UNITED STATES OF AMERICA v. (1) JEROSWASKI WAYNE COLLETTE
MO:22-CR-00141-DC
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND/ODESSA DIVISION
September 25, 2022
The dust from the Supreme Court‘s decision in New York State Rifle & Pistol Ass‘n, Inc. v. Bruen is a long way from settling, and another case challenging the constitutionality of a firearm regulation has appeared before the Court. This time, the issue involves a defendant convicted by a jury for possessing a firearm as a felon in violation of federal law. So like many other defendants, the defendant here argues Bruen frees him from his jury conviction.
Bruen did shake up the legal landscape. And the Court believes that faithfully following Bruen‘s new framework casts doubt on some firearm regulations. But the regulation in this case is not one of them. Thus, for the reasons explained below, Defendant‘s Motion to Dismiss Indictment is DENIED.
BACKGROUND
Jeroswaski Collette (“Defendant“) was arrested in June 2022 after police responded to a call of a man threatening an employee at a tow-truck company‘s impound lot. Defendant‘s vehicle had been repossessed, and he had been on the property retrieving personal items from his impounded vehicle, which included a holstered firearm. While leaving, Defendant allegedly threatened the employee with the firearm. When Defendant
After receiving his Miranda warning at the scene, Defendant told police he had “done time” and owned two guns. Police verified that Defendant had a previous felony conviction and obtained a search warrant for Defendant‘s residence. There, officers found two guns matching Defendant‘s description—a tan Glock 19 and a black Smith & Wesson .40 caliber.
Defendant was charged with one count of knowingly possessing a firearm as a felon under
Defendant makes facial and as applied challenges to the
DISCUSSION
The
I. The Supreme Court in Bruen laid out a new standard for courts to use when analyzing firearm regulations.
Before Bruen, courts of appeals had “coalesced around a ‘two-step’ framework” when assessing Second Amendment claims, combining a historical analysis with means-end scrutiny.5 For the first step, the court would establish the Second Amendment‘s original scope through a historical analysis.6 If the regulated conduct fell outside the Amendment‘s original scope, “the analysis can stop there; the regulated activity is categorically unprotected.”7 But if not outside the Amendment‘s scope or “inconclusive,” the court would proceed to step two.8
In step two, a court would generally analyze “how close the law comes to the core of the Second Amendment right and the severity of the law‘s burden on that right.”9 If the “core” Second Amendment right—self-defense in one‘s home—was burdened, the court would apply strict scrutiny.10 Otherwise, it would apply intermediate scrutiny, considering
But in Bruen, Justice Thomas stated the two-step approach was “one step too many.”12 In its place, Justice Thomas enumerated a new standard courts must follow:
“[W]hen the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s ‘unqualified command.‘”13
So the threshold question is whether the Second Amendment‘s plain text covers Defendant‘s conduct.
II. Bruen‘s First Step: “possessing” a firearm under the Second Amendment‘s plain text.
The right to “keep and bear arms” shall not be infringed. A jury convicted Defendant under
Answering whether possession falls under “keep and bear” isn‘t complicated. According to Justice Scalia in Heller, to “keep arms” means to “have weapons.” The plain meaning of “have” is “to be in possession of.”14 Thus, the Second Amendment‘s “keep and bear arms” language plainly encompasses possession.
In any event, Bruen‘s first step asks a strictly textual question with only one answer: the Second Amendment‘s plain text covers possession of a firearm. Because the Constitution presumptively protects possessing a firearm,
III. Bruen‘s second step: the historical analysis.
Upon reaching Bruen‘s second step, the Government must justify its regulation through a historical inquiry. Such an inquiry must show that the challenged regulation is consistent with the Second Amendment‘s scope as it was “understood to have when the people adopted [it].”17 The historical understanding of the Second Amendment since ratification is the “critical tool of constitutional interpretation.”18
The Court notes that the Government did not respond to Defendant‘s motion. But even without Government input, the Court stresses the importance of constitutional
A. Felons in possession: the Federal Firearms Act of 1938 to present.
The history of prohibiting felons from possessing firearms began in 1938, when Congress passed the Federal Firearms Act (“FFA“).19 The FFA prohibited those convicted of “a crime of violence” from shipping or transporting any firearms or ammunition in interstate commerce.20 The Act‘s proscriptions were limited to those convicted of “crimes of violence,” which was commonly understood to include only those offenses “ordinarily committed with the aid of firearms.”21
According to the legislative history, Congress implemented the FFA to combat roaming criminals crossing state lines.22 Without federal laws, ex-convicts would simply cross state lines to circumvent conditions of probation or parole.23 The FFA‘s main goal then was to “eliminate the guns from the crooks’ hands, while interfering as little as possible with the law-a-biding citizen.”24 In Congress‘s eyes, those convicted of crimes of violence had already “demonstrated their unfitness to be entrusted with such dangerous instrumentalities.”25
Yet it wasn‘t until 1961 that felons were specifically prohibited from possessing firearms. Congress amended the FFA in 1961, removing the “crimes of violence” language,
Congress then expanded gun regulations yet again with the Gun Control Act of 1968 (“GCA“).27 The key amendments for
