Opinion
23-CR-2024-CJW-MAR
08-04-2023
UNITED STATES OF AMERICA, Plaintiff, v. CHRISTOPHER WUCHTER, Defendant.
MEMORANDUM OPINION AND ORDER
C.J. Williams United States District Judge
I. INTRODUCTION
This matter is before the Court on defendant's Motion to Dismiss. (Doc. 29). The government filed a timely resistance. (Doc. 32). Defendant requested a hearing, but the Court finds one unnecessary. For the following reasons, the Court denies defendant's motion.
II. RELEVANT BACKGROUND
On April 19, 2023, a grand jury indicted defendant in a one-count indictment charging him with possession of a firearm by a drug user, in violation of Title 18, United States Code, Sections 922(g)(3) and 924(a)(8). (Doc. 2). The indictment alleges that on January 9, 2023, defendant possessed 31 firearms when he was then an unlawful user of marijuana and methamphetamine. (Id.). Two of the firearms are described as weapons “made from a shotgun,” a reference to so-called sawed-off shotguns. (Id.).
On June 28, 2023, the grand jury returned a two-count superseding indictment against defendant. (Doc. 22). Count 1 remained the same, but in Count 2, the grand jury charged defendant with possession of National Firearms Destructive Devices Not Registered to Possessor, in violation of Title 26, United States Code, Sections 5841, 5861(d) and 5871, which makes it a crime to possess firearms, as defined by Title 26, United States Code, Section 5845(a) unless properly registered with the federal government. (Id.).
III. DISCUSSION
Defendant argues that Title 18, United States Code, Section 922(g)(3), which makes it a crime for him to possess firearms as an unlawful drug user is unconstitutional because it is inconsistent with this Nation's historical tradition of firearm regulation, as required by Bruen. N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). (Doc. 29-1, at 3-5). He also argues that Title 26, United States Code, Section 5861(d), which makes it a crime for him to possess unregistered sawed-off shotguns, is also unconstitutional for the same reason. (Id., at 5-6).
The Court finds that neither Section 922(g)(3) nor Section 5861(d) violate the Second Amendment on its face and therefore denies defendant's motion to dismiss. In arriving at these conclusions, the Court's analysis must differ between the two laws, so it will address first Section 922(g)(3), then Section 5861(d).
A. Section 922(g)(3)
1. Implication of the Second Amendment
The Second Amendment to the United States Constitution provides “[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. Title 18, United States Code, Section 922(g), however, provides that “[i]t shall be unlawful for any person . . . (3) who is an unlawful user of or addicted to any controlled substance . . . to . . . possess in or affecting commerce, any firearm or ammunition ....”
In Bruen, the United States Supreme Court explained that “[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. 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. at 2129-30. Only after the government makes that showing “may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command.” Id. at 2130 (internal quotation marks and further citation omitted). In Bruen, the Supreme Court held unconstitutional a State of New York's penal code provision making it a crime to possess a firearm outside the home without a license, when licensing required applicants to satisfy a “proper cause” for possessing a firearm by “demonstrat[ing] a special need for self-protection distinguishable from that of the general community.” 142 S.Ct. at 2123 (further citation omitted). The Supreme Court determined that all lower courts had erred in applying means-end scrutiny of statutes regulating firearms, finding that statutes regulating conduct protected by the Second Amendment are presumptively unconstitutional unless the government can show that “it is consistent with the Nation's historical tradition of firearm regulation.” Id. at 2129-30. Because the State of New York only issued public-carry licenses when an applicant demonstrated a special need for self-defense, the Bruen Court found “the State's licensing regime violates the Constitution.” Id. at 2122. “Bruen transformed and left uncharted much of the legal landscape” of Second Amendment jurisprudence. United States v. Charles, 22-CR-00154-DC, 2022 WL 4913900, at *1 (W.D. Tex. Oct. 3, 2022).
