawful Possession of an Unregistered Destructive Device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. (ECF 17.) As it pertains to Count 1, Hammond's disqualifying conviction is a misdemeanor conviction in the Iowa District Court for Story County in July 2014 for domestic abuse assault causing bodily injury, in violation of Iowa Code §§ 708.2A(1) and 708.2A(2)(b). (ECF 33-2, p. 2.) Hammond moves to dismiss Count 1, arguing there is no "historical tradition" of prohibiting people with misdemeanor domestic violence convictions from possessing firearms. (ECF 28.) He therefore argues that 18 U.S.C. § 922(g)(9) violates his Second Amendment rights both facially and as applied.
II. Legal Analysis.
A. Bruen's Legal Framework for Analyzing the Constitutionality of Firearm Laws and Regulations.
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects the right of "law-abiding, responsible citizens" to possess firearms for self-defense. 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In the years that followed, most federal courts of appeal began adopting and applying some form or another of means-end scrutiny to determine whether particular firearm laws were constitutional. See, e.g., United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). This generally entailed a two-step approach in which the courts would, first, determine whether the regulated conduct fell within the scope of the Second Amendment right from a historical perspective, and, if so, second, whether the challenged regulation satisfied some level of constitutional scrutiny (either intermediate or strict, depending on the circumstances). See, e.g., Focia, 869 F.3d at 1285.
Bruen held that this two-step approach "is one step too many." 142 S. Ct. at 2127. "Step one . . . is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history." Id. "But Heller and McDonald [v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)] do not support applying means-end scrutiny in the Second Amendment context. Instead, 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.
The Eighth Circuit appears not to have adopted the sort of means-end scrutiny the Supreme Court held to be improper in Bruen. Instead, when the Eighth Circuit considered constitutional challenges to firearms restrictions post-Heller, it sometimes started with the standard set forth in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), for evaluating a statute's facial constitutionality. See United States v. Bena, 664 F.3d 1180, 1182 (8th Cir. 2011). Under this standard, the defendant "must establish that no set of circumstances exists under which [the statute] would be valid." Id. (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). If the defendant cannot satisfy this standard, the facial challenge fails and the analysis turns to a two-prong approach for evaluating the as-applied challenge (if one was made): "[the defendant] must establish (1) that the Second Amendment protects his particular conduct, and (2) that his prior [ ] conviction is insufficient to justify the challenged regulation of Second Amendment rights." United States v. Adams, 914 F.3d 602, 605 (8th Cir. 2019).
In at least one respect, Bruen may have abrogated Eighth Circuit precedent. United States v. Adams placed the burden on the defendant to prove the Second Amendment protected his conduct, whereas Bruen places the burden of proof on the Government to show historical evidence supporting the regulation in question. 142 S. Ct. at 2127. Beyond the placement of the burden of proof, however, it is not clear whether or to what extent Bruen abrogated cases like Adams and United States v. Bena. For example, although Bruen eschewed "two-step" tests insofar as the second step engages in means-end scrutiny of a firearm regulation, there are nonetheless still two parts to the Bruen analysis: first, courts must determine whether "the Second Amendment's plain text covers an individual's conduct," and, if so, second, the Government must provide historical evidence to show the regulation is sufficiently analogous to Founding-era restrictions. Bruen, 142 S. Ct. at 2129-30. Apart from who bears the burden of proof, this is not necessarily different than the two-part test in Adams, 914 F.3d at 605 (although it might be), nor does it necessarily mean the no-set-of-circumstances standard set forth in Salerno, 481 U.S. at 745, 107 S.Ct. 2095, for facial constitutional challenges never applies to firearms regulations. The Court will address these issues, among others, in the next sections.
B. Pre-Bruen Precedent from the Eighth Circuit Remains Good Law in Relevant Respects, and Thus Hammond's Facial Challenge to § 922(g)(9) Fails.
1. Bruen Did Not Undermine or Repudiate the Core Holding of Bena.
In Bena, the Eighth Circuit evaluated a constitutional challenge to 18 U.S.C. § 922(g)(8), which criminalizes the possession of firearms by persons subject to a domestic violence restraining order. 664 F.3d at 1183-84. Bena carefully analyzed the "pre-existing right to bear arms" as it would have been understood in the Founding era and concluded there was "a common-law tradition that permits restrictions directed at citizens who are not law-abiding and responsible." Id. at 1183; see also United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) ("That some categorical limits [on firearm possession] are proper is part of the original meaning [of the Second Amendment], leaving to the people's elected representatives the filling in of details."). Bena therefore upheld § 922(g)(8) against a facial constitutional challenge. 664 F.3d at 1184. In the process, importantly, Bena did not engage in the means-end scrutiny that the Supreme Court later held in Bruen to be improper.
