CRAGHTTEN v. UNITED STATES (2025)

ORDER RE: MOTION TO DISMISS (DKT. 12)

INTRODUCTION

Before the Court is Defendant United States’ Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).¹ (Dkt. 12). The motion is fully briefed. (Dkt. 15, 20). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument the Court will decide the motion based on the record. Dist. Idaho. Civ. Rule 7.1(d). For the reasons that follow, the Court will grant Defendant's motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

Federal law regulates the sale of firearms by licensed firearm dealers through the Gun Control Act of 1968. 18 U.S.C. § 921, et seq. The Act provides a detailed scheme to enable a federally licensed firearms dealer to verify, at the point of sale, whether a potential buyer may lawfully own a gun. To implement those statutory requirements, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) developed Form 4473 for gun sales. Abramski v. United States, 573 U.S. 169, 173, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014). The form requires the buyer to provide information, including name, birth date, address, and other identifying information, including a “U.S.-issued alien or admission number” if the buyer is not a United States citizen.² (Dkt. 12-2 at 2). The information on the form in combination with a background check, allows the federal firearm licensee to confirm the buyer's identity and that the buyer is not prohibited from purchasing a firearm. See 18 U.S.C. § 922.

Plaintiff is a Canadian-born American Indian who is a lawful permanent resident of the United States. (Dkt. 1 at 3). On August 22, 2024, Plaintiff attempted to take delivery of a rifle purchased and previously paid-for through Impact Guns in Boise, Idaho. Id. at 4. Because of Plaintiff's status as a Canadian-born American Indian, he does not have an alien registration or admission number. Id. The federal firearm licensee at Impact Guns was unable to complete the transaction because Plaintiff does not have an alien registration or admission number to sufficiently complete Form 4473. Id.

Plaintiff filed suit against the United States, ATF, and FBI claiming violations of the Second Amendment, Article III of the Jay Treaty, codified by 8 U.S.C. § 1359 and 8 C.F.R. § 289, and criminal statute 18 U.S.C. § 922(d). (Dkt. 1 at 7-8). Defendant filed a motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. (Dkt. 12). Plaintiff then filed a motion for preliminary injunction, requesting Defendants be enjoined from requiring Plaintiff to provide an alien or admission number on Form 4473 and to compel Impact Guns to release the rifle into Plaintiff's possession. (Dkt. 16). Plaintiff also filed a motion to expedite the case insofar as he requests that the Court order the parties to confer regarding a scheduling order, order Defendants to answer Plaintiff's complaint within one week of any ruling on the motion to dismiss, and order the parties begin discovery. (Dkt. 19).

STANDARD OF REVIEW

1. Rule 12(b)(1) – Lack of Jurisdiction

A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction and may only exercise such jurisdiction as expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). The Court properly dismisses a case for lack of subject matter jurisdiction when it lacks the “statutory or constitutional power to adjudicate the case.” Pistor v. Garcia, 791 F.3d 1104, 1110 (9th Cir. 2015) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010)). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). Accordingly, the claimant bears the burden of proof that jurisdiction does in fact exist. Martinez v. Aero Caribbean, 764 F.3d 1062, 1066 (9th Cir. 2014). In ruling on a Rule 12(b)(1) motion, the Court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the Court's resolution of disputed facts. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).³

2. Rule 12(b)(6) – Failure to State a Claim

Motions made under Rule 12(b)(6) test the legal sufficiency of the allegations underlying the claims made in a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When assessing the sufficiency of a complaint, all well-pleaded factual allegations are taken as true and construed in the light most favorable to the nonmoving party, Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018), and all reasonable inferences are to be drawn in favor of that party as well. Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). To overcome a Rule 12(b)(6) motion, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

DISCUSSION

Plaintiff is a lawful permanent resident of the United States. Certain American Indians born in Canada, like Plaintiff, enjoy unique immigration status in the United States, allowing them to freely cross at the United States border. Following the Revolutionary War, the United States and Great Britian adopted Article III of the Jay Treaty which guaranteed free passage “to the Indians dwelling on either side of the ․ boundary line” between the U.S. and what is now Canada. Jay Treaty, art. 3. Section 289 of the Immigration and Naturalization Act, 8 U.S.C. § 1359, codified Article III's guarantee of free passage by permitting “American Indians born in Canada to pass the border of the United States.” 8 U.S.C. § 1359. Although Plaintiff is not a U.S. Citizen, due to his status as a Canadian-born American Indian, he has not been assigned an alien registration number or admission number. As such, he is not required to provide an alien registration or admission number to cross the border of the United States.

