UNITED STATES OF AMERICA, Plaintiff, v. JERMEL D. WARE, Defendant.
Case No. 22-CV-30096-SPM
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
May 19, 2023
McGLYNN, District Judge
Case 3:22-cr-30096-SPM Document 51 Filed 05/19/23 Page 1 of 20 Page ID #269
McGLYNN, District Judge:
This matter comes before the court on a Motion to Dismiss the Indictment as Violative of the Second Amendment (Doc. 27) by Defendant Jermel Ware. For the reasons set forth below, the Motion (Doc. 27) is DENIED.
BACKGROUND
On February 14, 2019, Ware plead guilty to Unlawful Possession of a Weapon by a Felon pursuant to
On August 16, 2022, a federal grand jury returned an Indictment charging Ware with one count of Felon in Possession of a Firearm pursuant to
On December 19, 2022, Ware filed the Motion (Doc. 27) that is now before this Court seeking to dismiss the Indictment (Doc. 12). Ware contends that
ANALYSIS
I. THE SECOND AMENDMENT
The
In Heller, the Supreme Court began its analysis by setting forth that the Constitution should be interpreted according to the principle that it was written to be understood by the “normal and ordinary” meaning of the words. See Heller, 554 U.S. at 576 (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)). This principle leads to an interpretation of the
The prefatory clause of the
The operative clause of the
The second section of the operative clause, “Keep and Bear Arms,” defines the substance of the right held by “the people.” Id. The Heller Court first turns to what constitutes “arms” and find that “arms” were understood, near the time of the ratification of the
words are understood, in light of founding era history, to mean to “have” and to “carry” respectively. See Id. at 582-84. In sum, the operative clause of the
After interpreting the
Next, in its review of
depending on “[i]f a ‘core’ Second Amendment right is burdened.” Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017)).
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.’
Bruen, 142 S. Ct at 2129-30 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 (1961)).
The Court then turns to outlining the framework under which the historical tradition of firearm regulation must be analyzed. First, it notes that Heller, in its historical analysis, compares the right to keep and bear arms to the rights guaranteed by the
restrictions imposed on the freedom of speech and when a violation of Establishment Clause is alleged. Id.
Examples are then given of situations where the historical analysis may be “fairly straightforward.” Id. at 2131.
[W]hen 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 could also be evidence that a modern regulation is unconstitutional.
Id. Thus, showing that a historical analogue need not be a “historical twin” but rather “relatively similar” and “well-established and representative historical analogue” will pass constitutional muster. Id. at 2132-33. Two metrics to apply in undertaking the historical analogue analysis are “how and why” the regulations burden the right to keep and bear arms. Id. at 2133.
The Bruen Court then notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them” and “when it comes to interpreting the Constitution, not all history is created equal.” Id. at 2136. A short-lived law long preceding the framing or a postenactment law must not be given undue weight. Id. Thus, no matter the “post-ratification adoption or acceptance” of a law that is inconsistent with the original public meaning of the Constitution, it cannot overcome or change the text. See Id. at 2137 (quoting Heller, 670 F.3d at 1274 (Kavanaugh, J., dissenting)). As the Court explains, “the scope of the protection applicable” to rights enumerated in the Bill of Rights, including the right to keep and
bear arms, “is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Id; see e.g. Nevada Comm‘n on Ethics v. Carrigan, 564 U.S. 117, 122-25 (2011). Therefore, the history immediately preceding and at the time of the ratification of the
The remainder of the Bruen decision then goes on to apply the interpretation principles laid out to the facts in that case. 142 S. Ct at 2140-56. Such application is not instructive to the facts of this Case; therefore, this Court will forego an extensive analysis and only highlight that the application in Bruen leads to the conclusion that “[t]he constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.‘” Id. at 2156 (quoting McDonald, 561 U.S. at 780 (plurality opinion)).
II. CONSTITUTIONALITY OF 922(G)(1)
In undertaking this analysis, the Court is mindful of “the Supreme Court‘s entitlement to speak through its opinions as well as through its technical holdings.” United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (citing United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998)). And that “nothing [in the Supreme Court‘s] opinion should be taken to cast doubt on the longstanding prohibition on the possession of firearms by felons.” Heller, 554 U.S. at 626. The Justices have repeatedly reiterated the position Justice Scalia first stated in Heller, that
is lawful. Justice Alito wrote that Heller “[does] not cast doubt on such longstanding measures as ‘prohibitions on the possession of firearms by felons and the mentally ill.‘” McDonald v. City of Chicago, Ill., 561 U.S. 742, 786 (2010) (plurality opinion). Further, Justice Kavanaugh once again reiterated this stance in his Bruen concurrence:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . . Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]
142 S. Ct. at 2162 (Kavanaugh, J., concurring). Although not technically binding, such indications of the Supreme Court‘s position are highly persuasive.
