UNITED STATES OF AMERICA, v. DEMETRIUS JENKINS
CRIMINAL ACTION NO. 23-088
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Filed 10/06/23
Register# 46398-510
Defendant Demetrius Jenkins was indicted for a violation of
I. Background
The Indictment is straightforward. It alleges that Jenkins,
knowing he had previously been convicted in a court of the Commonwealth of Pennsylvania of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed a firearm, that is, a Rock Island Armory, model 206 revolver, caliber 38 Special, bearing serial number RIA2271834, loaded with
six live rounds of 38 Special ammunition, and the firearm was in and affecting interstate and foreign commerce[,] [i]n violation of Title 18, United States Code, Section 922(g)(1).
The Criminal Complaint preceding the Indictment includes an affidavit averring that two Philadelphia Police Department officers who were familiar with Jenkins‘s appearance saw him crossing the street on the night of November 23, 2022. The officers say they knew that Jenkins had an outstanding arrest warrant for robbery, so they detained him. When they frisked him, the officers found the revolver in his jacket pocket and also discovered over a dozen containers of suspected methamphetamine.
The legal framework for evaluating the constitutionality of a
In Bruen, the Supreme Court held unconstitutional a New York law that required people applying for a permit to carry a concealed firearm outside the home to show “proper cause“—i.e., “a special need for self-protection distinguishable from that of the general community.” 142 S. Ct. at 2123 (quotation omitted). In doing so, Bruen also announced a new method for adjudicating Second Amendment controversies. In brief: Courts may no longer apply the traditional means-ends heightened-scrutiny analysis common to infringements on many constitutional rights. Instead, the Court instructed, whenever conduct protected by the Second Amendment is burdened, courts are to proceed by analogy and compare historical firearms regulations to the challenged ones. Only if the government can proffer enough older regulations sufficiently similar to the challenged laws may they pass constitutional muster.
District courts around the country have tried mightily to apply Bruen‘s new test, with widely disparate results. Range offers some guidance for courts in the Third Circuit. Neither decision, though, supplies clear methods, standards, or metrics by which lower courts should analyze challenges to
II. The Second Amendment
The Second Amendment provides, in full: “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.”
A. Heller and McDonald Articulate an Individual Right to Self-Defense
Over 200 years after the ratification of the Bill of Rights in 1791, the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 635 (2008) for the first time held that the language of the Second Amendment guaranteed an individual‘s right to bear arms. In Heller, the Court identified the “core” of the Second Amendment right as bearing arms in furtherance of the “lawful purpose of self-defense” in the home. Id. at 630. The Second Amendment protects hunting and militia service as well, id. at 599, but the central constitutional right at issue is the right to defend oneself. As discussed below, Heller does not identify the precise bounds of that right. The Court applied Heller to state laws when it incorporated the Second Amendment two years later in McDonald v. City of Chicago, 561 U.S. 742, 768 (2010) (plurality opinion).
The majorities in both Heller and McDonald took pains to assure lower courts, policymakers, and the public that laws barring people convicted of felonies or felony-equivalents from possessing firearms were consistent with the Second Amendment. In Heller, the Court cautioned that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626 & n.26; see also McDonald, 561 U.S. at 786 (plurality opinion). The Third Circuit subsequently held that ”Heller‘s list of ‘presumptively lawful’ regulations is not dicta.” United States v. Barton, 633 F.3d 168, 171 (3d Cir. 2011) (Hardiman, J.), overruled on other grounds by Binderup v. Att‘y Gen., 836 F.3d 336, 349 (3d Cir. 2016) (plurality opinion) (en banc).
The courts of appeals generally interpreted Heller to require a two-step analysis when evaluating firearms restrictions. In the Third Circuit, a plaintiff first had to prove “that a presumptively lawful regulation burdens his Second Amendment rights” by “(1) identify[ing] the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member . . . and then (2) present[ing] facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class.” Binderup, 836 F.3d at 347 (plurality opinion); United States v. Marzzarella, 614 F.3d 85, 89-97 (3d Cir. 2010); see also, e.g., Medina v. Whitaker, 913 F.3d 152, 156 (D.C. Cir. 2019); Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017). If the plaintiff succeeded, the burden shifted to the government to satisfy intermediate scrutiny—in other words, it then became the government‘s job to prove that its regulation served an important purpose and was substantially related to its goals. Binderup, 836 F.3d at 353 (plurality opinion) (citation omitted).