Plaintiff claims that being required to obtain an alien registration number to complete Form 4473 to purchase a firearm is a violation of numerous rights afforded to him as an American Indian lawful resident of the United States. (Dkt. 15). Defendant motions this Court to dismiss Plaintiff's complaint on the grounds that his injury is “self-inflicted”, he has not been prohibited from obtaining a firearm in violation of the Second Amendment, his immigration rights have not been violated, and Form 4473 does not conflict with criminal statute 18 U.S.C. § 922(d). (Dkt. 12-1).

1. Standing

First, Defendant alleges that Plaintiff has failed to establish the injury in fact prong of the Court's standing analysis because he could easily remedy his alleged injury by obtaining an alien registration number. (Dkt. 12-1 at 6). Standing ensures a plaintiff has a “personal stake in the outcome of the controversy” by requiring that the plaintiff establish: 1) an injury in fact that is concrete and particularized, and actual or imminent; 2) the injury is fairly traceable to the challenged conduct of the defendant; and 3) the injury would likely be redressed by a favorable decision. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58, 134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (An injury in fact is “an invasion of a legally protected interest ․”).

“To the extent that an injury is self-inflicted or due to the plaintiff's own fault, the causal chain is broken and standing will not be established.” Makaryan v. Volkswagen Grp. of Am., Inc., No. CV 17-5086 PA (KSX), 2017 U.S. Dist. LEXIS 216312, 2017 WL 6888254, at *6 (C.D. Cal. Oct. 13, 2017) (citing John & Vincent Arduini Inc. v. NYNEX, 129 F. Supp. 2d 162, 168 (N.D.N.Y. 2001)); see Mendia v. Garcia, 768 F.3d 1009, 1013 n.1 (9th Cir. 2014) (explaining that an immigration detainee lacked standing to seek damages for a portion of his pre-trial detention because “the loss of liberty he experienced after being granted release on his own recognizance is ․ a self-inflicted injury”) (citing Clapper v. Amnesty Int'l USA, 568 U.S. 398, 415-18, 133 S. Ct. 1138, 1151-52, 185 L.Ed. 2d 264 (2013)); Nat'l Family Planning & Reproductive Health Ass'n v. Gonzales, 468 F.3d 826, 831, 373 U.S. App. D.C. 346 (D.C. Cir. 2006) (“We have consistently held that self-inflicted harm doesn't satisfy the basic requirements for standing. Such harm does not amount to an ‘injury’ cognizable under Article III. Furthermore, even if self-inflicted harm qualified as an injury, it would not be fairly traceable to the defendant's challenged conduct.” (citations omitted)).

Defendant cites to National Family Planning, where the plaintiff sued to enjoin enforcement of a statute because it was allegedly inconsistent with a regulation (enacted under a different statute). 468 F.3d at 828. The court found that the plaintiff's alleged injury to be self-inflicted because there was “an easy means for alleviating the alleged uncertainty” between the statute and regulation, and “the [plaintiff] ha[d] chosen to remain in the lurch” by not doing so. Id.

Here, Defendant argues Plaintiff's injury is self-inflicted because he has an easy means for alleviating his inability to complete Form 4473 by obtaining an alien registration number from U.S. Citizen and Immigration services. (Dkt. 12-1 at 8); see also U.S. Citizenship & Immigration Services, Green Card for American Indian Born in Canada, https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-an-american-indian-born-in-canada (January 30, 2025). Plaintiff contends that obtaining an alien registration number is itself an injury because doing so would be a violation of Plaintiff's natural rights as an American Indian under Akins v. Saxbe, 380 F. Supp 1210 (D. Me. 1974), 8 U.S.C. § 1359, 8 C.F.R. § 289, and the Jay Treaty. (Dkt. 15 at 10).

