Opinion
EP-22-CR-00903-FM
2022-11-10
UNITED STATES of America v. Luis Manuel BANUELOS
Kristal Melisa Wade, U.S. Attorney's Office, El Paso, TX, Patricia Josefina Acosta, Assistant U.S. Attorney, El Paso, TX, Victoria Shanice Crosby, DOJ-U.S. Attorney's Office, El Paso, TX, for United States of America. Alejandro Rafael Almanzan, Public Defender, Office of the Federal Public Defender, El Paso, TX, for Luis Manuel Banuelos.
Kristal Melisa Wade, U.S. Attorney's Office, El Paso, TX, Patricia Josefina Acosta, Assistant U.S. Attorney, El Paso, TX, Victoria Shanice Crosby, DOJ-U.S. Attorney's Office, El Paso, TX, for United States of America. Alejandro Rafael Almanzan, Public Defender, Office of the Federal Public Defender, El Paso, TX, for Luis Manuel Banuelos. ORDER DENYING MOTION TO DISMISS INDICTMENT FRANK MONTALVO, UNITED STATES DISTRICT JUDGE
Before the court are "Defendant's Motion to Dismiss Indictment" ("Motion") [ECF No. 29], filed September 16, 2022, by Luis Manuel Banuelos ("Defendant"), "United States' Response in Opposition to Defendant's Motion to Dismiss Indictment" ("Response") [ECF No. 34], filed October 11, 2022, by the United States of America ("Government"), and "Defendant's Reply to Government's Response to Defendant's Motion to Dismiss" ("Reply") [ECF No. 36], filed October 17, 2022, by Defendant. After due consideration of the Motion, Response, Reply, and applicable law, the Motion is DENIED.
I. BACKGROUND
A. Factual and Procedural Background
In 2006, Defendant was convicted of felony possession of at least fifty pounds of marijuana, a crime punishable by imprisonment of more than one year. On May 18, 2022, Defendant attempted to drive into the United States at the Bridge of the Americas Port of Entry in El Paso, Texas. While conducting a secondary inspection, law enforcement officers searched Defendant and discovered a pistol on his person.
"Defendant's Motion to Dismiss Indictment" ("Mot.") 13, ECF No. 29, filed Sept. 16, 2022; "United States' Response in Opposition to Defendant's Motion to Dismiss Indictment" ("Resp."), "Information," Ex. A, ECF No. 34-1, filed Oct. 11, 2022.; "Indictment" 1, ECF No. 11, filed June 15, 2022.
"Criminal Complaint" 2, ECF No. 1, filed May 19, 2022.
Id.
On June 15, 2022, a grand jury returned an indictment charging Defendant with a violation of 18 U.S.C. § 922(g)(1) ("Section 922(g)(1)") as Defendant knowingly possessed a firearm after having been convicted of a crime punishable by imprisonment of more than one year.
"Indictment" 1, ECF No. 10, filed May 18, 2022.
B. Parties' Arguments
Defendant argues the indictment should be dismissed as the Supreme Court's recent decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen renders Section 922(g)(1) unconstitutional under the Second Amendment, both as applied and on its face. The Government argues Bruen does not cast doubt on the constitutionality of Section 922(g)(1).
Mot. at 1; see New York State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).
Resp. at 1.
II. APPLICABLE LAW
The Second Amendment to the United States Constitution states a "well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In District of Columbia v. Heller, the Supreme Court held the Second Amendment confers "an individual right to keep and bear arms." However, while "the right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered liberty," the Second Amendment "is not unlimited" and does not confer a right "to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
U.S. CONST. amend. II.
District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
McDonald v. City of Chicago, 561 U.S. 742, 778, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Heller, 554 U.S. at 626, 128 S.Ct. 2783.
In Bruen, the Court held "the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home." But the Court rejected the means-end scrutiny that courts of appeals had applied to Second Amendment challenges and reaffirmed that "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." In those instances, the government must "justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.' "
Bruen, 142 S. Ct. at 2122.
Id. at 2125-26.
Id. at 2130 (citation omitted).
Accordingly, Bruen lays the burden of justifying a regulation squarely at the government's feet. Elsewhere in the opinion, however, the Court notes that lower courts are "entitled to decide a case based on the historical record compiled by the parties," which implies discretion and not a mandate. To that end, as this court has concluded elsewhere, Bruen should not be read to strictly require that courts base their historical analyses on the government's briefing since the result could lead different courts to give the same law diametrically opposing treatment.
