Opinion
Cause No. TH04-0006-CR-01-T/L.
October 19, 2004
ENTRY ON DEFENDANT'S MOTION TO DISMISS (DKT. NO. 42)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Defendant Larry Eldon Yeley has been charged with violating 18 U.S.C. § 922(g)(1), the statute that makes it unlawful for any person who has been convicted of a felony to possess a firearm or ammunition with an interstate nexus. Defendant Yeley filed a motion to dismiss on the grounds that § 922(g)(1) violates the Second Amendment of the United States Constitution and exceeds the power of Congress to regulate interstate commerce.
I. DISCUSSION
A. Second Amendment
Under 18 U.S.C. § 922(g)(1), it is unlawful for any person who has been convicted of a felony "to ship or transport in interstate commerce, or possess in or affecting commerce, any firearm or ammunition. . . ." In this case, the Government has grounded its charges against Defendant Yeley for violating § 922(g)(1) on the fact that Yeley was convicted of a felony in October 1971. Yeley argues that the use of a felony conviction older than thirty years in the § 922(g)(1) calculus runs afoul of the Second Amendment to the Constitution of the United States.
The Second Amendment 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." According to the Seventh Circuit, "[t]he link that the amendment draws between the ability "to keep and bear Arms" and "[a] well regulated Militia" suggests that the right protected is limited, one that inures not to the individual but to the people collectively, its reach extending so far as necessary to protect their common interest in protection by a militia." Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999). The Gillespie court concluded that "the Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia." Id. This is the so-called "collective rights" view of the Second Amendment, as opposed to the "individual rights" view espoused by the Fifth Circuit in United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001). Under the individual rights approach, the Second Amendment is seen as protecting the rights of individuals, including those who are not actually members of any militia, to privately possess their own firearms. 270 F.3d at 260. Defendant Yeley urges this court to adopt the Fifth Circuit's reasoning over that of the Seventh Circuit, and yet he ignores the Emerson court's statement that persons such as "felons, infants, and those of unsound mind" may be prohibited from possessing firearms under even the individual rights approach to the Second Amendment. Id. at 261. Besides, as a district court in the Seventh Circuit, this court is bound to follow the dictates of that court even if the views of another circuit might be more appealing.
Moreover, Defendant Yeley has failed to cite any statutory language that places an age limit on the felony convictions that can be used for the purposes of § 922(g)(1). "The starting point in every case involving construction is the language itself." United States v. Carr, 965 F.2d 176, 178 (7th Cir. 1992). As the Sixth Circuit has noted, "[i]n contrast to the ten-year rule of Fed.R.Evid. 609(b), the felon in possession of a firearm statute, § 922(g), places no age limit on the felonies which may be used to support a felon in possession charge." United States v. Hudson, 53 F.3d 744, 747 (6th Cir. 1995). The Sixth Circuit's example of Fed.R.Evid. 609(b) proves helpful. Congress knows how to create time limitations in statutes, and does so when it wants those restrictions to attach. See United States v. Wright, 48 F.3d 254, 256 (7th Cir. 1995). As such, Defendant Yeley's Second Amendment claims must fail.
B. Commerce Clause
Defendant Yeley further argues that 18 U.S.C. § 922(g)(1) is an unconstitutional exercise of Congress' Commerce Clause powers pursuant to Article I, Section 8 of the U.S. Constitution. The Seventh Circuit held that § 922(g) is constitutional in United States v. Keller, 376 F.3d 713 (7th Cir. 2004), and yet Defendant Yeley argues that a different result is required in the instant case given that his prior felony conviction is over thirty years old. The court disagrees. Defendant Yeley is correct that the United States Supreme Court has recently narrowed the limits of Congressional authority under the Commerce Clause. See Jones v. United States, 529 U.S. 848 (2000); United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). However, none of these cases require the court to reconsider the constitutionality of § 922(g)(1). Keller, 376 F.3d at 716-17 ("nothing in Lopez, Jones, or Morrison `casts doubt on the validity of § 922(g)'") (citation omitted). Defendant Yeley attempts to distinguish Keller on the basis of the age of the defendant's prior conviction at issue in that case. However, the age of the conviction was not a factor in the Keller decision, and this court fails to see any relationship between age of conviction and the "in or affecting commerce" jurisdictional nexus of § 922(g). 376 F.3d at 717. Accordingly, Defendant Yeley's Commerce Clause challenge has no merit.
II. CONCLUSION
For the foregoing reasons, Defendant Yeley's motion to dismiss (dkt. no. 42) is hereby DENIED.
ALL OF WHICH IS ORDERED.