UNITED STATES OF AMERICA v. DAVID KEITH NUTTER
CRIMINAL ACTION NO. 2:21-cr-00142
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION
August 29, 2022
MEMORANDUM OPINION AND ORDER
Thе Court has reviewed the Defendant‘s Bruen-Based Motion to Dismiss (Document 62), the Response of the United States to Defendant‘s Motion to Dismiss (Document 66) and the Defendant‘s Reply on Bruen-Based Motion to Dismiss (Document 67). For the reasons stated herein, the Court finds that the renewed motion to dismiss should be denied.
The Court has also reviewed the Motion of the United States for Leave to File Supplemental Authority (Document 68) and the Defendant‘s Further Reply to United States’ Supplemental Response (Document 69). The Court finds that the United States’ motion, which simply attaches a district court case addressing the sаme issue presented herein, should be granted. However, the Defendant‘s “further reply,” an 11-page supplemental brief addressing both the newly decided case submitted by the United States and previously available law and history expounding on his previous arguments, does not comply with the briefing deadlines established by the Court or any rule of procedure. A notice of supplemental authority does not automatically open the door to additional briefing, and the Court directs that the Defendant‘s additional reply brief be stricken.
FACTS AND PROCEDURAL HISTORY
The Defendant, David Keith Nutter, was charged with possession of firearms by a person previously convicted of misdemeanor crimes of domestic violence, in violation of
- Convicted on or about July 14, 1998, in the Canton Municipal Court, of Domestic Violence on a Family or Household Membеr, in violation of
Ohio Rev. § 2919.25 ; - Convicted on or about August 19, 2002, in the Court of Common Pleas of Stark County, Ohio, of Domestic Violence on a Family or Household Member, Felony in the Fifth Degree,1 in violation of
Ohio Rev. § 2919.25(A) ; and -
Convicted on or about August 19, 2002, in the Court of Common Pleas of Stark County, Ohio, of Endangering Children (Child Abuse) in violation of Ohio Rev. § 2919.22(B)(1) .
Law enforcement began investigating the Defendant after interviewing two juvenile females who had run away.2 On July 6, 2019, one of the minors wrote a statement describing what had happened during the time they were missing that indicated a friend took them to the Defendant‘s home on the Fourth of July. Both minors stated that they were drinking alcohol supрlied by the Defendant while there. Both separately described the Defendant recklessly waving around loaded firearms. Their friend stated that he and the Defendant fired the guns behind the house. One of the minors and the friend indicated that the Defendant‘s daughter later hid the guns because the Defendant was intoxicated. One of the minors told police that the Defendants said he was a felon. Law enforcement executed a search warrant on July 6, 2019, and seized two rifles, two shotguns, three muzzleloader pistols, and assorted ammunition.
Investigation into his criminal history ultimately led to the instant indictment. The domestic violence offenses listed in the indictment involved striking and pushing his minor stepdaughter, causing physical harm, causing physical harm to an adult female family or household member (the mother of his child), and causing physical harm to a minor female.
The Defendant filed a previous motion to dismiss on multiple grounds, which the Court denied in a Memorandum Opinion and Order (Document 54) entered on May 17, 2022. The Defendant then entered a conditional plea of guilty, preserving his right to appeal the denial of the motion to dismiss, on June 9, 2022. On June 23, 2022, the Supreme Court issued an opinion related to Second Amendment challenges to gun regulations. New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). The Defendant‘s current motion to dismiss asks the Court to consider his constitutional challenge to the charge based on that decision.3
DISCUSSION
Mr. Nutter argues that the lifetime prohibition on possession of a firearm by a person convicted of a misdemeanor crime of domestic violence violates the Second Amendment as interpreted in Bruen. He argues that “a misdemeanor domestic violence conviction was not a disability which existed when the Second Amendment was ratified in 1791.” (Def.‘s Mot. at 2.) He contends that his conduct, possessing firearms in his home, falls within the protections of the Second Amendment, and that there was no historical tradition in existence around the time of enactment of the Second Amendment related to disarming
The United States counters that precedent on the Second Amendment, including the Supreme Court‘s opinion in Bruen, emphasizes that these protections apply to law-abiding gun owners. It contends that the Second Amendment is not applicable to dangerous, non-law-abiding people, including those with convictions for domestic violence. The United States cites a historical tradition of barring рeople from possessing firearms based on criminal convictions and/or findings of dangerousness, as well as providing protections against spousal abuse. The United States reasons that ”
In reply, the Defendant argues that it is “undisputed that—at the time of the Founding—domestic violence misdemeanants simply were not disarmed in the United States.” (Def.‘s Rep. at 3.) He reasons that because domestic violence was a social problem at the time of the Founding, but did not then result in legal disarmament, there is no historical tradition that would support upholding
In the first motion to dismiss, the Court applied the two-part test developed by circuit courts, including the Fourth Circuit, after the Supreme Court‘s decision in District of Columbia v. Heller, 554 U.S. 570 (2008). Under that test, courts conducted a historical inquiry into whether a law regulated conduct within the scope of the Second Amendment, then conducted an intеrmediate scrutiny analysis to evaluate the fit between the law and the governmental
As an initial matter, the Court‘s previous opinion denying the motion to dismiss relied upon binding Fourth Circuit precedent finding that
Bruen outlined some considerations for courts addressing regulations related to societal problems that existed in the 18th century:
The test that we set forth in Heller and aрply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment‘s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.