As explained above, Article III of the Jay Treaty allowed for Canadian-born American Indians to freely cross the border between the United States and Canada. Jay Treaty, art. 3. 8 U.S.C. § 1359 codified Article III's right of free passage by permitting “American Indians born in Canada to pass the borders of the United States.” 8 U.S.C. § 1359; see 8 C.F.R. § 289 (defining American Indians born in Canada). Relatedly, Akins recognized Congressional interest in preserving aboriginal rights of American Indians to move freely across territories originally occupied by them. 380 F. Supp. at 1219-20.

Plaintiff's argument that obtaining an alien registration number violates the above authorities is inapposite. While the Court recognizes Plaintiff's right as a Canadian-Born American Indian to pass the border freely, that right is not violated by the Government requiring a non-citizen, like himself, to provide an alien registration number on Form 4473 in order to purchase a firearm. Plaintiff may have a unique immigration right allowing him to pass freely at the border, but such right has no affect on the legality of Form 4473 requiring an alien registration number for non-citizens to purchase a firearm.

Alternatively, even if the Court were to find Plaintiff's injury not self-inflicted and therefore not preclusive of him bringing this claim, other courts have found no injury in fact, under similar circumstances, where an individual was not actually denied the opportunity to purchase a firearm but still alleged a Second Amendment violation. See Lee v. United States DOJ, 554 F. Supp. 3d 1228, 1235 (N.D. Ala. 2021) (finding the plaintiff could not prove she faced an injury-in-fact when she refused to fill out ATF Form 4473 because she was not denied the opportunity to purchase a firearm, she was simply refused the ability to purchase a firearm the way she wanted); Gun Owners of Am., Inc. v. United States DOJ, 751 F.Supp.3d 840, 851 (E.D. Mich. 2024) (finding Plaintiff's “purported injury was that he could not purchase a firearm the way that he wanted to – with his [concealed pistol license] instead of Form 4473 – which is not a concrete injury.” (emphasis in original)).

Because Plaintiff has elected not to obtain an alien registration number from U.S. Citizenship and Immigration services, his alleged injury is self-inflicted and insufficient to confer standing. Therefore, the complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). Although the Court finds Plaintiff's complaint should be dismissed for lack of standing, the Court will still consider Defendant's alternative arguments for dismissal under Rule 12(b)(6).

2. Plaintiff's Second Amendment Claim

Defendant argues Plaintiff has failed to allege a cognizable violation of the Second Amendment. (Dkt. 12-1 at 10-11). Plaintiff contends that his Second Amendment rights were violated by being required to complete Form 4473 with an alien registration number. (Dkt. 1 at 7).

The Second Amendment of the United States guarantees an individual “right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The proper framework for analyzing Second Amendment challenges is as follows: “[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct,” then the government must “justify its regulation by demonstrating that is consistent with the Nation's historical tradition of firearm regulation.” New York Rifle and Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 24, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022).

“Like most rights, the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626, 128 S.Ct. 2783. “[T]he Second Amendment is neither a regulatory straitjacket nor a regulatory blank check. Properly interpreted, the Second Amendment allows a variety of gun regulations.” Bruen, 597 U.S. at 80, 142 S.Ct. 2111 (Kavanaugh, J., concurring) (citation and quotation marks omitted); United States v. Rahimi, 602 U.S. 680, 735, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024) (Kavanaugh J., concurring) (“[L]ongstanding ․ laws imposing conditions and qualifications on the commercial sale of arms are presumptively constitutional.”) (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783). The Supreme Court has yet to expound on all conduct the Second Amendment's plain text covers. United States v. Manney, 114 F.4th 1048, 1052 (9th Cir. 2024).

