Opinion
Case No. 4:22-cr-00138-SMR-HCA-1
2023-03-10
UNITED STATES of America, Plaintiff, v. Aaron Christopher LINDSEY, Defendant.
Adam J. Kerndt, United States Attorney's Office, Des Moines, IA, for Plaintiff. Melanie S. Keiper, Public Defender, Federal Public Defenders Office, Des Moines, IA, for Defendant.
Adam J. Kerndt, United States Attorney's Office, Des Moines, IA, for Plaintiff. Melanie S. Keiper, Public Defender, Federal Public Defenders Office, Des Moines, IA, for Defendant. ORDER ON MOTION TO SUPPRESS STEPHANIE M. ROSE, CHIEF JUDGE
Defendant Aaron Christopher Lindsey was indicted by a grand jury on three charges—false statements to a financial institution, possession of device-making equipment, and felon in possession of a firearm. He moves to dismiss the felon in possession charge, arguing it violates his rights protected by the Second Amendment to the United States Constitution. Defendant relies on the United States Supreme Court's recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022) to support his position that the Constitution prohibits Congress from criminalizing his possession of a firearm.
A. Legal Background
The Second Amendment to the United States Constitution provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In District of Columbia v. Heller, the Supreme Court found that a District of Columbia law that "generally prohibit[ed] the possession of handguns" violated the Second Amendment. 554 U.S. 570, 574-75, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Heller Court determined that the Second Amendment protects an individual's right to keep and bear arms for the purpose of self-defense and the "city's total ban on handguns" contravened that constitutional provision. Id. at 576, 128 S.Ct. 2783. Two years later, the Supreme Court incorporated the Second Amendment against the states in McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Under Heller and McDonald, "law-abiding, responsible citizens" were permitted to possess a firearm "in defense of hearth and home." Heller, 554 U.S. at 635, 128 S.Ct. 2783.
The plurality opinion incorporated the Second Amendment against the States under the Due Process Clause, see McDonald, 561 U.S. at 791, 130 S.Ct. 3020 (Alito, J., opinion), whereas the concurrence found that the right applies to the States pursuant to the Privileges or Immunities Clause of the same Amendment, see id. 561 U.S. at 806, 130 S.Ct. 3020 (Thomas, J., concurring).
In a case decided this past term, the Court held that a firearm licensing provision under New York State law violated the Second Amendment because it vested authorities with discretion when issuing the license. Bruen, 142 S. Ct. at 2156 (holding "New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms."). In the process of invalidating the New York discretionary licensing regime, the Bruen Court rejected the two-step framework that lower courts had been using since Heller and McDonald, which combined history with means-end scrutiny, to analyze Second Amendment challenges. Bruen, 142 S. Ct. at 2125.
The two-step framework developed by the lower courts first asked whether "the government may justify its regulation by establishing that the challenged law regulates activity falling outside the scope of the right as originally understood." Id. at 2126 (citation and internal quotations omitted). If the Government was successful at that step, "the analysis can stop there[.]" Id. (quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)). If the historical evidence did not provide a conclusive answer, the analysis proceeded to a second step which required courts to consider "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right." Id. This inquiry is essentially the traditional "tiers of scrutiny" analysis utilized by courts when assessing the scope of other constitutional rights. The "core" of the Second Amendment right under this analysis, pursuant to the Supreme Court's holding in Heller, was "limited to self-defense in the home." Id. at 2126 (quoting Gould v. Morgan, 907 F.3d 659, 671 (1st Cir. 2018)) (emphasis omitted). Bruen described the application of scrutiny:
[i]f a core Second Amendment right is burdened, courts apply strict scrutiny and ask whether the Government can prove that the law is narrowly tailored to achieve a compelling governmental interest. Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is substantially related to the achievement of an important governmental interest.Id. at 2126 (internal quotations and citations omitted).
The Court held that "[d]espite the popularity" of the two-step approach, it was "one step too many." Id. at 2127. Reasoning that Heller "demands a test rooted in the Second Amendment's text, as informed by history," the Bruen Court concluded that to defend a law regulating the Second Amendment, "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. Thus, "when the Second Amendment's plain text covers an individual's conduct," that conduct is presumed to be protected by the Constitution. Id. at 2126. The Bruen Court held that it is not enough for the Government to argue that a regulation promotes an important interest, it must demonstrate that the regulation has a historical lineage or "analogue." Id. at 2132-34. Bruen explained that such "analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster." Id. at 2133 (emphasis in original). If a firearm regulation is consistent with historical tradition, only then "may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.' " Id. at 2126 (citation omitted).
B. Analysis
Defendant was indicted by a grand jury on three criminal charges, one of which is felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to dismiss the felon in possession charge, arguing that the United States Supreme Court's decision in Bruen renders the statute unconstitutional on its face, and as applied to him. The Government opposes the motion, arguing that the statute is constitutional in both respects.
1. Facial Challenge
"A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications." Bucklew v. Precythe, — U.S. —, 139 S. Ct. 1112, 1127, 203 L.Ed.2d 521 (2019). "A plaintiff can only succeed in a facial challenge by 'establish[ing] that no set of circumstances exists under which the Act would be valid.' " Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). However, "facial challenges 'run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law . . . nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." TCF Nat'l Bank v. Bernanke, 643 F.3d 1158, 1163 (8th Cir. 2011) (quoting Wash. State Grange, 552 U.S. at 450, 128 S.Ct. 1184).