Under Bruen, the threshold question a court must address is whether the statute in question regulates conduct protected by the Second Amendment. Here, Section 922(g)(3) criminalizes possession of a firearm, which is conduct expressly protected by the Second Amendment. The text of the Second Amendment does not qualify who may possess firearms, but rather uses the word “people.” Thus, as a textual matter, the plain reading of the Second Amendment covers defendant who is a person under the Constitution. See United States v. Perez-Gallan, 22-CR-00427-DC, 2022 WL 16858516, at *8-9 (W.D. Tex. Nov. 10, 2022) (finding the Second Amendment applies to members of the political community and is not limited to law-abiding citizens). Thus, the Court answers the threshold question in the affirmative.
2. Section 922(g)(3) is Consistent with the Nation's Tradition of Firearm Regulation
Having found that Section 922(g)(3) implicates conduct protected by the Second Amendment, the next question is whether it is consistent with the Nation's historical tradition of firearm regulation. This Court has twice found that Section 922(g)(3) is constitutional. See United States v. Garcia, Case No. 23-CR-2018-CJW-MAR, at Doc. 25; United States v. Springer, Case No. 23-CR-1013-CJW-MAR, at Doc. 44. The Court makes the same finding here for the same reasons, which it will repeat here.
The Supreme Court's holding in Bruen did not overturn District of Columbia v. Heller, in which the Court recognized the importance of “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'” 554 U.S. 570, 627 (2008) (citations omitted). In fact, the Bruen Court expressly stated that its opinion was “consistent with Heller and McDonald [v. City of Chicago, 561 U.S. 742 (2010)].” 142 S.Ct at 2122. As in Heller and McDonald, the issue in Bruen concerned “how and why the regulations burden a law-abiding citizen's right to armed self-defense.” Id. at 2133. The Bruen Court noted that it was undisputed that the petitioners were “two ordinary, law-abiding, adult citizens” who are “part of ‘the people' whom the Second Amendment protects.” Id. at 2134. In the first paragraph of the Bruen opinion, the Court framed the issue as follows:
In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second
and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.Id. at 2122 (parallel citations omitted). In the concluding paragraph of the majority opinion, the Court repeated that the right to bear and keep arms belonged to “law-abiding citizens with ordinary self-defense needs.” Id. at 2156.
Thus, it is abundantly clear that the Bruen Court did not disturb the conclusions in Heller and McDonald in which the Justices made it plain that it left undisturbed government regulations prohibiting felons from possessing firearms. Id. at 2162 (Kavanaugh, J., concurring). It follows that, since Bruen, lower courts have consistently held as constitutional Section 922(g)(1) which makes it an offense for felons to possess firearms. See United States v. Price, No. 2:22-cr-00097, 2022 WL 6968457, at *8 (S.D. W.Va. Oct. 12, 2022) (collecting cases). The broader question the Supreme Court left open is the extent to which statutes prohibiting other categories of people from possessing firearms is supported by the historic regulation of firearm possession.
In Heller, the Supreme Court emphasized that despite its holding that the Second Amendment conferred an individual right to bear arms, it was not undertaking “an exhaustive historical analysis . . . of the full scope of the Second Amendment, [and 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, 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.” Heller, 554 U.S. at 62627. The Heller Court explained: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” 554 U.S. at 627 n.26. Later, in McDonald, 561 U.S. at 785-87, the Supreme Court reaffirmed the sentiment that Heller was not meant to create doubt about the regulations that prohibited firearm possession by certain groups of people or in certain places.
After Heller, but prior to Bruen, the Eighth Circuit Court of Appeals held that Section 922(g)(3) was a lawful exception to the Second Amendment-an exception consistent with the historical understanding of the amendment's protections. In United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010), the Eighth Circuit rejected a facial constitutional challenge to Section 922(g)(3). The Eighth Circuit explained:
Nothing in Seay's argument convinces us that we should depart company from every other court to examine § 922(g)(3) following Heller. Further, § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213. Moreover, in passing § 922(g)(3), Congress expressed its intention to “keep firearms out of the possession of drug abusers, a dangerous class of individuals.” United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010), pet. for cert. filed, 78 U.S.L.W. 3731 (U.S. June 1, 2010) (No. 09-1470). As such, we find that § 922(g)(3) is the type of ‘longstanding prohibition[ ] on the possession of firearms' that Heller declared presumptively lawful. See 128 S.Ct. at 2816-17. Accordingly, we reject Seay's facial challenge to § 922(g)(1).Id. (alteration in original).
