United States v. HeadUnited States v. Head
Defendant Raymond Head is charged pursuant to
According to the Government, the evidence in this case will show that, on March 21, 2023, Chicago Police Department (“CPD“) officers were dispatched in response to a 911 call that a man with a firearm was seen chasing another individual. (Dkt. 24 at 3.)1 CPD officers arrived at the scene and identified Head as the subject of the 911 call. (Id.) Upon seeing the CPD Officers, Head attempted to flee, but he was apprehended and found in possession of a firearm. (Id.) Head‘s girlfriend would call 911 later that same day to report that Head had stolen her registered firearm from her home. (Id. at 4.)
The Government asserts that Head was prohibited from possessing a firearm under the felon dispossession statute,
On August 15, 2023, a grand jury returned an indictment charging Head with one count of unlawfully possessing a firearm as a felon in violation of
Head now moves to dismiss the indictment on the grounds that the felon dispossession statute is unconstitutional, both on its face and as applied to his conduct.2 As with many similar motions brought by federal criminal defendants in this District and across the nation, Head contends that
Legal Standard for Motion to Dismiss
The Court construes Head‘s motion as brought pursuant to
Discussion
The Court will begin its discussion by setting forth the relevant Second Amendment
I. Second Amendment Jurisprudence
A. Controlling Precedent from the Supreme Court and Seventh Circuit
The Second Amendment to the United States Constitution provides that “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.”
In the years following Heller, there has been a constant stream of constitutional challenges to federal, state, and local gun regulations, and federal district courts and circuit courts of appeals have struggled with the appropriate standards of review to apply in those challenges. Most federal courts, including the Seventh Circuit, eventually landed on a two-step means-end scrutiny test similar to the framework used in First Amendment cases. See generally Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (describing the two-step framework).
The Supreme Court, however, put an end to these means-end scrutiny tests with its 2022 decision in Bruen. See 597 U.S. at 17. There, the Court announced a new analytical framework for cases involving Second Amendment challenges to firearms regulations: first, the court hearing the challenge must determine whether “the Second Amendment‘s plain text covers an individual‘s conduct.” Id. If not, the inquiry ends, and the challenged regulation is constitutional. But if the conduct falls within the plain text of the Second Amendment, it is presumptively protected. Id. The analysis then moves to the second step, where the government bears the burden to “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 18–19. As will be discussed further below, this second step entails a historical inquiry into potentially analogous firearms laws of the past, in order to determine “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 29. Critically, the court explained that the government need only “identify a well-established and representative historical analogue, not a historical twin,” in order to meet its burden that the challenged regulation is within the nation‘s historical tradition of firearm regulation. Id. at 30 (“[E]ven if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.“).
Since Bruen was decided, the Seventh Circuit has provided further guidance to
Ultimately, the Seventh Circuit set forth five questions to “help focus the proper analysis on remand” of the constitutionality of
- Does
§ 922(g)(1) address a “general societal problem that has persisted since the [eighteenth] 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 judicialscrutiny 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).
While the Seventh Circuit declined to reach the constitutionality of
B. Other Post-Bruen Authority on the Constitutionality of § 922(g)(1)
In addition to the above controlling authority, the Court also must acknowledge the significant amount of persuasive authority, from this District and across the nation, that has developed with respect to the constitutionality of
Of course, not every court has upheld the constitutionality of
As will be explained further in the following sections, the Court respectfully disagrees with the reasoning of Prince, Neal, and those other courts that have found
II. Plain Text Inquiry
With the above legal background in mind, the Court turns next to Head‘s challenge and the Court‘s analysis of the constitutionality of
There is no binding precedent on the question of whether the phrase “the people” as used in the Second Amendment‘s text includes convicted felons. The Seventh Circuit in Atkinson declined to reach the issue, allowing the government a chance to develop its argument on remand. 70 F.4th at 1024. District courts within the Seventh Circuit that have addressed the question are split. See generally Barwicks, 2024 WL 1521473, at *5 (discussing split in authority and collecting cases); compare United States v. McKay, No. 23 CR 443, 2024 WL 1767605, at *2 (N.D. Ill. Apr. 24, 2024) (“The ‘people’ of the Second Amendment are not dangerous felons, so the restriction of their rights to bear arms is not an infringement on the Constitution.“), with United States v. Washington, No. 23-CR-00274, 2023 WL 8258654, at *4 (N.D. Ill. Nov. 29, 2023) (“The Court finds that the plain text of the Second Amendment covers all people—including a person convicted of a felony.“). And while in Gay the Seventh Circuit expressed serious doubts as to whether felons could raise Second Amendment challenges to
