United States v. FreemanUnited States v. Freeman
Defendant Freeman is charged with one count of being a prohibited person in possession of a firearm, in violation of
BACKGROUND
Defendant is charged with unlawful possession of a firearm in violation of
On May 3, 2023, defendant filed a motion to dismiss the indictment in this case based on an alleged violation of his rights under the Second Amendment of the United States Constitution, which this court denied on June 1, 2023. Defendant raised the issue pursuant to the Supreme Court‘s ruling in New York Rifle & Pistol Assn. v. Bruen, 142 S. Ct. 2111 (2022) (”Bruen“), and this court explained that “[t]he Supreme Court emphasized in Bruen that the Second Amendment right to keep and bear arms repeatedly contemplates ‘law-abiding’ citizens, and the Court recognized in Heller that the government has historically regulated firearm possession by individuals with felony convictions.” (Doc. 30).
Further, this court concluded that “[a]lthough the Seventh Circuit has not addressed this issue post-Bruen, its prior decisions suggest that
The Second Amendment to the U.S. Constitution 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.”
Under Heller and McDonald, lower federal courts adopted a two-step, means-end framework to analyze challenges to firearms regulations under the Second Amendment. See, e.g., Ezell v. City of Chicago, 846 F.3d 888, 893 (7th Cir. 2017); see also Kanter v. Barr, 919 F.3d 437, 441-442 (7th Cir. 2019).
Recently, however, in Bruen, the Supreme Court considered the meaning of the Second Amendment and articulated an analytical framework to determine whether a firearm regulation is constitutional. The Court again emphasized that certain firearms regulations remain constitutional, and that its newly articulated framework is “consistent with Heller and McDonald.” Id. at 2122. It held that “when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” Id. at 2126. When the Second Amendment‘s plain text protects certain conduct, the government can regulate such conduct only if it can “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127. (Emphasis added). Otherwise, the court must conclude that the individual‘s firearm-related conduct is protected because it falls within the Second Amendment‘s “unqualified command.” Id. at 2126 (internal quotations omitted).
The Bruen Court provides two avenues of historical inquiry. The first avenue of inquiry is a “straightforward historical inquiry,” which applies when “a challenged regulation addresses a general societal problem that has persisted since the 18th century.” Id. at 2131. Under this inquiry, courts must identify a “distinctly similar historical regulation addressing that problem.” Id. The second avenue of inquiry is by “analogy.” Id. at 2132. Because “[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868,” there is not always straightforward correspondence, and unprecedented societal concerns or dramatic technological changes may require a “more nuanced approach.” Id. Under these circumstances, the Bruen Court directed courts to consider “historical analogies” to the challenged regulation to determine whether the regulation sufficiently resembles historically acceptable restrictions. Id.
Evaluating whether a historical regulation is a proper analogue for a “distinctly modern” firearm regulation requires a determination of whether the two regulations are “relevantly similar.” Id. The Bruen Court directed lower courts to centrally consider “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Id. at 2133. The Court emphasized that “analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” Id. It requires a ”well-established and representative historical analogue, not a historical twin.” Id. (Emphasis in original).