Id. at 2127 ("the government must affirmatively prove that its firearm regulation is part of the historical tradition").
See id. at 2130 n.6.
United States v. Charles, 2022 WL 4913900, at *9 (W.D. Tex. Oct. 3, 2022).
Finally, what it means to be consistent with historical tradition depends on the novelty of the regulation's objective. As the Bruen Court explained, for laws addressing general societal problems that have persisted since the eighteenth century, the lack of a "distinctly similar" historical regulation also addressing such problems is "relevant evidence" that the challenged regulation "is inconsistent with the Second Amendment." Meanwhile, cases that implicate "unprecedented societal concerns or dramatic technological changes" will involve reasoning by analogy, and "whether a historical regulation is a proper analogue for a distinctly modern firearm regulation" requires determining whether they are "relevantly similar."
Bruen, 142 S. Ct. at 2131.
Id. at 2132 (citation and internal quotation marks omitted).
When determining whether a historical analogue is "relevantly similar," at least two metrics are pertinent: "how and why the regulations burden a law-abiding citizen's right to armed self-defense." Critically, however, "analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check": it requires only "a well-established and representative historical analogue, not a historical twin."
Id. at 2132-33.
Id. (emphasis in original).
III. DISCUSSION
Section 922(g)(1) prohibits anyone convicted of a crime "punishable by imprisonment for a term exceeding one year" from shipping, transporting, receiving, or possessing "any firearm or ammunition." Defendant argues Bruen rendered Section 922(g)(1) unconstitutional both facially and as applied to him. "When a litigant brings both as-applied and facial challenges," courts are to "decide the as-applied challenge first because it is the narrower consideration."
Mot. at 1.
Buchanan v. Alexander, 919 F.3d 847, 852 (5th Cir. 2019).
A. As-Applied Challenge
Bruen provides a two-step process for assessing Second Amendment challenges. First, courts must determine whether the Amendment's plain text covers an individual's conduct. If so, that conduct is presumptively protected by the Constitution. Second, if the plain text covers an individual's conduct, the government must demonstrate that its regulation "is consistent with the Nation's historical tradition of firearm regulation." If the government meets that burden, then a court may conclude that the individual's conduct is outside the Second Amendment.
Bruen, 142 S. Ct. at 2129-30.
Id. at 2130.
Id.
Id.
a. The Second Amendment covers Defendant's conduct
Defendant asserts that the act of possessing a firearm "is the most clearly protected conduct by the plain text of the Second Amendment," yet Section 922(g)(1) makes it unlawful for a felon "to possess any firearm for any purpose." The Government counters that "a non-law-abiding citizens [sic] right to possess a firearm is not 'clearly covered' by the Second Amendment."
Mot. at 2, 5.
Resp. at 6.
The Government incorrectly "conflates Bruen's first step with its second." Step one asks only whether "the Second Amendment's plain text covers an individual's conduct," i.e., the conduct giving rise to the indictment. To that end, the Amendment protects the acts of "keep[ing]" and "bear[ing]" arms, including "carrying handguns publicly." Section 922 meanwhile prohibits certain acts, including possessing a firearm. "[W]hether possession falls under 'keep and bear' isn't complicated. According to Justice Scalia in Heller, to 'keep arms' means to 'have weapons.' The plain meaning of 'have' is 'to be in possession of.' Thus, the Second Amendment's 'keep and bear arms' language plainly encompasses possession."
United States v. Quiroz, 629 F.Supp.3d 511, 516 (W.D. Tex. Sept. 19, 2022).
Bruen, 142 S. Ct. at 2126 (emphasis added).
U.S. CONST. amend. II.
Bruen, 142 S. Ct. at 2134.
United States v. Collette, 630 F.Supp.3d 841, 844 (W.D. Tex. Sept. 25, 2022) (citations omitted).
Bruen's first step does not contemplate the actor or subject. Defendant's status as a felon is therefore irrelevant at this stage of the analysis. Instead, his possession of a firearm is "presumptively constitutional." How his prior felony might impact his Second Amendment right to possess a firearm is more properly assessed under step two's historical tradition analysis.
