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noting that “a chorus of district courts have upheld § 922(g)”
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Case No. 3:22-cr-00045-JMK
2023-05-30
UNITED STATES of America, Plaintiff, v. Joel Michael RYNO, Defendant.
Christina M. Sherman, William Arthur Taylor, Kelly A. Cavanaugh, Assistant U.S. Attorneys, U.S. Attorney's Office, Anchorage, AK, for Plaintiff. Daniel Poulson, Gary George Colbath, Public Defenders, Federal Public Defenders, Anchorage, AK, for Defendant.
Christina M. Sherman, William Arthur Taylor, Kelly A. Cavanaugh, Assistant U.S. Attorneys, U.S. Attorney's Office, Anchorage, AK, for Plaintiff. Daniel Poulson, Gary George Colbath, Public Defenders, Federal Public Defenders, Anchorage, AK, for Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
JOSHUA M. KINDRED, United States District Judge
Before the Court at Docket 30 is Defendant Joel Michael Ryno's Motion to Dismiss. The United States of America (the "Government") responded in opposition at Docket 31. The motion was referred to Chief Magistrate Judge Matthew M. Scoble. At Docket 49, Judge Scoble issued his Final Report and Recommendation, in which he recommended that the motion be denied. In light of the Fifth Circuit's decision in United States v. Rahimi, at Docket 50, Judge Scoble withdrew his Final Report and Recommendation and ordered supplemental briefing. The Government and Mr. Ryno provided their supplemental briefing at Dockets 51 and 53, respectively. At Docket 54, Judge Scoble issued his Final Report and Recommendation, in which he again recommended that the motion be denied. Mr. Ryno objected to the Final Report and Recommendation at Docket 55.
61 F.4th 443 (5th Cir. 2023).
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute provides that a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." A court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." But as to those topics on which no objections are filed, "[n]either the Constitution nor [28 U.S.C. § 636(b)(1)] requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct."
Id.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("It 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.").
Before turning to Defendant's objection, the Court recognizes the unique historical analysis now required by the Supreme Court's decision in New York State Rifle & Pistol Association, Inc. v. Bruen. Without a determinative test, federal district courts must evaluate and compare developments in American legal history to the modern regulation. The Court thanks the parties for their thoughtful and well-researched briefing on the issues posed here, as well as Judge Scoble for his well-considered recommendations. Additionally, the Court gives special thanks to its local Circuit Librarian for her assistance in locating many of the historical primary sources cited in this order and required for this review. Amidst a quickly evolving and changing area of law, these cumulative efforts have greatly assisted the Court.
597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).
I. Defendant's Objection
Title 18 United States Code section 922(g)(9) strips an individual "convicted in any court of a misdemeanor crime of domestic violence" of their Second Amendment right to bear arms. In passing this statute in 1996, Congress intended to ensure that individuals convicted of domestic violence crimes would be unable to possess firearms. The legislative history reflects an intent to reduce intimate partner homicides and firearm related violence; and therefore, classifies domestic violence misdemeanants as a class of individuals, unable to responsibly maintain their Second Amendment rights. Section 922(g)(9) is a gender neutral regulation, but the legislative history reflects lawmakers' intent to address disproportionate effect of domestic violence on women. The Court takes judicial notice of this disproportionate effect as well as the reported overall decline in intimate partner violence crimes from 1993 to 2010.
142 Cong. Rec. S2646-02 (1996) (statement of Sen. Feinstein) (explaining that the Amendment was meant to "close the dangerous loophole" that allowed domestic violence misdemeanants to escape firearm disqualification under § 922(g)(1)).
142 Cong. Rec. S11872-01 (1996) (statement of Sen. Lautenberg) (explaining that the Amendment was designed to "save the life of the ordinary American woman" by ensuring that an abusive misdemeanant partner would not have access to firearms).
Supra notes 7 & 8.
See generally SHANNON CATALANO, PH.D., U.S. DEP'T. OF JUST., BUREAU OF STAT., INTIMATE PARTNER VIOLENCE, 1993-2010 (rev. Sept. 29, 2015). The Court will use the term domestic violence throughout this order for consistency with Section 922(g)(9) but recognizes the current, more accurate term is intimate partner violence.
The Second Amendment to 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." Bruen analysis "requires courts to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." From that framework, historical analogies must be presented, tested, and evaluated as "relevantly similar." When analyzing the relevant similarity of regulations, courts at minimum must assess "how and why the [the modern and historical] regulations burden a law-abiding citizen's right to armed self-defense." The Government need only show a "well-established and representative historical analogue, not a historical twin."
Bruen, 142 S. Ct. at 2131.
Id. at 2131-33.
Id. at 2133.
Id. (emphasis in the original).
Bruen guides that "unprecedented societal concerns or dramatic technological changes may require a more nuanced approach." Although the meaning of the Second Amendment is fixed "according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated." "[T]he right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms."
Id. at 2132.
Id.
Id. at 2138.
Defendant objects to the constitutionality of § 922(g)(9) in an as-applied challenge, arguing that the Government failed to offer examples of historical firearm regulations that are "distinctly similar" to 18 U.S.C. § 922(g)(9). However, Bruen does not require the Government to identify a "distinctly similar" historical firearm regulation. Rather, a "distinctly similar" historical regulation is "relevant evidence" for a court to consider in its overarching analysis. Defendant's objection overstates the Government's burden.
See Docket 55 at 2-3.
Bruen, 142 S. Ct. at 2131-33.
Id. at 2131.
In analyzing whether the regulation is "consistent with the Nation's historical tradition of firearm regulation," the Court must consider the relevant legal frameworks in place at the time the Amendment was ratified. Here, the lack of a distinctly similar firearm regulation stems from two American historical roots: (1) the societal norms accepting domestic violence; and (2) the limited legal frameworks for addressing domestic violence.
Id.
To begin, the Court must first address the past societal convention and common law doctrine of coverture. Under coverture, once a woman married, her legal rights and obligations were subsumed by her husband. As a feme covert, she no longer existed as her own entity, but as a dependent to the adult male head of household. From the English common law well into the modern era, coverture remained a stricture on most American women's rights and lives.
See 1 WILLIAM BLACKSTONE, COMMENTARIES *432, *441-44.
Manby v. Scott (1659) 83 Eng. Rep. 268, 1 Mod. 124, 130 (reasoning "[t]he husband is the head of the wife as fully as the King is the head of the commonwealth; and the wife by law is put sub potestate viri and under his protection, although he hath not potestatem vitae et necis over her, the King hath over his subjects.").
Id.; 1 WILLIAM BLACKSTONE, COMMENTARIES *432, *445 (summarizing the legal effects of coverture and claiming "that even the disabilities which the wife lies under are for the most part intended for her protection and benefit"); United States v. Yazell, 382 U.S. 341, 351-58, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966) (calling "[t]he institution of coverture peculiar and obsolete," then acknowledging that eleven states continued to have codified coverture laws in place and upholding the contract limitations of the Texas law of coverture).
Domestic violence has been a long-recognized occurrence, but women had few legal protections against it until the modern era. The English common law addressed domestic violence as a breach of the King's peace, a crime against the community and crown. However, there were limited remedies for a such claims; courts could only attempt to negate future harm through surety and public scrutiny. Adopting and adapting the English common law, the American Colonies also largely addressed violence and marital discord through common law breach of peace claims, with surety as a remedy. Colonies, in now the modern states of Massachusetts, Rhode Island, and New Hampshire, enacted laws against wife beating, but the codified laws resulted in few prosecutions.
See 1 WILLIAM BLACKSTONE, COMMENTARIES *432, *444-45 (discussing the "old" common law permitting a husband to give "moderate correction" to his wife similar to that of a servant or child, but prohibiting "violence." The Court notes that the standard for violence in England in 1765 is likely vastly different than modern American society.).