Bruen, 142 S. Ct. at 2131. The Supreme Court emphasized, though, that “[a]lthough its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Id. at 2132. The Court‘s discussion of limitations оn firearms in sensitive places is instructive. The Court explained that “[a]lthough the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited...
The regulation at issue in Bruen limited permits to carry firearms outside the home to those who cоuld show good cause. Thus, the opinion focuses on regulations impacting law-abiding citizens, as opposed to the class of regulations prohibiting certain people from carrying firearms based on their conduct or characteristics. Such restrictions have a longstanding history, as the Supreme Court recognized in Heller: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” among other restrictions. D.C. v. Heller, 554 U.S. 570, 626 (2008) (describing such restrictions as “presumptively lawful“).7
As the Fourth Circuit and many commentators have recognized, though, there is not clear historical evidence that those “longstanding” prohibitions, dating to the early 20th century, existed in similar form in the founding era. United States v. Chester, 628 F.3d 673, 680–81 (4th Cir. 2010) (noting that “[c]ommentators are nonetheless divided on the question of categorical exclusion of felons from Second Amendment protection.“); 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, 1376 (2009); Adam Winkler, Heller‘s Catch-22, 56 UCLA L. Rev. 1551, 1562–63 (2009).
The surety laws cited by the United States establish that domestic violence was a concern in the founding era, and that laws designed to restrict the rights of those who committed such abuse, and protect the victims, were not viewed as controversial. The Defendant suggests that the lack of laws expressly prohibiting people convicted of misdemeanor crimes of domestic violence from possessing firearms suffices to require dismissal. After all, domestic violence has been a social problem throughout history, and there is limited evidence of formal legal process to disarm domestic abusers prior to the 20th century. But although domestic violence existed, “misdemeanor crimes of domestic violence,” as defined in
The criminal code, as a whole, has evolved dramatically since the late eighteenth century. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 507–09 (2001) (describing the breadth of current criminal law and noting that the expansion of criminal law “is a constant, going back (at least) to the mid-1800s.“). To suggеst that only people convicted of crimes with an exact historical analogue can be subject to gun
The text of the Second Amendment itself is instructive: “A well rеgulated 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 post-Heller analysis discussing the historical justification for the “presumptively lawful” regulations listed in the opinion argues that the “proper discipline” necessary to ensure a “well-regulated” militia may properly be understood to encompass regulations consistent with the purposes of the Second Amendment, with those purposes including possession of firearms for both individual and national defense. Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. U.L. Rev. 1187, 1231-33 (2015) (“because the framing-era understanding was that the right would be exercised by those subject to regulatory authority, it would do serious violence to this original understanding to disaggregаte the right from the existence of regulatory authority.“). Professor Rosenthal reasons that the preamble and the operative clause
must be harmonized, not placed in conflict with each other. Understanding the preamble as supplying a textual acknowledgement that not all regulation amounts to an “infringement” on the right to keep and bear arms, in turn, solves a good number of textual problems lurking in Heller‘s treatment of firearms regulation. The Second Amendment, read in light of its preamble, reflects a textual commitment to regulation found nowhere else in the Bill of Rights....[S]ince the preamble preserves regulatory authority in a generic manner, rather than endeavoring to preserve framing-era practice as in the Seventh Amendment, it becomes possible to explain why the right to keep and bear arms tolerates regulations unknown in the framing era.
