Opinion
4:22-cr-00075-DN-PK
08-03-2023
UNITED STATES OF AMERICA, Plaintiff, v. KENNETH NOEL WEBB, Defendant.
Paul Kohler Magistrate Judge
MEMORANDUM DECISION AND ORDER DENYING MOTION TO DISMISS
DAVID NUFFER UNITED STATES DISTRICT JUDGE
On July 21, 2023, Defendant Kenneth Webb (“Webb”) filed his Motion to Dismiss Count One (“Motion”)of the Superseding Indictment.That count charges Webb with violation of 18 U.S.C. § 922(g)(1), colloquially referred to as prohibiting a felon from possession of a firearm.Webb argues in his Motion that 18 U.S.C. § 922(g)(1) is, under the Second Amendment of the United States Constitution, an unconstitutional restraint of the possession of firearms. For the reasons set forth below, the Motion is DENIED.
Docket no. 86, filed July 21, 2023.
Docket no. 40, filed December 7, 2022.
Docket no. 40, filed December 7, 2022.
BACKGROUND
Around 8:00 pm on June 2, 2022, Webb was traveling by car with his wife northbound on I-15 in Iron County, Utah. Around mile marker 69, Webb was pulled over by a Utah Highway Patrol Officer for a traffic stop based on a suspicion of a window-tint violation. During the stop, the Highway Patrol Officer conducted a lawful search of Webb's vehicle and discovered a firearm in the driver's side door pocket.Later, a search of the trunk revealed a second firearm.Webb has previously been convicted of felonies, including for aggravated assault and burglary.
Docket no. 75 at 3, filed May 24, 2023.
Docket no. 75 at 14, filed May 24, 2023.
Docket no. 75 at 14, filed May 24, 2023.
Docket no. 90 at 2, filed July 26, 2023.
On July 6, 2022, Webb was indicted by a grand jury in this district with violating 18 U.S.C. § 922(g)(1), which makes it unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to possess “any firearm or ammunition.”
Webb's Motion challenges 18 U.S.C. § 922(g)(1), arguing that it violates constitutional protections of the Second Amendment. The United States' Response to Defendant's Motion to Dismiss Count One was filed on July 26, 2023 (“Response”).
Docket no. 90, filed July 26, 2023.
ANALYSIS
The Second Amendment provides that “the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court has explained that while “the Second Amendment conferred an individual right to keep and bear arms,” that “right [is] not unlimited ....” Though Heller struck down firearm regulations in the District of Columbia and recognized the right to possess handguns for self-defense in the home,the Court also clarified that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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.”After Heller, the Supreme Court has reiterated that none of its opinions have impacted longstanding “prohibitions on the possession of firearms by felons.”
U.S. CONST. amend. II.
D.C. v. Heller, 554 U.S. 570, 595 (2008).
Id. at 636.
Id. at 626-27.
McDonald v. City of Chicago, Ill., 561 U.S. 742, 786, (2010).
Starting in United States v. McCane, the Court of Appeals for the Tenth Circuit has repeatedly rejected challenges to the constitutionality of 18 U.S.C. § 922(g) based on the Supreme Court's language in Heller.The Tenth Circuit defines the controlling law and precedent in this district.
United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009); In re United States, 578 F.3d 1195, 1200 (10th Cir. 2009) (unpublished); United States v. Griffith, 928 F.3d 855, 870 (10th Cir. 2019); United States v. Gieswein, 887 F.3d 1054, 1064 n.6 (10th Cir. 2018).
Defendant points to New York State Rifle & Pistol Ass'n, Inc. v. Bruen as part of his argument that 18 U.S.C. 922(g) is unconstitutional.In Bruen, the Supreme Court held “that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for selfdefense outside the home.”In Bruen, the Supreme Court also rejected lower courts' use of means-end scrutiny for Second-Amendment analysis. Instead, the Bruen court directed courts to determine whether the “Second Amendment's plaint text covers an individual's conduct,” and if it does, “the government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.”
142 S.Ct. 2111 (2022)
Docket no. 86, filed July 21, 2023.
142 S.Ct. 2111, 2122 (2022).
Id. at 2130-31.
Courts evaluating challenges to felon-in-possession laws post-Bruen have taken different approaches: some courts have looked to controlling circuit precedent to reject constitutional challenges to 18 U.S.C. § 922(g); others have looked to historical laws and performed the analysis set forth by Bruen for Second Amendment analysis; and some have performed both analyses. Under any approach, Webb's Motion must be denied.