B. Bruen Extends Where the Right Applies and Alters the Test
Heller applied only to one‘s home. The Supreme Court extended Heller beyond the home last year in Bruen, 142 S. Ct. at 2135. But Bruen also announced a sea change in how courts must evaluate the constitutionality of restrictions on gun possession—the Court found the two-step process adopted by Binderup and its kindred involved “one step too many.” Id. at 2127. It replaced the process with the following: If “the Second Amendment‘s plain text covers an individual‘s conduct,” then “the Constitution presumptively protects that conduct.” Id. at 2126. Only if the government can “demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation . . . may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s unqualified command.” Id. (internal quotation marks and citation omitted).
The Court offered some guidance on how to determine whether a firearm restriction was consistent with our nation‘s history. Lower courts must engage in “analogical inquiry” by comparing the historical record that the government offers with the challenged law. Id. at 2133. “[H]ow and why . . . regulations burden a
those the Founders specifically anticipated.“).
As was the case in Heller and McDonald, the majority and multiple concurrences in Bruen emphasized that the Second Amendment self-defense right applied to “law-abiding citizens,” 142 S. Ct. at 2133 (directing courts to assess “how and why [at-issue] regulations burden a law-abiding citizen‘s right to armed self-defense“); id. at 2159 (Alito, J., concurring) (“All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense . . . .“); id. at 2161 (Kavanaugh, J., concurring, joined by Roberts, C.J.) (noting that the at-issue law “den[ied] the right to carry handguns for self-defense to many ordinary, law-abiding citizens” (internal quotation marks and citation omitted)). Justice Kavanaugh expressly echoed the Court‘s reassurances in Heller and McDonald that “longstanding prohibitions on the possession of firearms by felons” remained “presumptively lawful.” Id. at 2162. See also Range, 69 F.4th at 111 (Ambro, J., concurring) (noting that “three Justices in Bruen‘s majority opinion reminded us that felon-in-possession laws remain presumptively lawful, and the three dissenting Justices echoed that view“).
C. The Third Circuit‘s Decision in Range
In Range, the Third Circuit, whose precedent binds this Court absent contrary word from the Supreme Court, applied Bruen to
Second, the majority concluded that the activities that Range sought to take up—“to possess a rifle to hunt and a shotgun to defend himself at home—track[ed] the constitutional right as defined by Heller.” Id. at 103 (citation omitted). Therefore, at least as applied to Range,
Third, having concluded that the Second Amendment covered him and his proposed conduct (hunting and self-defense in his home), the majority held that, having looked at “historical analogue[s],” id.,
After the Third Circuit decided Range, the district court on remand entered a “[d]eclaratory judgment that
III. Applying Bruen and Range
Because of its self-described “narrow” nature, Range does not answer many important questions about how to address the constitutionality of a
A. Burdens and Legal Standards for As-Applied Challenges
First addressed are some procedural issues. Among the many questions Bruen and Range did not have occasion to answer are: (1) who has the burden of proving that a
On this question, the parties are not far apart. At an evidentiary hearing, the parties agreed that, because neither Bruen nor Range assigned the burden of production to the government until the final step in the test (identification of an analogous historical tradition of firearm regulation), the defendant in a Second Amendment case retains the burden to show that (1) he was among “the people” covered by the Second Amendment; and, (2) he was engaged in conduct covered by the Second Amendment. The parties also agreed that Jenkins need only prove these conditions by a preponderance of the evidence. In this respect, an as-applied Second Amendment challenge to an indictment tracks other constitutional inquiries. For example, when evaluating a motion to suppress in the Fourth Amendment context, “[a]n individual challenging a search has the burden of establishing that he had a reasonable expectation of privacy in the property searched and the item seized.” United States v. Burnett, 773 F.3d 122, 131 (3d Cir. 2014) (citing Minnesota v. Olson, 495 U.S. 91, 95-97 (1990)).