E.g., id.; Charles, 633 F.Supp.3d at 876-77; Quiroz, 629 F.Supp.3d at 515-16; United States v. Jackson, 622 F.Supp.3d 1063, 1065-66 (W.D. Okla. Aug. 19, 2022); United States v. Kays, 624 F.Supp.3d 1262, 1264-66 (W.D. Okla. Aug. 29, 2022); United States v. Nutter, 624 F.Supp.3d 636, 639 n.5 (S.D. W. Va. Aug. 29, 2022).
Not all courts agree. Some have found the plain text of the Second Amendment protects only the conduct of law-abiding citizens. See, e.g., Clifton v. U.S. Dept. of Justice, 615 F.Supp.3d 1185, 1200-01 (E.D. Cal. 2022); United States v. Perez-Garcia, 628 F.Supp.3d 1046, 1053-55 (S.D. Cal. Sept. 18, 2022); United States v. Riley, 635 F.Supp.3d 411, 424-25 (E.D. Va. Oct. 13, 2022). Others have likewise considered the status of the actor, but found the Amendment protects conduct by felons since they are members of "the people." See United States v. Carrero, 635 F.Supp.3d 1210, 1212-13 (D. Utah Oct. 14, 2022); United States v. Coombes, 629 F.Supp.3d 1149, 1154-58 (N.D. Okla. Sept. 21, 2022). Still others have declined to take a position. See United States v. Daniels, 610 F.Supp.3d 892, 893-95 (S.D. Miss. 2022).
Collette, 630 F.Supp.3d at 844.
b. As applied, Section 922(g)(1) is consistent with historical traditions
When the plain text of the Second Amendment covers an individual's conduct, the government must demonstrate that its regulation "is consistent with the Nation's historical tradition of firearm regulation." If the government shows—or the court concludes—that the regulation is consistent, then the individual's conduct is outside the Second Amendment. The required level of consistency—"relevantly similar" or "distinctly similar"—depends on whether the challenged regulation addresses an "unprecedented societal concern."
Bruen, 142 S. Ct. at 2130.
Id.; Charles, 633 F.Supp.3d at 884-85; Collette, 630 F.Supp.3d at 844-45.
Bruen, 142 S. Ct. at 2131-32.
The "relevantly similar" standard applies here, as the precursor to Section 922(g)(1), the Federal Firearms Act of 1938, was a response to an unprecedented societal concern, specifically an "increase in organized crime and gangster violence." The prohibition on possessing firearms was expanded to all felons in 1961 as part of legislation likewise designed to address increased crime, particularly "the infiltration of racketeering into our society and the exploding crime rate [that] have increasingly become a cause for national concern."
See Conrad Kahn, Challenging the Federal Prohibition on Gun Possession by Nonviolent Felons, 55 S. TEX. L. REV. 113, 115-16 (2013).
See Jeffrey Giancana, The "Scourge" of Armed Check Fraud: A Constitutional Framework for Prohibited Possessor Laws, 51 U. MICH. J. L. REFORM 409, 416 (2018) (citing H.R. REP. NO. 87-1202, at 3068 (1961)).
Yet Defendant argues Section 922(g)(1) is unconstitutional as applied to him since he was only convicted of non-serious, non-violent marijuana possession. He contends "there is no historical tradition from the founding era of criminalizing possession of firearms by felons, particularly non-violent felons" like himself. But the "relevantly similar" standard, which "is neither a regulatory straightjacket nor a regulatory blank check," requires only that there be a "historical analogue, not a historical twin."
Mot. at 11, 2.
Id. at 2.
Bruen, 142 S. Ct. at 2132-33 (emphasis in original); see also Charles, 633 F.Supp.3d at 883-85 (stressing that Bruen should be applied flexibly given how modern criminal law differs from that of the Founding era).
By that measure, Section 922(g)(1) is consistent with the well-established historical tradition of tying the right to bear arms "to the concept of a virtuous citizenry." In other words, "the right to bear arms in the Founding era [was] a civic right. Such a right was not something that all persons could claim, but was limited to those members of the polity who were deemed capable of exercising it in a virtuous manner." As such, "[f]elons simply did not fall within the benefits of the common law right to possess arms," which turned on one's law-abiding character. Indeed, the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (collecting sources).