The Government is correct that, first in Heller and then again in Bruen, the Supreme Court has repeatedly associated the right to bear arms in the Second Amendment with “law-abiding” citizens. See id. at *3 (“When describing the persons who possess rights under the Second Amendment, Bruen repeatedly used the phrase ‘law-abiding, responsible citizens’ or a variant.“) (citations omitted). But as other courts in this District have observed, “neither Heller nor Bruen involved the issue of felons, much less the issue of the Second Amendment‘s textual scope as it applies to felons.” Barwicks, 2024 WL 1521473, at *6 (“So, while the Supreme Court in both cases referred to law-abiding citizens in discussing the Second Amendment‘s scope, it did not hold in either case that ‘the people’ was limited to law-abiding people“); United States v. Gates, No. 1:22-CR-00397-1, 2023 WL 5748362, at *4 (N.D. Ill. Sept. 6, 2023) (“Each reference to ‘law-abiding’ citizens did not constitute part of a broader holding that felons are categorically not amongst the ‘people’ under the Second Amendment.“). The “law-abiding citizens” language from the Supreme Court is thus not conclusive as to the scope or meaning of the phrase “the people” in the Second
The Court therefore cannot conclude solely based on the “law-abiding citizen” language in Heller and Bruen that felons are categorically excluded from the protection of the Second Amendment. Instead, the Court must determine, based on general principles of interpretation, whether the phrase “the people” as used in the Second Amendment includes convicted felons. The Government, for its part, argues that legislatures historically had “wide latitude to exclude felons from the political community as a consequence of their convictions,” including by depriving them of the right to vote, to serve on juries, and to hold elected office. (Dkt. 27 at 16–17.) The Government thus maintains that
The Court is not convinced by the Government‘s argument and declines to read “the people” as used in the Second Amendment as categorically excluding felons. Instead, the Court concludes, as have many other courts in this District, that the better interpretation of the phrase “the people” as used in the Second Amendment is the one that comports with how the phrase is understood in other places in the Bill of Rights, including the First and Fourth Amendments. See, e.g., Barwicks, 2024 WL 1521473, at *7; Gates, 2023 WL 5748362, at *4; United States v. R. Johnson, No. 18 CR 00458, 2023 WL 6690388, at *3 (N.D. Ill. Oct. 12, 2023). As Judge Chang aptly explained when confronted with this same issue in Gates, if the Government‘s reading of the text of the Second Amendment were correct, then “all other constitutional-rights provisions that use the word ‘people’ would categorically remove felons outside of the protection of the pertinent right.” 2023 WL 5748362, at *4. But this is not the case; the Fourth Amendment, for example, protects the rights of “the people” against unreasonable searches and seizures, and convicted felons like Head are not categorically excluded from this protection. See id. And the First Amendment protects the rights of “the people” to peaceably assemble, a protection that does not categorically exclude felons. Id. In short then, “since felons are not excluded from First or Fourth Amendment rights, neither should they be excluded from Second Amendment rights, given the Framer‘s consistent use of the term ‘the people’ throughout.” R. Johnson, 2023 WL 6690388, at *3.
It is, of course, obviously true that the nature of the rights under each amendment is distinct. But the Court is not persuaded to read a categorical exclusion of felons into the Second Amendment, when felons are not so excluded from other amendments in the Bill of Rights that use the same phrase. In fact, the Supreme Court itself, in recognizing the individual right to bear arms in Heller, interpreted the phrase “the people” by looking, in part, at how the phrase was understood under the First and Fourth Amendments. See Meza-Rodriguez 798 F.3d at 669–70 (”Heller noted the similarities between the Second Amendment and the First and Fourth Amendments, implying that the phrase ‘the people’ (which occurs in all three) has the same meaning in all three provisions.“) (citing Heller, 554 U.S. at 592); see also Heller, 554 U.S. at 580 (noting that “the people” is “a term of art employed in select parts of the Constitution,” including the First, Fourth, Ninth and Tenth Amendments, and further stating that “the term unambiguously refers to all members of the political community, not an unspecified subset.“). The Supreme Court therefore appears to have assumed, without expressly deciding, that the phrase “the people” is used consistently throughout the Bill of Rights. For this Court to read a categorical exclusion into the plain text of the Second Amendment that does not exist under other amendments would run counter to the Supreme Court‘s own apparent recognition that the term, the “people,” has the same meaning throughout the Bill of Rights.