The parties disagree, however, on how the Court is to measure “Second Amendment conduct” for an as-applied challenge. This is a close and important question. Jenkins argues that, because
The government‘s reading hews closer to the Third Circuit‘s approach in Range. The court did not say that “§ 922(g)(1) regulates Second Amendment conduct” by its mere operation. 69 F.4th at 103. Instead, the statute impinged on Range‘s Second Amendment rights for a reason—he sought “to possess a rifle to hunt and a shotgun to defend himself at home.” Id. Heller plainly “cover[ed] [Range‘s] conduct,” so the burden shifted to the government to proffer a relevant historical record of firearm regulations. Id. (second alteration in original) (quoting Bruen, 142 S. Ct. at 2126). The Third Circuit was evaluating
But that is far from the end of the uncertainties. Serious jurisprudential and evidentiary issues persist in evaluating the vast majority of
First, jurisprudential. What does it mean to carry a gun for the purpose of self-defense? Imagine a defendant leaves home with a concealed handgun, planning to do three things: (1) pick up his dry cleaning; (2) sell illegal drugs; and, (3) get lunch on the way home. The Second Amendment protects that defendant‘s right to carry a gun to have it at the ready in case he needs to protect himself on the way to the dry cleaner. Heller, 554 U.S. at 584. On the other hand, as discussed further below, it just as surely would not protect his carrying the gun to safeguard his turf from a rival dealer. Does it still protect his intent to carry the gun for later self-defense if he does not intend to use it during the sale? At exactly what time did his carrying the gun stop being “Second Amendment conduct“? Was it when he left the dry cleaner, or maybe when his buyer was in sight? Does he get the Second Amendment‘s protection back when the drug deal is over and he is on his way to get lunch? At what point exactly? Does he lose it again if he buys lunch with the proceeds from the drug deal? While, for reasons explained below, this case does not require identifying the precise point at which the Second Amendment ceases to apply, Range does require these case-by-case inquiries.
Second, evidentiary. What information should a court consult when deciding if a defendant was engaged in Second Amendment conduct? Because the Second Amendment protects the right to carry a gun merely in anticipation of the possibility of self-defense, the defendant‘s intent must carry some weight in determining whether he was engaging in “Second Amendment conduct” when he possessed the gun. (What else would it mean to determine whether he was carrying the gun in anticipation of a possible need?) Should a court try to assess his subjective intent? Or can it look for objective manifestations of his intent—maybe a prior conversation with a friend, or eyewitness testimony? Why not both? At the evidentiary hearing, the government agreed that evidence of both Defendant‘s subjective intent and objective indicia that he was engaging in conduct protected by the Second Amendment could be relevant to this inquiry, but that is not self-evident from Bruen or Range.
In sum, where a
B. Problems with Historical Analogical Reasoning
Another challenge that Bruen presents goes to the heart of a judge‘s role as a decision-maker and arbiter of legal disputes. The Supreme Court and the Third
The inquiry begins with Bruen‘s command to define the right to bear arms with reference to our nation‘s history. Getting history right
requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day. It is, in short, a task sometimes better suited to the historian than the lawyer.
Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 856-57, 861 (1989). But the Supreme Court in Bruen announced that Second Amendment historical analysis need not be conducted with the care and precision advocated for by Justice Scalia. Courts can avoid donning the historian‘s mantle, according to Bruen, by engaging in “analogical reasoning . . . a commonplace task for any lawyer or judge.” 142 S. Ct. at 2132. We compare “distinctly” or “relevantly similar” aspects of putative historical analogues to the challenged regulation and determine whether the two are “analogous enough.” Id. at 2131-33. And although the Court acknowledged that “[e]verything is similar in infinite ways to everything else,” it reasoned that judges can separate relevant similarities and dissimilarities from irrelevant ones as long as they have “some metric enabling [them] to assess which similarities are important and which are not.” Id. at 2132 (quotations omitted).
