874 F. Supp. 2d 969
D. Nev.2012Background
- Government moved to prohibit Defendant Call from possessing firearms/ammunition (#37).
- Call is indicted on two counts of theft of government property; pretrial release imposed firearm- and weapon-related conditions in 2011.
- October 6, 2011 order allowed Call to keep three firearms at home for protection; surrendered all others; restricted sale of firearms, but issue remained about ammunition.
- Citadel Gun & Safe allegedly continued to sell ammunition after October 6, 2011 order; no ammunition-related conditions expressly addressed in the order.
- Indictment/Complaint allege Call received stolen military equipment via Citadel Gun & Safe; government seeks restrictions under 18 U.S.C. § 922(n).
- Court analyzes whether § 922(n) prohibits possession, or employment in ammunition-related business, and potential constitutional challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(n) bars possession of three firearms previously authorized. | Government argues § 922(n) prohibits possession after indictment. | Call contends prior authorization permits continued possession. | Denied to the extent of prohibiting the three authorized firearms. |
| Whether § 922(n) prohibits Call from working in Citadel Gun & Safe selling ammunition. | § 922(n) applies to shipping/receiving ammunition, thus restricts employment. | Employment could continue if not involved in shipment/receipt of ammo. | Not barred; may allow employment if no direct/indirect shipment or receipt of ammunition. |
| Whether § 922(n) is unconstitutional on its face or as applied. | Statute constitutionally permissible; applies to indicted individuals. | Constitutional challenge under Second/Fifth/Eighth Amendments; overbroad. | Not unconstitutional on its face or as applied; intermediate scrutiny appropriate; allowed conditions. |
Key Cases Cited
- United States v. Laurent, 861 F. Supp. 2d 71 (E.D.N.Y. 2011) (§ 922(n) targets receipt/shipment, not pre-indictment possession; intermediate scrutiny appropriate)
- United States v. Craven, 478 F.2d 1329 (6th Cir. 1973) (possession can be actual or constructive under § 922(h)(1) analysis)
- United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (applies intermediate scrutiny to § 922(g)(8)/§ 922(g)(9) schemes; governs standard of review)
- United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (upholds § 922(g)(9) under intermediate scrutiny for DV-related disqualification)
- United States v. Decastro, 682 F.3d 160 (2d Cir. 2012) (upholds § 922(a)(3) under intermediate scrutiny; prevents circumvention of state laws)
- United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) (upholds park-area regulation restricting carrying/possession of loaded weapons under intermediate scrutiny)
- Heller v. District of Columbia, 554 U.S. 570 (Supreme Court 2008) (recognizes core Second Amendment right to keep/bear arms, with regulatory exceptions)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (Second Amendment applies to states via incorporation; self-defense central to right)