1 WILLIAM BLACKSTONE, COMMENTARIES *432, *445 (commenting that "in the politer reign of Charles the Second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband; or in return a husband against his wife."); Justices of the Peace Act 1361, 34 Edw. 3, c.1 (Eng.) (creating justices of the peace with the power to "to the Intent that the People be not by such Rioters or Rebels troubled nor endamaged, nor the Peace be blemished[.]").
E.g., Manby v. Scott (1659) 83 Eng. Rep. 268, 1 Mod. 124, 131 (recognizing the breach of peace claim for a wife "in fear or in doubt of her husband that he will beat or kill her, she shall have supplicavit out of the Chancery against her husband, and cause him to find sureties that the will not beat or kill her, and for to order and rule her, &c."); The King v. Lord Lee (1675) 83 Eng. Rep. 128 (binding Lord Lee with sureties for good behavior in response to the wife's claims of being "in danger of her life by him," but declaring "they could do no more than bind him, and that they could not remove her from him.").
See WILLIAM EDWARD NELSON, THE COMMON LAW IN COLONIAL AMERICA, VOL. II, THE MIDDLE COLONIES AND THE CAROLINAS, 1660-1730 34-35 (2013).
Ruth H. Bloch, The American Revolution, Wife Beating, and the Emergent Value of Privacy, 5 EARLY AM. STUDIES: AN INTERDISC. J., 223, 232; Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-1980, 11 CRIME & JUST. 19, 22-26 (1989).
JOHN GILBERT MCCURDY, Gender and Violence in Early America, Volume III 1500-1800 CE, THE CAMBRIDGE WORLD HISTORY OF VIOLENCE 260 (Robert Antony, et al. eds., 2020). Mr. McCurdy also reports that colonial and early American Pennsylvania courts heard spousal assault and battery claims in much greater volume but does not elaborate as to the source of these claims.
The American Revolution offered a brief hope to restructure a woman's place in a new American society. As Abigail Adams implored to John Adams:
in the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.However, her entreaty to "put it out of the power of the vicious and the Lawless to use us with cruelty and impunity" did not come to pass. American women remained excluded from political participation, their legal rights subsumed by their husbands.
Letter from Abigail Adams to John Adams (March 31, 1776) (in ADAMS FAMILY PAPERS, MASSACHUSETTS HISTORICAL SOCIETY).
Id.
The Court notes that many living in America lacked citizenship or the constitutional rights constructed by the Founders due to racial or economic exclusions.
After the Revolution, the States continued to adjudicate the threat of domestic violence as a common law breach of the peace claim using surety as the remedy. However many courts viewed violence occurring within a family unit as a private matter unsuitable for public scrutiny. The 1824 Mississippi Supreme Court resoundingly held that "whether a husband can commit an assault and battery upon the body of his wife" should not be adjudicated by courts, dismissing the violence as mere "Family Broils and dissentions." With similar reasoning, North Carolina Supreme Court refused to adjudicate domestic violence as assault and battery, so that it would "not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence." Some courts expressly endorsed a husband's legal right to use physical violence. Other courts excluded wives and children as entire classes of victims for assault and battery. Even when a wife, separated from her husband, was able to procure an indictment for assault and battery, as in State v. Black, the case was roundly rejected on the grounds that:
E.g., William Waller Hening, The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace, in the Commonwealth of Virginia, together with a variety of useful precedents adapted to the laws now in force 573 (2nd ed. 1810) (articulating that a wife or child's "apprehension of present or future danger" due to threats of by a husband or father may merit a surety of the peace, but not for past battery); Morris v. Palmer, 39 N.H. 123, 123-129 (N.H. 1859) (holding that a wife suing for breach of peace may recover costs and attorney's fees from husband); see also Codd v. Codd, 2 Johns. Ch. 141, 141-43 (N.Y. Chan. 1816) (declining to impose a surety to keep the peace on a previously violent husband and father but granting custody and care of the children exclusively to the wife and mother).
E.g., State v. Rhodes, 61 N.C. 453, 456-57 (N.C. 1868) (reasoning "that family government is recognized by law as being complete in itself as State government in itself . . . we will not interfere with or attempt to control it . . . . For, however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber.").
Bradley v. State, 1 Miss. 156, 157-58 (Miss. 1824) (holding "Family Broils and dissentions cannot be investigated before the tribunals of the country, without casting shade over the character of those who are unfortunately engaged in the controversy. To screen from public reproach those who may be thus unhappily situated, let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehavior, without being subjected to vexatious persecutions, resulting in the mutual discredit and shame of all parties concerned.").
State v. Rhodes, 61 N.C. 453, 456-60 (N.C. 1868).
State v. Black, 1 Win. 266, 267, 60 N.C. 262 (N.C. 1864) (holding "[a] husband is responsible for the acts of his wife, and he is required to govern his household, and for that purpose the law permits him to use towards his wife such a degree of force as is necessary to control an unruly temper and behave herself[.]"); see also Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 WIS. L. REV. 1657, 1661 (2004).
E.g., State v. Hussey, 44 N.C. 123, 126 (N.C. 1852) (reasoning "that a slap on the check, let it be as light as it may, indeed any touching of the person of another in a rude or angry manner—is in law an assault and battery. In the nature of things it cannot apply to persons in the marriage state, it would break down the great principle of mutual confidence and dependence; throw open the bedroom to the gaze of the public, where peace and concord ought to reign.").
unless some permanent injury be inflicted, or there be an excess of violence, or such a degree of cruelty as shows that it is inflicted to gratify his own bad passions, the law will not invade the domestic forum or go behind the curtain. It prefers the parties to themselves, as the best mode of inducing them to make the matter up and live together as man and wife.
State v. Black, 1 Win. 266, 267, 60 N.C. 262 (N.C. 1864) (reversing a jury verdict convicting a husband of assault and battery where during the course of a verbal argument he grabbed the wife by the hair, pulled her to floor, and held her on the ground injuring her head and throat).
Thankfully, society changed. States began to criminalize "wife beating." Women gained the right to vote. The doctrine of coverture faded away. States criminalized acts of domestic violence in gender neutral terms and outside the bounds of marriage. No longer in the shadows of the home, domestic violence gained national attention and federal legislative support.
See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing societal movement away from legally acceptable "wife chastisement," the development of gender-neutral domestic violence laws, and the drafting of the Violence Against Women Act).
E.g., An Act to Protect Married Women, ch. 109, 1850 Tenn. Pub. Acts 301; An Act to Inflict Corporal Punishment Upon Persons Found Guilty of Wife-beating, ch. 120, 1882 Md. Laws 172; An Providing for the Corporal Punishment of Wife-Beaters, ch. 204 Del. Laws 493; An Act to amend Section 1772, ch. 203, sec. 1 § 1772, 1905 Or. Laws 335-36 (amending the assault and battery statute to provide that "any person who shall commit an assault and battery upon or beat his wife, shall in the discretion of the court before which is had, be sentenced to be whipped not exceeding twenty lashes, or by imprisonment or fine as above provided."); see also Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-1980, 11 CRIME & JUST. 19, 35-44 (1989) (discussing the Temperance Movement and a national wide "volcano of moral outrage at domestic abuse" from 1875-90 resulting in punitive legislative proposals and criminal laws.).
Yazell, 382 U.S. at 361, 86 S.Ct. 500 (Black, J., dissenting addressing that the American adoption and codification of coverture "rests on the old common-law fiction that the husband and wife are one. This rule has worked out in reality to mean that though the husband and wife are one, the one is the husband. This fiction rested on what I had supposed is today a completely discredited notion that a married woman, being a female, is without capacity to make her own contracts and do her own business. I say 'discredited' reflecting on the vast number of women in the United States engaging in the professions of law, medicine, teaching, and so forth, as well as those engaged in plain old business ventures as Mrs. Yazell was.").