The Supreme Court referred to “analogical reasoning” as though it were self-explanatory. It is not. Analogical reasoning, as Judge Posner explains, has “no definite content or integrity; it denotes an unstable class of disparate reasoning methods.” Richard A. Posner, The Problems of Jurisprudence 86 (1990). In any case, analogies must be more than free-flying comparison—they “only make sense if there are reasons of principle underlying them.” Neil MacCormick, Legal Reasoning and Legal Theory 186 (1978). Analogy without rule is rudderless.3 Or maybe what Bruen demands is not reasoning at all. Perhaps it is “the application of a trained, disciplined intuition where the manifold of particulars is too extensive to allow our minds to work on it deductively.” Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 Tex. L. Rev. 35, 57 (1981) (emphasis added). The command merely to “reason by historical analogy” pushes Second Amendment jurisprudence into uncharted waters without compass or sextant.
To be sure, reasoning by analogy can be useful and appropriate in legal decision-making. But it only works with reference to clear governing standards. When engaging in legal analogical reasoning, judges can rely on principles and metrics that courts have tested, and agreed on, over time. We know, for example, that when Congress models a statute on an
existing one, courts often look to the text, structure, and history of the original law to construe the new statute‘s scope and operation. See, e.g., Lawson v. FMR LLC, 571 U.S. 429, 458 (2014); Sekhar v. United States, 570 U.S. 729, 734-35 (2013); Jones v. Hendrix, 599 U.S. 465, 513-14 & 514 n.10 (2023) (Jackson, J., dissenting). Because interpreting statutes in light of their earlier models is a common practice, outcomes are predictable, and parties can confidently expect courts to consistently apply analogical metrics and select levels of generality. But we lack that concrete guidance when it comes to Bruen‘s novel demand to reason analogically about history.
Bruen itself demonstrates the opacity of the Court‘s instructions on how to conduct this exercise. The Bruen respondents illustrated a tradition with 700 years’ worth of examples of firearm regulation from England, the American colonies, and the early United States. The Court rejected them as insufficiently similar to the New York “proper cause” law for various reasons:
- One historical comparator law, the Statute of Northampton, was too old, and it did not envision new types of weapons, Bruen, 142 S. Ct. at 2139-40;
- King Henry VIII approved of comparator regulations on handguns for a reason different from New York‘s justification for its law, id. at 2140;
- The author of a 1716 treatise believed that the comparator regulation sought to prevent “Act[s] of Violence or Disturbance of the Peace,” whereas the New York law seemed only to contemplate preventing acts of violence, id. at 2142;
- Another comparator regulation from colonial New Jersey prohibited a smaller subset of handguns than the New York regime did, id. at 2143, and prohibited carrying handguns but not long guns, whereas the New York regime prohibited carrying both, id. at 2144;
- In 1871, a state supreme court held unconstitutional a statute similar to the comparator regulation, id. at 2147.
In rejecting each of the above proffered analogues, the Supreme Court of course identified a dissimilarity between the historical comparator and the New York law. But it did not explain why exactly any of the dissimilarities it identifies is relevant or therefore breaks the analogy, even though Bruen takes pains to state that a comparator regulation may be dissimilar but still analogous. 142 S. Ct. at 2133 (“[A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin.“). What principle unites or explains Bruen‘s rejections? The Court does not say. Nor does it tightly tether the reasons behind its rejection of one proposed analogue to the reasons underpinning another.4
Bruen does suggest that “at least two metrics” might guide courts’ search for historical analogues (although it does not indicate these are the only metrics, or even
But that interpretive lifeline is not enough. A functional standard for historical analogical reasoning must identify not just the relevant criteria, but also the proper level of generality at which to apply them. Cf. Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1087 (1990) (critiquing the “implicit suggestion that historical traditions come equipped with something like instruction manuals explaining how abstractly the Court should describe them“). In other words, with what granularity should a court ask Bruen‘s “why” and “how” questions? Take for example the historical regulations prohibiting carrying weapons in a way that caused fear in others. We know from Bruen that a modern regulation could pass the test even if the motivations for its prohibition—its “why“—were not identical to those in the historical record. But how far removed can it be? Is the right level of generality for the analogy “the eliciting of strong emotion“? If so, a modern regulation that aimed to prevent anger, rather than fear, might be “relevantly similar.” Bruen, 142 S. Ct. at 2132. Or, is the right level of generality “any response by others“? If so, a modern regulation that aimed to prevent physical reactions might be “relevantly similar.” Id. Bruen offers no guidance regarding how to choose among these levels of generality (or the myriad other imaginable ones), and therefore contains no instruction regarding how to properly analogize to the historical record.
