UNITED STATES v. LANE (2023)

ORDER ON MOTION TO DISMISS

On November 10, 2022, a grand jury in the District of Vermont indicted defendant Andrew Lane on a single count of possession of a firearm following a felony conviction in violation of 18 U.S.C. § 922(g)(1). (Doc. 50.) He has filed a motion to dismiss the indictment, arguing that § 922(g)(1) is facially unconstitutional because it violates the Second Amendment. (Doc. 80.) The Government opposes the motion. The court held a hearing on July 14, 2023. For the reasons that follow, the court denies Mr. Lane's motion to dismiss.

Facts

On October 13, 2022, a U.S. Magistrate Judge issued search warrants for Mr. Lane's residences and Mr. Lane's car. The search of the car led to the discovery of two handguns. (See Doc. 50.) A grand jury returned a single-count indictment against Mr. Lane under 18 U.S.C. § 922(g)(1) for being a convicted felon in possession of a firearm. (Id.)

Legal Standard

Under Federal Rule of Criminal Procedure 12(b), a defendant may raise “any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). The United States Court of Appeals for the Second Circuit has recognized that “a federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute.” United States v. Aleynikov, 676 F.3d 71, 75–76 (2d Cir. 2012).

Analysis

Section 922(g)(1) states:

It shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ․ to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1). Mr. Lane argues that this subsection is facially unconstitutional because it violates the Second Amendment to the United States Constitution. (Doc. 80.) The Government opposes this motion, arguing that the subsection is constitutional. (Doc. 88.)

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.” U.S. Const. amend. II. Over the past 15 years, the Supreme Court has addressed the Second Amendment in three merits opinions: District of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). In the most recent decision, Bruen, the Supreme Court adopted a new two-part test for determining whether a firearm regulation violates the Second Amendment. First, a court must determine whether “the Second Amendment's plain text covers an individual's conduct.” Bruen, 142 S. Ct. at 2129–30. If yes, “the Constitution presumptively protects that conduct.” Id. at 2130. In that instance, a court proceeds to step two, where “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id. Courts are “entitled to decide a case based on the historical record compiled by the parties.” Id. n. 6.

I. Whether the Second Amendment's Plain Text Covers Mr. Lane's Conduct

The Government argues that possession of a firearm by a person convicted of a felony is not protected conduct under the Second Amendment. (Doc. 88 at 6, 12.) The Government relies on the Supreme Court's statement that the Second Amendment “protect[s] the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” Bruen, 142 S. Ct. at 2122; see also Heller, 554 U.S. at 635 (“[The Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”). The inclusion of the phrase “law-abiding,” the Government argues, means that people convicted of a felony fall outside the definition of “the people” whose right “to keep and bear Arms” is protected by the text of the Second Amendment.

The court disagrees. The offense of felon in possession combines a person's legal status with a person's conduct. A person's legal status—being a convicted felon—is different and distinct from a person's conduct—possessing a firearm. The Supreme Court has been clear that this initial inquiry into the application of the Second Amendment focuses on conduct, not status. See Bruen, 142 S. Ct. at 2126 (“[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.” (emphasis added)); see also United States v. Rowson, ––– F. Supp. ––––, 2023 WL 431037, at *15 (S.D.N.Y. Jan. 26, 2023) (explaining same); Campiti v. Garland, ––– F. Supp. 3d ––––, 2023 WL 143173, at *3 (D. Conn. Jan. 10, 2023) (explaining same).

In Heller, Justice Scalia rejected the argument that Second Amendment's reference to “the right of the people to keep and bear arms” applied to some individuals and not to others. Drawing on the use of the term “the people” in other Amendments, he wrote: “[I]n all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.” Heller, 554 U.S. at 580. With this foundational guidance in mind, the court declines to adopt the proposal to limit the application of the Second Amendment to “ordinary, law-abiding citizens” only. Bruen, 142 S. Ct. at 2122. “Ordinary” (whatever that word means in a constitutional context) and “law-abiding” provide rhetorical reassurance to the reader that the Supreme Court does not intend a free-for-all in the realm of gun ownership and possession. They do not form part of the constitutional test of disqualifying conduct plus historical antecedents.