While Supreme Court decisions addressing prohibitions on firearm possession are instructive to address Plaintiff's question, the complete Bruen historical analysis test is not warranted here. Id. (explaining that the Supreme Court has not “held that every requirement making it slightly more difficult to possess a firearm demands a full historical inquiry into its origin.”). Form 4473 is not a prohibition on Plaintiff's right to purchase a firearm, but only requires that he provide an alien registration number because he is not a U.S. citizen. The Second Amendment covers the right to “keep and bear arms.” U.S. Const. amend. II. Form 4473 does not regulate conduct protected by the plain text of the Second Amendment, but merely collects data to allow a federal firearm licensee to abide by 18 U.S.C. § 922.⁴ See Doe v. Bonta, 101 F.4th 633, 639 (9th Cir. 2024). The Court understands that Plaintiff's immigration status does not require that he have an alien registration number, and such a number is not needed for him to freely pass at the border. However, as pointed out by Defendant, Plaintiff can obtain an alien registration number for use in completing Form 4473, even though such number would not be required for his immigration purposes related to 8 U.S.C. § 1359. His decision not to do so is not a prohibition on his Second Amendment right.

Plaintiff equates requiring an alien identification number on Form 4473 to purchase a firearm with historical practices of “United States Citizens [being] denied their right to vote by imposing arbitrary and impossible ancillary tasks” such as poll taxes and literacy tests. (Dkt. 15 at 13). However, the Court finds such argument here unavailing. Although Plaintiff has unique immigration rights allowing him to freely pass the United States border, he is not a United States Citizen.⁵ Pursuant to 18 U.S.C. § 922(d), non-citizens unlawfully in the U.S. are unable to purchase firearms, and as such, it is not arbitrary or ancillary, as Plaintiff claims, for Form 4437 to require an alien identification number when non-citizens purchase firearms. “Ordinary information-providing requirements, like those imposed by Form 4473 ․ do not ‘infringe’ the right to keep and bear arms.” United States v. Scheidt, 103 F.4th 1281, 1284 (7th Cir. 2024) (finding that completing Form 4473 is conduct that is outside the scope of the Second Amendment's protections, not requiring application of Bruen's historical analysis framework); Cf. Huddleston v. United States, 415 U.S. 814, 825, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974) (explaining that ATF Form 4473 is a “means of providing adequate and truthful information about firearms transactions” to assist in the government's detection of firearms that are either obtained for an illegal purpose or purchased by someone ineligible to own a firearm).

Plaintiff requests that the Court view Form 4473's requirement that non-citizens provide an alien registration number as an unconstitutional barrier to individual firearm possession. We decline to do so here. Neither Form 4473 itself, nor the requirement that non-citizens provide an alien registration number in order to complete it, impose any unconstitutional condition on Plaintiff's rights under the Second Amendment. The Court will therefore dismiss Plaintiff's Second Amendment Claim for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

3. Plaintiff's Immigration Claim

Plaintiff also claims that being required to obtain an alien identification number to complete Form 4473 is a violation of his immigration rights as a Canadian-born American Indian. (Dkt. 1 at 8). Defendant contends that Plaintiff's claim under 8 U.S.C. § 1359, 8 C.F.R. § 289, and Article III of the Jay Treaty should be dismissed for failure to state a claim because Form 4473 does not violate Plaintiff's immigration rights. (Dkt. 12-1 at 12).

As explained in detail above, Plaintiff's status as a Canadian-born American Indian grants him the right to pass the border without an alien identification number. See 8 U.S.C. § 1359 (codifying Article III of the Jay Treaty's guarantee of free passage by permitting “American Indians born in Canada to pass the borders of the United States”). Plaintiff argues that obtaining an alien registration number in order to complete Form 4473 and purchase a firearm is a violation of “his right to remain without any immigration numbers.” (Dkt. 15 at 16).

However, Plaintiff's claims before this Court do not concern passage over the Canadian border, but rather, Form 4473 requiring an alien registration number to allow non-citizen to purchase a firearm. Nothing in 8 U.S.C. § 1359 or 8 C.F.R. § 289 provide a cause of action for Plaintiff's claims and Plaintiff has identified no provision in either authority that bears relevance to his request to purchase a firearm without completing Form 4473. See Bey v. Westbury Union Free Sch. Dist., Case No. 21-2048, 2022 WL 900615, 2022 U.S. Dist. LEXIS 55583 (E.D.N.Y. Mar. 28, 2022) (dismissing claims for violation of Article III of the Jay Treaty [codified by 8 U.S.C. 1359] because the allegations did not involve “passage over the Canadian border or losses that [the plaintiff] sustained during the Revolutionary War”).