This is not just semantics. It is urgent. Analogy is “often used to disguise change as continuity.” See Posner, supra, at 92-93. And “[m]ovements in the level of constitutional generality may be used to justify almost any outcome.” Frank H. Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349, 358 (1992).5 The real concern is that, absent metrics for comparison or instruction as to the proper level of generality at which to make those
comparisons, the rules of the game in any Second Amendment case may become, with few guard rails, whatever the adjudicating court says they are.6
broad[].” (quotation omitted)).
In short, like the Supreme Court in Bruen, Range summarily rejected proposed analogues without giving district courts meaningful criteria to evaluate why any dissimilarity is relevant (or not relevant) and which level of generality is to be employed in coming to a decision. What we do know for sure is that the Bruen test does not demand applying the exact historical law to the modern case. 142 S. Ct. at 2133.8
C. Range‘s Three Steps
Even though Range appears to have dramatically altered the job of a district court in properly evaluating a challenge to an indictment brought pursuant to
i. Who Is Among “the People“?
Range‘s first step is forgiving. Almost
in Binderup, “[t]hat individuals with Second Amendment rights may nonetheless be denied possession of a firearm is hardly illogical. It is no different than saying that the Government may prevent an individual with First Amendment rights from engaging in First Amendment conduct. . . .” 836 F.3d at 344 (plurality opinion); see also Range, 69 F.4th at 102. So under Range, the focus in the majority of matters is on the next two steps of the analysis.
ii. What Is Protected as “Second Amendment Conduct“?
The second step may have been “easy” in Range, id. at 103, but it is not so easy here given the distinctions between the postures of the two cases and the matters at issue. Range sought to purchase and use firearms to exercise his core Second Amendment rights: “to possess a rifle to hunt and a shotgun to defend himself at home.” Id. It should be unsurprising, then, that the en banc majority held that this request “track[ed] the constitutional right as defined by Heller,” and therefore, “§ 922(g)(1) regulate[d] Second Amendment conduct” in that context. Id. (citation omitted). Indeed, where an indictment charges a defendant with violating
But Range does not offer much help when the facts do not so clearly track Heller. For example, what if a defendant who purports to own a gun for self-defense, hunting, or militia service is arrested with it while doing something illegal? Here, the exact scope of protected Second Amendment conduct is crucial. While Heller and its progeny did not provide an exhaustive framework for determining the scope of lawful self-defense, they plainly contemplate limits on the conduct the Second Amendment protects, whether in the types of firearms that are covered or their uses.10 In other words, a person with a qualifying conviction may find themselves
That limitation on the Heller right—for what purposes one can bear protected firearms—is central here. Neither Heller nor McDonald expressly extended the right to bear arms beyond lawful activities. See, e.g., Marzzarella, 614 F.3d at 92 (describing the Heller right as “the right of law-abiding citizens to possess non-dangerous weapons for self-defense” (at that point, only in the home) and “to possess firearms for other, as-yet-undefined, lawful purposes” (footnote call omitted)). Or, as Judge Easterbrook put it:
The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection.... The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer‘s stash. [Defendant] says that he lived in a dangerous neighborhood and wanted to protect himself from burglars and other marauders. That may be so, but his decision to operate an illegal home business also matters.
United States v. Jackson, 555 F.3d 635, 636 (7th Cir. 2011) (Easterbrook, C.J.). And, in that the Third Circuit has concluded that the Supreme Court‘s most recent pronouncement about the right to bear arms did nothing to expand the types of conduct that are covered by the Second Amendment (just where that conduct is protected), Bruen is no help either. Range, 69 F.4th at 100, 103 (discussing “the ‘where’ question decided in Bruen,” as opposed to the “who,” “how,” and “why” components of the Second Amendment analysis at issue in Range).12 Therefore, otherwise binding authority regarding the
iii. Is There a Historical Tradition of Disarming People Like Defendant?
