Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA UNITED STATES OF AMERICA, )
)
Plaintiff, )
) v. ) Case No. CR-22-40-D
)
WILLIAM SHAWN KAYS, )
)
Defendant. )
O R D E R
Before the Court is Defendant’s Motion to Declare 18 U.S.C. § 922(g)(8) and
§ 922(n) Unconstitutional Under the Second Amendment and to Dismiss the Superseding
Indictment [Doc. No. 52]. The government has filed its Response [Doc. No. 61], and the
parties have filed supplemental briefs to address the Supreme Court’s decision in
New York
State Rifle & Pistol Association, Inc. v. Bruen
,
Background
Defendant stands charged in a three-count Superseding Indictment of: 1) illegal
receipt of a firearm by a person under indictment, in violation of 18 U.S.C. § 922(n); 2)
prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(8); and 3)
prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(8).
Defendant seeks a determination that both § 922(n) and § 922(g)(8) are facially
unconstitutional because they infringe on an individual’s fundamental right under the
Second Amendment to possess and carry firearms, and if successful, he seeks a dismissal
of the charges against him under an unconstitutional statute. Defendant bases his Second
Amendment challenge on
District of Columbia v. Heller
,
Standard of Decision
Rule 12(b)(3) of the Federal Rules of Criminal Procedure permits a defendant to
challenge an indictment before trial where a “trial of the facts surrounding the commission
of the alleged offense would be of no assistance in determining the validity of the defense.”
United States v. Pope
,
Discussion
In 2008, the Supreme Court recognized an individual right under the Second
Amendment to possess firearms in common use, such as handguns, for traditionally lawful
purposes, such as self-defense within the home.
See Heller
,
Under those decisions, the Tenth Circuit has consistently upheld the
constitutionality of § 922(g) generally and subsection (8) specifically.
See United States v.
Reese
,
After
Heller
, most federal appellate courts applied a two-step framework using a
means-end analysis to determine the constitutionality of restrictions on Second
Amendment rights. The Tenth Circuit had employed this framework in recent cases.
See
Reese
, 627 F.3d at 800-04;
Huitron-Guizar
, 678 F.3d at 1169. Earlier, it had simply
followed dictum in
Heller
indicating that statutes such as § 922(g) were unaffected by the
holding of that case.
See McCane
,
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with this Nation’s historical tradition of firearm regulation.
Id
. at 2129-30.
The Supreme Court reiterated
Heller
’s dictum in
McDonald
,
We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.
Turning to the issues presented by Defendant’s Motion, the Court must determine whether the Second Amendment’s plain text covers Defendant’s conduct and, if so, whether the government has demonstrated that both § 922(g)(8) and § 922(n) are consistent with the United States’ historical tradition of firearm regulation.
I. Defendant’s Conduct is Covered by the Second Amendment’s Plain Text.
The Second Amendment “protect[s] the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense” and “an individual’s right to carry a handgun for self-defense outside the home.” Bruen , 142 S. Ct. at 2122. Based on the reference to law-abiding citizens, the government argues that the Second Amendment rights recognized in Heller and Bruen do not apply to individuals under indictment. See [Doc. No. 79] at 5-6. This argument ignores the Supreme Court’s emphasis on an individual’s conduct, rather than status, to decide if Second Amendment protection exists. This Court declines to read into a qualification that Second Amendment rights belong only to individuals who have not been accused of violating any laws. Thus, Defendant’s conduct is covered by the Second Amendment’s plain text.
II. United States’ Historical Tradition of Firearm Regulation
Having concluded that Defendant’s conduct is covered by the Second Amendment’s plain text, the Court must next determine whether the government has demonstrated that both § 922(g)(8) and § 922(n) are consistent with the United States’ historical tradition of firearm regulation.
Bruen teaches that the “historical inquiry that courts must conduct will often involve reasoning by analogy” and “determining 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.” Bruen , 142 S. Ct. at 2132 (internal citation omitted). The Court identified “two metrics” that would render regulations relevantly similar under the Second Amendment: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id . at 2132-33.
The government attempts to establish that each statute is consistent with a historical tradition of firearm regulation by using broad arguments that do not directly address a history of firearm possession by those subject to a protective order, or firearm receipt by those under indictment. The government instead analogizes § 922(g)(8) and § 922(n) to the surety laws discussed in Bruen and relies on restrictions historically imposed on felons and the mentally ill. See [Doc. No. 79] at p. 3-6.
a. Section 922(g)(8)
In the wake of , this Court declined to hold that 18 U.S.C. § 922(g)(9)—which
prohibits any person convicted of a “misdemeanor crime of domestic violence” from
possessing a firearm—violated the Second Amendment.
See United States v. Jackson
, No.
CR-22-59,
Section 922(g)(8) and (9) are similar. Indeed, as noted by the Tenth Circuit, “both
[§ 922(g)(8) and § 922(g)(9)] prohibit the possession of firearms by narrow classes of
persons who, based on their past behavior, are more likely to engage in domestic violence.”
See Reese
,
As this Court recognized in Jackson , commentary from legal scholars acknowledges the paucity of evidence that American traditions reached within the home to interfere with domestic relationships, particularly the marital relationship. See, e.g., Joseph Blocher, Domestic Violence and the Home-Centric Second Amendment , 27 Duke J. of Gender Law & Policy 45, 55-56 (2020) (“In the context of domestic violence prohibitions, the historical record is problematic to say the least.”); Carolyn B. Ramsey, Firearms in the Family , 78 Ohio St. L.J. 1257, 1301 (2017) (“Historical support for the exclusion of domestic violence offenders from Second Amendment protection appears rather thin.”).