United States v. Baker, No. 2:20-CR-00301-DBB, 2022 WL 16855423, at *4 n.4 (D. Utah Nov. 10, 2022) (collecting cases).
McCane and its progeny remail the controlling law and precedent in the Tenth Circuit and Bruen did nothing to disrupt McCane or conclude that 18 U.S.C. 922(g)(1) is unconstitutional. Bruen did not involve an analysis of 18 U.S.C. 922(g)(1), or any felon-inpossession laws. Instead, Bruen involved “ordinary, law-abiding citizens” seeking to carry handguns publicly for their self-defense.And the Bruen court expressly reaffirmed Heller and McDonald, holding that the decision in Bruen was “consistent” with those earlier opinions.
Id. at 2122.
Id.
Additionally, in concurrences or dissents, six of the justices joined opinions which specifically acknowledged that Bruen did not disturb felon in possession laws. Justice Kavanaugh, joined by Chief Justice Roberts, wrote a concurring opinion which reiterated that the Second Amendment did allow a variety of firearm regulations and pointed to the language in Heller explaining that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons or the mentally ill ....”Justice Breyer's dissent, joined by Justices Sotomayer and Kagan, echoes the understanding that the Court's Bruen opinion “cast[s] no doubt on [the] aspect of Heller's holding” that identifies prohibitions of felons possessing firearms as “presumptively lawful.” Justice Alito also wrote a concurrence in which he explained that the Bruen holding “decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun....Nor have we disturbed anything we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.”
Id. at 2162.
Id. at 2189.
Id. at 2157.
In sum, nothing in Bruen upends or changes the precedent in this circuit which has repeatedly rejected constitutional challenges to 18 U.S.C. § 922(g)(1).Until there is a Supreme Court or Tenth Circuit opinion that finds 18 U.S.C. § 922(g)(1) unconstitutional or overrules McCane, the controlling precedent of McCane must be followed and constitutional challenges to 18 U.S.C. 922(g)(1) must be dismissed.
See footnote 15, supra.
United States v. Baker, 2022 WL 16855423, at *3 (D. Utah Nov. 10, 2022).
Courts in this district and elsewhere conducting an analysis under Bruen have upheld “the constitutionality of § 922(g)(1) as applied to . . . convicted felons, because the law is consistent with the Nation's historical tradition of firearm regulation.”Defendant cites no controlling cases to the contrary. And cases cited by Defendant fail to persuade. For example, the Third Circuit in Range v Attorney General, stated that its “decision [was] a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him.”The court narrowly held that 18 U.S.C. 922(g)(1) was inapplicable to Mr. Range whose underlying crime was making false statements to obtain food stamps, a misdemeanor in Pennsylvania for which the defendant served only probation. In a concurring opinion in Range, three judges agreed that as applied to Mr. Range, 18 U.S.C. 922(g)(1) was unconstitutional, but wrote separately to explain
United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023) (citation omitted); United States v. Carrero, 635 F.Supp.3d 1210 (D. Utah 2022); United States v. Teerlink, Case No. 2:22-CR-0024-TS, 2022 WL 17093425 (D. Utah Nov. 21, 2022); United States v. Carpenter, Case No. 1:21-cr-00086-DBB, 2022 WL 16855533 (D. Utah Nov. 10, 2022); Baker, 2022 WL 16855423, at *3; United States v. Coombes, 629 F.Supp.3d 1149, 1162 (N.D. Okla. 2022).
Range v. Att'y Gen. United States of Am., 69 F.4th 96, 98 (3d Cir. 2023).
Id.
why the Government's failure to carry its burden in this case does not spell doom for § 922(g)(1). It remains presumptively lawful. This is so because it fits within our Nation's history and tradition of disarming those persons who legislatures believed would, if armed, pose a threat to the orderly functioning of society. That Range does not conceivably pose such a threat says nothing about those who do.
Id. at 109-10.
In contrast, Mr. Webb has a history that includes multiple violent felonies which do not raise the same issues as were present in Range.
CONCLUSION
Based on controlling precedent in the Tenth Circuit as well as persuasive court opinions holding that 18 U.S.C. 922(g)(1)'s prohibitions are consistent with historical tradition, Count
One of Defendant's Superseding Indictment is not an unconstitutional infringement of
Defendant's Second Amendment rights and dismissal is not warranted. The Motion is DENIED.