If it remains good law, Bena clearly requires denial of Hammond's facial constitutional challenge. The only difference between the two cases is that Bena dealt with a challenge to § 922(g)(8), whereas Hammond is charged with violating § 922(g)(9). This difference is not material. If Congress can lawfully prohibit persons who are subject to a domestic violence restraining order from possessing firearms, surely it can do the same for persons who have been convicted of a crime of domestic violence. See Skoien, 614 F.3d at 645 (denying facial and as applied challenges to § 922(g)(9)). If anything, the constitutionality of § 922(g)(9) is easier to defend given the additional due process protections that exist in criminal proceedings vis-à-vis the civil proceedings that give rise to protective orders.
The question turns, then, to whether Bena was "repudiated or undermined by later authority, such as a statute, an intervening Supreme Court decision, or en banc decision." Dean v. Searcey, 893 F.3d 504, 511 (8th Cir. 2018) (quoting Bryan A. Garner et al., The Law of Judicial Precedent 38 (West 2016)). In all material ways, the Court concludes Bena was not undermined or repudiated by Bruen. In fact, in the main, Bena essentially foreshadowed Bruen by focusing on text and history and declining to engage in means-end scrutiny. The Court therefore concludes Bena remains good law and must be followed. Accordingly, Hammond's facial constitutional challenge fails. See also United States v. Bernard, No. 22-CR-03 CJW-MAR, 2022 WL 17416681, at *8 (N.D. Iowa Dec. 5, 2022) (upholding constitutionality of § 922(g)(9)); United States v. Nutter, 624 F.Supp.3d 636, 644-45 (S.D. W. Va. Aug. 29, 2022) (same); United States v. Jackson, 622 F.Supp.3d 1063, 1066-68 (W.D. Okla. Aug. 19, 2022) (same).
Although Bena's text- and history-based approach is reason enough to conclude it remains good law, the Court also notes that Bena's outcome is consistent with the apparent views of Justice Barrett as reflected in a dissenting opinion from shortly before her elevation to the Supreme Court. In Kanter v. Barr, then-Judge Barrett dissented from an as-applied challenge to § 922(g)(1), which criminalizes the possession of firearms by convicted felons. 919 F.3d 437, 451 (7th Cir. 2019), abrogated by Bruen, 142 S. Ct. 2111 (2022) (Barrett, J., dissenting). Her dissent concluded § 922(g)(1) is overbroad because "its application is not limited to those who have committed violent crimes." Id. at 466 (Barrett, J., dissenting). In the process, she made a distinction of crucial importance here: "History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous." Id. at 464 (Barrett, J., dissenting). Then-Judge Barrett went on to identify those who are "convicted of crimes of domestic violence" as an example of a group "a state can disarm" without crossing the constitutional line. Id. at 453 (Barrett, J., dissenting). Short of concluding that now-Justice Barrett had a change of heart in the three years between Kanter and Bruen, it is difficult to believe she signed onto a majority opinion in the latter that undermined her conclusion in the former. This, in turn, reinforces Bena's ongoing vitality in the aftermath of Bruen.
There are, to be sure, certain aspects of Bena that Bruen did not clearly address, up or down. For example, Bena started from the principle that a facial constitutional challenge will succeed only if the defendant can "establish that no set of circumstances exists under which [§ 922(g)(8)] would be valid." 664 F.3d at 1182 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). Bruen never mentioned Salerno, and thus it is unclear whether the Salerno approach remains appropriate for facial challenges to firearms regulations. For that matter, Bruen never even described itself as dealing with a "facial challenge," although it effectively struck down the New York law on its face insofar as permit applicants were required to prove "special need" for self-defense before being allowed to carry handguns outside the home. 142 S. Ct. at 2156. But for the "special need" requirement, the New York law apparently would have passed constitutional muster. See id. at 2161 (Kavanaugh, J., concurring) ("[T]he Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court's decision does not affect the existing licensing regimes—known as 'shall-issue' regimes—that are employed in 43 states.").