See e.g., ALASKA STAT. § 18.66.990 (defining acts of domestic violence as part of criminal offenses, enacted in 2003 and amended in various legislative sessions); MONT. CODE ANN. § 45-5-206 (2021) (criminalizing partner or family member assault, originally enacted in 1985 and amended in various legislative sessions); ARIZ. REV. STAT. ANN. § 13-3601, et seq. (addressing various acts of domestic violence as "family offenses," originally enacted in 1980 and amended in various legislative sessions); see also Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L.R. 1849, 1857 (1996) (noting that all states outlawed wife beating by 1920, but only since the 1980s has the criminal justice system began addressing domestic violence as a serious violent crime).
E.g., The Violence Against Women Act, Pub. L. 103-322, 108 Stat. 1796.
Bruen instructs that "when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment." American legal history and tradition indicates that lawmakers, both at the time of ratification and well into the 20th century, simply did not recognize domestic violence as a societal problem meriting criminal liability. Section 922(g)(9) cannot be considered to be a "regulation address[ing] a general societal problem that has persisted since the 18th century" because, unfortunately, only in recent decades has domestic violence become codified as a crime against a person and recognized as societal problem rather than a private matter.
Bruen, 142 S. Ct. at 2131.
II. Judge Scoble's Analysis
Section 922(g)(9) must be evaluated with a "more nuanced approach," due to the unprecedented societal concern of domestic violence and dramatic technological changes in firearms since the Founding. Bruen calls on courts to address the "how and why the regulations burden a law-abiding citizen's right to armed self-defense." Individuals convicted of crimes are, by definition, not law-abiding. As applied here, the State of Alaska adjudicated Mr. Ryno twice for violating Alaska's assault and domestic violence assault statutes. In accordance with federalism and comity, the federal district court must recognize these state court convictions.
Id. at 2132; supra notes 6 & 7; see generally D.C. v. Heller, 554 U.S. 570, 711-12, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (Breyer, J., dissenting and discussing the reported prevalence of handguns and domestic violence).
Bruen, 142 S. Ct. at 2133.
Cf. United States v. Rahimi, 61 F.4th 443, 453 (5th Cir. 2023) (discussing plausible overuse of minor, non-violent criminal convictions as a justification to infringe on the Second Amendment rights of individuals. The Court does not extend this statement beyond the context of this specific analysis.).
State of Alaska v. Joel Michael Ryno, Case No. 3PA-17-01151CR (judged guilty of misdemeanor assault per ALASKA STAT. § 11.41.230(a)(1) after entering guilty plea on April 19, 2019). State of Alaska v. Joel Michael, Case No. 19-02536CR (judged guilty of misdemeanor assault per ALASKA STAT. § 11.41.230(a)(1) after entering guilty plea on June 15, 2021). The Court also notes Case No. 3PA-15-01330CR (judged guilty of misdemeanor assault per ALASKA STAT. § 11.41.230(a)(3) after entering guilty plea on December 7, 2015, which state court records indicates was also related to domestic violence).
See Rahimi at 458-59 (distinguishing Section 922(g)(8) as predicated on a civil adjudication, rather than a criminal conviction); see also Rahimi at 455 n.7 (noting "[t]he distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation's history. In crafting the Bill of Rights, the Founders were plainly attuned to the preservation of these protections.").
In evaluating historical analogues as to whether other non-law-abiding citizens, such as domestic violence misdemeanants like Mr. Ryno, have been divested of their right to bear arms, Judge Scoble relies on proposed language from state ratification conventions which would have allowed the disarming of criminals or those who posed a risk of danger to others. While this proposed language was not enacted, Judge Scoble nevertheless found it informative. The Court agrees. Judge Scoble further relies on "the historical treatment of dangerous persons and felons" as a broad representative analogue of legislative power to disarm individuals. The Court also agrees. The Court finds these analogues to be the most consistent with the controlling Second Amendment jurisprudence.
Docket 54 at 24-27.
Id. at 25.
Bruen, 142 S. Ct. at 2133 (quoting Drummond v. Robinson Twp., 9 F.4th 217, 226 (3rd Cir. 2021)) (When seeking to ensure that we do not "endors[e] outliers that our ancestors would never have accepted," looking to unenacted proposals is not forbidden.).
Bruen, 142 S. Ct. at 2133; McDonald v. City of Chicago, Ill., 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (stating that the holding in Heller, "did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' We repeat those assurances here." (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783)).
Additionally, the Court finds the historical use of surety for preventative firearm misuse informative. From England to the Colonies and carried on in the States, courts used surety to prevent violence and ensure a stable civil society. At the time of Founding and into the Nineteenth century, justices of the peace and common law courts used breach of the peace claims and surety to address individuals at cognizable risk of misusing their firearms. As the Nineteenth century progressed, states and territories codified surety laws. As the Ninth Circuit previously noted, "[t]he English practice of surety of the peace, which carried over to the states, was a substantive restraint on anyone who was the subject of a complaint" and "a means of keeping the peace in areas lacking a centralized police force." The Court agrees that surety laws, though a financial restriction, is historical evidence of codified, substantive infringements on Second Amendment rights.
E.g., Com. v. Miller, 452 Pa. 35, 305 A.2d 346 (Pa. 1973) (affirming the hearing process, surety bond, and order to keep the peace for one year imposed on a husband who brandished a handgun and made repeated threats to commit suicide and murder his wife).
Brief of Professors Robert Leider and Nelson Lund, and the Buckeye Firearms Assoc. at Amici Curiae in Support of Petitioners, N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (No. 20-843)at 23.
See E.g., SAMUEL FREEMAN, ESQ., THE MASSACHUSETTS JUSTICE: BEING A COLLECTION OF THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, RELATIVE TO THE POWER AND DUTY OF JUSTICES OF THE PEACE 147 (1795); JEREMIAH PERLEY, THE MAINE JUSTICE: CONTAINING THE LAWS RELATIVE TO THE POWERS AND DUTIES OF JUSTICES OF THE PEACE, WITH NECESSARY FORMS 272 (1823).
Mass. Rev. Stat., ch. 13, § 16 (1836); 1838 Terr. of Wis. Stat. § 16, p. 381; Me. Rev. Stat., ch. 169, § 16 (1840); Mich. Rev. Stat., ch. 162, § 16 (1846); 1847 Va. Acts ch. 14, § 16; Terr. of Minn. Rev. Stat., ch. 112, § 18 (1851); 1854 Ore. Stat. ch. 16, § 17, p. 220; D. C. Rev. Code ch. 141, § 16 (1857); 1860 Pa. Laws p. 432, § 6; W. Va. Code, ch. 153, § 8 (1868).
Young v. Hawaii, 992 F.3d 765, 820 (9th Cir. 2021) (en banc), cert. granted, judgment vacated, — U.S. —, 142 S. Ct. 2895, 213 L. Ed. 2d 1108 (2022), and abrogated by New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). The Court finds these dicta especially persuasive in this as-applied challenge. In 2019, Attorney General William P. Barr declared a law enforcement emergency in rural Alaska under the Emergency Federal Law Enforcement Assistance Program. U.S. DEP'T. JUST., ATTORNEY GENERAL WILLIAM P. BARR ANNOUNCES EMERGENCY FUNDING TO ADDRESS PUBLIC SAFETY CRISIS IN RURAL ALASKA (June 28, 2019), archived at https://perma.cc/JC27-HW6F.
The Court recognizes that the role and weight of surety laws is debated amongst scholars and members of the United States Supreme Court. Compare Bruen, 142 S. Ct. at 2148-51 with Id. at 2187-88 (Breyer, J., dissenting); also compare Saul Cornell, The Long Arc of Arms Regulation in Public: From Surety to Permitting, 1328-1928, 55 U.C. DAVIS L. REV. 2545 (2022) with supra note 57 at 19-33.
