MEMORANDUM
I. Introduction
We are considering a motion to dismiss and cross-motions for summary judgment. This matter relates to a two count complaint in which Plaintiff asserts that Defendants have barred him from acquiring firearms in contravention of federal law and in violation of the United States Constitution. (Doc. 1). On October 20, 2014, Defendants filed a motion to dismiss and a motion for summary judgment. (Doc. 12). In response, on November 13, 2014, Plaintiff filed his own motion seeking summary judgment. (Doc. 17). For the reasons discussed below, we will grant Defendants’ motion to dismiss with respect to -Count One, and we will grant Plaintiffs motion for summary judgment with respect to Count Two.
II. Background
On June 26, 1990, Julio Suarez was convicted in Montgomery County, Maryland of carrying a handgun without a license. (Doc. 1 at 2); see Md.Code Ann., art. 27, § SGBib).
On May 20, 2014, Suarez (hereinafter Plaintiff) filed a complaint in which he announced that he intended to acquire firearms for self-protection and the protection of his family. (Doc. 1 at 1, 5). He first asserts that his conviction is statutorily excluded from the scope of the Gun Control Act; however, Defendants have misinterpreted the Act so as to include it. (Id. at 6). Therefore, in Count One of his complaint, Plaintiff argues that Defendants have wrongly enforced the Gun Control Act against him. (Id.). Accordingly, he asks us to issue a judgment declaring that he does not fall within the ambit of the Gun Control Act and to enjoin Defendants from continuing to enforce it against him. (Id.). In Count Two of his complaint, Plaintiff claims that even if he does fall within the bounds of the Gun Control Act, as applied to him, the Act violates the Second Amendment. (Id. at 7). Plaintiff again prays for injunctive and declaratory relief. (Id.).
Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that Plaintiff has failed to state a facially plausible claim. (Doc. 12). At the same time, Defendants filed an alternative motion for summary judgment, arguing that there is no issue of material fact and that they are entitled to judgment as a matter of law. (Id.). Plaintiff, in turn, filed a cross-motion for summary judgment, claiming that the record evidence establishes that he is entitled to judgment as a matter of law. (Doc. 17). The issues have been extensively briefed by the parties, and the motions are ripe' for our disposition.
III. Discussion
A. Motion to Dismiss
1. Standard of Review
Rule 12(b)(6) authorizes the dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Under Rule 12(b)(6), we must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside,
2. Count One-Interpretation of The Gun Control Act of 1968
Codified at 18 U.S.C. § 922(g)(1), The Gun Control Act dictates that it is unlawful for a person to possess a firearm if that person has been convicted “of a
“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”
Here, the word punishable is placed within a criminal statute, and together with a specified term of imprisonment,, is used to identify which convictions disable individuals from possessing firearms and which eonvictipns do not. 18 U.S.C. §§ 921(a)(20)(B)'; 922(g)(1). There are myriad cases that have observed that in the context of criminal statutes, the words “punishable by,” together with a single specified term of imprisonment and no further modifiers, identifies the maximum punishment a court is capable of imposing,
§ 921(a)(20)(B), means' the maximum punishment a court is capable of imposing.
Plaintiffs arguments to the contrary do not persuade us. ' According to Plaintiff, because a court is “capable” of imposing a minimum punishment, various canons of statutory construction require that we interpret “punishable” to refer to the minimum punishment the court was capable of imposing, not the maximum. (Doc. 18 at 17-18). Therefore, since Plaintiff’s firearm offense had a minimum sentence of only thirty days imprisonment and was actually sentenced to only 180 days, the conviction was “capable” of being punished by two years or less, and Plaintiff falls within the statutory exclusion of § 921(a)(20)(B). (Id.).