The Court does not interpret Bruen as repudiating or undermining Salerno, particularly given the important structural difference between the firearms restrictions set forth in § 922(g) and the regulation at issue in Bruen. The latter (like the regulations in Heller and McDonald before it) prohibited everyone from exercising their Second Amendment rights except, at most, in relatively narrow circumstances if a citizen could show special need. In other words, the regulation started from the premise that no one could possess firearms for self-defense before making exceptions. The fact that Bruen struck it down as unconstitutional therefore presumably just means there is "no set of circumstances" in which a blanket ban on firearm possession that has no Founding-era analogue would be valid.
Section 922(g) works in the opposite direction. It starts from the premise that everyone has the right to possess firearms, but then takes that right away from certain categories of people, including, inter alia, convicted felons, fugitives from justice, and persons convicted of crimes of domestic violence; i.e., those who arguably might be considered dangerous or non-law-abiding. The Salerno standard arguably has a greater role to play in this arena because these targeted bans might be unconstitutional in some circumstances but not others. Indeed, this appears to be how Justice Barrett views the law. See Kanter, 919 F.3d at 451 (Barrett, J., dissenting) (concluding the as-applied challenge to § 922(g)(1) should have been sustained given the non-violent nature of the predicate offense but recognizing that "legislatures have the power to prohibit dangerous people from possessing guns"). The Court therefore does not believe Bruen undermined Bena's application of the Salerno standard. Instead, again, Bena remains good law and is outcome-determinative on Hammond's facial challenge to § 922(g)(9).
2. The Court Need Not Decide Whether the Words "the People" in the Second Amendment Refer to All Citizens or Just Law-Abiding Citizens.
Having concluded that Bena remains good law, the Court need not resolve the parties' dispute about whether the words "the people" in the Second Amendment refer to all citizens, or just those who are "law-abiding." Nonetheless, the Court will discuss the issue because it is likely to matter in future Second Amendment challenges.
The question of who is included in the words "the people" in the Second Amendment arises because Heller repeatedly used the phrase "law-abiding citizens" when describing the Second Amendment's scope. Heller's repeated use of this phrase, when viewed in conjunction with its admonition that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . ," 554 U.S. at 626, 128 S.Ct. 2783, led some judges to conclude that non-law-abiding citizens have no Second Amendment rights. See, e.g., Binderup v. Att'y Gen., 836 F.3d 336, 367 (3d Cir. 2016) (Hardiman, J., concurring) ("The most germane evidence available directly supports the conclusion that the founding generation did not understand the right to keep and bear arms to extend to certain categories of people deemed too dangerous to possess firearms."). In her dissenting opinion in Kanter, then-Judge Barrett summarized the debate before concluding the "better" approach was to conclude that all citizens, regardless of criminal history or mental illness, are part of "the people" as that phrase is used in the Second Amendment. 919 F.3d at 451-53 (Barrett, J., dissenting).
Bruen reinvigorated the issue by again using the words "law-abiding citizens" repeatedly when discussing the scope of the Second Amendment's protections. 142 S. Ct. at 2122, 2125, 2131, 2133, 2134, 2135 n.8, 2138, 2138 n.9, 2150, 2156. Between the majority and concurring opinions, the phrase "law-abiding" appears twenty-one times in Bruen to describe the Second Amendment's scope (plus two more in the dissent). This includes the following sentence: "It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of 'the people' whom the Second Amendment protects." 142 S. Ct. at 2134.
Seizing on the repeated use of the phrase "law-abiding," the Government argues that Hammond, having been convicted of a crime of domestic violence, is not part of "the people" protected by the Second Amendment, and thus that § 922(g)(9) is constitutional regardless of whether there is a sufficiently analogous historical regulation. In other words, the Government argues the "Second Amendment's plain text" does not cover Hammond's conduct in possessing a firearm. A panel of the Third Circuit adopted this position in the context of convicted felons post-Bruen, although the decision has now been vacated pending en banc review. See Range v. Att'y Gen., 53 F.4th 262, 284 (3d Cir. 2022), reh'g en banc granted, opinion vacated sub nom. Range v. Att'y Gen., 56 F.4th 992 (3d Cir. 2023) ("We believe the Supreme Court's repeated characterization of Second Amendment rights as belonging to 'law-abiding' citizens supports our conclusion that individuals convicted of felony-equivalent crimes, like Range, fall outside 'the people' entitled to keep and bear arms."). At least one district court reached the same conclusion post-Bruen. See United States v. Coleman, No. 3:22-CR-8-2, 2023 WL 122401, at *2 (N.D. W. Va. Jan. 6, 2023) ("The bottom line is the Defendant's status as a felon removes him from 'the people' enumerated in the Second Amendment.")