The Court finds Form 4437 and the Government and ATF's ability to regulate firearm purchases to be reconcilable with Plaintiff's immigration rights. Although Form 4437 might require a Canadian-born American Indian, like Plaintiff, to obtain an alien registration number to complete Form 4437 to purchase a firearm from a federal firearm licensee, it does not interfere with Plaintiff's “right ․ to pass the borders of the United States.” 8 U.S.C. § 1359. Plaintiff is not required to obtain an alien registration number to exercise his right to freely cross the border but only required to obtain such a number to complete Form 4437 to lawfully purchase a firearm. Form 4437's requirement that non-citizens provide an alien registration number does not impact Plaintiff's immigration status or his ability to cross the border without such number. None of the authorities cited to by Plaintiff or his immigration status itself exempt him from the Gun Control Act of 1968 or Form 4437. As such, Plaintiff's second claim for violation of his rights under Article III of the Jay Treaty, 8 U.S.C. § 1359, and 8 C.F.R. § 289, is dismissed for failure to state a claim.

4. Plaintiff's 18 U.S.C. § 922(d) Claim

Lastly, Plaintiff claims the requirement that he provide an alien registration number to complete Form 4473 is inconsistent with 18 U.S.C. 922(d), which criminalizes the sale of firearms to non-citizens unlawfully in the United States, among other things. (Dkt. 1 at 8). Defendant maintains that 18 U.S.C. § 922(d) is a criminal statute without a private right of action, and that it does not conflict with Form 4473. (Dkt. 12-1 at 12).

Federal criminal statutes rarely, if ever, provide private causes of action. See Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (reiterating that a private right of action under a criminal statute is rarely implied unless indicated by Congress). Several Courts have examined whether 18 U.S.C. § 922(d) provides a private cause of action and have found that it does not. See Daniel v. Armslist, LLC, 2016 U.S. Dist. LEXIS 19657, 2016 WL 660894, at *3 (E.D. Wis. Feb. 17, 2016) (stating 18 U.S.C. § 922(d) does not “create a federal civil cause of action”); Bannerman v. Mountain State Pawn, Inc., 2010 U.S. Dist. LEXIS 145292, 2010 WL 9103469, at *7 (N.D.W.Va. Nov. 5, 2010) (“The language, legislative history, and purpose of § 922 do not create a substantive federal right of the plaintiff to recover damages.”); see also Starr v. Price, 385 F. Supp. 2d 502, 512-13 (M.D. Pa. 2005) (holding “that 18 U.S.C. § 922 does not create a substantive right”); Hopson v. Commonwealth Attorney's Office, 2013 U.S. Dist. LEXIS 49991, 2013 WL 1411234, at *4 (W.D. Ky. Apr. 8, 2013) (stating § 922 “fails to provide Plaintiff with a private cause of action”).

Plaintiff is a private individual suing on his own behalf. Plaintiff has not shown that Congress intended to create a private right of action under § 922(d). A “bare criminal statute,” state or federal, does not create a private cause of action. Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 190, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). The Court finds that there is no indication of a congressional intent to create a private right and private remedy here, and Plaintiff does not provide a convincing argument to the contrary. Accordingly, a private cause of action under criminal statute 18 U.S.C. § 922(d) is unavailable to Plaintiff.

Alternatively, even if this Court were to find that Plaintiff had a private right of action under the statute, Plaintiff's argument that Form 4473 conflicts with § 922 by imposing stricter and narrower requirements than those intended by Congress is unavailing. (Dkt. 15 at 17). Section 922 establishes a detailed scheme to enable a federal firearm dealer to verify, at the point of sale, whether a potential buyer may lawfully own a gun. Abramski, 573 U.S. at 172, 134 S.Ct. 2259. To satisfy all of the statutory requirements, ATF developed Form 4473, which confirms eligibility for gun ownership under § 922. Id. at 173, 134 S.Ct. 2259. Because non-citizens in the United States unlawfully are prohibited from purchasing a firearm under § 922(d)(5)(A), it is reasonable and consistent with congressional intent for non-citizens to be required to provide an alien registration number on Form 4473 to purchase a firearm. Such a requirement enables federal firearm licensees to verify that non-citizen firearm purchasers are lawfully in the United States, and therefore not ineligible to possess a firearm under § 922. See 18 U.S.C. § 921, et. seq.

