CRIMINAL ACTION NO. 2:22-cr-00097
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION
October 12, 2022
MEMORANDUM OPINION AND ORDER
The question before the court is whether
On July 16, 2019, officers with the Charleston Police Department conducted a traffic stop on Mr. Price‘s vehicle for having an improper display of registration. [ECF No. 23, at 2]. Through that stop, officers discovered a pistol in Mr. Price‘s vehicle with an obliterated serial number. Id. At the time he allegedly possessed the pistol, Mr. Price had been convicted in Ohio of the felony offenses of involuntary manslaughter and aggravated robbery. [ECF No. 1, at 1]. Mr. Price was indicted by grand jury on May 3, 2022, for being a felon in possession of a firearm in violation of
II. LEGAL STANDARD
Under
Until recently, federal courts uniformly applied at least intermediate scrutiny to firearms laws and conducted a means-end analysis to determine whether the state‘s interest in the regulation was sufficient to overcome whatever burden the law placed on one‘s Second Amendment right. See, e.g., United States v. Carter, 669 F.3d 411 (4th Cir. 2012). In Bruen, however, the Supreme Court of the United States determined that all of the lower courts had been incorrect in applying means-end scrutiny. N.Y. State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111 (2022). Rather than balancing any government interest, no matter how important the interest may be in our modern society, the Supreme Court reaffirmed what it said in Heller: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008)) (emphasis in original). Because the Second Amendment was adopted in 1791, only those regulations that would have been considered constitutional then can be constitutional now.
As other districts have recognized, ”Bruen transformed and left uncharted much of the legal landscape.” United States v. Charles, No. MO:22-CR-00154-DC, 2022 WL 4913900, at *1 (W.D. Tex. Oct. 3, 2022). Nevertheless, the Supreme Court provided the following mandate:
In keeping with Heller, we hold that when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation‘s historical tradition may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s unqualified command.
Bruen, 142 S. Ct. at 2126 (internal citations omitted).
III. DISCUSSION
In his motion to dismiss, Mr. Price argues that the conduct prohibited by
A. 18 U.S.C. § 922(k)
Because no other court has yet addressed it post-Bruen, I first consider whether the statute charged in Count Two of the Indictment,
It shall be unlawful for any person knowingly to transport . . . in interstate or foreign commerce, any firearm which has had the importer‘s or manufacturer‘s serial number removed, obliterated, or altered or to possess . . . any firearm which has had the importer‘s or manufacturer‘s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.
1.
The threshold question is whether
Importantly though, the statute at issue here is not a commercial regulation. Rather,
Assume, for example, that a law-abiding citizen purchases a firearm from a sporting goods store. At the time of the sale, that firearm complies with the commercial regulation that it bear a serial number. The law-abiding citizen takes the firearm home and removes the serial number. He has no ill intent and never takes any otherwise unlawful action with the firearm. Contrary to the Government‘s argument that
Now, assume that the law-abiding citizen dies and leaves his gun collection to his law-abiding daughter. The daughter takes the firearms, the one with the removed serial number among them, to her home and displays them in her father‘s memory. As it stands,
2.
Having found that
Taking those instructions together, the crux of the historical inquiry is to determine the understanding of the right at the time it was enshrined in the Constitution. Any modern regulation that does not comport with the historical understanding of
a.
Prior to Bruen, courts considering the constitutionality of
Under Bruen, I am limited to considering whether
b.
To properly frame my analysis, I begin by exploring the “societal problem”
Serial numbers were not broadly required for all firearms manufactured and imported in the United States until the passage of the Gun Control Act of 1968. Pub. L. 90-351, § 902, 82 Stat. 197, 232 (1968) (“Licensed importers and licensed manufacturers shall identify . . . each firearm imported or manufactured.“). Congress described the Gun Control Act as an Act “[t]o assist State and local governments in reducing incidence of crime, to increase the effectiveness, fairness, and coordination of law enforcement and criminal justice systems at all levels of government, and for other purposes.” Id. at 197. Courts have noted that its purpose was to create “a comprehensive scheme to regulate the movement of firearms,” Mobley, 956 F.2d at 453, “to keep firearms away from persons Congress classified as potentially irresponsible and dangerous . . . .” Barrett v. United States, 423 U.S. 212, 218 (1976). At that time, what is now
Even in 1968 there was no prohibition on mere possession of a firearm that had the serial number altered or removed. In fact, it was not until the Crime Control Act of 1990 that Section 922 was amended to insert “or to possess or receive any firearm which has had the importer‘s or manufacturer‘s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” Pub. L. No. 101-647, § 2202(b), 104 Stat. 4789, 4856 (1990). A review of the legislative history provides little insight into the problem Congress hoped to address in making this change, but earlier versions containing the same
Given this history, the “societal problem[s]” addressed by
Even assuming the societal problem addressed by the regulation is “unprecedented,” such that it would have been “unimaginable at the founding” or is based on “dramatic technological changes,” id. at 2132, it is the Government‘s burden to show that there were analogous regulations at the time to support
As for its argument that restrictions on certain types of weapons are constitutional, the Government starts and stops by explaining that the Court in Heller acknowledged three permissible limits: the firearms must be “bearable arms” to receive protection, the arms must not be “dangerous or unusual weapons,” and the arms must be kinds in “common use.” [ECF No. 17, at 12-13]. The Government makes no attempt to explain how any of these limits are analogous to
Firearms with no serial number are just as “bearable” as the same firearm with a serial number, and there is no “common use” issue here as the presence or lack of a serial number makes no difference with respect to whether the type of weapon is commonly used. Finally, I can find no authority for the idea that a firearm without a serial number would meet the historical definition of a dangerous or unusual firearm. In fact, as the Government points out, the commercial requirement that a serial number be placed on a firearm “does not impair the use or functioning of a weapon in any way.” [ECF No. 17, at 12 (quoting Marzzarella, 614 F.3d at 94)]. The mechanics of the
A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time. While I recognize there is an argument, not made by the Government here, that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering. And the founders addressed the “societal problem” of non-law-abiding citizens possessing firearms through “materially different means“—felon disarmament laws like
3.