The Seay Court did not conduct the type of historic analysis the Supreme Court contemplated in Bruen. Still, the Court finds Seay binding. As the Honorable Stephen H. Locher, United States District Court Judge for the Southern District of Iowa, reasoned:
All the same, nothing in Bruen expressly repudiates the holding of Seay. To the contrary, in a concurring opinion in Bruen, Justice Kavanaugh (joined by Chief Justice Roberts) reiterated the earlier admonitions of Justices Scalia (in Heller) and Alito (in McDonald) 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 . . .” Bruen, 142 S.Ct. at 2162 (Kavanaugh, J., concurring (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783)). As Seay relied heavily on the same “longstanding prohibition” language in affirming the facial constitutionality of § 922(g)(3), see 620 F.3d at 925, it is difficult for this Court to conclude Seay is no longer good law. Instead, the proper course is to treat Seay as
binding and “leav[e] to [the Eighth Circuit] the prerogative of overruling its own decisions.” United States v. Coonce, 932 F.3d 623, 641 (8th Cir. 2019) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)); see also United States v. Wendt, - F.Supp.3d____,____, 2023 WL 166461, at *5 (S.D. Iowa Jan. 11, 2023) (declining to interpret Bruen as having invalidated firearm restrictions under the Bail Reform Act absent “much clearer guidance from higher courts”).United States v. Le, No. 4:23-cr-00014-SHL-HCA, 2023 WL 3016297, at *2 (S.D. Iowa Apr. 11, 2023).
Here, the Court agrees with Judge Locher's reasoning. Absent the Eighth Circuit itself finding that Bruen overturned its holding in Seay, this Court must treat Seay as binding precedent. For that reason, the Court would deny defendant's motion to dismiss on the ground that Section 922(g)(3) violates the Second Amendment. See also Gilpin v. United States, Civil No. 22-04158-CV-C-RK-P, 2023 WL 387049, at *4 (W.D. Mo. Jan. 3, 2023) (rejecting a post-Bruen challenge to Section 922(g)(3), finding that Bruen did not overturn binding precedent in Seay).
Regardless, even if the Court did not find Seay binding, under the more robust historic analysis demanded by Bruen, the Court is persuaded that Section 922(g)(3) withstands a constitutional attack. In United States v. Bena, 664 F.3d 1180, 1183-84 (8th Cir. 2011), the Eighth Circuit conducted a more thorough historic analysis of the regulation of firearms as it relates to dangerous people during the Founding era in rejecting a constitutional challenge to Section 922(g)(8), which criminalizes firearm possession by persons subject to a court order of protection for domestic abuse. There, the Eighth Circuit concluded there was “a common-law tradition that permits restrictions directed at citizens who are not law-abiding and responsible.” Bena, 664 F.3d at 1183. Further, as Justice Barrett, who was then sitting as a judge on the Seventh Circuit Court of Appeals, noted, there is ample evidence from the Founding era that firearms were restricted from those who were deemed dangerous to society. See Kanter v. Barr, 919 F.3d 437, 464 (7th Cir. 2019) (Barrett, J., dissenting) (“The historical evidence does, however, support a different proposition: that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category simultaneously broader and narrower than ‘felons'-it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.”). Congress considered drug abusers to be a “dangerous class of individuals.” Seay, 620 F.3d at 925. Congress made it illegal for unlawful drug users to possess firearms for the common sense and obvious reason that someone using illegal drugs, in possession of a firearm, poses a real danger to the community. See United States v. Yancey, 621 F.3d 681, 685 (7th Cir. 2010) (“[H]abitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms.”). It follows, then, that barring unlawful drug users who pose a danger to society is consistent with the history of firearm regulation at the time the Second Amendment was adopted.