Numerous other courts have concluded that a person convicted of a felony is still within “the people” in the text of the Second Amendment. See, e.g., United States v. Davila, ––– F. Supp. 3d ––––, 2023 WL 5361799, at *2 (S.D.N.Y. Aug. 22, 2023) (“There is no basis for reading ‘the people’ in the text of the Second Amendment to exclude felons.”); Campiti, 2023 WL 143173, at *3 (explaining that “for purposes of the Second Amendment, the phrase ‘the people’ is interpreted consistently with the First, Fourth, Ninth, and Tenth Amendments as ‘a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community’ ” and finding that a person convicted of a felony “belongs to our national community and is among ‘the people’ whose rights are presumptively protected by these amendments to the Constitution, notwithstanding his felony conviction” (quoting Heller, 554 U.S. at 580)); accord Range v. Att'y Gen., 69 F.4th 96, 103 (3d Cir. 2023) (en banc) (“[W]e reject the Government's contention that only ‘law-abiding, responsible citizens’ are counted among ‘the people’ protected by the Second Amendment.”); see also Rowson, 2023 WL 431037, at *17–18 (finding felony indictees are included within “the people” for similar reasons).¹

Here, Mr. Lane's conduct—possession of two handguns—is conduct that the Second Amendment's plain text covers. See McDonald, 561 U.S. at 768 (“Citizens must be permitted to use handguns for the core lawful purpose of self-defense ․ This right is deeply rooted in this Nation's history and tradition.” (cleaned up; internal quotation marks and citations omitted)); see also Campiti, 2023 WL 143173, at *3 (“[T]here is no dispute that the plaintiff's proposed conduct—possessing a firearm—falls within the scope of the Second Amendment.”). As a result, “the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2130. The court, therefore, proceeds to the second step of the analysis under Bruen.

II. Whether § 922(g)(1) Is Consistent with the Nation's Historical Tradition of Firearms Regulations

Turning to the second step, the court must consider whether § 922(g)(1) “is consistent with the Nation's historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. The inquiry “requires only that the government identify a well-established and representative historical analogue, not a historical twin.” Id. at 2133 (emphasis in original). The court inquires whether historical regulations and § 922(g)(1) “are ‘relevantly similar,’ ” which requires the court to analyze “how and why the regulations burden a ․ citizen's right to armed self-defense.” Id. at 2132–33.

The court is mindful of the Supreme Court's admonition that “not all history is created equal.” Id. at 2136. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Id. (internal quotation marks omitted). The Supreme Court has “generally assumed” that this is “pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Id. at 2137. Where the challenged law “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” but it is not dispositive, id. at 2131. And “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id. at 2133.

With this analytical framework in mind, the court proceeds to consider the historical record compiled by the parties. The Government offers two types of historical regulations that it argues are relevant here: (1) “laws categorically disqualifying groups from possessing firearms based on a judgment that the group could not be trusted to adhere to the rule of law”; and (2) “laws authorizing capital punishment and estate forfeiture for felonies.” (Doc. 88 at 12.) Mr. Lane argues that § 922(g)(1) was not enacted in its current form until 1968 and that its precursor, which only prohibited persons convicted of certain felonies from receiving firearms, was enacted in 1938. (Doc. 80 at 9.) According to Mr. Lane, the lack of a historical tradition of regulations or laws that specifically prohibited a person convicted of a felony from possessing a firearm is fatal to the Government's argument and, therefore, fatal to § 922(g)(1). (Id. at 9–12.) Mr. Lane also argues that colonial and early-republic militia statutes further demonstrate that there is no historical tradition of disarming persons convicted of a felony. (Id. at 12–14.)

Mr. Lane is correct that federal law first prohibited persons convicted of a felony from “receiving” firearms in 1938. Federal Firearms Act of 1938, Pub. L. No. 75-850 § 2(f), 52 Stat. 1250, 1251 (1938). This law only applied to persons “convicted of a crime of violence,” which included “murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.” Id. §§ 1(6), 2(f). In 1961, Congress eliminated the “crime of violence” limitation. An Act to Strengthen the Federal Firearms Act, Pub. L. 87–342, 75 Stat. 757 (1961). In 1968, Congress changed the prohibited act to “possession,” creating the law in its current form. Pub. L. No. 90-618 § 922(g)(1), 82 Stat. 1213, 1220 (1968). While Mr. Lane is correct that there is no history of legislatures specifically disarming persons convicted of felonies prior to 1938, the Supreme Court has made clear that courts must determine whether there is a “historical analogue, not a historical twin.” Bruen, 142 S. Ct. at 2133 (emphasis in original). Thus, this is not the end of the court's analysis.