As such, Plaintiff's third claim that Defendants violated his rights under 18 U.S.C. § 922(d) is dismissed for failure to state a cognizable claim.

CONCLUSION

Ultimately, the Court will grant Defendant's motion to dismiss in its entirety.⁶ Plaintiff cannot demonstrate that he has standing to bring a claim because his injury is self-inflicted and can be remedied by obtaining an alien registration number. Additionally, Plaintiff has failed to state a cognizable claim for violation of the Second Amendment, 8 U.S.C. § 1359, 8 C.F.R. § 289, Article III of the Jay Treaty, and 18 U.S.C. § 922(d).

Plaintiff has failed to state claim for which relief can be granted, and further amendment would be futile. There are no facts that Plaintiff can assert that could state a legally cognizable claim for relief against Defendants arising from the requirement that he complete Form 4473 to purchase a firearm, which, in Plaintiff's case, means he must obtain an alien registration number. Dismissal of Plaintiff's complaint with prejudice and without leave to amend is therefore appropriate. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.’ ”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).

ORDER

NOW, THEREFORE, IT IS HEREBY ORDERED as follows:

1. Defendant's motion to dismiss (Dkt. 12) is GRANTED;

2. Plaintiff's motion for preliminary injunction (Dkt. 16) and motion to expedite (Dkt. 19) are DENIED as moot;

3. Plaintiff's complaint is DISMISSED with prejudice.

FOOTNOTES

1.   All parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Dkt. 26).

2.   Question 20 on Form 4473 states “If you are an alien, record your U.S. issued alien or admission number (AR#, USCIS#, or I94#).” (Dkt. 12-2 at 2).

3.   “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A “facial” attack accepts the truth of the plaintiff's allegations but asserts that they “are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. The Court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6)—it accepts the plaintiff's allegations as true and draws all reasonable inferences in the plaintiff's favor, and then determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). A “factual” attack, by contrast, contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings. Safe Air for Everyone, 373 F.3d at 1039. See also McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (The court is not restricted to the face of the pleadings but may review any evidence to resolve factual disputes concerning the existence of jurisdiction.).

4.   The purpose of Form 4473 is “to record identifying information about gun purchasers and the firearms they purchase, which allows firearms to be traced and prevents transfer to persons prohibited from possessing firearms.” Article II Gun Shop v. Gonzales, 441 F.3d 492 (7th Cir. 2006).

5.   The Court need not and does not decide the threshold question of whether noncitizen Canadian-born American Indians lawfully present in the U.S. are of “the people” as described in the Second Amendment. Plaintiff argues Permanent Residents are entitled to all the rights afforded to U.S. Citizens in the Bill of Rights, but he offers no authority to support such argument. (Dkt. 15 at 16). Although some district courts have found permanent residents possess Second Amendment rights, the question has not been decided by either the Supreme Court or the Ninth Circuit. The Ninth Circuit affirmatively avoided addressing the question by assuming, but not deciding, that noncitizens had such rights, when holding that a law prohibiting a noncitizen not lawfully present in the U.S. from firearms possession did not violate the Second Amendment. United States v. Torres, 911 F.3d 1253, 1264-65 (9th Cir. 2019); see also United States v. Bernabe-Martinez, 2024 WL 778114, at *5, 2024 U.S. Dist. LEXIS 34464, at *11 (D. Idaho Feb. 26, 2024) (“If determining the issue is imprudent for the Ninth Circuit, it is even more so for this Court. Accordingly, like the Ninth Circuit and other courts, this Court declines to reach unnecessarily a conclusion regarding the complicated, unresolved constitutional question of whether the Second Amendment protects [noncitizens in the United States unlawfully].”).

6.   Because the Court grants Defendants’ motion to dismiss, Plaintiff's motion for preliminary injunction and motion to expedite are denied as moot. See e.g., Freeman v. DirecTV, Inc., 457 F.3d 1001, 1003 (9th Cir. 2006) (affirming ruling where district court granted a “motion to dismiss and ruled that the motion for summary judgement was, therefore, moot.”).

Debora K. Grasham, United States Magistrate Judge