Saul Cornell, "Don't Know Much About History" The Current Crisis in Second Amendment Scholarship, 29 N. KY. L. REV. 657, 679 (2002) (emphasis added).
Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. R. 204, 266 (1983); see Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS. 143, 146 (1986); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 480 (1995).
Heller, 554 U.S. at 635, 128 S.Ct. 2783 (emphasis added). The Bruen Court likewise made much of the right of "law-abiding" citizens to bear arms. See Bruen, 142 S. Ct. at 2132-33, 2134. See also Folajtar v. Att'y Gen. of the U.S., 980 F.3d 897, 905 (3d Cir. 2020) (concluding "the eighteenth-century American's right to bear arms was intimately tied to long-standing practices that explicitly separated the class of armed law-abiding citizens from felons.").
To be sure, "the class of crimes constituting felonies has exploded over the last century. The original idea of a 'felony' at common law was 'intertwined with the punishments of death and civil death.' " Regardless, modern expansion of criminal law is a response to modern, urban, and technological challenges unheard of and not contemplated in the Founding era. Requiring courts to hew so closely to that generation's concept of felonious behavior would fit them with a "regulatory straightjacket" inappropriate for the "relevantly similar" analysis under Bruen.
Charles, 633 F.Supp.3d at 884 (citation omitted).
See Bruen, 142 S. Ct. at 2132-33. Thus, the court is unpersuaded by those who have argued the historic principle of disarming felons "is sometimes suspect in this age of strict criminal liability, victimless crimes, and over-criminalization of previously legal conduct." See Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms" 49, LAW & CONTEMP. PROBS. 151, 152 n.8 (1986). Further, in the wake of Bruen, all courts that have addressed the possible distinction between serious and non-serious crimes in the context of Second Amendment rights agree it is no distinction at all. See United States v. Jackson, 2022 WL 4226229, at *3 (D. Minn. Sept. 13, 2022); Coombes, 629 F.Supp.3d at 1159-60; United States v. Minter, 635 F.Supp.3d 352, 361-62 (M.D. Penn. Oct. 18, 2022); Riley, 635 F.Supp.3d at 426-27.
Further, this circuit has long understood that "prohibitions on felons (violent or nonviolent) possessing firearms [do] not violate" the Second Amendment. Bruen did not disturb that conclusion. Instead, Bruen simply jettisoned the means-end scrutiny that courts of appeals had utilized in their Second Amendment analyses. Assessing whether disarming non-violent felons is consistent with historical traditions is not based on a means-end analysis.
See United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010) (citing United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004); United States v. Darrington, 351 F.3d 632, 633-34 (5th Cir. 2003); United States v. Emerson, 270 F.3d 203, 260-61 (5th Cir. 2001)).
The Bruen Court also emphasized its holding was "consistent with Heller," that it was simply making "the constitutional standard endorsed in Heller more explicit." And, as Heller stressed, nothing in its opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
Bruen, 142 S. Ct. at 2122, 2134.
Heller, 554 U.S. at 626, 128 S.Ct. 2783. Every federal court of appeals has relied on this "presumptively lawful" language in Heller and held that Section 922(g)(1) is constitutional. See Kanter, 919 F.3d at 442 (collecting cases), abrogated by Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387; see also Folajtar v. Att'y Gen. of the U.S., 980 F.3d 897, 901 (3d Cir. 2020) ("Since Heller, we, along with every court to consider the issue, have rejected challenges that Section 922(g)(1) on its face violates the Second Amendment.").
Accordingly, because there is a relevantly similar historical tradition, which permitted disarming unvirtuous citizens, Section 922(g)(1) is constitutional as applied to Defendant.
B. Facial Challenge
"To sustain a facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid." Having established that Section 922(g)(1) is relevantly analogous to our historical tradition of disarming felons generally, myriad circumstances clearly exist under which that statute is constitutional. Accordingly, Defendant's facial challenge also fails.
United States v. McGinnis, 956 F.3d 747, 752 (5th Cir. 2020) (internal quotations and citation omitted) (cleaned up).
IV. CONCLUSION
For the foregoing reasons, Defendant's facial and as-applied challenges to Section 922(g)(1) are both unsuccessful. Accordingly, it is HEREBY ORDERED that "Defendant's Motion to Dismiss Indictment" [ECF No. 24] is DENIED.