In Atkinson, the Seventh Circuit remanded a civil litigant‘s as-applied constitutional challenge to
The Seventh Circuit instructed the government to develop a record that addresses a series of “interrelated and non-exhaustive questions” which are intended to “help focus the proper analysis on remand.” Id. at 1023. These questions are:
- Does
§ 922(g)(1) address a ‘general societal problem that has persisted since the 18th century?’ ... If this problem existed during a relevant historical period, did earlier generations address it with similar or ‘materially different means?‘; - What does history tell us about disarming those convicted of crimes generally and of felonies in particular? Among other sources, the parties
could look to commentary from the Founders, proposals emerging from the states’ constitutional ratifying conventions, any actual practices of disarming felons or criminals more generally around the time of the Founding, and treatment of felons outside of the gun context (to the extent this treatment is probative of the Founders’ views of the Second Amendment). When considering historical regulations and practices, the key question is whether those regulations and practices are comparable in substance to the restriction imposed by § 922(g)(1) . To answer the question, the district court and the parties should consider how the breadth, severity, and the underlying rationale of the historical examples stack up against§ 922(g)(1) ; - Are there broader historical analogues to
§ 922(g)(1) during the periods that Bruen emphasized, including, but not limited to, laws disarming ‘dangerous’ groups other than felons? The parties should not stop at compiling lists of historical firearms regulations and practices. The proper inquiry, as we have explained, should focus on how the substance of the historical examples compares to§ 922(g)(1) ; - If the district court‘s historical inquiry identifies analogous laws, do those laws supply enough of a historical tradition (as opposed to isolated instances of regulation) to support
§ 922(g)(1) ? On this front, the parties should provide details about the enforcement, impact, or judicial scrutiny of these laws, to the extent possible; - If history supports Atkinson‘s call for individualized assessments or for a distinction between violent and non-violent felonies, how do we define a non-violent or a non-dangerous felony? And what evidence can a court consider in assessing whether a particular felony conviction was violent? For instance, can a court consider the felony conviction itself, the facts of the underlying crime, or sentencing enhancements? Bruen shows that these distinctions should also have firm historical support. See 142 S. Ct. at 2132-33 (explaining that the court must assess whether modern and historical regulations are ‘relevantly similar,’ including in terms of how and why the regulations burden gun rights).”
The Atkinson court recognized that “the historical analysis required by Bruen will be difficult and no doubt yield some measure of indeterminacy.” Id. at 1024.
In dissent, Judge Wood stated that she would have upheld
According to Judge Wood, this “text, history, and tradition all point in the same direction.” Id. Judge Wood determined that the record behind the felon disentitlement statutes “reveals that, since the founding, governments have been understood to have the power to single out categories of persons who will face total disarmament based on the danger they pose to the political community if armed.” Id. at 1035. In support, she cited loyalty oath laws, as well as laws that disarmed persons guilty of treason and members of native tribes. Id. While these laws would be unconstitutional today under the First and Fourteenth Amendments, Judge Wood concluded that “they reveal conclusively the scope of governmental power that was understood to exist at the time the Second Amendment was adopted,” which included categorical restrictions. Id.
DISCUSSION
In the instant motion, defendant argues that this court erred in denying his motion to dismiss because it relied on assumptions that Heller and Bruen already concluded that the Second Amendment applies only to “law abiding citizens.” He emphasizes that the Court was not asked to decide whether
This court agrees that the Seventh Circuit‘s “interrelated and non-exhaustive questions” change its initial analysis regarding defendant‘s motion to dismiss his indictment. Accordingly, this court begins with the first inquiry required under Bruen, which is whether defendant‘s alleged conduct is protected by the plain text of the Second Amendment.
From the government‘s perspective,
Further, the government argues, when an individual commits a felony, that individual experiences the “forfeiture of a number of rights” that are tied to membership in the political community, including the right to serve on a jury, vote, and hold elected office. See, e.g.,
The court agrees with defendant that Heller and Bruen did not hold that the Second Amendment categorically protects only law-abiding citizens, despite their repeated use of such qualified language as “law abiding citizens.” The Heller Court explained that “the people” as used throughout the Constitution “unambiguously refers to all members of the political community, not an unspecified subset.” 554 U.S. 570, 580 (2008). Moreover, while the Bruen majority determined that the New York statute at issue “violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms,” 142 S. Ct. 2111, 2156 (2022), Justice Alito stated in his concurrence that Bruen “decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.” 142 S. Ct. 2111, 2157 (2022). The Court implicitly acknowledged that it did not conduct a thorough review of
Similarly, the Seventh Circuit has not resolved the issue. In Atkinson, the court did not decide whether the Second Amendment‘s plain text presumptively protects the possession of firearms by felons. Instead, it stated that “[w]e cannot resolve the issue without the benefit of more substantial briefing on remand.” 70 F.4th 1018, 1023 (7th Cir. 2023). Prior to Bruen, however, the Seventh Circuit determined in United States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2015), that “[w]hile some of Heller‘s language does link Second Amendment rights with the notions of ‘law-abiding citizens’ and ‘members of the political community,’ those passages did not reflect an attempt to define the term ‘people.‘” (Internal citations omitted). See also United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc). The court decided Meza-Rodriguez without the benefit of Bruen, but the Supreme Court specifically stated in Bruen that it did not disrupt Heller, and Heller is central to the court‘s analysis in Meza-Rodriguez.