B. The straightforward historical inquiry.
If a challenged regulation addresses a “general societal problem that has persisted since the 18th century,” this historical inquiry is “straightforward.”30 Heller did state, although in dicta, that there is a “longstanding” prohibition on felons possessing firearms.31 Justice Scalia did not elaborate on what he meant by “longstanding.” To bolster his argument that prohibiting felons from possessing a firearm is not longstanding, Defendant repeatedly cites then-Judge Amy Coney Barrett during her tenure on the Seventh Circuit in a case involving
In Kanter v. Barr, now-Justice Barrett dissented from the majority opinion upholding the statute‘s constitutionality.32 Justice Barrett noted in her dissent that “[t]he only evidence coming remotely close lies in proposals made in the New Hampshire, Massachusetts, and
But that doesn‘t mean no historical evidence exists supporting disarming felons. Like Justice Barrett argues in Kanter, Pennsylvania‘s ratifying convention provides the strongest evidence.34 In the convention, the influential Pennsylvania Minority suggested that the right to arms be guaranteed “unless for crimes committed, or real danger of public injury from individuals.”35 The Massachusetts and New Hampshire ratifying conventions also provide evidence, although to a lesser extent.
The Massachusetts convention‘s proposed amendment was that the Second Amendment “be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”36 Likewise, one of New Hampshire‘s proposed amendments was that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”37
The common concern from all three states’ conventions, however, appears to be threatened violence and the risk of public injury, not felons specifically or even criminals in general.38 What‘s more, based on the Court‘s research, historians have pointed out that the British-American colonies “consistently refrained from [disarming] citizens.”39 After
And it wasn‘t until 1886 that a state court ruled on a firearm regulation that regulated “the condition of a person—rather than directly regulating his manner of carrying.”41 There, in Missouri v. Shelby, the Supreme Court of Missouri upheld a ban on carrying a deadly weapon while intoxicated.42 So even with a longstanding general concern for public safety, history lacks direct examples about felons specifically. But just because there are no straightforward examples does not mean the Court‘s historical inquiry stops there.43
IV. Heller, other constitutional provisions, and “the people.”
With the straightforward historical inquiry unclear, a more nuanced approached is necessary. When a more nuanced approach is needed, courts can reason by analogy, which involves finding a historical analogue that is “relatively similar” to the modern regulation.44
The challenged regulation in this case, like other
A. How Heller defined “the people.”
Justice Scalia‘s majority opinion in Heller highlighted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.”49 Yet this Court notes that Justice Scalia slightly altered the Supreme Court‘s previous definition of “the people” from United States v. Verdugo-Urquidez.50 There, the Supreme Court had previously defined “the people” as “persons who are part of a national community.”51
So in effect, Justice Scalia narrowed the definition of “the people” to those with the rights of the “political community.” Heller‘s definition then implies that “the people” means only those with political rights.
And the historical support is not out-of-bounds with courts post-Heller. Indeed, courts post-Heller have followed Heller‘s implication that “the people” means only those with political rights. For example, in United States v. Portillo-Munoz, the Fifth Circuit held that Second Amendment rights do not extend to undocumented immigrants because they are not among “the people” of that amendment.53 Heller described Second Amendment rights as inuring to “law-abiding, responsible citizens” and “all Americans.”54 Therefore, because undocumented immigrants are not law-abiding citizens, Americans, or members of the political community, they could be excluded from “the people.”55
Besides defining “the people,” Heller also states that “the people” means the same thing throughout the Constitution.56 Indeed, both Heller and Bruen recognize a consistent usage within the Constitution.57 Interpreting an individual provision in the context of the Constitution‘s full text is not novel. Indeed, Chief Justice Marshall reasoned over 200 years ago that the Constitution calls for a “fair construction of the whole instrument.58 Therefore, if the meaning is the same throughout the Constitution, other constitutional provisions
That said, the Court acknowledges the tension such an interpretation creates. Like Justice Stevens noted in his Heller dissent, Justice Scalia failed to harmonize his restriction of “the people” to “law-abiding, responsible citizens” with its assertion that “the people” means the same group in the First and Fourth Amendment.59 Justice Scalia limited “the people” by defining it as “members of the political community.” “But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions.”60
This tension has created an ongoing debate, but this Court does not wade into that debate. Whether “the people” is consistent across all constitutional provisions or not, the tradition of categorically excluding certain groups from the rights and powers of “the people” still provides useful analogies.