A. THE SECOND AMENDMENT‘S PLAIN TEXT
This Court must first determine if the plain text of the
The Constitution does not define whom “the people” refers to. However, it assuredly applies to a broader scope of individuals than the government contends here. As noted above, the Heller Court
In looking to the other Amendments to help identify the scope of “the people,” it is important to remember that the
The
The government emphasizes that the term “law-abiding” is used 14 times in the Bruen decision and argues that because of the usage of “law abiding” in Bruen and Heller this Court should find the rights of the
However, the government‘s argument is not persuasive. Judicial opinions should not be read like statutes but rather considered in light of the context of the
It is evident that Ware is within “the people” covered by the First, Second, and
B. THIS NATION‘S HISTORICAL TRADITION OF FIREARM REGULATION
This Court must next determine if
the question is whether there were “relevantly similar” regulations dating back to the Founding. Id. at 2132 (quoting Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)). Meaning that “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional must.” Id. at 2133. Thus, the government must only “identify a well-established and representative historical analogue, not a historical twin.” Id. When assessing a historical analogue to determine if it passes “constitutional muster” a court is guided by two metrics: “how and why” the right to bear arms was burdened. Id.
To carry its burden, the government first argues that a report of the Pennsylvania ratifying convention shows evidence that, at the time of the founding, there was an assertion that the scope of the
The government‘s argument is misguided. It is true that the Pennsylvania ratifying convention report is a historical analogue that can be used to guide this Court‘s determination as to whether
historical tradition of firearm regulation. See generally 2 Documentary Hist. 624 (Pennsylvania minority‘s report). However, the report shows that felons being stripped of their right to keep and bear arms was inconsistent with the Framers’ intent and the regulations in place at the time of
The government also argues that categorical disqualifications are allowable and that there is a historical practice of disarming categories of people for a multitude of reasons in this Nation. (Doc. 32, p. 12). The government points to laws banning bearing arms to spread fear or terror, laws banning classes of citizens from possessing firearms, and scholarly articles opining the scope of what a well-regulated society entails. Id. at 12-13.
As noted above, when interpreting the
categorical restrictions are allowable. Meza-Rodriguez, 798 F.3d at 670. Such an approach is consistent with Supreme Court guidance, as although the right guaranteed by the
The
Next, this Court must determine if such permissible categorical bans extend to
because this Nation‘s historical tradition gives the legislature discretion to disarm those not trusted to follow the law and that historic felony punishment implicitly disarmed citizens (Doc. 45). To support its argument, the government points to four instances of limitation on possession of
First, English law dating back to the 1680‘s disarmed “Papists or reputed Papists” who did not denounce their faith. 1 W. & M., Sess. 1, c. 15, in 6 The Statutes of the Realm 71-73 (1688). Although such laws are both repugnant and unconstitutional as both Ware and the government have indicated, they are informative of the public understanding of the bounds of the right to keep and bear arms leading up to independence. The
Second, during colonial America laws prohibiting Catholics, Native Americans, and Blacks from possessing firearms were widely adopted. See Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16
Law & Hist. Rev. 567, 578-79 (1998); Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020). These laws are once again both repugnant and unconstitutional. Further, they do not inform this matter as such laws aimed to categorically disarm individuals based on their unchangeable characteristics or religious affiliation rather than their actions.
However, the case of Anne Hutchison does inform this Court‘s analysis. The Court cannot overlook evidence of this Nation‘s historic tradition of firearm regulation because the Court disagrees with the regulation. Anne Hutchison was banished from colonial America and over fifty of her supporters were disarmed because of a belief that they were exempt from the law. See James F. Cooper, Jr., Anne Hutchison and the “Law Rebellion” Against the Clergy, 61 New Eng. Q. 381, 391 (1988); Edmund S. Morgan, The Case Against Anne Hutchison, 10 New Eng. Q. 635, 637-38, 644 (1937). Particularly informative about these regulations is the restriction on the right to be armed for “disavowal of the rule of law.” Fairfax Withington & Jack Schwartz, The Political Trial of Anne Hutchison, 51 New Eng. Q. 226, 226 (1978). It is undoubted that felons have disavowed the rule of law through their disregard of such. Therefore, this Court finds that such regulation is distinctly similar to
Third, during the Revolutionary War numerous laws were adopting taking the right to keep and bear arms from those who did not demonstrate their allegiance to the new American government. See The Public Records of the Colony of Connecticut From May, 1775 to June, 1776, at 1993 (1890) (1775 Conn. Law); Journals of the Continental Congress 1774-1789, at 205 (1906) (resolution of March 14, 1776); The Statutes at Large; Being A Collection of All the Laws of Virginia, at 282 (1821) (1777 Va. Law). Although not as directly analogous as the case of Anne Hutchison, these laws were more widespread and disarmed a larger group of individuals. As the
Fourth, the Surety Statutes discussed by the Supreme Court in Bruen are particularly analogous to
to carry. However,
Finally, during the 18th century leading to the ratification of the Bill of Rights felons were largely subject to capital punishment. See 4 William Blackstone, Commentaries on the Laws of England *98 (Harper ed. 1854); Baze v. Rees, 553 U.S. 35, 95 (2008) (Thomas, J., concurring). As multiple appellate courts have noted, “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 v. Att‘y Gen. of the United States, 980 F.3d 897, 905 (3d Cir. 2020) (quoting Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019)) (internal quotation marks omitted). This Court agrees that if someone was subject to death and forfeiture of their entire estate then such laws would have also foreclosed individuals from their right to keep and bear arms.
Therefore, although there is not a “historical twin” for
CONCLUSION
Although felons are within “the people” as contemplated by the
IT IS SO ORDERED.
DATED: May 19, 2023
s/ Stephen P. McGlynn
STEPHEN P. MCGLYNN
U.S. District Judge