Defendant argues that at the time of the country's founding, although certain specified groups were barred from possessing firearms, there is no historical tradition of firearm regulation for felons or others based solely on their criminal history. He asserts that laws at the time barred criminals from participating in other civic aspects of life, but no laws limited possession of firearms by "criminals" at the time of the country's founding. Thus, defendant argues that there is no "historical analogue" for the prohibition against felons possessing firearms, as found in 18 U.S.C. § 922(g)(1), and that this prohibition, on its face and as applied to him, violates the Second Amendment. Defendant argues the Court should dismiss the indictment against him.
The Government responds that Bruen does not call into question the constitutional validity of laws that prohibit felons from possessing firearms. It cites statements made by three justices to support its stance that the Second Amendment applies only to "ordinary, law-abiding" and "responsible" citizens. The Government emphasizes that the Court has reiterated in Heller, McDonald, and Bruen that Second Amendment rights are protected for the aforementioned citizens and not to those who have a criminal record. This position has been upheld by other district courts which have considered challenges to § 922(g)(1) since Bruen, including in the Southern District of Iowa. United States v. Doss, No. 4:21-cr-00074-RGE-HCA (S.D. Iowa Aug. 2, 2022); see also United States v. Daniels, 610 F.Supp.3d 892 (S.D. Miss. 2022); United States v. Willis, Criminal Case No. 22-cr-00186-RMR, 2022 WL 17177470 (D. Colo. Nov. 23, 2022); United States v. Jackson, Criminal No. 21-51 (DWF/TNL), 2022 WL 4226229 (D. Minn. Sept. 13, 2022). A panel for the United States Court of Appeals for the Third Circuit found that the statute passes constitutional scrutiny. Range v. Atty. General United States, 53 F.4th 262 (3d Cir. 2022). In an unreported decision, the United States Court of Appeals for the Seventh Circuit referred to a § 922(g)(1) challenge under Bruen as "frivolous" as-applied to one defendant. United States v. Gonzalez, No. 22-1242, 2022 WL 4376074, at *2 (7th Cir. Sept. 22, 2022).
The panel's opinion has been vacated and a rehearing en banc has been granted. Range v. Att'y Gen. United States of Am., 56 F.4th 992 (3d Cir. 2023).
Multiple Justices in Bruen appear to have anticipated some of the legal issues that have been raised by Defendant. The concurrences by Justice Kavanaugh, Chief Justice Roberts, and Justice Alito clarified the consequences of Bruen by emphasizing Heller's exhortation that "longstanding prohibitions," such as felon-in-possession laws, continue to be presumptively lawful. 142 S. Ct. at 2157 (Alito, J., concurring); 2161-62 (Kavanaugh, J., concurring). No less than six justices warned that the Bruen decision should not cast doubt on the validity of certain firearms regulations, including those identified in Heller. Along with Justice Alito, Justice Kavanaugh, and Chief Justice Roberts, the three dissenting justices all emphasized that Heller's lawful firearm restrictions remain in place and that Bruen did not challenge these restrictions. Id. at 2189 (Breyer, J., dissenting). In light of the Justices' repeated admonition that Bruen does not undermine the "longstanding prohibitions" in Heller, Defendant's facial challenge is denied.
2. As-Applied Challenge
Defendant has two prior felony convictions for forgery under Iowa state law. He first insists that his criminal convictions "do not suggest that [Defendant] would have been grouped with those deemed dangerous" when the Second Amendment was adopted. [ECF No. 23-1 at 9]. Defendant further argues that he is "no more dangerous than a typical law abiding citizen," so the felon-in-possession statute is unconstitutional as-applied to him. Id.
However, no circuit has ever held 18 U.S.C. § 922(g)(1) unconstitutional as applied to fraud or any other offense that the relevant jurisdiction has designated a felony. Medina v. Whitaker, 913 F.3d 152, 155 (D.C. Cir. 2019). The Seventh Circuit has suggested that "even nonviolent felons" are outside the scope of the Second Amendment because the right to bear arms previously belonged only to virtuous citizens. United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (citations omitted); but see Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). Furthermore, the Government points out that the First Congress, and some states, treated forgery as a capital crime—a far harsher punishment than the loss of the right to bear arms. Folajtar v. Atty. General, 980 F.3d 897, 904-05 (3rd Cir. 2020); see also Thomas Herty, A Digest of the Laws of Maryland 255-56 (1799); 2 Laws of the State of New York 74 (1791) (forgery); 1 The Laws of the Commonwealth of Massachusetts 250, § 5 (1807) (bank forgery).
Even post-Bruen, multiple courts have denied claims that § 922(g)(1) is unconstitutional as applied to a defendant whose predicate felony is non-violent, rejecting the premise that a person with such a conviction does not present a danger. Doss, No. 4:21-cr-00076; Willis, 2022 WL 17177470, at *2; Jackson, 2022 WL 4226229, at *2.
In summary, considering the nature of Defendant's prior convictions, courts have consistently upheld Section 922(g)(1) as facially constitutional and denied as-applied challenges based on non-violent offenses. This Court will do the same. For the foregoing reasons, Defendant's Motion to Dismiss Count 3 is DENIED. [ECF No. 23].
IT IS SO ORDERED.