Finally, the Court recognizes that, under certain circumstances, felons may have reduced constitutional protections; for example, prisoners have no Fourth Amendment protections against searches of their cells, and individuals on post-incarceration supervised release may be subject to searches without probable cause. See generally United States v. Agee, No. 1:21-CR-00350-1, 2023 WL 6443924, at *5 (N.D. Ill. Oct. 3, 2023). But the question at this first step of Bruen is not whether the rights of felons have been historically limited in some ways in some circumstances, but rather whether felons as a class are categorically excluded from the plain text of the Second Amendment. The Court reads no such categorical exclusion in the plain text of the Second Amendment, and instead reads “the people” consistent with how it is used in the rest of the Bill of Rights, including the First and Fourth Amendments, which contain no such categorical exclusion of felons.
In sum then, the Court concludes that convicted felons are included under the definition of “the people” whose rights are
III. Historical Tradition of Firearm Regulation.
Having found that the Second Amendment‘s plain text covers firearm possession by felons, and therefore presumptively protects Head‘s conduct, the Court turns next to the second inquiry under Bruen: whether the Government can show that the felon dispossession statute,
A. Expert Evidence
In his reply, Head notes in passing that the Government did not submit a declaration from an expert historian or seek to introduce expert testimony in support of its historical analysis. (Dkt. 29 at 4.) Head asserts this lack of expert testimony is “telling,” and suggests a lack of a historical tradition supporting the Government‘s arguments. (See id.) (citing United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309, at *31 (S.D. Miss. June 28, 2023) (“The most disappointing failure is that the party with the burden to prove history and tradition—the United States—did not designate a historian to testify on the analogues, if any, to modern felon-in-possession laws.“)) The Government, perhaps anticipating this criticism, argues in its responsive brief that the Court can analyze the historical sources without the assistance of an expert, because the Bruen historical inquiry is purely a question of law, not fact. (Dkt. 27 at 23 n.12.)
The Court agrees with the Government that no testimony (expert witness or otherwise) is necessary to resolve the present dispute. Head notably does not challenge the factual accuracy of any of the Government‘s historical sources or legislative citations; instead, he argues that the Government‘s sources do not demonstrate a historical tradition of disarming felons. (See Dkt. 29 at 14–36.) In the absence of any dispute over either side‘s historical
B. Applicable Standard for Historical Analysis
An additional threshold issue the Court must resolve is the appropriate standard that applies to the Court‘s consideration of historical evidence, and what kind of historical evidence the Government is required to muster to demonstrate that a regulation is consistent with the nation‘s history of firearm regulation. Head argues that the Government can only meet its burden under Bruen by pointing to “distinctly similar” historical regulations. (Dkt 29 at 6.) According to Head, the Supreme Court in Bruen established two separate avenues for analyzing the history of firearms regulations depending on whether the problem addressed by the relevant regulation existed at the Founding. (Id. at 6–7). If the challenged regulation “addresses a general societal problem that has persisted since the [eighteenth] century,” then Head argues that the Government can only justify its regulation by pointing to a “distinctly similar” regulation from the Founding that was enacted to address that same problem. (Id.) If, on the other hand, the modern regulation was motivated by “unprecedented social concerns or dramatic technological advances,” such that the need for the regulation was “unimaginable at the founding,” then the Court‘s historical inquiry is broader, and the Government can “reason by analogy” and point to laws that are “relevantly similar.” (Id.)