Range‘s “narrow” treatment of a civil request for declaratory and injunctive relief make it especially difficult to apply the final step in its analysis in criminal cases. 69 F.4th at 106. The en banc majority did not fully articulate a test for how to dispose of an as-applied challenge to
a) Dangerousness
First, Range‘s criminal record did not show that he was violent or otherwise dangerous
The majority‘s reference to dangerousness places it in calm Third Circuit waters. In Binderup, the partial concurrence contended that “the public understanding of the scope of the Second Amendment was tethered to the principle that the Constitution permitted the dispossession of persons who demonstrated that they would present a danger to the public if armed.” 836 F.3d at 369 (Hardiman, J., concurring in part and concurring in the judgment); see also id. at 357 (“The most cogent principle that can be drawn ... is that dangerous persons likely to use firearms for illicit purposes were not understood to be protected by the Second Amendment.“). Because the appellants in Binderup had been convicted of “nonviolent” crimes and lacked a “demonstrated proclivity for violence,” their disarmament was inconsistent with the Second Amendment under this framework. Id.
To support its view, the partial concurrence in Binderup pointed to the proposal by members of the minority at the Pennsylvania ratifying convention to add a guarantee that “no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.” Id. at 367 (quoting The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, reprinted in Bernard Schwartz, 2 The Bill of Rights: A Documentary History 662, 665 (1971)). Because these and similar proposals at the ratifying conventions “were considered ‘highly influential’ by the Supreme Court in Heller,” they were strong evidence that dangerousness could serve as a limit on the right to bear arms. Id. at 368 (quoting Barton, 633 F.3d at 174).
The partial concurrence in Binderup tied dangerousness only loosely to actual violence. Some of the same laws that the Range majority deemed “far too broad[]” to support a historical tradition of disarming the appellant there, 69 F.4th at 105 (quotation omitted), were competent evidence then “that the founding generation did not understand the right to keep and bear arms to extend to certain categories of people deemed too dangerous to possess firearms,” Binderup, 836 F.3d at 367 (Hardiman, J., concurring in part and concurring in the judgment). Although Loyalists “were neither criminals nor traitors, American legislators had determined that permitting these persons to keep and bear arms posed a potential danger.” Id. (quotation omitted).
In the years following Binderup, the precise role and definition of dangerousness was debated in cases like Holloway v. Attorney General, 948 F.3d 164 (3d Cir. 2020), and Folajtar v. Attorney General, 980 F.3d 897 (3d Cir. 2020). In Holloway, a case testing the constitutionality of
To be sure, the majority in Range wrestled with some of these sources. As discussed above, the majority concluded, without further explanation, that it “would be ‘far too broad[]‘” an analogy to rely on status-based restrictions applying to distrusted groups like Loyalists, Quakers, and Black people in Range‘s case. 69 F.4th at 105 (quoting Bruen, 142 S. Ct. at 2134). But these limited comments on the historical record‘s applicability to the “narrow” question of Range‘s appeal do not render these laws incompetent evidence of the historical tradition of disarming other litigants who were not “like Range.” Range, 69 F.4th at 106. Instead, the court merely noted that, in that case, “the Government d[id] not successfully analogize those groups to Range and his individual circumstances.” Id. at 105 (emphasis added).