The burden falls on the Government to “affirmatively prove that its firearms regulation is part of the [or analogous to a] historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127. The Government has not done so here, and I have no choice but to find
B. 18 U.S.C. § 922(g)(1)
I will next consider whether the statute charged in Count One of the Indictment,
1.
Under Bruen, I must first determine whether the Second Amendment‘s plain text covers the conduct at issue. While the Government argues that based on the Court‘s repeated reference to “law-abiding citizens” in Bruen, “the Second Amendment does not extend to possession of firearms by convicted felons,” I find that proposition relevant to the second prong of Second Amendment analysis. [ECF No. 17, at 7]; see 142 S. Ct. at 2131 (stating that Second Amendment protects “the right of law-abiding, responsible citizens to use arms for self-defense“).
The Supreme Court in Bruen placed emphasis on individual conduct and instructed the court to look at “the Second Amendment‘s plain text” to determine whether the Constitution presumptively protects that conduct. 142 S. Ct. at 2126. The “textual elements” of the Second Amendment‘s operative clause— “the right of the people to keep and bear Arms, shall not be infringed“—“guarantee the individual right to possess and carry weapons in case of confrontation.” Id. at 2134 (citing Heller, 554 U.S. at 592). The plain text of the Second Amendment does not include “a qualification that Second Amendment rights belong only to individuals who have not violated any laws.” See United States v. Jackson, No. CR-22-59-D, 2022 WL 3582504, at *2 (W.D. Okla. Aug. 19, 2022). As such, I find that Mr. Price‘s conduct is covered by the plain text of the Second Amendment.
2.
I next consider whether the Government has established that
Justice Thomas opens Bruen by expressly reaffirming the holdings of the Supreme Court‘s recent Second Amendment cases, which defined the right to bear arms as belonging to “law-abiding, responsible citizens.”
In District of Columbia v. Heller, and McDonald v. Chicago, we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree . . . .
Bruen, 142 S. Ct. at 2122 (emphasis supplied) (citations omitted). Consistent with that definition, the Court cautioned in Heller that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. The Court described such prohibitions as “presumptively lawful” and falling within “exceptions” to the protected right to bear arms. Id. at 627 n.26, 635. In McDonald, a plurality of the Court repeated its “assurances” that Heller “did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons.‘” 561 U.S. at 786 (quoting Heller, 554 U.S. at 626). In Bruen, Justices Alito, Kavanaugh, and Roberts—who all joined the majority opinion—repeated in their concurring opinions that their intent was to leave undisturbed government regulations that prohibit people who have been convicted of felonies from carrying firearms. 142 S. Ct. at 2157, 2161 (Alito, J., concurring) (Kavanaugh, J., concurring).
In keeping with Heller and McDonald, Justice Thomas was similarly careful to state throughout Bruen that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms for self-defense.” See id. at 2122, 2131, 2133, 2134, 2138, 2150, 2155 (emphasis supplied); [ECF No. 17, at 7]. The Government reasons that the Court‘s reaffirmation of its precedent in Heller and McDonald, in addition to Justice Thomas’ emphasis that the Second Amendment protects the rights of “law-abiding” citizens, demonstrates the Court‘s recognition of the exclusion of felons from the protection of the Second Amendment—even though the plain text of the Second Amendment covers their conduct in possessing firearms.
To be sure, much of the language quoted by the Court in Bruen, both in the majority and the concurring opinions, is dicta, and courts are “not bound by dicta or separate opinions of the Supreme Court.” Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395, 406 (4th Cir. 2005). Nevertheless, the Fourth Circuit has repeatedly instructed that “[w]e routinely afford substantial, if not controlling deference to dicta from the Supreme Court,” “particularly when the supposed dicta is recent and not enfeebled by later statements.” Hengle v. Treppa, 19 F.4th 324, 347 (4th Cir. 2021) (internal citations omitted); Manning v. Caldwell, 930 F.3d 264, 281 (4th Cir. 2019) (en banc); McCravy v. Metro. Life Ins. Co., 690 F.3d 176, 181 n.2 (4th Cir. 2012) (“[W]e cannot simply override a legal pronouncement endorsed . . . by a majority of the Supreme Court.“).
Relying on the same dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to
I do not find it necessary to engage in the historical analysis test articulated in Bruen as to
3.
In keeping with Justice Thomas’ insistence that “law-abiding” citizens are protected
IV. CONCLUSION
For the foregoing reasons, Mr. Price‘s motion to dismiss the indictment [ECF No. 12] is GRANTED as to Count Two and DENIED as to Count One. Count Two of the Indictment [ECF No. 1] is DISMISSED. The court DIRECTS the Clerk to send a copy of this Order to the defendant and counsel, the United States Attorney, the United States Probation Office, and the United States Marshal. The court further DIRECTS the Clerk to post a copy of this published opinion on the court‘s website, www.wvsd.uscourts.gov.
ENTER: October 12, 2022
JOSEPH R. GOODWIN
UNITED STATES DISTRICT JUDGE