Both sides here generally agree that that the felon dispossession statute addresses a societal problem that has persisted since the eighteenth century, though they each frame that problem in different ways: Head describes the statute as addressing the problem of “crime and recidivism” in general, (id. at 7), whereas the Government asserts that the law relates to the disarmament of individuals who are “untrustworthy adherents to the rule of law.” (Dkt. 27 at 39.) But regardless of the framing, the fact that the same problems have persisted since the Founding would mean, at least according to Head, that the Government must meet a higher burden of pointing to a “distinctly similar” Founding-era regulation to justify
The Court disagrees, however, with Head‘s reading of Bruen as creating an express two-tiered system of historical analysis. It is true that the Supreme Court in Bruen contemplated both “fairly straightforward” and “more nuanced” historical inquiries depending on whether the societal problem addressed by the challenged firearm regulation existed in the eighteenth century. Bruen, 597 U.S. at 26–27. But in contemplating this issue, the Supreme Court did not establish different evidentiary standards, nor did it limit the types of evidence that lower courts can consider in determining whether a regulation is consistent with the Nation‘s history of firearm regulation. See United States v. Calhoun, No. 22-CR-00025, 2024 WL 36977, at *9 (N.D. Ill. Jan. 3, 2024)
A closer examination of Bruen demonstrates that there is no such express requirement that the Government point to “distinctly similar” regulations. Bruen, like this case, involved a challenged regulation that addressed a societal problem that has existed since the Founding: there, the problem of firearm violence in densely populated areas. See 597 U.S. at 27. Under Head‘s reading, the Supreme Court in Bruen should therefore have only analyzed whether the challenged New York regulation was “distinctly similar” to a Founding era regulation, and if not, ended its inquiry and found the regulation unconstitutional. But the Supreme Court did not limit its analysis in that manner. Instead, it embarked on what it described as a “long journey through the Anglo-American history of public carry,” analyzing and comparing the burdens imposed by the challenged law and those imposed by historical analogues cited by the Government. See id.; see also Calhoun, 2024 WL 36977, at *9 (citations omitted). In other words, the Supreme Court did not limit its historical inquiry to the “fairly straightforward” analysis of only looking for “distinctly similar” regulations, but instead conducted the broader analysis to identify “relevantly similar” historical analogues. See Calhoun, 2024 WL 36977, at *9 (observing that the Supreme Court only uses the phrase “distinctly similar” once in Bruen, whereas the phrase “relevantly similar” is used multiple times throughout the majority‘s extensive historical analysis).
In short, while the lack of a “distinctly similar” historical regulation banning firearm possession by felons might be relevant to the Court‘s historical analysis, it is not outcome determinative as Head suggests. Even if a challenged regulation addresses a societal problem that has existed since the Founding, the Government can still meet its burden to demonstrate the regulation is consistent with the Nation‘s history of firearm regulation by pointing to “relevantly similar” historical analogues. See Bruen, 597 U.S. at 30.
C. Analysis of Government‘s Proffered Historical Analogues
Having found that expert testimony is not required, and that the Government need not point only to “distinctly similar” firearms regulations from history, the Court turns next to the substantive question of whether the historical analogues cited by the Government demonstrate that
1. Historical Disarmament
As to the first category of historical evidence—firearm disqualification laws—the Government begins its argument by pointing to seventeenth-century English laws that disarmed Catholics who refused to make declarations renouncing their faith. (Dkt. 27 at 25–28) (citing, e.g. 1 W. & M., Sess. 1, c. 15, in 6 The Statutes of the Realm 71-73 (1688)). In 1689, shortly after the Glorious Revolution of 1688, England passed a law disarming Catholics who refused to renounce their faith based on the belief that they could not be trusted to obey English law. (See id.); see also Kanter v. Barr, 919 F.3d 437, 456–57 (7th Cir. 2019) (Barrett, J., dissenting) (observing that the English Parliament disarmed Catholics who “threatened violence and the risk of public injury” and who the Protestant majority found “untrustworthy“) (citing Adam Winkler, Gunfight 115 (2011)); see also Range, 69 F. 4th at 120–21 (Krause, J., dissenting) (“Following the tumult of the English Civil War, the restored Stuart monarchs disarmed nonconformist (i.e., non-Anglican) Protestants. . . In 1689, the pendulum of distrust swung the other way. Parliament enacted a statute prohibiting Catholics who refused to take an oath renouncing the tenets of their faith from owning firearms.“). The Government notes that these English laws did not disarm on the basis of a belief that Catholics as a group were dangerous, but rather the dispossession stemmed from the Protestant majority‘s belief that Catholics would have a propensity to disobey English law as enacted by the Protestant majority. (Dkt. 27 at 25); see Agee, 2023 WL 6443924, at *8 (“[T]he government here compellingly contends that this categorical dispossession stemmed from the distrust of those persons to obey English law at the time (determined during a time of Protestant rule.“). The Government thus maintains these English disarmament laws evidence an early historical tradition, carried through into the Founding era, of governments disarming groups on the belief they could not be trusted to adhere to the rule of law. (See Dkt. 27 at 28) (citing Atkinson, 70 F.4th at 1031 (Wood, J. dissenting).