In light of Meza-Rodriguez, and the parties’ briefing pursuant to Bruen and Atkinson, this court concludes that the government has not met its burden to prove that felons are excluded from “the people” whose firearm possession is presumptively protected by the plain text of the Second Amendment. Consequently, the court moves on to evaluate the second inquiry required by Bruen.
Under Bruen, the government has the authority to regulate presumptively protected conduct under the Second Amendment when it can demonstrate that the statute is part of this nation‘s historical tradition of firearm regulation. See 142 S. Ct. at 2127. The government can succeed under Bruen‘s “straightforward historical inquiry” if it can identify a “distinctly similar historical regulation” addressing a “general societal problem that has persisted since the 18th century.” Id. at 2131. On the other hand, where a “distinctly modern” regulation is at issue, the government must offer a historical regulation that is “relevantly similar.” Id. at 2132. Pursuant to this inquiry, this court must determine whether historical regulations “impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified” as the burden imposed by § 922(g)(1). Id. at 2133.
There is now a circuit split on the issue. In United States v. Jackson, 69 F.4th 495, 505-06 (8th Cir. 2023), the Eighth Circuit upheld
In the instant case, the government argues that
This court separately analyzes the burdens of and justifications for each type of historical regulation to determine whether
The government begins by arguing that the historical record shows an established tradition of broad legislative authority to categorically disqualify individuals from possessing firearms based on its judgment that certain groups could not be trusted to adhere to the rule of law. As mentioned above, the Seventh Circuit explained in United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (per curiam), that legislatures have disarmed individuals who
First, the government offers evidence that the English government disarmed nonconformist Protestants in the seventeenth century, in addition to Catholics, when they refused to renounce their faith.1 Such disarmament was based on the Protestant government‘s determination that nonconformist groups would not participate in the Church of England, which was headed by the King of England, as a matter of law. See Range v. Attn‘y General of the U.S., 69 F.4th 96, 120-21 (2023) (Krause, J., dissenting) (citing Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 45 (1994); Church of England, BBC (June 30, 2011), https://www.bbc.co.uk/religion/religions/christianity/cofe/cofe_1.shtml). Moreover, the Protestant government feared that the tenets of Catholicism necessarily included allegiance to the Pope, not the king, and Catholics could not be trusted to obey English law and its sovereign unless they renounced their faith. See
Parliament had the authority to decide which citizens were allowed to keep and bear arms by law, became the predecessor to the Second Amendment. See Bruen, 142 S. Ct. at 2141.