III. Conclusion
Section 922(g)(9) is a heavy burden and an exceptional circumstance under the Second Amendment. The Nation's legal history in addressing domestic violence demonstrates clear evidence to overrule Defendant's objection. The Court finds sufficient historical guidance and analogues for the constitutionality of 18 U.S.C. § 922(g)(9). Accordingly, the Court adopts the Final Report and Recommendation, and IT IS ORDERED that the Motion to Dismiss is DENIED.
IT IS SO ORDERED this 30th day of May, 2023, at Anchorage, Alaska.
FINAL REPORT AND RECOMMENDATION ON MOTION TO DISMISS [DKT. 30]
Matthew M. Scoble, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Motion Presented
In the summer of 2022, the Supreme Court rejected a two-step, tiered scrutiny framework that a panoply of Courts of Appeal had adopted for Second Amendment cases. In its stead, the Supreme Court fashioned a framework based in textual analysis, history, and tradition. To state the obvious—this Judicial Officer is not a trained historian. Historians sift through the vast historical record, applying pedagogical historical methodologies, in an effort to reconstruct, or to understand, the past. To further state the obvious, the work of a historian is unconstrained by such exigencies as the Speedy Trial Clock. Historians need not provide definitive answers because the historical materials exist in a dialectic, and may not support any one conclusion. The federal judiciary is not similarly situated. Definitive conclusions must be reached. This need to provide conclusions for Cases and Controversies, heightens the risk of biasing a federal court's historical inquiry towards a result-driven conclusion. While the federal judiciary represents a unitary branch of government, the individual courts which comprise the judiciary are heterogeneous. The Supreme Court is a well-staffed enterprise, located under one roof, that benefits from a broad swath of amicus curiae briefs. More importantly, the Supreme Court is vested with the ability to overturn judicial precedent. The ninety-four districts that comprise the "inferior Courts" are constrained by the speedy-trial clock, by varying degrees of available staff, and as it occurred here, by binding precedent that may be in conflict. Like the Supreme Court has since 2008, this Court will do what it can with what it has in the record. This Court notes that Magistrate Judge Kyle F. Reardon, in a trenchant and well-reasoned Report and Recommendation, has recommended denial of a separate, as-applied § 922(g)(9) challenge. See United States v. Padgett, Case No. 3:21-CR-00107-TMB-KFR (D. Alaska 2023).
To that end, this Court commends both parties for tackling the complex questions before this Court. Both parties thoroughly and zealously rose to the task of effectively surveying this Nation's Second Amendment history. This Court's historical approach is therefore simplified: this Court will rely on the cited history, on case law that interprets that history, and on an independent historical survey to ensure a careful review of the historical record. Because this is not a run-of-the-mill interpretation of a statute where the black-letter law speaks for itself, legislative history and history of ratification debates will not be excluded. Both parties also cite out-of-circuit cases and district court cases. The citations are good-faith efforts by both parties that, as a result, have created a robust consensus of persuasive authority. This Court will take the unusual step of referring to such authority to the extent that it bears relevance or analytical weight. In other words, the historical record compiled by both parties has produced a sufficiently developed record to recommend a ruling on Ryno's Motion.
Bruen ultimately requires a different path from the tiered scrutiny framework, but it is a path that leads to the same conclusion. Ryno is part of "the people," and his conduct is therefore covered by the plain text of the Second Amendment; but the government has demonstrated that 18 U.S.C. § 922(g)(9), as-applied to Ryno, comports with our Nation's history and tradition because § 922(g)(9) is relevantly similar to historical analogues from the Founding era.
This Court hereby issues its Final Report and Recommendation regarding Ryno's Motion to Dismiss. Dkt. 30. Ryno's Motion to Dismiss should be DENIED. 28 U.S.C. § 636(b)(1)(B).
II. Factual and Procedural History
This Court reminds the parties that as-applied challenges require a set of particular facts to assess a statute's validity as to a particular litigant. Important here is that Ryno, in his reply brief, did not challenge the government's recitation of the facts. On that understanding, the following facts are drawn from party briefings and from the indictment. Dkt. 4; Dkt. 30; Dkt. 31.
Ryno has been twice convicted of misdemeanor crimes of domestic violence. Alaska Stat. Ann. § 11.41.230(a)(1) ("A person commits the crime of assault in the fourth degree if that person recklessly causes physical injury to another person."); Dkt. 4 at 2-3; Dkt. 30 at 4; Dkt. 31 at 2-3. In April 2019, Ryno was first convicted of domestic violence against his domestic partner at their shared residence, and in the presence of their child. Dkt. 31 at 2. In December 2020, Ryno violated a condition of release when law enforcement stopped his vehicle and discovered that Ryno was in possession of a rifle and ammunition. Dkt. 4 at 1-2; Dkt. 30 at 4; Dkt. 31 at 3. Ryno's second conviction for domestic violence occurred in June 2021. Dkt. 4 at 2-3; Dkt. 31 at 3. Ryno again assaulted the same domestic partner, again in the presence of their child. Dkt. 31 at 3.
In February 2022, Ryno was on the premises of a "domestic violence disturbance" that law enforcement responded to. Dkt. 31 at 3; Dkt. 30 at 4. It is unclear whether Ryno was charged or convicted with another crime of domestic violence. What is clear is that Ryno had an "active search warrant" [sic] and notified law enforcement that he possessed a firearm and ammunition. The firearm was subsequently seized. Id. Two law enforcement agencies interviewed and advised Ryno of the importance of abiding by the long-term protective order from his 2019 conviction, which among other things, prohibited him from possessing firearms. Id. The government alleges that Ryno "believed he was able to possess firearms as part of that order." Dkt. 31 at 3. The relevant language of the protective order is as follows: "If you possess a firearm and ammunition while this order is in effect, you may be charged with a federal offense even if [certain] paragraphs of this order do not prohibit you from possessing these items [18 USC § 922(g)]." [sic] Id. Two months later, law enforcement conducted a "welfare check" on a public highway, based on "a report of an individual passed out behind the wheel of a vehicle." Dkt. 31 at 4; Dkt. 30 at 4. Ryno was the vehicle's driver. Id. More firearms and ammunition were seized. Id.
The indictment, filed in May 2022, charges Ryno with three counts of possessing a firearm despite knowing he had been convicted of misdemeanor crimes of domestic violence. Dkt. 4; 18 U.S.C. § 922(g)(9); § 924(a)(2). Ryno has moved to dismiss the indictment because § 922(g)(9) is unconstitutional as applied to him.
Ryno argues that (1) Bruen has repudiated Heller's "presumptively lawful" dicta and by extension repudiated case law that relied on the dicta; (2) this Court is therefore operating on a clean slate, and "a full historical analysis of a prohibition conducted under . . . Bruen can rebut Heller's presumptively lawful exceptions"; (3) "the people," under the Constitutional Amendments, includes members of the national community or alternatively, of the political community; (4) the phrase "law-abiding citizens" mentioned in Second Amendment jurisprudence, should not disqualify Ryno from "the people"; (5) there are no "distinctly similar" regulations from the founding era because 18 U.S.C. 922(g) was enacted in the 20th century; (6) the ratification debates around 1791 varied by state and cannot be historical analogues; (7) the theory of "unvirtuous citizenry" is not rooted in this Nation's history, and even if it were, the phrase erroneously refers to a collectivist view of civic rights; (8) disarmament laws that targeted "slaves, freed Blacks, and Native Americans" are tenuous and motivated by "racial hierarchies and [to] reduce the ability of disfavored groups [ ] to defend themselves"; (9) the history of rebellion and disloyalty are ill-suited, historical analogies; (10) and despite this being an as-applied challenge, "blanket prohibitions like § 922(g)(9) violate the Second Amendment." See generally Dkt. 30.