By contrast, in a very recent case striking down 18 U.S.C. § 922(g)(8), the Fifth Circuit concluded the Supreme Court's repeated use of the words "law-abiding" in Heller and Bruen "does not add an implied gloss that constricts the Second Amendment's reach." United States v. Rahimi, 2023 WL 1459240, at *4 (5th Cir. Feb. 2, 2023). Instead, according to Rahimi, the Supreme Court was simply using the words "law-abiding" as "shorthand" to emphasize that lower courts should not interpret Heller to cast doubt on the constitutionality of laws prohibiting possession by felons or the mentally ill. Id. Thus, Rahimi held that "the people" in the Second Amendment means "all citizens." Id.; see also Bernard, 2022 WL 17416681, at *7 (same); United States v. Perez-Gallan, 22-CR-00427, 640 F.Supp.3d 697, 707-09 (W.D. Tex. Nov. 10, 2022) (same).
It is difficult to address the issue without veering into semantics. Some courts, like Rahimi, have concluded that "the people" as used in the Second Amendment must refer to all citizens because, inter alia, this is consistent with "the typical way of conceptualizing constitutional rights." See 2023 WL 1459240, at *4. But is it? A prison inmate, for example, has no right to leave the prison to engage in peaceable assembly with others despite the First Amendment's admonition that "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble . . . ." See Pell v. Procunier, 417 U.S. 817, 828, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). One therefore reasonably might describe the inmate as no longer being part of "the people" protected by the peaceable assembly clause. Alternatively, one could define "the people" to include the inmate but nonetheless describe him or her as having "lost" or "forfeited" the right to peaceable assembly. So it is with "the people" as used in the Second Amendment.
This leads to a related question: assuming the Court is correct that Bena remains good law, is it better understood as having rejected the constitutional challenge to § 922(g)(8) at the first or second stage of the analysis Bruen now requires? There are plausible ways to read the opinion either way. Bena's discussion of Founding-era firearm restrictions for non-law-abiding citizens, for example, has hallmarks of the "analogical reasoning" Bruen requires at the second stage. 142 S. Ct. at 2133. In essence, Bena concluded that although § 922(g)(8) is not a "dead ringer" for the historical regulations on firearm possession by dangerous persons, it is still "analogous enough to pass constitutional muster." Id.
On the other hand, when it analyzed the constitutionality of § 922(g)(8), Bena engaged in a careful textual analysis of whether "the right . . . to keep and bear Arms," as understood when the Bill of Rights was enacted in 1791, is "infringed" when a law takes that right away from certain people on account of their proven dangerousness. See Bena, 664 F.3d at 1183 ("Scholarship suggests historical support for a common-law tradition that permits restrictions directed at citizens who are not law-abiding and responsible."). Bena therefore arguably held that "the Second Amendment's plain text" did not "cover [the defendant's] conduct." Bruen, 142 S. Ct. at 2129-30.
If the latter is the correct interpretation of Bena, it gives meaning to Bruen's conspicuous and repeated use of the phrase "law-abiding" without turning the analysis into an exercise in semantics about "the people." Bena suggests the proper question when analyzing the "plain text" of the Second Amendment is not what "the people" means, but rather whether the "right . . . to keep and bear Arms," as understood in the Founding era, covers an individual's conduct when the person possesses a firearm after having been proven to be dangerous. See 664 F.3d at 1183 ("It seems most likely that the Supreme Court viewed the regulatory measures listed in Heller as presumptively lawful because they do not infringe on the Second Amendment right.").
This is, to be sure, a more nuanced approach than most post-Bruen cases have employed at Bruen's first stage. Most courts, at the first stage, have conducted a straightforward analysis that simply asks whether the defendant (a) is part of "the people" and (b) possessed a firearm of the type in common use. See, e.g., Rahimi, 2023 WL 1459240, at *5 ("Rahimi's possession of a pistol and a rifle easily falls within the purview of the Second Amendment."); Perez-Gallan, 640 F.Supp.3d at 697, 707-09. If so, you move to the second Bruen stage; if not, you don't. See Coleman, 2023 WL 122401, at *2. Either way, no further dissection of the text is necessary.
