704 F.Supp.3d 449
S.D.N.Y.2023Background
- Octavious Fayton is indicted on two counts for being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1).
- The court previously denied Fayton’s suppression motion; those factual findings underpin the Indictment and were accepted for the motion-to-dismiss briefing.
- Fayton moved to dismiss the Indictment (Oct. 30, 2023), arguing § 922(g)(1) is facially (and in reply, purportedly as-applied) unconstitutional under the Second Amendment; the Government opposed.
- Fayton’s reply briefly asserted an as-applied claim but offered no developed argument; the court deemed any as-applied challenge waived for inadequate briefing and late assertion.
- The court treated whether Bruen undermines Second Circuit precedent (United States v. Bogle) as dispositive: if Bogle remains binding, § 922(g)(1) stands.
- Ruling: the motion to dismiss is denied because Bogle remains controlling and Bruen does not conflict with Bogle’s reliance on Heller/McDonald about felon disarmament.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(1) is facially unconstitutional under the Second Amendment | United States: § 922(g)(1) is constitutionally permissible under Bogle and Supreme Court precedents recognizing felon prohibitions | Fayton: § 922(g)(1) infringes the Second Amendment under Bruen’s text-and-history framework | Denied — facial challenge fails; § 922(g)(1) upheld as constitutional |
| Whether Bruen overrules or makes Bogle inapplicable | United States: Bruen’s text-and-history test does not conflict with Bogle; Bogle did not apply means-end scrutiny and relied on Heller/McDonald carve-outs | Fayton: Bruen changed the analytical framework so pre-Bruen Bogle is no longer controlling | Court: No conflict/inconsistency; Bogle remains binding in the Second Circuit |
| Whether Fayton preserved an as-applied challenge | United States: Fayton failed to brief an as-applied argument and thus waived it | Fayton: (in reply) asserts both facial and as-applied challenges but provided no substantive as-applied briefing | Court: As-applied claim waived for tardy and undeveloped briefing |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to possess handguns in the home; notes longstanding prohibitions on felons)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates Second Amendment against the States; reiterates that felon possession prohibitions are longstanding)
- New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (adopts text-and-history test for firearm regulations; did not disturb felon prohibitions)
- United States v. Bogle, 717 F.3d 281 (2d Cir. 2013) (held § 922(g)(1) constitutional as applied to felons; relied on Heller/McDonald language)
- Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021) (explains facial-challenge standards)
- United States v. Salerno, 481 U.S. 739 (1987) (articulates the standard for facial challenges)
- United States v. Afriyie, 27 F.4th 161 (2d Cir. 2022) (explains when intervening Supreme Court decisions may render circuit precedent inapplicable)