The government responds that (1) Heller and Bruen exclude Ryno from "the people" because the Second Amendment extends to "law-abiding, responsible citizens"; (2) United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) has not been overruled and is not clearly irreconcilable; (3) on that understanding, this Court is bound by Vongxay's reasoning that the right to bear arms was "inextricably tied to the concept of a virtuous citizenry"; (4) to demonstrate that 922(g)(9) is consistent with this Nation's history, it is important to understand the twentieth century "legislative history of § 922(g)(9) [which] shows that Congress intended to keep firearms out of the hands of a specific type of violent criminal—domestic abusers"; (5) a viable historical analogue to § 922(g)(9) is § 922(g)(1), which criminalizes the possession of firearms for felons; (6) Heller favorably cited a historical source that reasoned that any convicted criminal can be prohibited from bearing arms, or any citizen that is a "real danger of public injury" (7) many state constitutions that allowed a right to bear arms and a proposed amendment to the Constitution from the Massachusetts convention are relevant historical analogues; (8) there is a robust historical tradition of disarming citizens that were convicted of violent crimes; (9) a felon's forfeiture of their civic virtues is another historical analogue; (10) putting aside the patent and indefensible racist motivations "of disarming people the Framers deemed dangerous or untrustworthy, such as those unwilling to swear an oath of allegiance [ ], slaves, freed [B]lacks, and Native Americans," such historical analogues are nonetheless "quintessential features" of this Nation's history; (11) Bruen reiterated, and did not abrogate, the longstanding prohibitions on felons and the "mentally ill"; and (12) a chorus of district courts have upheld § 922(g)(1). See generally Dkt. 31.
This Court, in November 2022, held oral argument. Dkt. 39. Aside from Ryno's reply brief, no post-hearing briefs were filed. Dkt. 35; Dkt. 39.
III. Heller and Its Progeny
The Supreme Court has had three recent opportunities to develop Second Amendment jurisprudence: District of Columbia v. Heller, 554 U.S. 570, 573, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742, 749, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010); and New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 2127, 213 L.Ed.2d 387 (2022).
The first opportunity was the landmark case that conferred a pre-existing "individual right to keep and bear arms" for self-defense. Heller, 554 U.S. at 595, 128 S.Ct. 2783. Heller first interpreted the prefatory clause as stating a purpose that neither limited nor expanded the operative clause. Id. at 577-78, 128 S.Ct. 2783. Turning to the operative clause, the Court divided the clause into separate phrases, beginning with "right of the people." Id. at 579, 128 S.Ct. 2783. "What is more, 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. at 580, 128 S.Ct. 2783. In identifying the "political community," Heller seemingly narrowed a previous definition that instead included the "national community" as part of the People. Id. at 580-81, 128 S.Ct. 2783. It may have also equated "political" with "national" because there was a "strong presumption that the Second Amendment right" belonged to "all Americans." Id. at 581, 128 S.Ct. 2783; see also Kanter v. Barr, 919 F.3d 437, 453 (7th Cir. 2019) ("In addition to being analytically awkward, the scope of the right approach is at odds with Heller itself. There, the Court interpreted the word 'people' as referring to all Americans.") (citation cleaned up).
Heller went on to address "Keep and Bear Arms." 554 U.S. at 581, 128 S.Ct. 2783. "Keep arms" naturally meant to "have weapons." Id. at 582, 128 S.Ct. 2783. "Bear Arms" was not tied to a military purpose, and instead, is "simply the carrying of arms." Id. at 589, 128 S.Ct. 2783. The natural and idiomatic meanings of words or phrases were distilled from dictionaries, from historical sources, and most importantly, from the Constitution. In other words, Heller undertook a methodological approach to interpret the words as they were used at the time the Second Amendment was drafted. Id.; see also Bruen, 142 S.Ct. at 2127 ("In Heller, we began with a textual analysis focused on the normal and ordinary meaning of the Second Amendment language.") (internal quotations omitted). Taken together, "the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it shall not be infringed." (internal quotations omitted) Id. at 592, 128 S.Ct. 2783. "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon." Id.
See also, "In most cases, the meaning of a word is its use." Philosophical Investigations, Ludwig Wittgenstein (1953).
The "law-abiding" phrase was first mentioned when the Heller majority addressed Justice Stevens' minority misinterpretation of United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Miller, according to Justice Scalia, supported rather than contravened Heller's ruling, "read[ing] Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Id. at 625, 128 S.Ct. 2783. That passage recognized a limitation on the types of weapons covered by the Second Amendment. "Law-abiding citizens" was again mentioned to stress that Heller's original understanding of the Second Amendment was unshaken by prior precedent, and especially so because neither the states nor the federal government had "significantly regulated the possession of firearms by law-abiding citizens." Id. at 625, 128 S.Ct. 2783.
Yet the Second Amendment right "is not unlimited." Id. at 626, 128 S.Ct. 2783. Tucked into this same paragraph was dicta admonishing courts 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[.]" Id. This admonition, however, was not derived from "an exhaustive historical analysis" nor was there an analysis "of the full scope of the Second Amendment." Id. An accompanying footnote underscored that restrictions on felons and the mentally ill were "presumptively lawful regulatory measures, [serving] only as examples; our list does not purport to be exhaustive." Id. at 626-27 n.26, 128 S.Ct. 2783. In striking down the firearm statute, Heller emphasized that "[l]ike the First [Amendment], it is the very product of an interest balancing by the people—which Justice BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home." (emphasis original) Id. at 635, 128 S.Ct. 2783.
Both dissents understood Heller's "law-abiding" dicta as a limitation on the class of persons that the Second Amendment protects. Id. at 644, 701-02, 128 S.Ct. 2783. This limitation, the dissents contended, failed to "harmonize its conflicting pronouncements" because "the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions." Id.; see also Id. at 652, 128 S.Ct. 2783 ("Indeed, not a word in the constitutional text even arguably supports the Court's overwrought and novel description of the" law-abiding phrase); see also Id. at 721, 128 S.Ct. 2783.
In McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court ruled local and state laws must comport with the Second Amendment, through its incorporation under the Due Process Clause of the Fourteenth Amendment. In 1868, as in 1791, "the right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified." Id. at 777, 130 S.Ct. 3020; see also Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) ("McDonald confirms that when state or local government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment's scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified.") (citation cleaned up). The part of the opinion pertinent to the phrase "law-abiding," emphasized that the Second Amendment ensures "the safety of other law-abiding members of" minority communities. Id. at 790, 130 S.Ct. 3020. Nothing in McDonald cast doubt on the "longstanding regulatory measures" on felons or the mentally ill. Id. at 786, 130 S.Ct. 3020.
Bruen represented a sea change in Second Amendment jurisprudence. The Supreme Court rejected a two-step, tiered scrutiny framework that a panoply of Courts of Appeals had adopted for Second Amendment cases. Bruen, 142 S. Ct. at 2127. Although the first step had been "broadly consistent with Heller," the second step had subjected an enumerated right to a judge-empowering test, that as a result, systematically ignored Heller's text, history, and tradition framework. Id. at 2127, 2129. In its stead, the Supreme Court fashioned a framework that now turns on whether a defendant's conduct is covered by the plain text of the Second Amendment. Id. at 2126. If a defendant's conduct is covered, whether then the Constitution "presumptively protects that conduct." Id. The burden then shifts to the government to demonstrate that the challenged "regulation is consistent with this Nation's historical tradition of firearm regulation." Id. There are two forms of historical inquiries: a "distinctly similar" inquiry and a "relevantly similar" inquiry. Id. at 2131-32.
A challenged regulation passes constitutional muster under the fairly straightforward historical inquiry when there is a showing of a "general societal problem that has persisted since the 18th century" and a distinctly similar historical regulation dating from the time of the Second Amendment's ratification. Id. If, for example, there is a general societal problem, but a lack of a distinctly similar historical regulation, the challenged regulation may be unconstitutional. Other relevant evidence that weighs against the constitutionality of a challenged regulation hinges on whether the societal problem was addressed through "materially different means," or if analogous regulations were proposed but "rejected on constitutional grounds." Id.
