United States of America v. Alonzo L. Adams
No. 16-2529
United States Court of Appeals For the Eighth Circuit
January 29, 2019
COLLOTON, Circuit Judge.
Appeal from United States District Court for the Western District of Missouri - Kansas City. Submitted: September 22, 2017.
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
A grand jury charged Alonzo Adams with unlawful possession of a firearm as a previously convicted felon, in violation of
Adams‘s instant conviction arose from a traffic stop in Kansas City, Missouri, in July 2014. Police officers pulled him over for failure to stop at a stop sign. After Adams told police that he was driving to meet his probation officer, the officers asked to search the vehicle. Adams consented to the search, and police discovered a handgun on the floor board under the driver‘s seat. Adams denied that the handgun belonged to him, but lab analysis
A grand jury charged him with unlawful possession of a firearm as a previously convicted felon, in violation of
Adams then pleaded guilty, and the district court sentenced him to 21 months’ imprisonment with three years of supervised release. As part of the plea agreement, Adams reserved the right to appeal the district court‘s denial of his motion to dismiss.
The Second Amendment 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.”
After Heller and McDonald, we rejected a facial challenge to
Adams forfeited his claim by failing even to address the first point in the district court. Because Adams transported the handgun out of sight under his driver‘s
It is not plain or obvious that the Second Amendment protects Adams‘s conduct. There is at least reasonable dispute about whether the Second Amendment protects a right to carry a concealed weapon in a vehicle. The Supreme Court has described laws prohibiting concealed carry as a “well-recognized exception[]” to the right to keep and bear arms. Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897). Heller cautioned that its holding did not recognize “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. at 626. As an example, the Court observed that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” Id. Relying on these decisions, one circuit has concluded that the Second Amendment does not protect a right to concealed carry. See Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1995 (2017).
The history of prohibitions on concealed carry extends to the carrying of concealed weapons during travel. Even before cars and trucks, the Tennessee Supreme Court held that carrying a “navy six [pistol] in a scabbard hung to the horn of [a defendant‘s] saddle” was grounds to convict the defendant for unlawfully carrying a pistol “that can be carried lawfully only openly in the hands.” Barton v. State, 66 Tenn. 105, 105-06 (Tenn. 1874). Similarly, the Alabama Supreme Court affirmed the conviction of a defendant who concealed a pistol in a handbasket that the defendant carried with him on a train car. Diffey v. State, 5 So. 576, 576 (Ala. 1889). After the advent of automobiles, the Court of Appeals for the District of Columbia upheld a conviction for carrying a concealed weapon under a vehicle seat. The court approved a jury instruction that said the governing statute applied if the defendant “had a pistol concealed in the automobile, though not on his person, but within his reach.” Brown v. United States, 30 F.2d 474, 475 (D.C. Cir. 1929).
Several courts have discerned a meaningful distinction between open and concealed carrying in a vehicle. A California court emphasized that a concealed carry statute did not “prohibit the carrying of a firearm in a vehicle unless it be concealed,” and concluded that a firearm could be carried openly inside the vehicle without violating the concealed carry law. People v. Frost, 12 P.2d 1096, 1097 (Cal. App. Dep‘t Super. Ct. 1932). On the other hand, carrying
To be sure, some have urged that concealed carrying of firearms is protected under the Second Amendment when the State forbids open carrying, on the view that it would be unconstitutional to prohibit all forms of bearing arms outside the home. See Peruta, 824 F.3d at 950-51 (Callahan, J., dissenting); Peruta v. Cty. of San Diego, 742 F.3d 1144, 1172-73 (9th Cir. 2014), vacated and reh‘g en banc granted, 781 F.3d 1106 (9th Cir. 2015). Missouri, however, has no general ban on open carrying of firearms, see
In light of these authorities and the historical record to which we have been directed, Adams‘s contention that the Second Amendment protects a right to carry a concealed weapon in a vehicle is at least subject to reasonable dispute. Therefore, his as-applied challenge to
The judgment of the district court is affirmed.
KELLY, Circuit Judge, concurring in the judgment.
I agree that Adams‘s conviction for violating
I
Section 922(g)(1) makes it unlawful for any person who has been convicted of “a crime punishable by imprisonment for a term exceeding one year”2 to “possess in or affecting commerce, any firearm or ammunition.” This offense has only three elements: “(1) a prior felony conviction; (2) knowing possession of a firearm; and (3) an interstate nexus.” United States v. Jones, 266 F.3d 804, 813 (8th Cir. 2001). Adams asserts that the first element sweeps too broadly because it applies the ban to individuals like himself who were convicted of nonviolent offenses, in violation of the Second Amendment. Adams first raised this argument in a pretrial motion to dismiss his indictment. After the district court rejected his challenge, Adams entered into a conditional guilty plea that preserved his right to renew his constitutional claim on appeal.
The court today concludes that Adams “forfeited” his Second Amendment challenge from the start because he never addressed where the firearm was located at the time he was pulled over. The court anchors its reasoning in a two-part test for an as-applied constitutional challenge like Adams‘s. A challenger must prove: “(1) that the Second Amendment protects his particular conduct, and (2) that his prior felony conviction is insufficient to justify the challenged regulation of Second Amendment rights.” Supra at 3. The court then explains that Adams forfeited his claim because he failed to address how one aspect of his “particular conduct“—the location of the firearm—was constitutionally protected. Id. But the court cites no authority for the proposition that the “particular conduct” relevant to Adams‘s as-applied challenge included the firearm‘s location. There is thus no reason why Adams would have known he needed to address this fact. Likewise, the government has never argued that Adams‘s firearm was concealed or that his failure to address its location in his motion forfeited his right to challenge the constitutionality of his conviction, thus limiting our review under the plain-error doctrine.