Head argues in response that the English statute disarming Catholics is a poor analogue for
The Court agrees with the Government, as have other courts in this District, that these English disarmament laws cited by the Government serve as relevant historical analogues for
Next, the Government points to dispossession regulations from Colonial-era America that targeted Native Americans and enslaved Black people as analogues to
Notwithstanding their racially-biased underpinnings, these Colonial-era laws are applicable historical analogues, and the Court finds they evidence, as the Government contends, a historical tradition of firearms regulations disarming groups that were deemed likely to disobey the law. As disturbing as it is to seek support from laws grounded in racism or prejudicial beliefs about the trustworthiness of certain groups, Bruen expressly dictates that district courts examine historical regulations from the pre-Founding era to determine the historical understanding of the Second Amendment‘s scope. See Jackson, 2023 WL 7160921, at *6 (“There is no question that an analysis that relies on laws grounded in race-based prejudice or similarly deplorable stereotypes is intuitively uncomfortable. But Bruen directs courts to examine historical analogues to determine the historical understanding of the right to keep and bear arms.“) (cleaned up). As the court in Jackson observed, “laws disarming enslaved people, religious minorities, and Native Americans—however repulsive to modern sensibilities—fit that bill.” Id. While it is obviously true that these laws would not pass constitutional review under the Fourteenth Amendment today and are abhorrent to our modern society, Bruen requires that the Court consider historical evidence from this exact period of time, decades if not hundreds of years before the Civil War and the passage of the Reconstruction Amendments. Agee, 2023 WL 6443924, at *8 (“Ultimately, whether the historical analogues presented would pass constitutional muster today (especially under other amendments) is aside from the Bruen inquiry.“). In so doing, the Court agrees that these laws are relevant historical analogues to
Other persuasive historical analogues include Colonial-era laws that allowed the colonies to disarm persons, including “free, Christian, white men,” “whom the authorities believed could not be trusted to obey the law.” (Dkt. 27 at 30) (citing Range, 69 F.4th at 122 (Krause, J., dissenting)). For example, the Government cites to the Massachusetts government disarming the supporters of a particular outspoken preacher in the 1630s because “the authorities concluded their conduct evinced a willingness to disobey the law.” (Id.) (citations omitted); see also Range, 69 F.4th at 123 (Krause, J., dissenting) (citing Edmund S. Morgan, The Case Against Anne Hutchinson, 10 New Eng. Q. 635, 637-38, 644, 648
The Court finds these Colonial and Revolutionary-era laws are persuasive analogues to
governments believed (rightly or wrongly) would not obey the law.
As a final piece of evidence for this first category of analogues, the Government cites to the Constitution ratification debates as evidence that the Founders understood the right to bear arms as “compatible with broad legislative authority to disarm groups who could not be trusted to follow the law.” (Dkt. 27 at 33.) For example, the Government cites to the Pennsylvania ratifying convention in 1787, and the Antifederalists’ proposed constitutional amendment that explicitly recognized criminal activity as a ground for disarmament. 2 Bernard Schwartz, The Bill of Rights: A Documentary History 627, 628 (1971) (proposed amendment provided right to bear arms “unless for crimes committed, or real danger of public injury[]“). And at the Massachusetts convention, founding father Samuel Adams proposed an amendment providing that the Constitution shall “never [be] construed . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Id. at 675, 681, 758, 761 (emphasis added). And in New Hampshire, the convention recommended an amendment providing that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Id. at 758,
It is of course true, as Head notes, that the eventual Second Amendment as adopted did not include these proposals nor explicitly include the dispossession of firearms based on the commission of a crime. But as other courts have observed, the existence of these proposals does support the proposition that it was “obvious to the Founders that persons who committed crimes would properly be subject to disarmament laws.” Agee, 2023 WL 6443924, at *9 (citing Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 273 (2008)) (explaining that the Founders “did not object to the lack of an explicit exclusion of criminals from the individual right to keep and bear arms” during the debates over “what became the Second Amendment,” because this limitation “was understood“); Barwicks, 2024 WL 1521473 at * 12 (same). The Supreme Court held in Heller, and later reaffirmed in Bruen, that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” 597 U.S. at 34 (emphasis in original). Moreover, the second inquiry outlined in Atkinson directs courts to examine the relevance of “proposals emerging from the states’ constitutional ratifying conventions.” 70 F.4th at 1023.