The American colonies similarly disarmed Catholics, in addition to enslaved people and Native Americans. See Kanter, 919 F.3d at 457-58. Of course, the legislature is now rightfully prohibited from banning firearm possession based on race, sexual orientation, religion, disability, or other protected characteristics, see
Importantly, although Catholics, enslaved people, and Native Americans were prohibited from firearm possession, individuals within these groups could possess firearms under certain circumstances. For example, Catholics who were “‘willing to swear undivided allegiance to the sovereign’ were permitted to keep their arms” when they pledged allegiance to the United States or a particular state. Kanter, 919 F.3d at 456-58. Enslaved people could possess firearms if they had permission from their master.2 See, e.g., The Laws of Maryland,
Moreover, the government does not provide evidence that Native Americans were prohibited from possessing firearms, except one Rhode Island law from 1677 that allowed the confiscation of guns owned by Native Americans if they did not have the necessary “ticket or order.” Records of the Colony of Rhode Island and Providence Plantations, at 561 (1857) (1677 R.I. law). Instead, state legislatures typically prohibited the sale of firearms to Native Americans, not possession itself. See, e.g., Laws and Ordinances of New Netherland, 1638-1674, at 18-19 (1868) (1639 New Netherland law); Records Of The Colony Of New Plymouth, in New England, at 243 (1856) (1675 Plymouth law).3
In a similar manner, loyalty oath requirements allowed states to strip the right to keep and bear arms from anyone who failed or refused to take an oath throughout colonial America and the Revolutionary War. The legislature even disarmed free, Christian, white colonists (i.e., the core of the political community) whom the authorities believed could not be trusted to obey the law, such as Loyalists. During the Revolutionary War, several states (including Massachusetts, Virginia, Pennsylvania, Rhode Island, North Carolina, and New Jersey), as well as the Continental Congress, prohibited firearm possession by individuals who refused to declare a loyalty oath to the emerging government. See United States v. Jackson, 69 F.4th 495, 503 (8th Cir. 2023) (citing 4 Journals of the Continental Congress 1774-1789, at 205 (1906); Act of Mar. 14, 1776, ch. 21, 1775-76 Mass. Acts 479; Act of May 1777, ch. III, 9 The Statutes at Large; Being a Collection of all the Laws of Virginia 281-82 (1821); Act of June 13, 1777, ch. 756 §§ 2-4, 1777 Pa. Laws 110, 111-13; Act of June 1776, 7 Records of the Colony of Rhode Island and Providence Plantations in New England 567 (1862); Act of Nov. 15, 1777, ch. 6, 1777
N.C. Sess. Laws 231; Act of Sept. 20, 1777, ch. XL, 1777 N.J. Laws 90). These groups could regain the ability to keep and bear arms after taking the relevant oath.
The historical record shows additional efforts to disarm individuals for crimes and danger to the public during the Founding and the ratification debates. For example, during the Constitutional Convention in 1787, Antifederalists in Pennsylvania proposed a constitutional amendment regarding the right to bear arms that was the predecessor to the Second Amendment. See Bernard Schwartz, The Bill of Rights: A Documentary History 627, 628 (1971); see also Carlton F.W. Larson, Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374-75 (2009). The
This court is persuaded that the text, history, and tradition of firearm-dispossession statutes demonstrates that the legislature has the authority to categorically regulate firearm possession by individuals who have demonstrated that they cannot be trusted to obey the law, or pose some other danger to the political community if armed. The record shows that these categorical regulations are not isolated instances, and the Seventh Circuit has already determined that “Congress enacted the [categorical] exclusions in
Further, this court rejects the notion that history calls for an individualized assessment of risk, or a distinction between violent and nonviolent felonies. The record clearly demonstrates that across-the-board disqualifications from gun ownership are a part of this nation‘s traditional approach to gun regulation. This court also agrees with Judge Wood‘s reasoning in Atkinson that “inviting [courts] to consider the particular facts of every case, to see if the conduct underlying the conviction ought to support restrictions on gun rights . . . would impose impossible burdens on courts and prosecutors and would lead to an arbitrary patchwork of decisions—as far from the rule of law as one could imagine.” 70 F.4th 1018, 1027 (7th Cir. 2023).
The inquiry required by Bruen, however, is not merely whether a dispossession statute‘s burden is “comparably justified,” but also whether the statute imposes a “comparable burden” on the right itself. Bruen, 142 S. Ct. at 2133 (emphasis added). Although the historical record discussed above demonstrates this nation‘s tradition of “comparably justified” categorical dispossession statutes, the government has failed to meet its burden of providing evidence of a dispossession statute with a “comparable burden” to § 922(g)(1). Specifically, this court is not persuaded that the government has met its burden to show a “distinctly similar,” or even a “relevantly similar,” historical analogue to § 922(g)(1)‘s permanent prohibition on firearm possession by felons, which can be lifted only by expungement, federal pardon, or other method of restoring civil rights that lifts the underlying offense from a “conviction” under § 922(g). 18 U.S.C. § 921(a)(20). See also Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (examining certain “method[s] of restoring civil rights” under Illinois law after an individual‘s state sentence expired). Thus, for example, if a felon with one felony conviction receives an executive pardon for that conviction, he is no longer a felon with a “crime punishable by imprisonment for a term exceeding one year” under the statute.4
Thus, this court concludes that
court notes that there are dangers in constructing legislation that would invite courts to “consider the particular facts of every case,” which Judge Wood reasonably envisioned would “pose impossible burdens on courts and prosecutors” in Atkinson. 70 F.4th 1018, 1027 (7th Cir. 2023).