This Court is not alone in reaching the conclusion that Section 922(g)(3) does not violate the Second Amendment. Numerous other district courts have reaffirmed the conclusion that Section 922(g)(3) is constitutional after Bruen. See, e.g., United States v. Walker, 8:22-CR-291, 2023 WL 3932224, at *5 (D. Neb. June 9, 2023) (rejecting post-Bruen challenge to Section 922(g)(3), finding the Seay case controlling); Le, 2023 WL 3016297, at *5 (rejecting a post-Bruen constitutional challenge to Section 922(g)(3)); United States v. Posey, Case No. 2:22-CR-83 JD, 2023 WL 1869095, at *9-10 (N.D. Ind. Feb. 9, 2023) (denying as applied and facial post-Bruen challenge to Section 922(g)(3)); United States v. Lewis, Case No. CR-22-368-F, Case No. CR-22-395-F, 2023 WL 187582, at *4 (W.D. Okla. Jan. 13, 2023) (rejecting a post-Bruen constitutional challenge to Section 922(g)(3)); United States v. Sanchez, W-21-CR-00213-ADA, 2022 WL 17815116, at *3 (W.D. Tex. Dec. 19, 2022) (holding that Section 922(g)(3) is “consistent with this Nation's historical tradition of firearm regulation”); Fried, 2022 WL 16731233, at *7 (“At bottom, the historical tradition of keeping guns from those the government fairly views as dangerous-like alcoholics and the mentally ill-is sufficiently analogous to modern laws keeping guns from habitual users of controlled substances . . .. The challenged laws are consistent with the history and tradition of this Nations' [sic] firearm regulation.”); United States v. Seiwert, Case No. 20 CR 443, 2022 WL 4534605, at *2 (N.D. Ill. Sept. 28, 2022) (holding that Section “922(g)(3) is relevantly similar to regulations aimed at preventing dangerous or untrustworthy persons from possessing and using firearms, such as individuals convicted of felonies or suffering from mental illness”); United States v. Daniels, 610 F.Supp.3d 892, 897 (S.D.Miss. 2022) (finding Section 922(g)(3) constitutional after determining that “analogous statutes which purport to disarm persons considered a risk to society-whether felons or alcoholics-were known to the American legal tradition”).
True, some other district courts have found Section 922(g)(3) violates the Second Amendment. See, e.g., United States v. Connelly, Cause No. EP-22-CR-229(2)-KC, 2023 WL 2806324, at *12 (W.D. Tex. Apr. 6, 2023); United States v. Harrison, Case No. CR-22-00328-PRW, 2023 WL 1771138, at *24 (W.D. Okla. Feb. 3, 2023). The Court has reviewed these non-binding decisions and, with respect, simply disagrees with the narrow view these courts took of the historic precedent of regulating firearm possession by dangerous and unlawful citizenry. The Court is persuaded that Section 922(g)(3) is a constitutional restriction consistent with historical tradition.
Thus, the Court denies defendant's motion to dismiss, finding Section 922(g)(3) does not violate the Second Amendment on its face.
B. Section 5861(d) Does Not Implicate the Second Amendment
Defendant argues that Section 5861(d) is unconstitutional. (Doc. 29-1, at 5-6). Defendant proclaims that “[s]hotguns were in common usage during the founding era without restrictions on barrel length.” (Id., at 5). Defendant analogizes shotguns to smoothbore muskets, and then proclaims that restrictions on length of such weapons were not imposed until the 1932 National Firearms Act. (Id., at 5-6). The government resists and argues that short-barreled firearms are not protected by the Second Amendment. (Doc. 32, at 19-23).
Title 26, United States Code, Section 5861(d) makes it a crime to possess a firearm, as defined by Title 26, United States Code, Section 5845(a) not registered to the possessor. Section 5845(a) defines a firearm as, among other things, “(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length ....”
Section 5861(d), which makes certain firearms unlawful unless registered, does not implicate conduct protected by the Second Amendment. The Supreme Court has expressly and repeatedly held that short-barreled shotguns do not fall within the scope of the Second Amendment's protections. Rather, Section 5861(d) is a restriction on particular types of firearms, not on the conduct of possessing firearms. In United States v. Miller, the Supreme Court explained:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.Miller, 307 U.S. 174, 178 (1939). The Court later affirmed that holding in Heller: “We therefore read Miller to say only that the Second Amendment does not protect . . . short- barreled shotguns.” Heller, 554 U.S. at 625; see also United States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992) (emphasizing that the regulation of short-barreled rifles “addresses a concealable weapon likely to be” used for criminal purposes); H.R. Rep. No. 1337, 83d Cong., 2d Sess., A395 (1954).