In sum, multiple opinions leading up to Range show that Founding-era governments disarmed people convicted of violent felonies and groups they distrusted like Loyalists, Native Americans, Quakers, and Black people because, in different ways, they thought that these groups were dangerous. Range did not dispute the strength or validity of this historical record—it just found that record inapplicable in the case before it. 69 F.4th at 105. Thus, if the Government can “prove that [a] firearms regulation,” including
b) Post-Conviction Conduct
Second, Range‘s “individual circumstances,” particularly “his largely law-abiding life post-conviction,” undergird the majority‘s reasoning. Range, 69 F.4th at 132-33 (Krause, J., dissenting). To review, Range was convicted of lying about his income to obtain food stamps in 1995. Id. at 98. The majority noted that, following that conviction, Range committed no additional serious criminal offenses. Id. (“Other than his 1995 conviction, Range‘s criminal history is limited to minor traffic and parking infractions and a summary offense for fishing without a license.“). And when he realized the scope of his disarmament, Range voluntarily returned a hunting rifle that he had received as a gift. Id. at 98-99. Finally, when it conducted the historical analysis that Bruen demands, the majority looked for evidence of disarming people in ”Range‘s situation“—i.e., laws disarming people even “after successfully completing his sentence and reintegrating into society.” Id. at 105 (citation omitted). Thus, in contrast with Binderup, which found “no historical support for the view that the passage of time or evidence of rehabilitation
The majority‘s reliance on Range‘s post-conviction conduct has important doctrinal implications. Historically,
But it is far from clear that, given the as-applied claim for declaratory and injunctive relief before it, the majority had occasion to reach beyond the latter (Range‘s right to possess a gun going forward) to decide the former (Range‘s right to possess a gun at any point after he was convicted). Instead, Range‘s reasoning changed how
Here, as in Range, a private party argues that the government, on a permanent and ongoing basis, is preventing him from exercising his Second Amendment rights by enforcing
Having elaborated the framework for adjudicating constitutional challenges to indictments under
A. Facial Unconstitutionality
i. Vagueness
If
“The first focus of a vagueness analysis must be on the statute as it existed at the time the defendant acted and was charged with commission of a crime.” Pringle v. Ct. of Common Pleas, 778 F.2d 998, 1002 (3d Cir. 1985) (citing Rabe v. Washington, 405 U.S. 313 (1972)). Whether or not Range has now invalidated any part of
It was not. A statute is void for vagueness if it “forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning.” Gibson v. Mayor & Council of Cty. of Wilmington, 355 F.3d 215, 225 (3d Cir. 2004) (citing Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). Jenkins does not identify any particular statutory language as vague, but in any case, the plain language of
ii. Unconstitutionality Under the Second Amendment in All Applications
Jenkins argues that
The bar for facial unconstitutionality is high. “A party asserting a facial challenge must establish that no set of circumstances exists under which the Act would be valid.” United States v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011) (en banc) (internal quotation marks omitted) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). A statute thus is facially unconstitutional if it would be unconstitutional in “every conceivable application.” Robinson v. State of N.J., 806 F.2d 442, 446 (3d Cir. 1986) (internal quotation marks and citation omitted). The Supreme Court has said that facial challenges to statutes are disfavored and a court should issue “a narrower remedy” when it “will fully protect the litigants.” United States v. Nat‘l Treasury Emps. Union, 513 U.S. 454, 478 (1994). It is a “particularly demanding standard and is the ‘most difficult challenge to mount successfully.‘” Heffner v. Murphy, 745 F.3d 56, 65 (3d Cir. 2014) (quoting Salerno, 481 U.S. at 745).
Jenkins argues there is no founding-era history of disarming people convicted of felonies and that therefore
In any case, facial unconstitutionality requires unconstitutionality in all applications. As discussed above, neither Bruen nor Range disturbs Third Circuit precedent under which
B. Unconstitutionality as Applied to Jenkins
Jenkins‘s primary Second Amendment challenge to
As explained above (see supra Section III.A), the parties agreed that it is Jenkins‘s burden to show, by a preponderance of the evidence, that his conduct was covered by the Second Amendment.17 During a hearing, Jenkins elicited testimony from a witness that the area in which he was arrested was a high-crime area. Perhaps the possibility of crime makes it somewhat more likely Jenkins was carrying for the purpose of self-defense. But see Jackson, 555 F.3d at 636. Still, Jenkins did not affirmatively introduce any evidence that he sought to carry a gun for a Second Amendment purpose, so he did not demonstrate to a preponderance of the evidence that he was engaged in Second Amendment conduct.18 Therefore, he does not
V. Conclusion
For the foregoing reasons, Defendant‘s Motion to Dismiss the Indictment will be denied.
An appropriate order follows.
BY THE COURT:
/s/ Wendy Beetlestone
WENDY BEETLESTONE, J.