This court‘s holding also does not change the fact that all individuals, including felons, are prohibited from using firearms to commit crimes and threaten violence, and it does not impact this nations’ other restrictions, such as those on: selling or delivering “any destructive device, machinegun . . . , short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Attorney General consistent with public safety and necessity” in
Therefore, the court next evaluates the government‘s second type of historical regulations, which it argues are “relevantly similar” to
This court, however, finds that these dispossession statutes are not “comparably justified” and do not impose a “comparabl[e] burden” to
This court would go further than Range and recharacterize dispossession as a “consequence” of conviction, rather than “punishment.” As the Seventh Circuit determined in Yancey, Congress justified
This court‘s conclusion is clearer when placed in context. For example, as discussed above, after a felon is convicted, he can also lose the right to vote, serve on a jury, and hold elected office. The loss of these rights is not punishment for a felony-level crime; it is a consequence of the legislature‘s determination that, categorically, that individual is now part of group of individuals (felons) who cannot be trusted to abide by the law, or otherwise act as trustworthy members of the political community, based on their actions. If that individual is convicted of another felony, he will receive additional punishment in the form of imprisonment, which presumably punishes, deters, and/or rehabilitates him. He will not, and logically could not be stripped again of his right to vote, serve on a jury, or hold elected office, which he permanently lost following his first felony. Instead, he remains a member of that
This conclusion is bolstered by then-Judge Barrett‘s reasoning in dissent in Kanter v. Barr, 919 F.3d 437, 459-61 (7th Cir. 2019), which explains the diminished historical relationship between felonies and capital punishment at the Founding. She explained that, “[d]uring the period leading up the founding, the connection between felonies and capital punishment started to fray,” and the shifting punishment for felonies, which were not always punishable by death, “necessitated a shift in the meaning of civil death,” or the loss of civic rights.6 She
concluded that “[f]elons serving a term of terms did not suffer civil death; their rights were suspended but not destroyed.” Id. at 461. The Kanter majority did not dispute then-Judge Barrett‘s explanation of the historical record; instead, it reasoned that the legislature could categorically disarm felons due to their poor, unvirtuous character, whereas then-Judge Barrett would have held otherwise. Id. at 446.
Consequently, this court concludes that the government has not met its burden under Bruen to prove this nation‘s history and tradition of firearm regulation with historical evidence of laws that authorized capital punishment and estate forfeiture for felonies.7 Because this court determines that defendant is a member of “the people” protected by the Second Amendment, and because neither type of historical regulation offered by the government satisfies its burden to show a history and tradition of “relevantly similar” analogues to
This court acknowledges that this is a close question. The court also recognizes that gun violence plagues our communities and that allowing those who potentially pose a threat to the orderly functioning of society to be armed is a dangerous precedent. See
justified and comparably burdensome of the right to keep and bear arms. Although there are strong policy reasons for doing everything possible to keep guns off our streets and out of our communities—policies that could be addressed by legislation rather than judicial edict—this court can find no such historical analog.
For the reasons set forth above, Freeman‘s motion to reconsider (Doc. 32) this court‘s denial of his motion to dismiss the indictment (Doc. 30) is granted. All other pending motions and dates set by the court are stricken as moot.
DATE: November 7, 2023
ENTER:
Robert W. Gettleman
United States District Judge