At the outset, we find that Plaintiff’s interpretation does not comport with the common and ordinary usage of the English language. The following examples demonstrate the point. If a crime had a mandatory minimum prison term of three years and a maximum term of ten years, because the minimum penalty the court, would be capable of imposing is three years, Plaintiff would have us say the.crime, was “punishable by three years imprisonment.” Likewise, if-the maximum possible prison term were ten years, but no minimum term was specified, because a court would be capable of imposing a minimum term of zero years, Plaintiff would have us - describe the penalty as “punishable by no term of imprisonment.” Although correct in some hyper-technical sense, this is simply not how our society normally speaks or writes. See Lopez v. Gonzales,
In addition, we find that the canons of statutory construction on which Plaintiff relies cannot bear the weight of his argument. First, Plaintiff argues that because the word “punishable” is ambiguous, and it is used in a criminal statute, the rule of lenity requires that we adopt his interpretation. Further, he argues ■ that because his interpretation avoids the difficult constitutional question of whether § 922(g)(1), as applied to him, violates the Second Amendment, the constitutional avoidance doctrine dictates that we adopt his interpretation. We disagree. The rule of lenity does not apply just “because a statute requires consideration and interpretation to confirm its meaning. It applies only if there is such grievous ambiguity ... the Court can make no more than a guess as to what Congress meant.” United States v. Kouevi,
Therefore, we find that a State misdemeanor conviction only falls within the exclusion of § 921(a)(20)(B) if the maximum penalty the court was capable of imposing was two years or less. Because the court was capable of sentencing Plaintiff to a maximum term of three years imprisonment, he does not fall within the exclusion. Thus, there is no question whether § 922(g)(1) prohibits Plaintiff from possessing a firearm. It does. Accordingly, we find that Plaintiff has failed to state a claim in Count One, and finding that amendment of the complaint would be futile, we will dismiss Count One with prejudice. Grayson v. Mayview State Hosp.,
3. Count Two — As Applied Constitutional Challenge
i. Applicable Standard
In Count Two, Plaintiff asserts that, as applied to him, § 922(g)(l)’s firearm prohibition violates the Second Amendment. In order to determine whether Plaintiff has pleaded enough facts to state a plausible claim, we must first determine what rule applies. Defendants assert that the applicable rule is set out in United States v. Marzzarella,
The parties assert numerous arguments in support of their respective positions. Defendants argue that Marzzarella provides the applicable framework for all Second Amendment challenges, and if Barton has any role,
Marzzarella and Barton are derived from the Supreme Court’s holding in District of Columbia v. Heller,
Based on its reading of Heller, the Third Circuit decided Marzzarella. Marzzarella involved, a Second Amendment challenge to § 922(k), which prohibits the possession of firearms with obliterated serial numbers. ■ Marzzarella,
, Less than a year later, the Third Circuit issued its opinion in Barton. Barton involved both facial and as-applied challenges to the firearm possession disability in § 922(g)(1). Barton, 633 F.3d at .169. In analyzing the facial challenge, the Barton court also analyzed the Supreme Court’s discussion of presumptively valid prohibitions and, like the Marzzarella, found that the prohibitions are presumptively valid because possession of firearms by felons is not conduct protected by the Second Amendment. Id. at 170-71. The Barton court also found that the Supreme Court’s discussion of presumptively valid prohibitions was bindiiig. Id. And since Heller requires a presumption that “felon disposition statute[s) regulate conduct which is unprotected by the Second Amendment,” the Third Circuit rejected the facial challenge of § 922(g)(1). Id. at 172.
With respect to the as-applied challengé to § 922(g)(1), the Third Circuit held that because the prohibitions discussed in Heller are only “presumptively” valid, the presumption could be rebutted with an as-applied challenge. Id. at 173. According to the Third Circuit, to raise a successful as-applied challenge to. a presumptively valid prohibition, the challenger “must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment challenges.” Id. at 174. Meaning that in the context of an as-applied challenge to § 922(g)(1), the challenger “must demonstrate that his circumstances place outside the intended scope of § 922(g)(1).”
We find Marzzarella and Barton to be harmonious, and reading thém together, we find that Barton does address the first element of the Marzzarella,
That leaves us with the question of what to do with the second prong of Marzzarel-la, Because we find that Marzzarella sets the framework for Second Amendment challenges, and Barton only speaks to the first prong of Marzzarella when asserting as-applied challenges to presumptively valid prohibitions, we agree with Defendants that, in theory, we should conduct some sort of means-end scrutiny.
ii Whether Plaintiff States a Facially Plausible Claim
According to the Third Circuit, the traditional justification of § 922(g)(1) was the disarmament of individuals likely to commit violent offenses. Barton,
Despite these facts, Defendants argue that Plaintiff has not pleaded sufficient facts that place him outside the intended scope of § 922(g)(1). To support their argument, Defendants point to Dutton v. Pennsylvania,
First, Dutton did not actually contain an as-applied challenge to § 922(g)(1). Indeed, even after liberally construing the complaint, both the district court and the Third Circuit found that only a statutory claim existed. See, e.g., id. at 127 n. 1. Therefore, when the Third Circuit found that amendment was futile, it did so because there was no amendment that would save the plaintiffs statutory challenge to § 922(g)(1). See Binderup,
Therefore, viewing the complaint in the light most favorable to Plaintiff, we find that Plaintiff has pleaded sufficient facts to state a facially plausible as-applied Second Amendment claim. Accordingly, we will deny Defendant’s motion to dismiss with respect to Count Two and will instead address Count Two on the cross-motions for summary judgment.