B. Restrictions on the power of “the people” to vote in Section 2, Article I.
Heller defined “the people” as members of the political community, implying the phrase is limited to those with political rights like voting. And analogous to the Second Amendment, the constitutional provision bestowing the power of choosing the House of Representatives also gives that power to “the people.”
Indeed, there was a “longstanding” historical tradition from the time of ratification that those convicted of a crime could be excluded from the right to vote.62 For example, one year after the Second Amendment‘s ratification, Kentucky‘s Constitution stated, “[l]aws shall be made to exclude from . . . suffrage those who thereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors.”63 Vermont‘s Constitution followed one year later, authorizing the removal of voting rights from those engaged in bribery or corruption during elections.64 As of 2022, only two states and the District of Columbia do not restrict felons’ voting rights.65
So if the definition of “the people” is consistent throughout the Constitution—and it has been historically constitutional to exclude those convicted of a crime from “the people” under
C. Regulating the rights of “the people” to assemble.
Another constitutional provision granting rights to “the people” is the First Amendment‘s Assembly-and-Petition clause. The
In De Jonge v. Oregon, the Supreme Court declared the right to peaceful assembly “equally fundamentally” with other First Amendment clauses.67 There, De Jonge was charged under a state criminal syndicalism statute after speaking at a Communist party meeting.68 Although the objectives of the Communist Party are heinous, the Supreme Court held that De Jonge “still enjoyed his personal right ... to take part in a peaceable assembly having a lawful purpose.”69
Yet the Supreme Court also highlighted the right of assembly “without incitement to violence or crime.”70 Indeed, much like the right to keep and bear arms, the First Amendment‘s right to assembly can be abused to incite violence or crime. Thus, legislation protecting against such abuses would be constitutional if “made only against the abuse.”71 The rights themselves may not be curtailed.72
The Supreme Court has also held that the Government can restrict the right to assembly when there is a “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order.”73 Or like
But in the Second Amendment context, restrictions against those already convicted of a crime, for example, would not be a prior restraint—they have already been found guilty in a constitutionally sufficient proceeding. Likewise, the right of the people does not protect violent actors or criminals. Indeed, those who abuse the right and jeopardize public safety, peace, or order can be excluded from “the people.” So if “the people” means the same under the First and Second Amendments—and those who abuse their rights to commit crimes and violence can be constitutionally excluded from the First Amendment‘s protections—the same may be excluded from the Second Amendment‘s protections.
D. There is a historical tradition of excluding felons from “the people.”
In sum, Heller identified the right to keep and bear arms as held by “members of the political community.” And in doing so, Justice Scalia stated that all constitutional provisions mentioning “the people” were consistent. Through the historical analogies above, the Court‘s inquiry is clear—this Nation has a historical tradition of excluding felons and those who abuse their rights to commit violence from the rights and powers of “the people.” Consistent with Heller‘s definition, if groups have been categorically excluded under other constitutional provisions bestowing rights to “the people,” logic demands that society could also exclude those groups from under the Second Amendment.
E. Rights are not free.
This Court recently held unconstitutional
Felons are those already convicted through a process where the defendant is afforded every applicable constitutional guarantee. And it‘s the defendant‘s peers that convict, an act that functions as a free society‘s repudiation of the convicted‘s conduct. But until that moment, a person maintains the presumption of innocence. Although the time between indictment and conviction may appear immaterial to some, that fine line makes all the difference. The Constitutional rights granted to “the people” do not fade in and out; they are a constant bulwark for all “the people.”
Yet these rights come at a cost. Ensuring that society‘s worst enjoy the same constitutional protections as everyone else is a difficult pill to swallow. Consider the right of
The Constitution is, of course, just words. They are “what our Framers would have called a parchment guarantee.”79 Indeed, “every banana republic in the world has a bill of rights.”80 Thus, it is not the empty words but the sacrifices—the unflinching commitment to protecting the rights of the people—that make this country what it is.
CONCLUSION
A free society has the right to punish but “prefers to punish the few who abuse rights of [the people] after they break the law than to throttle them and all others beforehand.”81 Felons are those who have abused the rights of the people. And as outlined above, this Nation has a “longstanding” tradition of exercising its right—as a free society—to exclude from “the people” those who squander their rights for crimes and violence. Consistent with Heller and Bruen, the
Defendant‘s Motion to Dismiss Indictment is accordingly DENIED.
It is therefore ORDERED that Defendant‘s Motion to Dismiss Indictment is DENIED (Doc. 58).
It is so ORDERED.
SIGNED this 25th day of September, 2022.
DAVID COUNTS
UNITED STATES DISTRICT JUDGE