This simplified approach to the first Bruen stage very well may be correct, but it leads to challenges when it comes to laws like § 922(g)(9). As Hammond's Brief lays out in detail, domestic violence was not even illegal when the Second Amendment was adopted, much less a basis for taking away someone's firearms. See, e.g., United States v. Jackson, No. CR-22-59-D, 622 F.Supp.3d 1063, 1067 (W.D. Okla. Aug. 19, 2022) ("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."); Perez-Gallan, 640 F.Supp.3d at 705 ("[G]laringly absent from the historical record—from colonial times until 1994—are consistent examples of the government removing firearms from some accused (or even convicted) of domestic violence."). Courts who reach the second Bruen stage therefore either must conclude that Founding-era laws restricting firearm possession by dangerous persons are sufficiently analogous to uphold § 922(g)(9) even though domestic violence misdemeanants (an historical anachronism) would not have been among those prohibited at the time, or must strike those laws down as unconstitutional. A more nuanced approach to the first stage of the Bruen analysis helps avoid this dilemma.
Such an approach is consistent with Bruen's emphasis on textualism and history. Bruen already, for example, requires Courts at the first stage of the inquiry to analyze history to understand what the word "arms" means as used in the Second Amendment. See 142 S. Ct. at 2143 ("[T]he Second Amendment protects only the carrying of weapons that are those 'in common use at the time,' as opposed to those that 'are highly unusual in society at large.' ") (quoting Heller, 554 U.S. at 627, 128 S.Ct. 2783). It is plausible that the words "right" and "infringe" are to be interpreted through the same historical lens at the first Bruen stage.
In any event, again, the Court need not decide the issue because Bena is consistent enough with Bruen to conclude that it remains good law, regardless of whether its analysis is better understood as applying to the first or second stage of the Bruen test. The Court therefore will proceed to Hammond's as-applied challenge.
C. Hammond's As-Applied Challenge to § 922(g)(9) Fails.
When faced with an as-applied challenge to § 922(g)(1), Adams placed the burden on the defendant to prove: "(1) that the Second Amendment protects his particular conduct, and (2) that his prior felony conviction is insufficient to justify the challenged regulation of Second Amendment rights." 914 F.3d at 605. Other Eighth Circuit cases have framed the as-applied test in a similar way. In United States v. Woolsey, the defendant was required to "show[ ] that he is 'no more dangerous than a typical law-abiding citizen.' " 759 F.3d 905, 909 (8th Cir. 2014) (quoting United States v. Brown, 436 F. App'x 725, 726 (8th Cir. 2011)). In United States v. Taylor, the defendant was required to "demonstrate[ ]he is a non-violent felon." 695 F. App'x 988, 992 (8th Cir. 2017).
Although Bruen did not involve an as-applied challenge, the Court will presume it abrogated Adams and other Eighth Circuit cases as to the allocation of the burden of proof. After all, Bruen placed the burden squarely on the Government to "justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." 142 S. Ct. at 2130. Beyond the burden of proof, however, it does not appear that Bruen disturbed the Eighth Circuit's focus in an as-applied challenge on the nature of the conviction that gave rise to the defendant's disqualifying status. See Woolsey, 759 F.3d at 909 (rejecting as-applied challenge where defendant had three prior convictions for violent felonies); Taylor, 695 F. App'x at 992 (rejecting as-applied challenge where defendant had prior conviction for an offense "present[ing] a serious potential risk of physical injury to another").
Here, Hammond's prior conviction was for Domestic Abuse Assault Causing Bodily Injury in violation of Iowa Code §§ 708.2A(1) and (2)(b). (ECF 33-2, p. 2.) These subsections can be violated only if a person commits "an assault, as defined in section 708.1, which is domestic abuse assault" and "the domestic abuse assault causes bodily injury or mental illness." Iowa Code §§ 708.2A(1) and (2)(b). This relatively recent conviction for an offense that caused bodily injury or mental illness is sufficient to place Hammond in the category of dangerous offenders that Congress may prohibit from possessing firearms without running afoul of the Second Amendment. See Woolsey, 759 F.3d at 909 (rejecting as-applied challenge where defendant had three prior convictions for violent felonies); Taylor, 695 F. App'x at 992 (rejecting as-applied challenge where defendant had prior conviction for an offense "present[ing] a serious potential risk of physical injury to another"). The Court therefore denies Hammond's as-applied constitutional challenge.
III. Conclusion.
The Eighth Circuit concluded in Bena that there is sufficient historical precedent from the Founding era to justify the constitutionality of firearm restrictions on those who have committed, or are found through a judicial process to be at risk of committing, acts of domestic violence. Nothing in Bruen undermines the core holding of this precedent, and thus the Court rejects Hammond's facial and as-applied constitutional challenges to 18 U.S.C. § 922(g)(9). The Court therefore DENIES Hammond's Motion to Dismiss Count 1 and Related Notice of Forfeiture.
IT IS SO ORDERED.