A similar inquiry applies to "modern regulations that were unimaginable at the founding." Id. Bruen instructs federal courts to reason by analogy, with two considerations at the forefront: how and why the challenged regulation burdens a "law-abiding citizen's right to armed self-defense." Id. at 2133. In other words, the modern regulation and the 18th century regulation must have imposed "a comparable burden" on an individual's right to self-defense; and the historical analogy between the two regulations must be "comparably justified." Id. "To be clear, analogical reasoning under the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check. On the one hand, courts should not uphold every modern law that remotely resembles a historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted. On the other hand, 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. (citation cleaned up).
Bruen, however, stressed that "not all history is created equal." Id. at 2136. A federal court should first look to the historical period immediately before and after the Second Amendment's ratification. Id. English common-law and postratification history should be treated with some skepticism, and in the event that such history contradicts the Second Amendment, "the text controls." Id. at 2137; See also Id. at 2162-63 (J., Barrett concurring) (highlighting that Bruen "does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution."). With the historical framework clarified, Bruen ruled that the defendants were comfortably within the ambit of "the people" because they were "two ordinary, law-abiding, adult citizens." Id. at 2134. Bruen, without much difficulty, also ruled that the defendants' proposed course of conduct was presumptively protected and was unrebutted by the government historical arguments. Id. at 2135.
IV. The Plain Text of the Second Amendment
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.
To begin, this Court discounts the prefatory clause from its analysis because neither party has connected the idea of a militia to the underlying historical arguments, and admittedly, there is virtually no concern here regarding the elimination of a militia. Ryno's conduct meets Heller's textual definition of bearing arms because the record indicates that he physically carried firearms, on at least three known occasions, outside the home. Bruen, 142 S. Ct. at 2134 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783). This Court can also reasonably conclude that Ryno kept firearms within the meaning of the Second Amendment because Ryno believed he could lawfully possess firearms despite the domestic violence protection order, and again, did so on three known occasions. Id. The parties do not dispute that Ryno was keeping and bearing arms.
The real crux is whether Ryno is part of the "people." On this point, this Court declines Ryno's invitation to constrain Bruen's first step to a sole consideration of whether a defendant's conduct—and their conduct only—is presumptively protected. Implicit in Bruen's textual inquiry is a consideration of the amendment's plain text. In other words, this Court will reconcile both the what and the whom; stated more fully, what conduct is being regulated and who can possess and carry firearms. This Court's approach is in accord with Bruen's analytical approach. There the Supreme Court first ruled that the defendants were part of the people before turning to the regulated conduct. Bruen, 142 S. Ct. at 2134.
"The people" is admittedly a term of art that was not defined in the Constitution. Heller, 554 U.S. 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)). It is important to remember, at this juncture, the basic premise that a "word or phrase is presumed to bear the same meaning throughout a text" to avoid "an interpretation that causes it to duplicate another provision or to have no consequence." See Antonin Scalia, & Bryan A. Garner, Reading Law 167, 170 & 174 (2012); see also United States v. Coombes, No. 22-CR-00189-GKF, 629 F.Supp.3d 1149, 1154-55 (N.D. Okla. Sept. 21, 2022). The phrase does appear in other parts of the Constitution. Moreover, Heller and Bruen emphasized that the principles of our Constitution do not change over time and must be faithfully applied as they existed at or around 1791 and 1868. See Bruen, 142 S.Ct. at 2132 ("Fortunately, the Founders created a Constitution—and a Second Amendment—intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.") (quoting McCulloch v. Maryland, 4 Wheat. 316, 415, 17 U.S. 316, 4 L.Ed. 579 (1819)) (citation cleaned up). This Court, therefore, begins with our Constitution.
The First Amendment provides a useful analytical model. The Assembly and Petition Clause emphasizes that "Congress shall make no law abridging . . . the right of the people peaceably to assemble, and to petition the [g]overnment for a redress of grievances." U.S. Const. amend. I. Instructive here is that the First Amendment excludes classes of speech, and not the speaker itself. See Nat'l Rifle Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 714 F.3d 334, 338 (5th Cir. 2013) (J. Jones, dissenting) ("Free speech, in the classic sense, is never subject to interest-balancing before it merits constitutional protection. Speech is protected categorically unless it fits within specifically defined classes, e.g., obscenity, fraud, libel, and state secrets, that received no legal protection at the time of ratification of the Bill of Rights."); see e.g., Bruen, 142 S.Ct. at 2156 ("We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is now how the First Amendment works when it comes to unpopular speech or the free exercise of religion."). The breadth of this particular clause extends to the national community. Heller, 554 U.S. at 580, 128 S.Ct. 2783 (quoting Verdugo-Urquidez, 494 U.S. at 265, 110 S.Ct. 1056).
Another codified, pre-existing right that incorporates a broad class of persons is the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV; Heller, 554 U.S. at 592, 128 S.Ct. 2783. A felon, or as here, a violent misdemeanant, no matter how obstreperous they may be, is not categorically deprived of their right to challenge the reasonableness of a government seizure or search. See Heller, 554 U.S. at 645, 128 S.Ct. 2783. It may be argued that an analogy between the Second and Fourth Amendment does not map efficiently because the Fourth Amendment may be viewed as a protective right, as opposed to the Second Amendment's granting of an affirmative right. As McDonald and Bruen instruct, no precise analogy is required. Indeed, Second Amendment jurisprudence has favorably compared the two amendments, and perhaps so because the "right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category." McDonald, 561 U.S. at 783, 130 S.Ct. 3020 (collecting cases); see also Bruen, 142 S.Ct. at 2126 n.3. Justice Stevens' dissent in Heller, 554 U.S. at 644, 128 S.Ct. 2783, underscored this very point, emphasizing that the First and Fourth Amendments are "not so limited." See e.g., United States v. Chovan, 735 F.3d 1127, 1149 (9th Cir. 2013) (J. Bea, concurring); see also United States v. Perez-Gallan, No. PE:22-CR-00427-DC, 640 F.Supp.3d 697, 708-09 (W.D. Tex. Nov. 10, 2022).
Other provisions in the constitution point to a broad interpretation of "the people." The Ninth and Tenth Amendment refer to a national community. Heller, 554 U.S. at 579-80, 128 S.Ct. 2783 (quoting Verdugo-Urquidez, 494 U.S. at 265, 110 S.Ct. 1056). Section 2, Article I of the Constitution vests "the People" with the right to elect political officials; or in other words, the political community. U.S. Const. Art. I, § 8.
The Supreme Court has concluded that the Second Amendment extends to, and is limited by, the members of the political community. Heller, 554 U.S. at 580-81, 128 S.Ct. 2783. It is constitutionally appropriate for some classes of persons to be outright excluded from the political community and consequently, the Second Amendment's reach. See Bruen, 142 S.Ct. at 2161 (J. Kavanaugh concurring) ("Properly interpreted, the Second Amendment allows a variety of gun regulations."); see also United States v. Skoien, 614 F.3d 638, 639-40 (7th Cir. 2010) ("That some categorical limits are proper is part of the original meaning.") (emphasis original). This Court therefore agrees with the government that Bruen did not abrogate or supplant Heller and McDonald's list of longstanding prohibitions. It is true that Heller's dicta, reiterated in McDonald, has caused some confusion among the lower courts. Indeed, then Judge Barrett's dissent in Kanter v. Barr, 919 F.3d 437, 445 (7th Cir. 2019) has leveled a persuasive, historical critique against sweeping felon-in-possession laws. The Third Circuit has also recently vacated a ruling that excluded all felons from "the people." Range v. Att'y Gen. United States, No. 21-2835, Order on Rehearing En Banc (3rd Cir. 2023). Dispositive here, however, is that the Supreme Court's dicta was endorsed by two separate majorities, the dicta grapples with novel, complex legal issues, and it is "dicta of the strongest sort." See Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009). Justice Kavanaugh's concurrence in Bruen likewise restated the longstanding prohibitions on felons possessing firearms. Bruen, 142 S.Ct. at 2161 (J. Kavanaugh concurring). This Court is therefore bound by the dicta in Heller and McDonald.