1. Standard of Review
We will examine the motion for summary judgment under the well-established standard. Lawrence v. City of Phila.,
2. Constitutionality of § 921(g)(1) As Applied to Plaintiff
The record evidence establishes the following concerning Plaintiff’s background and circumstances.
Since his 1990 conviction, Plaintiff has been married for twenty years. (Doc. 19 at 2). He is a father of three children. He is a member of a local church and enjoys a position of leadership there. (Id.). Since 1992, Plaintiff has maintained continuous employment within the technology field. (Doc. 18-1 at 1). For the last six years, he has been employed as a Project Manager for a technology management company. (Id.). In his position, Plaintiff provides technology services primarily to Department of Defense clients. (Id.). And in order to provide those ser
The traditional justification for § 922(g)(1) was the disarmament of individual’s likely to commit violent acts. Barton,
Second, we find that Plaintiffs background and circumstances in the years following his conviction establish that he is no more dangerous than a typical law-abiding citizen and poses no continuing threat to society, in Barton, the Third, Circuit pointed to Britt v. North Carolina to exemplify a felon who is no longer dangerous and poses no continuing, threat. Barton,
Like the felon in Britt, Plaintiffs conviction did not involve violence. He served his probationary period without incident. There is no evidence that in the twenty-five years since his conviction Plaintiff was dangerous or misused firearms. There is no evidence that he used violence toward other citizens. Although he does have one intervening conviction for driving under the influence of alcohol, that conviction is not a disqualifying conviction under § 922(g)(1) and is itself nearly two decades old. Indeed, despite Plaintiffs subsequent conviction, in 2009, a Pennsylvania Court of Common Pleas determined that Plaintiffs circumstances justified removal of a firearm disability imposed under State law.
Defendants’ arguments that Plaintiffs circumstances make him no different than those historically barred from Second Amendment protections do not persuade us otherwise. First, they argue that Congress .enacted § 922(g)(1) .with a broad prophylactic purpose , and intended to impose a possession prohibition on individuals convicted of. both violent and nonviolent crimes. (Doc. 13 at 29-33; Doc. 28 at 26). Therefore, according to Defendants, although Plaintiffs conviction did not involve violence, he is not outside the intended scope of the felon possession prohibition of § 922(g)(1).
Next, Defendants argue that Plaintiff is no different than those historically barred because he is similar to the challenger in Barton.
The circumstances of each case matter greatly. The challenger in Barton was prohibited from possessing firearms under § 922(g)(1) because he was convicted of receiving stolen property — -which happened to be a stolen firearm. Id. His challenge arose after being indicted for violating § 922(g)(1) because he sold a revolver with an obliterated serial number to a confidential informant. Id. Because the rule for making an as-applied claim would not be established until the Third Circuit issued its opinion in his case, the challenger presented no facts showing that his circumstances placed him outside § 922(g)(l)’s scope. Id. at 174. Nor was he capable of doing so, since he had just been indicted for selling firearms with obliterated serial numbers. Id.
Here, unlike the defendant in Barton, Plaintiff is not a criminal defendant currently under an indictment for selling firearms with obliterated serial numbers. Plaintiffs predicate conviction is not for an inherently violent crime. The challenger in Barton was convicted of inherently violent crimes. See Barton,
Finally, Defendants assert that Plaintiff is not outside the intended scope of § 922(g)(1) because he has not shown that he is no more dangerous than a typical law-abiding citizen and poses no continuing threat to society. First, they emphasize that at the time of Plaintiffs arrest, he was carrying a .357 Magnum handgun and two loaded speed-loaders while intoxicated to the point that he was placed under arrest for driving under the influence. (Doc. 13 at 27). They argue that possessing a firearm while intoxicated poses such a danger that many jurisdictions impose criminal sanctions for doing so.
IV. Conclusion
Based on the discussion above, we find that Plaintiff does not fall within the exclusionary language of § 921(a)(20)(B) and that § 922(g)(1) does prohibit him from possessing a firearm. Accordingly, we will grant Defendants’ motion to dismiss with respect to Count One. We further find that, pursuant to Third Circuit’s opinion in United States v. Barton, Plaintiff has established that his background and circumstances place him outside of the intended scope § 922(g)(1), and therefore the application of § 922(g)(1) violates Plaintiffs Second Amendment protections. Accordingly, we will grant Plaintiffs motion for summary judgment with respect to Count Two.
. Neither party argues that Congress intended to give the word "punishable” a non-ordinary meaning. Accordingly, we need only determine the ordinary meaning of "punishable.”