The Government identifies historical regulations from England, the American colonies, and the United States both pre and post ratification categorically banning certain groups of people from possessing firearms. (Doc. 88 at 12–15.) The court does not recount all of them here. Examples include a 1775 Connecticut law providing that any person convicted of “libel[ing] or defam[ing]” any acts or resolves of the Continental Congress or the Connecticut General Assembly “made for the defence or security of the rights and privileges” of the colonies “shall be disarmed and not allowed to have or keep any arms.” The Public Records of the Colony of Connecticut From May 1775 to June 1776, at 1993 (1890). Other examples include laws from 1776 and 1777 prohibiting ownership of firearms by those who refused to take oaths of loyalty to certain colonies during the Revolutionary War.² Mr. Lane argues that these are not similar enough to the categorical ban in § 922(g)(1) that prohibits persons convicted of a felony from possessing firearms. (Doc. 80 at 11–12.)

Several courts have considered these historical regulations and concluded that there is a tradition of disarming individuals that legislatures deemed potentially dangerous. For example, in United States v. Jackson, the Eighth Circuit conducted an in-depth analysis of historical firearms regulations and reached two conclusions that are especially relevant here. 69 F.4th 495, 501–06 (8th Cir. 2023). First, the court explained that there was a historical tradition of “categorical prohibitions” on the possession of firearms. Id. at 503. The court explained that colonial legislatures passed laws prohibiting Native Americans, Catholics, and those who refused to take an oath of loyalty during the Revolutionary War from possessing firearms. Id. at 502–03 (collecting sources and statutes, including those cited above). In addition, the court noted certain early firearms prohibitions for those convicted of non-violent crimes. Id. at 503 (collecting statutes). Second, the court undertook the more specific inquiry of whether there was a historical tradition of “address[ing] a risk of dangerousness.” Id. at 504. The Eighth Circuit reasoned that “if dangerousness is considered the traditional sine qua non for dispossession, then history demonstrates that there is no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons.” Id. The court found that these early laws addressed risk because “[l]egislatures historically prohibited possession by categories of persons based on a conclusion that the category as a whole presented an unacceptable risk of danger if armed.” Id.

Facing a similar challenge and a similar historical record, the Third Circuit came to the opposite conclusion. The Third Circuit rejected an analogy based on the “dangerousness” of the persons prohibited from possessing firearms and concluded that the type categorical bans the Eighth Circuit found relevantly similar were inapposite to the historical inquiry because “the Government [did] not successfully analogize those groups to [the plaintiff] and his individual circumstances.” Range, 69 F.4th at 104–05.

This court is persuaded by the Eighth Circuit's reasoning. If Bruen’s historical inquiry is undertaken at a high level of specificity, it would require courts to find that a modern-day regulation is “a dead ringer for historical precursors,” which the Supreme Court has specifically stated is not necessary. Bruen, 142 S. Ct. at 2133; see also Range, 69 F.4th at 129 (Krause, J., dissenting) (explaining that such reasoning employs “a methodology by which courts must examine each historical practice in isolation and reject it if it deviates in any respect from the contemporary regulation”). Instead, the historical inquiry requires a court to compare historical laws of general application to modern counterparts.

With the benefit of hindsight, bans on possession of firearms by Catholics, for example, are offensive, and they would certainly be unconstitutional today. Jackson, 69 F.4th at 503; accord Range, 69 F.4th at 104. But the court is tasked neither with judging the propriety of such historical laws by modern norms nor their constitutionality. See, e.g., Joseph Blocher & Caitlan Carberry, Historical Gun Laws Targeting “Dangerous” Groups and Outsiders, 1, 12 (Duke L. Sch. Pub. L. & Legal Theory Series No. 2020-80), https://perma.cc/V68C-5HEF (“[O]ne can accept that the Framers denied firearms to groups they thought to be particularly dangerous (or unvirtuous, or irresponsible) without sharing their conclusion about which groups qualify as such.”). Instead, this court must determine whether such historical regulations “are ‘relevantly similar’ ” to § 922(g)(1), meaning “how and why the regulations burden ․ a citizen's right to armed self-defense.” Bruen, 142 S. Ct. at 2132–33. The historical antecedents enacting categorical bans are relevantly similar to § 922(g)(1) because, like § 922(g)(1), they restricted a citizen's right to possess a firearm on the ground that (in the legislature's judgment) certain groups of people were more likely to misuse firearms or use them for nefarious purposes, thereby presenting a danger to the community.³ See, e.g., Davila, 2023 WL 5361799, at *5 (“The ‘how’—disqualifying categories of people from possessing firearms—is identical. The ‘why’—certain groups were deemed untrustworthy or dangerous—is of a piece with the apparent rationale for § 922(g)(1): to remove guns from the hands of those who have harmed society and breached its trust.”). The colonial and founding era regulations are relevant historical analogues demonstrating that § 922(g)(1) “is consistent with the Nation's historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2126.

Although the Second Circuit has not yet addressed this particular issue, a number of district courts within the Second Circuit have come to the same conclusion. See, e.g., Davila, 2023 WL 5361799, at *5 (concluding § 922(g)(1) is constitutional); United States v. Martin, No. 21-cv-00068, 2023 WL 1767161, at *3 (D. Vt. Feb. 3, 2023) (“The government has therefore satisfied its burden of demonstrating that § 922(g)(1) is consistent with the Nation's historical tradition of firearm regulation.”); Campiti, 2023 WL 143173, at *4 (“But while no 18th- or 19th-century laws specifically banned felons from possessing firearms, the defendants have shown that there exists a relevant historical analogue—prohibitions on firearm possession by individuals whom the state deems dangerous—and have also shown that Congress has reasonably decided that nonviolent felons are among those individuals.”).

Under the two-step analysis established by Bruen, the court concludes that § 922(g)(1) is constitutional, rejects Mr. Lane's facial challenge to the law, and denies his motion to dismiss the indictment. As a result, the court does not reach the Government's second set of historical laws it argues are relevantly analogous, those authorizing capital punishment and estate forfeiture for persons convicted of felonies.⁴ The court also does not reach or address Mr. Lane's reliance on the colonial-era militia statutes.

III. Additional Reasons Supporting the Court's Conclusion

Beyond Bruen’s two-step analysis, three other reasons support the court's conclusion here. First, a majority of the Court in Bruen has affirmed Heller’s understanding of the “longstanding prohibitions on the possession of firearms by felons” and that such regulations are “presumptively lawful.” Heller, 524 U.S. at 626–27 & n.26; see Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., joined by Roberts, C.J., concurring); id. at 2189 (Breyer, J., joined by Kagan, Sotomayor, JJ., dissenting).

Second, in United States v. Bogle, the Second Circuit ruled that § 922(g)(1) is constitutional. United States v. Bogle, 717 F. 3d 281, 281–82 (2d Cir. 2013) (per curiam) (“We therefore join every other circuit to consider the issue in affirming that § 922(g)(1) is a constitutional restriction on the Second Amendment rights of convicted felons.”). Although the Second Circuit's decision in Bogle preceded the Supreme Court's decision in Bruen, numerous courts have concluded that the Bruen did not abrogate or overrule Bogle. See, e.g., Davila, 2023 WL 5361799, at *2 (“Bogle’s holding thus remains binding on this Court.”); United States v. Harrison, ––– F. Supp. 3d ––––, 2023 WL 4670957, at *8 (N.D.N.Y. July 20, 2023) (“Bogle remains binding precedent in this Circuit on the constitutional question of felon disarmament under § 922(g)(1).”); United States v. Hampton, ––– F. Supp. 3d ––––, 2023 WL 3934546, at *12 (S.D.N.Y. June 9, 2023) (explaining that Bruen “does not disrupt or abrogate Heller and McDonald’s endorsements of felon-in-possession laws” and that Bruen also did not upset the Second Circuit's holding in Bogle); United States v. Garlick, No. 22-CR-540, 2023 WL 2575664, at *5 (S.D.N.Y. Mar. 20, 2023) (“Bruen does not alter the holding of Bogle ․”); United States v. Barnes, No. 22-CR-43, 2023 WL 2268129, at *2 (S.D.N.Y. Feb. 28, 2023) (similar); United States v. King, 634 F. Supp. 3d 76, 83 (S.D.N.Y. 2022) (similar); see also Jackson, 69 F.4th at 505 (“Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”).

Finally, the parties have not directed the court to any decision holding that § 922(g)(1) is facially unconstitutional. Only the Third Circuit has come to a different conclusion, but it did so in a limited way based on different facts. In Range, the Third Circuit addressed an as-applied challenge to § 922(g)(1) from a defendant who pled guilty to a Pennsylvania misdemeanor offense of making a false statement to obtain food stamps. 69 F.4th at 98. While a misdemeanor under state law, the conviction counted as a felony for purposes of § 922(g)(1). Id. Explaining that its decision was “a narrow one,” the Third Circuit upheld the defendant's as-applied challenge to § 922(g)(1) under the specific circumstances of the Pennsylvania misdemeanor “because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like [that plaintiff] of their firearms.” Id. at 106. Here, Mr. Lane neither makes as an-applied challenge nor does he argue that he is in any way comparable to the plaintiff in Range. Therefore, Range does not alter the court's conclusion here.

Two other cases from the Fifth Circuit addressed two other subsections of § 922(g). In United States v. Rahimi, the Fifth Circuit held that § 922(g)(8) was facially unconstitutional. 61 F.4th at 461. In United States v. Daniels, the Fifth Circuit held that § 922(g)(3) was unconstitutional as applied. ––– F.4th ––––, 2023 WL 5091317, at *15 (5th Cir. Aug. 9, 2023). While neither opinion addressed the merits of a constitutional challenge to § 922(g)(1), both suggested that § 922(g)(1) would likely be constitutional. See Rahimi, 61 F.4th at 452; Daniels, 2023 WL 5091317, at *4.

As a result, the court concludes, like numerous other courts in this circuit, that § 922(g)(1) is “is consistent with the Nation's historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. Therefore, the court denies Mr. Lane's motion to dismiss the indictment.

Conclusion

For the foregoing reasons, Defendant's Motion to Dismiss (Doc. 80) is DENIED.

FOOTNOTES

1.   Other courts, however, have come to the opposite conclusion. See, e.g., Zherka v. Garland, 593 F. Supp. 3d 73, 79–80 (S.D.N.Y. 2022) (“[T]his court ․ concludes that [the plaintiff's] status as a felon, albeit a non-violent one, necessarily removes him from the category of ‘law-abiding, responsible citizens’ entitled to possess firearms ․ the application of Section 992(g)(1) to individuals convicted of non-violent financial felonies, like Plaintiff, does not impinge upon conduct protected by the Second Amendment.” (quoting Heller, 554 U.S. at 635)). Others suggested without holding that the Second Amendment right may not extend to people with mental illness or people with a felony conviction. See, e.g., United States v. Rahimi, 61 F.4th 443, 452 (5th Cir. 2023) (“Heller simply uses ‘law-abiding, responsible citizens’ as shorthand in explaining that its holding ․ should not ‘be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill’ ․ [the defendant] was subject to agreed domestic violence restraining order ․ [t]hat alone does not suffice to remove him from the political community within the amendment's scope.” (quoting Heller, 554 U.S. at 626–27)); United States v. Daniels, ––– F.4th ––––, 2023 WL 5091317, at *4 (5th Cir. Aug. 9, 2023) (noting that besides “the mentally ill and felons ․ who were historically ‘stripped of their Second Amendment rights[,]’[ ] [a]ll others are presumptively included in the Second Amendment's ambit” (quoting Rahimi)).

2.   5 The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay 479–84 (1886); 7 Records of the Colony of Rhode Island and Providence Plantations in New England 567 (1862); 1 The Public Acts of the General Assembly of North Carolina 231 (1804); Acts of the General Assembly of the State of New-Jersey at a Session Begun on the 27th Day of August, 1776, at 90 (1777); 9 The Statutes at Large of Pennsylvania from 1682 to 1801, at 112–13 (1903); 9 The Statutes at Large; Being A Collection of All the Laws of Virginia 282 (1821).

3.   Congress evidently understood § 922(g)(1) the same way. See Jackson, 69 F.4th at 504 (collecting legislative history of § 922(g)(1) demonstrating that Congress meant to target crime and violence by prohibiting possession of firearms by certain groups of people).

4.   The Third Circuit has rejected this line of analogical reasoning. See Range, 69 F.4th at 105 (“[G]overnment confiscation of the instruments of crime (or a convicted criminal's entire estate) differs from a status-based lifetime ban on firearm possession.”); id. (“That Founding-era governments punished some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue—lifetime disarmament—is rooted in our Nation's history and tradition. The greater does not necessarily include the lesser: founding-era governments’ execution of some individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess arms if he was not executed.” (emphasis in original)). The Eighth Circuit, however, appears to have accepted these laws as relevantly similar. See Jackson, 69 F.4th at 503–04. A district court in the Second Circuit also found them relevantly similar. See Davila, 2023 WL 5361799, at *4 (“That the founders understood felons to be punishable by death and estate forfeiture leaves little doubt that they also understood that felons could be permissibly disarmed.”).

Geoffrey W. Crawford, Chief Judge