On that understanding, it is undisputed that felons have traditionally lost their right to vote, serve on juries, and have lost the ability to hold political offices. See Mai v. United States, 974 F.3d 1082, 1093 (9th Cir. 2020) (citing 2 William Blackstone, Commentaries 377 and United States v. McCane, 573 F.3d 1037, 1049 (10th Cir. 2009)). Consistent with this prohibition, the Ninth Circuit has reasoned that "the right to bear arms was inextricably . . . tied to the concept of a virtuous citizenry 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)." United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010). It is not clear why Ryno believes that his § 922(g)(9) case is the proper vehicle to overrule Vongxay, a § 922(g)(1)-related ruling. This Court reads the virtuous citizen theory to encompass the disarmament of felons and possibly the mentally ill. See United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010). This Court therefore need not address this argument here because the "virtuous citizenry" theory does not reach Ryno—a misdemeanant who is part of the political community.
In United States v. Chovan, 735 F.3d 1127, 1136-37 (9th Cir. 2013), the Ninth Circuit ruled that "by prohibiting domestic violence misdemeanants from possession, § 922(g)(9) burdens rights protected by the Second Amendment." See also Duncan v. Bonta, 19 F.4th 1087, 1142-43 (J., Bumatay dissenting) (Chovan's "step one inquiry often pays lip service to Heller: it asks whether the law burdens conduct protected by the Second Amendment, based on a historical understanding of the scope of the Second Amendment right.") (citation cleaned up). Chovan's second step has since been abrogated, but step one is nonetheless "broadly consistent with Heller, which demands a test rooted in the Second Amendment text, as informed by history." Bruen, 142 S.Ct. at 2127. Chovan's first step can be severed from its second step because both utilized different modes of analysis; and it is with that understanding that this Court concludes that it is still bound by Chovan's step-one reasoning. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). This Court's conclusion that Ryno is part of the "people" is therefore informed by Chovan's explicit ruling. Judge Bea's concurrence in Chovan also provides some critical distinctions between misdemeanants and felons: "As we have seen, in the Founding period, felonies historically resulted in disqualification from certain rights, but misdemeanors did not[.]" 735 F.3d at 1144-49.
A problem with this conclusion, as the government has shown, is the "law-abiding" phrase that has consistently appeared in all of the Supreme Court cases. The strongest passage on this point is Bruen's application of its new test: "It is undisputed that petitioners [ ]—two ordinary, law-abiding, adult citizens—are part of 'the people' whom the Second Amendment protects." There are conflicting legal interpretations on this point. On the one hand, this Court agrees with the government that Ryno is not necessarily "law-abiding" by virtue of being twice-convicted. A pardon, expungement, or a dismissal of the conviction is required to fully remove a conviction. Mai, 974 F.3d at 1093 (citing generally 18 U.S.C. § 921(a)(20)(B)). On the other hand, the "law-abiding" phrase seemingly contravenes the Constitution's consistent definition of "the people," as interpreted by Heller, and the phrase may bear more relevance under Bruen's second step. This Court hastens to add that no system is perfect. All human enterprises, to include the federal judiciary, are at risk of error.
To provide a conclusion to the disparate and competing analytical threads: the "law-abiding" phrase should yield to the codified rights of the Constitution, binding case law, and history; all of which point to Ryno as part of the political community, and therefore part of "the people."
V. This Nation's History and Tradition
A. Distinctly Similar Regulations
In 1932, Congress enacted a law to control the use of "pistols and other dangerous weapons in the District of Columbia." Act of July 8, 1932, ch. 465, § 14, 47 Stat. 650, 650; see also Binderup v. Att'y Gen. United States of America, 836 F.3d 336, 390 (3rd Cir. 2016) (J., Fuentes concurring in part and dissenting in part). An offender was subject to prosecution if a "crime of violence" was committed while armed with a dangerous weapon. Act of July 8, 1932, ch. 465, § 14, 47 Stat. 650, 650. Crimes of violence were "[m]urder, manslaughter, rape, mayhem, maliciously disfiguring another, abduction, kidnaping [sic], burglary, housebreaking, larceny, any assault with intent to kill, commit rape, or robbery assault with a dangerous weapon." Id. In 1938, Congress enacted the Federal Firearms Act ("FFA"), to address the interstate commerce of firearms. United States v. Skoien, 614 F.3d 638, 640-41 (7th Cir. 2010) (citing Federal Firearms Act, Pub.L. 75-785, 52 Stat. 1250, 1251); see also Chovan, 735 F.3d at 1137. The FFA's crime of violence definition mirrored the definition from the 1932 Act. Id.; Id. It was a federal crime for a person, convicted of a crime of violence, to "receive" any firearm or ammunition that was transported across state lines. Skoien, 614 F.3d at 640-41. The "ban on possession by all felons was not enacted until 1961," and notably, Congress there replaced the crime of violence definition with "crime punishable by imprisonment for a term exceeding one year." Id. (citing Pub.L. 87-342, 75 Stat. 757); see also United States v. Quiroz, 629 F.Supp.3d 511, 517-19 (W.D. Tex. 2022); see also United States v. Charles, No. MO:22-CR-00154-DC, 633 F.Supp.3d 874, 877-78 (W.D. Tex. 2022). Moreover, the 1968 Act broadened its reach to include the "mentally ill" and habitual drug users. See Yancey, 621 F.3d at 683. The purpose of the 1968 Act was to assist law enforcement "in their fight against crime and violence" but cautioned that no restrictions were placed "on law-abiding citizens with respect" to the use and possession of firearms. Pub.L. No. 90-618, § 101, 82 Stat. 1213; see also Chovan, 735 F.3d at 1137. In 1996, Congress eventually became aware of a "dangerous loophole" in the 1968 Act that allowed domestic violence misdemeanants to possess firearms. 142 Cong. Rec. S2646-02 (1996) (statement of Sen. Lautenberg); see also Id. (statement of Senator Feinstein) (explaining that the Lautenberg Amendment was meant to "close th[e] dangerous loophole" that allowed domestic abusers charged with lesser offenses to escape firearm disqualification under § 922(g)(1)); United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079, 1082, 172 L.Ed.2d 816 (2009); Chovan, 735 F.3d at 1139. Section 922(g)(9), a modern regulation "unimaginable at the founding," was thereby enacted. Bruen, 142 S.Ct. at 2133.
From this Court's independent review, there are approximately fourteen state laws, from 1837 to 1931, that generally touched on or related to firearm regulation. Because it is the government's burden, this Court will discount these state laws altogether. Bruen, 142 S.Ct. at 2127 (reasoning that "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.").
Whether 1938 or 1996, the weight of this historical evidence nonetheless indicates that § 922(g)(9) is a creature of the twentieth century. McCane, 573 at 1048 (J., Tymkovich concurring). In other words, "it is not clear that such prohibitions are so longstanding." Chovan, 735 F.3d at 1137. It is true that there was a longstanding concern to disarm dangerous people, but the inquiry here is whether there are straightforward examples from the founding era regarding domestic violence misdemeanants. A Texas district court recently surveyed the past four centuries for the disarmament of domestic violence misdemeanants, concluding that "glaringly absent from the historical record—from colonial times until 1994—are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence." Perez-Gallan, 640 F.Supp.3d at 705. This Court agrees. Other courts have undertaken a historical survey and arrived at the same or similar conclusion. See United States v. Chester, 628 F.3d 673, 680-81 (4th Cir. 2010) (collecting cases); see also Skoien, 614 F.3d at 650-51 (J., Sykes dissenting) ("[S]cholars disagree about the extent to which felons -- let alone misdemeanants-were considered excluded from the right to bear arms during the founding era . . . We simply cannot say with any certainty that persons convicted of a domestic-violence misdemeanor are wholly excluded from the Second Amendment right as originally understood.") (emphasis in original). Perhaps most important here is that the government's briefing relies heavily on reasoning by analogy. See generally Dkt. 31. For example, the subheadings of the government's briefing are categorized as (B)(1) "Section 922(g)(9): A Brief History," and (B)(2) "Historical Analogues to Section 922(g)(9)." Indeed, the government provides extensive reasoning in Section (B)(2) that analogizes § 922(g)(9) to felon disarmament, those convicted of violent crimes, the disloyal, and minority communities. This Court will therefore turn to the "relevantly similar" inquiry and assess each of the government's analogies in turn.