Despite faint historical support of regulations prohibiting domestic violence
offenders from the Second Amendment’s protections, in
Jackson
, the Court concluded that
the government satisfied its burden to justify the firearm regulation of § 922(g)(9), as
domestic violence misdemeanants can logically be viewed as “‘relevantly similar to felons’
who should be ‘denied weapons for the same reasons.’”
Jackson
,
Using the same reasoning, the Court arrives at an identical conclusion here. Section
922(g)(8) limits the Second Amendment rights of a person who is subject to a court order
that “restrains such person from harassing, stalking, or threatening an intimate partner of
such person . . . or engaging in other conduct that would place an intimate partner in
reasonable fear of bodily injury.” 18 U.S.C. § 922(g)(8)(B). Although the historical record
regarding domestic violence prohibitions is problematic, that does not prevent the
government from carrying its burden here. Those subject to a domestic violence protective
order should logically be denied weapons for the same reasons that domestic violence
misdemeanants are. Like § 922(g)(9), § 922(g)(8)’s prohibition is consistent with the
longstanding and historical prohibition on the possession of firearms by felons.
See Heller
,
Therefore, the Court finds that the government’s reliance on general historical tradition is sufficient to satisfy its burden to justify the firearm regulation of § 922(g)(8) and thus declines to hold that § 922(g)(8) violates the Second Amendment.
b. Section 922(n)
Section 922(n) prohibits any person who is under indictment for a felony from
receiving any firearm or ammunition which has been shipped or transported in interstate
or foreign commerce. 18 U.S.C. § 922(n). As with § 922(g)(8), historical support for
excluding those under indictment from the protections of the Second Amendment is
limited—the first federal statute restricting an indicted individual’s access to firearms was
not enacted until 1938.
See
Federal Firearms Act of 1938, Pub. L. No. 75-850, § 2(e), 52
Stat. 1250, 1251 (repealed);
see also Laurent
,
But as the government points out, a historical analogue to § 922(n) does exist in the
form of the surety statutes discussed in
Bruen
. These statutes can be traced to the mid-19 th century.
See Bruen
,
The Court in Bruen declined to hold that these surety laws represented a well- established historical analogue to the New York law at issue. Id. at 2148-50. “[T]he surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of reasonable cause to fear an injury, or breach of the peace,” “New York presumes that individuals have no public carry right without a showing of heightened need.” Id. at 2148 (internal quotation omitted). The surety laws restricted an individual’s carrying of arms “only when ‘attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them.’” Id. (quoting William Rawle, A View of the Constitution of the United States of America 126 (2d ed. 1829).
Unlike the New York law that was struck down in Bruen , § 922(n) does not restrict the Second Amendment rights of every citizen. Like the surety statutes, § 922(n) is faithful to the notion that individuals have a right to bear arms. The surety statutes generally provided that an individual’s Second Amendment right “could be burdened only if another could make out a specific showing of reasonable cause to fear an injury, or breach of the peace.” Bruen , 142 S. Ct. at 2148 (internal citation omitted). Similarly, § 922(n) only burdens an individual’s Second Amendment rights “during the pendency of the indictment, a volatile period during which the stakes and stresses of pending criminal charges often motivate defendants to do violence to themselves or others.” United States v. Khatib , No. 12-CR-190, 2012 WL 608682, at *4 (E.D. Wis. Dec. 6, 2012) ; see also Laurent , 861 F.Supp.2d at 102 (“[I]f the individual only received a gun after indictment, this conduct raises the suspicion that his purpose is not self-defense in the home, but further crime”) (emphasis added).
Even so, the restriction imposed by § 922(n) is narrow. In fact, § 922(n) is arguably
less restrictive than the surety laws discussed, as the surety laws required those “reasonably
accused” to “show a special need in order to avoid posting a bond” before carrying.
Bruen
,
The Court thus finds that the surety laws discussed in are proper historical analogues for § 922(n). The government’s reliance on these surety laws is sufficient to satisfy its burden to justify the firearm regulation of § 922(n), and the Court declines to hold that § 922(n) violates the Second Amendment.
Conclusion Under the circumstances currently presented, where the effect of the Supreme Court’s decision in on longstanding criminal prohibitions such as § 922(g) and § 922(n) remains unclear, this Court holds that neither § 922(g)(8), nor § 922(n), violates the Second Amendment. By his Motion, Defendant has preserved this issue for future decision by higher courts.
IT IS THEREFORE ORDERED that Defendant’s Motion to Declare 18 U.S.C. § 922(g)(8) and § 922(n) Unconstitutional Under the Second Amendment and to Dismiss the Indictment [Doc. No. 2] is DENIED .
IT IS SO ORDERED this 29 th day of August, 2022.
TIMOTHY D. DeGIUSTI Chief United States District Judge
Notes
[1] Defendant also lodges an as-applied challenge with respect to § 922(g)(8), claiming that
the factual basis of the protective order did not involve “injuring, abusing, sexually
assaulting, molesting, harassing, stalking, [or] threatening.” [Doc. No. 78] at p. 12.
However, an as-applied challenge to the constitutionality of a statute generally cannot be
raised in a pretrial motion to dismiss since it requires an examination of the facts of the
case.
See United States v. Pope
,
[2] Post-
Heller
, no appellate court has assessed the constitutionality of § 922(n). Prior to
, several lower courts held that § 922(n) is constitutional on its face.
See, e.g., United
States v. Call
,
[4] Although the government fails to address whether the Second Amendment protects individuals subject to a domestic protective order, the Court reiterates that an individual’s Second Amendment rights are not predicated on their classification, but rather, their conduct.
[5] The New York law at issue in required an individual to secure a license to carry a firearm outside his or her home or place of business for self-defense. Securing this license required the applicant to prove that proper cause existed. See Bruen , 142 S. Ct . at 2123.