The Supreme Court has cautioned that the “as-applied” label does not control what a party must plead or prove. Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 331 (2010); see Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000). Ultimately, what matters is that the remedy sought is properly “tailored to redress the plaintiff‘s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Here, Adams‘s “particular injury” is his
Moreover, at the time it denied his motion to dismiss, the district court did not have sufficient evidence to determine whether Adams‘s conduct would have violated a hypothetical concealed-carry statute. At that point, the only information before the district court was the indictment and the facts that Adams conceded in his motion. Neither the indictment nor the motion mentioned the location of the firearm or whether the firearm was “concealed.” The only evidence in the record on this issue comes from the plea agreement and the presentence report—both of which did not exist until after Adams‘s constitutional challenge was briefed, argued, and decided. The indictment‘s silence on the issue confirms that the location of the firearm was not one of the “essential facts constituting the offense charged,”
In short, the court‘s inquiry into other facts surrounding Adams‘s offense is an unnecessary diversion from the question that he asks us to decide. It also lacks the benefit of briefing from the parties—before the district court and on appeal—which only further counsels in favor of limiting our analysis to the facts necessary to prove the statutory elements as written in
II
The Supreme Court has instructed that “the Second Amendment conferred an individual right to keep and bear arms.” Heller, 554 U.S. at 595. That right, like the First Amendment‘s right to free speech, is “not unlimited.” Id. At the core of the right recognized in Heller is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635. In particular, the Court noted that its opinion should not “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.” Id. at 626-27.
Most circuits have adopted a two-part test for evaluating Second Amendment cases following Heller. First, they “ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment‘s guarantee.” United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). If the law does, they “evaluate the law under some form of means-end scrutiny.” Id.; accord Pena v. Lindley, 898 F.3d 969, 975 (9th Cir. 2018); United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017); Nat‘l Rifle Ass‘n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); United States v. Carter, 669 F.3d 411, 416 (4th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011); United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010).
Applying this framework, the first question is whether
To raise a successful as-applied challenge, [a defendant] must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.
633 F.3d 168, 174 (3d Cir. 2011).
The language used in Barton suggested that individuals convicted of “non-violent” felonies may be able to establish that they are not “dangerous” and thus should not be entirely outside of the Second Amendment‘s protections. However, five years later, in a fractured opinion, the Third Circuit overruled Barton sitting en banc. Binderup v. Attorney Gen., 836 F.3d 336, 349 (3d Cir. 2016) (en banc). In Binderup, the controlling plurality opinion concluded that Heller recognized that the right to bear arms may be nonexistent not just for “violent felons” but for “any person who has committed a serious criminal offense, violent or nonviolent.” Id. at 348; see also id. at 349 (“[A]nyone who commits a serious crime loses the right to keep and bear arms....“).
Binderup comports with our conclusion that the Second Amendment reflects “a common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens,” a group that would not include those with felony convictions. United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011); accord United States v. Carpio-Leon, 701 F.3d 974, 979 (4th Cir. 2012) (“[T]he core right of the Second Amendment protects law-abiding members of the political community . . . .“); United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (per curiam) (“[M]ost scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.‘” (quoting United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010))). This is why we concluded that it was “most likely” that the “presumptively lawful” regulatory measures listed in Heller, including prohibitions on possession of firearms by those with felony convictions, simply “do not infringe on the Second Amendment right.” Bena, 664 F.3d at 1183.
We have previously affirmed convictions under
In light of our decisions in Bena and Hughley, I would conclude that Adams‘s challenge fails at the first step of the Marzzarella framework. The Supreme Court‘s characterization of felon-in-possession statutes as akin to the First Amendment‘s historical “exceptions” for obscenity, libel, and disclosure of state secrets suggests that it views those convicted of felonies as falling outside the scope of the Second Amendment‘s protections. See Medina v. Whitaker, No. 17-5248, 2019 WL 254691, at *5 (D.C. Cir. Jan. 18, 2019) (“[T]hose convicted of felonies are not among those entitled to possess arms.“); Binderup, 836 F.3d at 349 (opinion of Ambro, J.) (“[P]ersons who have committed serious crimes forfeit the right to possess firearms much the way they ‘forfeit other civil liberties, including fundamental constitutional rights.‘” (quoting Barton, 633 F.3d at 175)). The government therefore does not need to justify the statute under some heightened form of means-ends scrutiny. Admittedly, some have questioned whether such a historical exception truly existed. See United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (“[I]t appears to us that the historical data is not conclusive on the question of whether the founding era understanding was that the Second Amendment did not apply to felons.“). But we must respect the language used by the Supreme Court in Heller, as well as our own prior opinions, regardless of whether it is controlling. See United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998) (“The Supreme Court often articulates positions through language that an unsympathetic audience might dismiss as dictum . . . and it expects these formulations to be followed.“).
For these reasons, I concur that the district court‘s judgment should be affirmed.