In sum, the Court finds that the Government‘s historical analogues of disarmament laws provide persuasive evidence of a historical tradition of firearms dispossession for those believed to be non-law-abiding persons, which is an appropriate analogy for firearm dispossession in the modern era under
2. Criminal Punishments
The second category of historical analogues pointed to by the Government are the sweeping criminal punishments historically authorized against convicted felons. (Dkt. 27 at 35-39.) In the period leading up to the Colonial era, English law authorized capital punishment and estate forfeiture for convicted felons. See 4 William Blackstone, Commentaries on the Laws of England 95 (1769) (defining a felony as “an offence which occasions a total forfeiture of either lands, or goods, or both, at the common law; and to which capital or other punishment may be superadded“). The Government notes that these punishments for felonies carried forward into the American colonies (and then the states) up to the time of the Founding. (Dkt. 27 at 35-39) (collecting sources); see Baze v. Rees, 553 U.S. 35, 94 (2008) (Thomas, J., concurring in the judgment) (quoting Stuart Banner, The Death Penalty: An American History 23 (2002)). The First Congress—which drafted and proposed the Second Amendment—made a variety of felonies punishable by death, including not only offenses like treason, murder on federal land, and piracy on the high seas, but also nonviolent conduct. See
Head counters in reply that the historical existence of capital punishment for felons cannot support the Government‘s authority to deprive felons of fundamental constitutional rights today, because such a rule would swallow other fundamental rights such as those protected by the First Amendment or Due Process Clause. (Dkt. 29 at 34-35) (citing Trop v. Dulles, 356 U.S. 86, 99 (1958)) (“[T]he existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.“); Kanter, 919 F.3d at 461-62 (Barrett, J., dissenting) (“We wouldn‘t say that the state can deprive felons of the right to free speech because felons lost that right via execution at the time of the founding. The obvious point that the dead enjoy no rights does not tell us what the founding-era generation would have understood about the rights of felons who lived, discharged their sentences, and returned to society.“). The Court agrees that the existence of the death penalty is not, on its own, dispositive proof of the historical understanding of the scope of fundamental rights. But that does not mean that history of punishment is not still relevant evidence to the ultimate question of whether the Second Amendment, as originally understood, permits felon disarmament. Indeed, it should be noted that then-Judge Barrett, in her same dissent in Kanter repeatedly cited by Head, also recognized that “history does show that felons could be disqualified from exercising certain rights—like the rights to vote and serve on juries—because these rights belonged only to virtuous citizens.” Id. at 461 (Barrett, J., dissenting). In other words, the Nation‘s historical treatment of felons as a group, including punishments imposed and restrictions on fundamental rights, are relevant considerations in the Court‘s historical analysis. Thus, while the history of capital punishment for felons, including for nonviolent offenses, may not resolve the question of the historical scope of the Second Amendment, that history, like other historical limitations on felons’ rights, supports the Government‘s contention that the restriction imposed on felons by
In sum then, the Court finds, as have a majority of courts in the Seventh Circuit and across the country, that
IV. As-Applied Challenge
One final issue needs to be addressed. As noted supra at note 2, it is unclear
Regardless, for the sake of completeness, the Court rejects any as-applied challenge from Head to the extent he intends to raise one. The fifth question under Atkinson asks lower courts to examine whether there is historical support for individualized assessment of the Second Amendment protection based on the nature of the particular felony convictions at issue. See 70 F.4th at 1024. But Head has not pointed to any historical evidence for individualized assessments or carveouts for individuals with his particular felony convictions—aggravated domestic battery, possession of a firearm by a convicted felon, mob action, and drug manufacturing and distribution. Rather, as discussed above, the historical record supports the Government‘s authority to disarm groups based on a broader belief that they are untrustworthy adherents to the law, not because they were at risk of committing a particular crime. See, e.g. Barwicks, 2024 WL 1521473 at *14; Agee, 2023 WL 6443924 at * 12 (“[T]he historical analogues provided by the government support a legislative authority to disarm persons convicted of felonies, regardless of whether the conviction involved a use (or attempted use) of force.“).
Further, even if there were room for individualized assessments, this would not help Head given the Seventh Circuit‘s recent ruling in Gay. As noted above, the Seventh Circuit assumed felons could bring an as-applied challenge to a
Conclusion
For all the foregoing reasons, Head‘s motion to dismiss is denied.
ENTERED: 5/21/24
Nancy L. Maldonado
United States District Court Judge