Id. at 1232-33.
To be sure, the preamble does not contemplate limitless regulation. For one thing, a boundless regulatory power could convert the right into a nullity, which is not a plausible reconciliation of the operative clause and the preamble.
Consistent with this understanding of the preamble to the Second Amendment
While serving on the Seventh Circuit Court of Appeals, now-Justice Amy Coney Barrett authored a dissent offering a detailed analysis of firearm regulations related to felons that is similarly instructive. She recounted English laws prohibiting possession of firearms by Catholics, based on their presumed untrustworthiness or disloyalty to the Crown, as well as early American laws both before and after the Revolution disarming slaves and Native Americans. Kanter v. Barr, 919 F.3d 437, 457–58 (7th Cir. 2019), abrogated by New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) (Barret, J., dissenting). “In sum, founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” Id. at 458. Thus, although then-Judge Barrett disagreed with the panel majority conclusion that even nonviolent felons may categorically “lose their Second Amendment rights solely because of their status as felons,” she reasoned that history “does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.” Id. at 464.
The prohibition on possession of firearms by those convicted of misdemeanor crimes of domestic violence fits easily within this framework of regulatiоn consistent with the history and purposes of the Second Amendment and designed to keep firearms away from dangerous people. The prohibited class was deemed a danger by the legislature, and that conclusion is well supported by empirical evidence and statistics regarding domestic violence, recidivism by those convicted of misdemeanor crimes of domestic violence, and increased risks of serious harm and death posed when firearms are present in connection with domestic violence. See United States v. Staten, 666 F.3d 154, 161–67 (4th Cir. 2011) (outlining the legislative purpose and empirical evidence supporting the
Without domestic violence statutes, there was no mechanism to readily identify and disarm domestic abusers in the founding era. Grоups perceived as dangerous
The prohibition of possession of firearms by domestic violence misdemeanants, and other groups identified as dangerous, is supported by history. See, e.g., Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. U.L. Rev. 1187, 1239 (2015) (“[H]istory suggests that when the legislature restricts the possession of firearms by discrete classes of individuals reasonably regarded as posing an elevated risk for firearms violence, prophylactic regulations of this character should be sustained.“); 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, 1377 (2009) (citing historical examples for the proposition that “any person viewed as potentially dangerous could be disarmed by the government without running afoul of the ‘right to bear arms.‘“); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (application of the Second Amendment limited to “virtuous” citizens).
The Defendant urges the Court to disregard the Supreme Court‘s repeated invocation of “law-abiding” citizens in its recent Second Amendment jurisprudence, but the distinction between regulations that impact everyone and those that impact discrete groups found to pose a danger to the public is key to a historical understanding of the Second Amendment. Laws prohibiting most people from carrying firearms in public or barring possession of firearms within a major city reach the core purposes of the Second Amendment, preventing individuals from using firearms to defend themselves (and from engaging in collective defense, should that become relevant to modern life). A law prohibiting a domestic violence misdemeanant frоm possessing a firearm restricts only those found, following due process, to pose a special danger of misusing firearms based on their own actions. Rather than promoting public safety, empirical evidence establishes that their possession of firearms poses a threat.
Recent decisions applying Bruen have reached similar conclusions. Addressing
A district court in Mississippi applied Bruen to
In her dissent in Kanter, Justice Barrett wrote: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019), abrogated by New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) (Barrett, J., dissenting). Common sense tells us that the public understanding of the Second Amendment at the time of its enactment,10 which allowed for disarmament of Blacks and Nativе Americans based on their perceived threat, would have accepted disarmament of people convicted of misdemeanor crimes of domestic violence, a
group found by the legislative branch to present a danger of misusing firearms. The issue presented is whether the Second Amendment permits a regulation prohibiting people convicted of domestic violence offenses from possessing firearms. Nothing in the historical record suggests a popular understanding of the Second Amendment at the time of the founding that extended to preserving gun rights for groups who pose a particular risk of using firearms against innocent people. Accordingly, the Court finds that the Defendant‘s motion to dismiss should be denied.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the Defendant‘s Bruen-Based Motion to Dismiss (Document 62) be DENIED. The Court further ORDERS that the Motion
The Court DIRECTS the Clerk to send a copy of this Order to the Defendant and counsel, to the United States Attorney, to the United States Probation Office, and to the Office of the United States Marshal.
ENTER: August 29, 2022
IRENE C. BERGER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA