United States v. RiceUnited States v. Rice
OPINION AND ORDER
The Defendant, Matthew Rice, has moved for the one count indictment against him to be dismissed. (DE 28.) Mr. Rice argues the indictment should be dismissed as the statute underlying the charge,
A. Background
A federal grand jury returned a single count indictment against Mr. Rice, charging him with knowingly possessing a firearm on or about April 11, 2022, after having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of
B. Legal Standard
A defendant can move before trial to dismiss an indictment for failure to state an offense.
A constitutional challenge to a statute can be brought either as a facial challenge, or an as-applied challenge. Mr. Rice brings both types of challenges in his motion. To succeed on a facial challenge to the constitutionality of a statute, the moving party must show that the statute is unconstitutional in all applications. City of L.A. v. Patel, 576 U.S. 409, 415, 418 (2015). To succeed on an as-applied challenge, the moving party must show it is unconstitutional because the way it was applied to the particular facts of their case. See United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011).
C. Discussion
Mr. Rice‘s motion challenges the constitutionality of
If a statute as applied to a defendant is constitutional, then a facial challenge to that statute should also fail as the statute will not be unconstitutional in all applications. See United States v. Salerno, 481 U.S. 739, 745 (1987). Therefore, the Court will first address Mr. Rice‘s as-applied challenge and only advance to his facial challenge if necessary.
(1) The Bruen standard for applying the Second Amendment
Mr. Rice argues that this case must be dismissed because
The text of the Second Amendment states: “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 Bruen, the Supreme Court built upon its prior holdings to further define the scope of the Second Amendment right. The Court described its earlier Second Amendment decisions as “recogniz[ing] ... the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” 142 S.Ct. at 2122. (citing Heller, 554 U.S. 570; McDonald v. City of Chicago, 561 U.S. 742 (2010)). The Bruen Court went on to lay out the methodology lower courts should utilize in reviewing Second Amendment challenges.
Prior to Bruen, the various circuit courts had largely converged on a two-step framework for analyzing Second Amendment challenges. Id. at 2126. At the first step, the government could justify its regulation by establishing that the challenged law regulates activity falling outside the scope of the Second Amendment right as originally understood. Id. At the second step, the courts analyzed how close the law comes to the core of the Second Amendment
In Bruen the Court stated that this test was “one step too many.” Id. at 2127. The Court held that the first step of this framework was broadly consistent with Heller, but the “means-end scrutiny” of step two was inconsistent with the Second Amendment and the appropriate methodology centers on the “constitutional text and history.” Id. at 2127–29. The Court articulated that the proper standard is as follows:
“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. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s ‘unqualified command.‘” Id. at 2126 (quoting Koningsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Phrased another way, this test is composed of two prongs. The first prong is determining whether the plaint text of the Second Amendment covers the conduct at issue. Id. at 2129, 2134–35. The second prong is determining whether the Government has established the regulation is consistent with the historical tradition of firearms regulation in the United States.2 Id. at 2129–30.
The Supreme Court stated that the second prong would require the use of “historical analogies” and reasoning by analogy as is commonly done by lawyers and judges.3 Id. at 2132. Consequently, in comparing a historical firearm regulation and a modern one, the key determination to be made is whether the two are “relevantly similar.” Id. The Bruen Court did not provide an exhaustive survey of the features that could render regulations relevantly similar but found that Heller and McDonald outlined at least two: “how and why the regulations burden a law-abiding citizen‘s right to armed self-defense.” Id. at 2132–33. Phrased differently, “whether modern and historical regulations impose a
The Court further noted that this analogical reasoning is “neither a regulatory straitjacket nor a regulatory blank check.” Id. While warning courts to not “uphold every modern law that remotely resembles a historical analogue,” the Court also clarified that the Government is only obligated to identify a “historical analogue, not a historical twin.” Id. (internal citation omitted). Therefore, even if a modern regulation is not a “dead ringer” for a historical precursor, it may be sufficiently analogous to pass constitutional muster.4 Id.
(2) Mr. Rice‘s as-applied challenge
The Court will begin with Mr. Rice‘s as-applied challenge. This challenge argues the government may not categorically disarm individuals who have been convicted of non-violent felonies.5 For the following reasons, the Court disagrees and will reject Mr. Rice‘s as-applied challenge.
(a) The Bruen decision did not disturb existing Seventh Circuit precedent which forecloses Mr. Rice‘s as-applied challenge
The first reason that Mr. Rice‘s as-applied challenge fails is because nothing in the Bruen decision indicates that it upsets existing circuit precedent upholding
Mr. Rice devotes considerable energy to arguing that this language in Heller is mere dicta which this Court should disregard and that it has been superseded by the Bruen framework. The Court is unpersuaded by his arguments for three reasons. First, the Court is skeptical this language can be characterized as mere dicta given it served to limit the scope of the Heller decision and has been reaffirmed by the Supreme Court in McDonald and Bruen. The Supreme Court‘s repeated limitation of its Second Amendment jurisprudence to avoid disturbing “presumptively lawful” regulations might not be an unequivocal endorsement of those regulations’ constitutionality, but it is clearly a warning to lower courts to exercise caution in applying the holdings of Bruen, McDonald, and Heller.
Second, dictum of the Supreme Court is generally binding upon lower courts. Reich v. Continental Cas. Co., 33 F.3d 754, 757 (7th Cir. 1994). The Seventh Circuit has expressly recognized the importance and guiding authority of these passages from Heller in defining the scope of the Second Amendment. In United States v. Skoien, 614 F.3d 638, 640–41 (7th Cir. 2010) (en banc), the Seventh Circuit found that it was bound to respect the message conveyed by Heller‘s language regarding longstanding, presumptively lawful restrictions. Specifically, the court found that these passages of Heller were instructions that “some categorical limits are proper,” that those limits are part of the “original meaning” of the Second Amendment, and that filling in the details was to be left to the people‘s elected representatives. Id. Additionally, in an unpublished decision after Bruen, the Seventh Circuit rejected a facial challenge to
Third, Mr. Rice‘s position requires the Court to find that every other circuit and district court which has considered this language and concluded it is relevant to interpreting the scope of the Second Amendment, to have been wrong. The Court finds the possibility of such a systemic misapprehension to be unlikely. The Court finds this to be unlikely because of how many courts have concluded that these passages help define the scope of the Second Amendment and, conversely, because Mr. Rice has not cited to a single legal authority which shares his view. See e.g. Kanter, 919 F.3d 442 (collecting pre-Bruen circuit court cases). In fact, as the Government notes in their response,
The Court is also unpersuaded by Mr. Rice‘s contention that the Bruen framework in some way vacated or superseded Heller. In addition to the previously discussed reasons, this interpretation is contrary to the explicit language of Bruen which stated the decision was “in keeping with Heller.” 142 S.Ct. at 2126. Moreover, Bruen expressly reaffirmed the analytical method deployed by Heller and used it to resolve the challenge to the New York statute at issue. Id. at 2134–56. While Bruen certainly built upon Heller and provided further direction to the circuit courts on how to analyze Second Amendment challenges, the conclusion that Bruen superseded Heller is a step too far.
Therefore, the Court finds that Bruen, “in keeping with Heller” did not overturn or otherwise disturb the existing body of Seventh Circuit precedent concluding
Even if Mr. Rice‘s challenge was not foreclosed by circuit precedent, the Court finds, in the alternative, his challenge would fail on the merits of the Bruen test. To illustrate this, the Court will apply the two-prong analysis laid out in Bruen.
(b) The Court assumes, without deciding, Mr. Rice is within the protective ambit of the Second Amendment
The first step of a Second Amendment challenge is deciding whether the regulated conduct falls within the scope of the Second Amendment‘s plain text. Bruen, 142 S.Ct. at 2129–30. Therefore, the Court must determine whether Defendant, presumed
The Government argues that, as a convicted felon, Mr. Rice is not considered to be a part of “the people” for purposes of the Second Amendment as the Amendment‘s protections only extend to law-abiding citizens. As this Court noted in adjudicating another Bruen challenge, this is known as the civic virtue theory of the Second Amendment. United States v. Posey, 2023 WL 1869095, *5–6 (N.D. Ind. Feb. 9, 2023). There is historical evidence supporting this theory and the theory is at the heart of an ongoing debate among federal jurists.9 Id. Further, while the Seventh Circuit has previously discussed the theory in at least three decisions prior to Bruen, it has never reached a definitive ruling on its merits. Id. Prior to Bruen, several federal circuit courts had endorsed this theory, at least as relating to felons. These courts concluded that felons, including non-violent felons, fell outside the scope of the Second Amendment‘s protection. Kanter, 919 F.3d at 447 (recognizing cases from several circuits reaching this conclusion).
Following Bruen, two federal circuit court panels have discussed the civic virtue theory and reached opposite conclusions on its merits. Compare Range v. Att‘y Gen., 53 F.4th 262 (3d Cir. 2022) (vacated for rehearing en banc) (upholding
In reviewing Bruen challenges to federal firearms laws, our sister court, the Northern District of Illinois, has twice held that the Second Amendment‘s protection only extends to law-abiding citizens. Price, 2023 WL 1970251, at *4 (upholding
Additionally, as the Government notes, there is support in the historical record that the right to bear arms was not understood, at the time the Second Amendment was ratified, to extend to felons. During the states’ constitutional ratification conventions three proposals were made regarding restrictions in the right to bear arms which would have excluded felons. United States v. Coombes, 2022 WL 4367056, *6 (N.D. Okla. Sept. 21, 2022) (“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.“) (citing 2 Bernard Schwartz, The Bill of Rights: A Documentary History, 665 (1971) (discussing the Pennsylvania convention)); (“Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.“) (citing 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 326 (1836) (discussing the New Hampshire convention)); (“the right to keep arms extended only to ‘peaceable citizens,’ not to criminals“) (citing Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms, 206 (updated ed. 2008) (discussing the Massachusetts convention)).
Mr. Rice argues that these proposals are not persuasive because they were considered but ultimately rejected. Mr. Rice interprets this as a rejection of these provisions on the basis they were incompatible with the public understanding of the right to bear arms. While these proposals were not ultimately adopted, it was due to the Federalists opposition to the Bill of Rights as a whole and not objections to these specific proposals. Coombes, 2022 WL 4367056 at *6. Furthermore, in Heller the Supreme Court cited the Pennsylvania proposal as a “highly influential” “precursor” to the Second Amendment and favorably cited the New Hampshire and Massachusetts proposals as well. Skoien, 614 F.3d at 640 (quoting Heller, 554 U.S. at 604). While at least one sister court agrees with Mr. Rice‘s view that these proposals are unpersuasive, this Court respectfully disagrees. See United States v. Hicks, 2023 WL 164170, *4–5 (W.D. Tex. Jan. 9, 2023) (striking down
The Court would make an additional observation which suggests felons in particular would likely be excluded from the text of the Second Amendment. In discussing the ambit of the Second Amendment right in Heller, the Supreme Court initially describes it as belonging to “all members of the political community.” 554 U.S. at 580. The Supreme Court made this comment in the context of concluding the Amendment confers an individual right and not just a civic right and would later go on to characterize the right as one belonging to “law-abiding” and “responsible” citizens in the context of discussing what activity the right protects. Id. at 625, 635. Notwithstanding this context, opponents of the civic virtue theory argue the former language
However, when it comes to felons, there is a historical tradition of curtailing some core rights associated with being a member of the political community, namely voting and serving on a jury. Kanter, 919 F.3d at 453 n.3, 462 (Barrett, J. dissenting) (noting that history supports the restriction of voting rights and jury service to virtuous citizens); see also United States v. Hill, 2022 WL 17069855, *4 (S.D. Tex. Nov. 17, 2022) (ability to vote is a defining trait of membership in a political community); Collette, 2022 WL 4476790 at *6 (same).
The Court finds this language in Heller relating to members of the political community suggests corresponding restrictions on the ability of felons to bear arms are permissible. As a matter of basic reasoning it is hard to reconcile how the Framers of the Constitution could conclude that felons could not be trusted to wield pens in voting booths or jury rooms, but they simultaneously found them capable of wielding arms in the public square. See Bruen, 142 S.Ct. at 2134 (concluding the Second Amendment includes a right to carry handguns in public for self-defense).
In the Court‘s view, the fact the Framers excluded felons from core privileges afforded to members of the political community either suggests felons were not considered members of the political community, or even if they retained their membership post-conviction, their rights as members could nonetheless be considerably restricted without offending the Constitution. Either conclusion supports finding that the government has the power to restrict felons’ ability to bear arms just as it restricts their ability to vote and, ergo, that
Ultimately, the Court does not need to decide this issue in this case, as there are adequate other grounds for deciding the motion. In light of this and the mixed guidance from the Seventh Circuit on the civic virtue theory, the Court will decline to decide the issue in this case. For the purposes of this motion the Court will assume, without deciding, Mr. Rice‘s possession of a firearm is facially covered by the protective ambit of the Second Amendment.
(c) The Court finds that the government has carried its burden at the second prong of the Bruen test
The Government argues that there are two types of historical laws which provide sufficiently similar historical analogies for disarming non-violent felons under
As previously stated, the key inquiry is “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Bruen, 142 S.Ct. at 2133. In terms of burden,
As the Government notes in great detail, felonies were historically considered the most serious category of crime and were punished the severe penalties of estate forfeiture and capital punishment. (DE 33 at 11–12 (citing 4 William Blackstone, Commentaries on the Laws of England 95 (1769); see also Folajtar v. Att‘y Gen., 980 F.3d 897, 904–05 (3d Cir. 2020) (upholding
As previously mentioned in this order, historical evidence suggests felons were not considered to be within the scope of the Second Amendment right and felons were also historically barred from voting or serving on a jury, thus depriving felons of core rights associated with being in a political community. See supra § C(2)(b). This evidence suggests, that even if “the people” as contemplated by the Second Amendment was a broad class, felons were excluded from the group following their convictions or their rights as members of this class could be sharply curtailed. The conclusion that felons are one of the “groups that have historically been stripped of their Second Amendment rights,” was also recognized by the Fifth Circuit in its Rahimi decision. 59 F.4th at 171; 2023 WL 2317796 at *4.
In light of this history, “it is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms.” Folajtar, 980 F.3d at 905 (quoting Medina, 913 F.3d at 158). Further, given the exceptionally heavy burden these punishments place upon an individual, which inherently deprives the individual of their Second Amendment rights, disarmament under
In terms of justification, it is undisputed that Congress enacted the exclusions in § 922 to “keep guns out of the hands of presumptively risky people.” United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010). Mr. Rice does not dispute
Mr. Rice does not dispute the accuracy of the Government‘s description of the historical treatment of felons. Rather he presents two arguments on why the proposed analogies are not sufficiently similar.
First, Mr. Rice argues that estate forfeiture is not the same thing as extinguishing a possessory interest in firearms. Therefore, because “the Founding generation commonly meted out estate loss but never firearm loss [that] demonstrates the sacrosanct nature of the Second Amendment... .” (DE 38 at 25.) This argument is unpersuasive. Foremost, even if Mr. Rice was correct on this point, it does not address the other historical evidence relating to capital punishment and felon disenfranchisement which would be sufficient for the Government to carry its burden. Next, Mr. Rice misapprehends the nature of estate forfeiture. Estate forfeiture strips the
Second, he argues the fact that capital punishment and estate forfeiture were “commonly used” is distinct from the loss of Second Amendment rights attendant with every felony conviction as provided for by
The Court concludes that
(3) Mr. Rice‘s facial challenge
The Court will briefly discuss Mr. Rice‘s facial challenge. As a preliminary matter, the government argues that Mr. Rice is not entitled to bring a facial challenge to
The Court finds this issue to be moot. For the reasons discussed previously, Mr. Rice‘s as-applied challenge fails due to binding circuit precedent and because
Mr. Rice cites no legal authority agreeing with this extraordinary position. The closest he comes is Justice Barrett‘s dissent in Kanter where she argues
Conversely, the position being advocated in Mr. Rice‘s facial challenge is not consistent with history or common sense. If history establishes that the government may at the very least disarm violent or dangerous felons as a class, then there are a considerable number of instances where
D. Conclusion
Accordingly, for the reasons previously stated, Mr. Rice‘s motion to dismiss the indictment is DENIED (DE 28).
SO ORDERED.
ENTERED: March 17, 2023
/s/ JON E. DEGUILIO
Chief Judge
United States District Court