The Supreme Court's decision in Bruen did not overturn these holdings. To the contrary, it relied on these decisions. See, e.g., Bruen, 142 S.Ct. at 2127-28, 2132, 2134-35. The express purpose of the National Firearms Act was to regulate the making, receipt and possession of “certain weapons likely to be used for criminal purposes, just as the regulation of short-barreled rifles, for example, addresses a concealable weapon likely to be so used.” Thompson/Center Arms Co., 504 U.S. at 517 (highlighting the “clearly indicated congressional intent to cover under the National Firearms Act only such modern and lethal weapons, except pistols and revolvers, as could be used readily and efficiently by criminals or gangsters”). Further, short-barreled shotguns are not “‘in common use' today for self-defense,” as were the handguns at issue in Heller and Bruen. Bruen, 142 S.Ct. at 2134 (citing Heller, 554 U.S. at 628-29 (“The handgun ban amounts to a prohibition of an entire class of ‘arms' that is overwhelmingly chosen by American society for that lawful purpose [of self-defense].”)). Rather, Congress and the Supreme Court have already determined short-barreled shotguns are dangerous and unusual weapons likely to be used not for self-defense, but for criminal purposes. Thus, the Supreme Court's precedent controls and explicitly directs that the regulations governing the possession of short-barreled shotguns do not regulate conduct protected by the Second Amendment.
This is not the first court to find Section 5862(d) constitutional after the Supreme Court's decision in Bruen. See, e.g., United States v. Saleem, No. 3:21-cr-00086-FDW-DSC, 2023 WL 2334417, at *8 (W.D. N.C. Mar. 2, 2023) (finding Section 5861(d) constitutional because short-barreled shotguns are not protected by the Second Amendment); United States v. Rush, No. 22-cr-40008-JPG, 2023 WL 403774, at *3 (S.D. Ill. Jan. 25, 2023) (same); United States v. Holton, No. 3:21-CR-0482-B, 2022 WL 16701935, at *3 (N.D. Tex. Nov. 3, 2022) (holding that Sections 5861(d) and 5861(h) are constitutional because the National Firearms Act regulates dangerous and unusual weapons and thus does not regulate protected conduct); United States v. Hoover, No. 3:21-cr-22(S3)-MMH-MCR, 2022 WL 10524008, at *6-9 (M.D. Fla. Oct. 18, 2022) (same, as to Section 5861(d)'s regulation of machineguns); see also United States v. Fencl, No. 21-CR-3101 JLS, 2022 WL 17486363, at *2-3 (S.D. Cal. Dec. 7, 2022) (holding the requirements under Title 18, United States Code, Section 3142(c)(B)(viii) of the Bail Reform Act of 1984 for Section 5861(d) violations concerning unregistered short-barreled rifles and silencers regulate unprotected conduct). Nor will it be the last.
Defendant's assertion that people exercised unrestricted possession of short-barreled shotguns at the time of the nation's founding is unsupported and unpersuasive. First, defendant cites no authority for this sweeping assertion. Second, it ignores Supreme Court precedent recognizing that at the nation's founding the government regulated the length and nature of firearms. Miller, 307 U.S. at 180 (“The musketeer should carry a ‘good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length ....”; “Every officer and soldier shall appear . . . armed . . . with a good, clean musket . . . three feet eight inches long in the barrel ....”). Thus, the historic precedent appears to show that our founding fathers did not permit people to run around with sawed-off shotguns any more than we permit it today. Even if the Court were to find possession of short-barreled shotguns was a right protected by the Second Amendment, the Court would finds laws, like Section 5861(d) regulating possession of such weapons, to be consistent with the historic tradition at the founding of regulating possession of such weapons.
In short, the Court finds that Section 5861(d) is constitutional because it regulates types of firearms and does not implicate the Second Amendment.
IV. CONCLUSION
For these reasons, defendant's motion to dismiss (Doc. 29) is denied.
IT IS SO ORDERED