B. Relevantly Similar Regulations
In 17th Century England, the royal government disarmed citizens that it deemed to be "dangerous to the Peace of the Kingdom." Kanter, 919 F.3d at 456 (quoting Militia Act of 1662, 13 & 14 Car. 2, c. 3 § 1662); see also Nat'l Rifle Ass'n of America, Inc. v. Bureau of Alc. Tob. Fir., 700 F.3d 185, 200 (5th Cir. 2012) (citing Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897)). These English traditions greatly influenced early colonial America. Those who refused to swear an oath of allegiance would be disarmed because they were "deemed likely to disrupt society." despite being "neither criminals nor traitors." Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 507-08 (2004); Nat'l Rifle Ass'n, 700 F.3d at 200. There is history from the 1770s that demonstrates that some states disarmed citizens that refused to take an oath of allegiance. Nat'l Rifle Ass'n, 700 F.3d at 201; Kanter, 919 F.3d at 457-58; Perez-Gallan, 640 F.Supp.3d at 710-11. The history of disarming loyalists does not explain how or why § 922(g)(9) can burden Ryno's right to carry and possess firearms for self-defense. Bruen, 142 S.Ct. at 2132-33. As Kanter aptly points out, any potential danger that loyalists present disappeared once they pledged their allegiance. 919 F.3d at 457-58. As mentioned before, a conviction remains a conviction unless the record is wiped clean. "In sum, founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety. But neither the convention proposals nor historical practices support a legislative power to categorically disarm felons [or, a fortiori, misdemeanants] because of their status." Id. This Court therefore concludes that the loyalist history is not relevantly similar because history does not impose a comparable burden or a comparable justification to the disarmament of domestic violence misdemeanants. Bruen, 142 S.Ct. at 2133.
Neither does this Court find an apt comparison in the government's proffered analog of disarming slaves, freed Blacks, and Native Americans. Id. (reasoning that the two regulations must be "comparably justified."). This Court agrees with Ryno that "these racialized disarmament laws [are] far too attenuated" to be employed as historical analogies. Put simply—the government feared armed uprising from minority populations because such populations were stripped of fundamental rights, of their humanity, and perhaps most repugnant, were viewed as property or fractions of persons. Employing or placing weight on America's sorry history now, to justify the disarmament of domestic violence misdemeanants, runs the risk of subverting our Constitutional governance. On this point, Bruen stressed that not all history is or should be regarded as equal. Id. at 2136. Pertinent here is that Bruen's framework did not provide a "mechanism to distinguish unjust or unconstitutional traditions, such as the tradition of having race-based arm restrictions, from other traditions." Duncan v. Bonta, 19 F.4th 1087, 1125 (9th Cir. 2021) (J. Berzon concurring). This Court will therefore not analogize § 922(g)(9) to the government's proffered history.
The government's historical analogues to felons, or generally, "dangerous" persons, are a different story. Take, for example, the favorably cited minority proposal from Pennsylvania. Heller, 554 U.S. at 604, 128 S.Ct. 2783; Binderup, 836 F.3d at 367; Skoien, 614 F.3d at 640. The proposed language is historically relevant: "no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals." The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, reprinted in Bernard Schwartz, 2 The Bill of Rights: A Documentary History, 663, 665 (1971). Samuel Adams' Amendment in Massachusetts also sheds light on the Second Amendment's understanding at the founding era, proposing that the "Constitution be never construed to authorize Congress to . . . prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Heller, 554 U.S. at 604, 658, 128 S.Ct. 2783; Binderup, 836 F.3d at 367; Kanter, 919 F.3d at 454-66 (J., Barrett dissenting) (providing several definitions of peaceable, and relevant among them, "not violent; not bloody; not quarrelsome; not turbulent.") (citation cleaned up). These two historical sources, taken together, indicate that founding-era attitudes were concerned with disarming those who had a proclivity towards violence or those that risked injury to the public. Kanter, 919 F.3d at 456 (J., Barrett dissenting); see also Binderup, 836 F.3d at 368-68 (citing Stephen P. Halbrook, The Founders' Second Amendment, 190-215 (2008)) ("surveying the debates at the ratifying conventions and highlighting the commonplace understanding that dangerous persons could be disarmed."). Indeed, "[h]istory is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns." Kanter, 919 F.3d at 451 (J., Barrett dissenting); see also C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 698 (2009) ("[A]ctual 'longstanding' precedent in America and pre-Founding England suggests that a firearms disability can be consistent with the Second Amendment to the extent that . . . its basis credibly indicates a present danger that one will misuse arms against others and the disability redresses that danger."). The government's historical analogues to § 922(g)(1) are also relevant. As previously mentioned, felons—particularly violent ones—were punished with "confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands for life: others induce a disability, of holding offices or employments, being heirs, executors, and the like." Mai, 974 F.3d at 1093 (citing 2 William Blackstone, Commentaries 377). It bears emphasis that Vongxay has explicitly ruled that violent "felons are categorically different from the individuals who have a fundamental right to bear arms." Id. (quoting Vongxay, 594 F.3d at 1115); see also Chovan, 735 F.3d at 1144-45 (citing McCane, 573 F.3d at 1049) ("[T]he application of § 922(g) to a violent felon . . . would appear appropriate under any Second Amendment reading. After all, felons lose out on fundamental rights such as voting and serving on juries[.]").
The government's recitation of the historical treatment of dangerous persons and felons is well-presented and a representative historical analogue. Bruen, 142 S.Ct. at 2133. These historical analogues are comparable to § 922(g)(9) as-applied to Ryno. Id. Inherent in § 922(g)(9) is the predicate offense that requires use or attempted use of physical force by an intimate partner, or by a person with whom the victim shares a child. 18 U.S.C. § 921(a)(33). Section 922(g)(9) is particularly pointed to classes of persons that are dangerous enough to be disarmed because the element of physical force, in other words, is power or violence against another's physical safety. Moreover, a brief review of the facts in the record indicates that Ryno has a propensity to commit violence, and is therefore a danger to the public. This conclusion is further strengthened by the fact that, after being notified that he was prohibited from possessing firearms by virtue of his convictions, Ryno was found "passed out" on a public highway, and in possession of more firearms and ammunition. Taken together, this is the very definition of dangerousness as contemplated at the time of the Second Amendment's enactment. Then, as now, the burden on the Second Amendment right to self-defense is comparable because the disarmament of violent or dangerous persons, such as Ryno, ensures the safety of the public, and along with it, its community members, such as Ryno's domestic partners. Taken together, the historical analogues "pass constitutional muster." Bruen, 142 S.Ct. at 2133.
All told, the government has demonstrated that § 922(g)(9), as-applied to Ryno, is consistent with this Nation's tradition of firearm regulation, and Ryno therefore falls outside the Second Amendment's "unqualified command." Id. at 2126.
VI. Conclusion
For the reasons set forth above, Ryno's Motion to Dismiss should be DENIED. 28 U.S.C. § 636(b)(1)(B).
DATED this 1st day of February 2023, at Anchorage, Alaska. Pursuant to D. Alaska Loc. Mag. R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than the CLOSE OF BUSINESS on February 15, 2023. Failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation. United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before the CLOSE OF BUSINESS on February 22, 2023. The parties shall otherwise comply with provisions of D. Alaska Loc. Mag. R. 6(a). Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).