. See, e.g., Logan v United States,
. Although the parties spill much ink debating whether these cases are of binding prece-dential value, we need not reach that question, First, the fact that some of the opinions do not analyze the meaning of "punishable” does not dissuade us. On the contrary,. the fact that some courts reached that meaning without discussion gives an even stronger indication of the ordinary meaning of “punishable.” Further, we need not decide the prece-dential value because our ruling is .consistent with the holdings of these opinions. Finally, we note that by not reaching this question, we render moot Plaintiff’s argument that District of Columbia v. Heller calls into question the precedential value of any opinion that predates it.
. We decline Defendants’ invitation'to examine the legislative history of the statute. The Supreme Court has repeatedly held that the authoritative statement is the statutory text. Exxon Mobil Corp. v. Allapattah Servs., Inc,,
. As we read Defendants’ brief in support, they initially suggest that either Marzzarella applies or Barton applies, not both. They argue the answer is Marzzarella. In their reply brief, however, Defendants pivot and argue that Barton .just elucidates the first prong of Marzzarella.
. The Court also rioted that its list of presumptively valid prohibitions is not exhaustive. Heller,
. With respect to Plaintiff’s argument that Marzzarella only applies to facial challenges, we are not persuaded. Marzzarella itself was an as-applied challenge. See Marzzarella,
; Citing Marzzarella, Defendants urge us to use intermediate scrutiny. We find that, in this context, strict scrutiny would be the appropriate standard. The Marzzarella court applied intermediate scrutiny because § 922(k) does not severely limit possession of firearms, only those with obliterated serial numbers. Marzzarella, 614 F,3d at 96. But where there is a straight prohibition of firearms possession, as in § 922(g)(1), and not just a regulation of possession, as in § 922(k), a fundamental right is implicated. See McDonald v. City of Chicago,
. In our view, this is why the Barton court stated that in order to raise a 1‘successful’' as-applied challenge, the challenger need only show his circumstances are distinguishable. If he does make such a showing, he falls back into the core protections of the Second Amendment, and any means-end scrutiny would fail.. Marzzarella analyzed the second prong because, as noted above, the statute was not a prohibition of possession, but a regulation of possession. Therefore, since the conduct was not within the core of the Second Amendment’s protections, a means-end analysis was not necessarily fatal.
. We read Defendants' brief to argue that Plaintiff fails to state a claim because Dutton precludes individuals convicted of carrying a firearm without' a license from asserting a facially plausible as-applied Second Amendment challenge to § 922(g)(1). Therefore, we address Dutton under the motion to dismiss, as oppose to the cross-motions for summary judgment.
. Plaintiff and Defendants assert that the facts contained in the other party’s statement of facts are largely irrelevant. However, in most circumstances we find nothing in Plaintiff's or Defendants’ response pointing to record evidence to indicate a dispute. Accordingly, unless otherwise noted, we find the facts in each party’s statement of facts to be undisputed. See Local Rule 56.1.
. The parties dispute whether Plaintiff notified law enforcement of his possession of the V'rearm or whether law enforcement recovered it without warning from Plaintiff. We do not find this fact material to the issue under consideration.
. Pursuant to 18 Pa. Cons.Stat § 6105, a person convicted of certain weapon offenses may not possess a firearm in the Commonwealth of Pennsylvania, unless the person applies for and is granted relief by the court of common pleas in the county in which she resides. 18 Pa. Cons.Stat. § 6105(a), (c).
. , By the use of the word "minor,” we do not mean to imply that the offense of carrying a firearm without a license is inconsequential, We use "minor” only to suggest that the penalty Plaintiff actually received was minimal.
. .'Defendants assert that this fact should be accorded no weight because the Court of
. Plaintiff seems to argue that he is different than those historically barred because § 922(g)(1) was traditionally intended to prohibit felons from possessing firearms. Because he was convicted of a misdemeanor, he claims- is outside the - scope- of § 922(g)(1). We disagree. Congress generally equates a felony to a crime punishable by imprisonment of more than one year. Burgess v. United States,
. Defendants also argue that Dutton establishes that Plaintiff is no different than those historically-barred from Second Amendment protections. Because we have already examined Dutton and found it distinguishable from this case, see supra pp. 583-85, we need not re-examine it here. .
. In addition, Defendants argue that Heller only protects the right of law-abiding citizens to bear arms. Therefore, they remind us that Plaintiff has also been convicted for driving under the influence, and a person who has been twice convicted cannot be characterized as "law-abiding.” Again, Barton allows for a person convicted of a crime to demonstrate they are now law-abiding and fall within the Second Amendment’s protection.