UNITED STATES OF AMERICA v. MARK ANDREW VINING (2026)

OPINION AND ORDER

Earlier this year, a grand jury returned a one-count indictment charging Mark Andrew Vining with unlawfully possessing a firearm as a felon. He moves to dismiss the indictment under Rule 12(b)(1) because, he says, 18 U.S.C. § 922(g)(1) is unconstitutional facially and as applied to him under the Second Amendment to the United States Constitution and N.Y. St. Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022). The court denies the motion.

BACKGROUND

Mr. Vining's relevant criminal history dates back to 2022. On April 6, 2022, the State of Indiana charged him in Cause No. 43C01-2204-F6-265 with Level 6 felony possession of methamphetamine and Class C misdemeanor possession of paraphernalia [25-1].¹ In October 2022, he entered a pretrial diversion agreement. He admitted both offenses, and the state agreed to defer prosecution for 18 months and dismiss the case if he complied with the agreement's conditions, including that he not commit another crime or be so charged [25-2].

He failed to complete that diversionary period. In February 2024, with the diversion agreement still in effect, the State of Indiana charged him in Cause No. 43C01-2402-F4-261 with Level 4 felony possession of methamphetamine, Level 6 felony theft, operating a vehicle with methamphetamine in his blood, and possession of paraphernalia [25-3].² Mr. Vining later pleaded guilty to the methamphetamine and operating charges, and the state court entered judgment on December 2, 2024 [25-4]. The court sentenced him to concurrent terms of six years on the possession count and sixty days on the operating count, with the first year to be served on home detention and the remaining five years suspended to probation, pending good behavior. As a condition of home detention, he was not to commit another crime. The court also authorized the Kosciusko County Community Corrections Program Director to move him from home detention to county jail if he violated home detention conditions. And notably, as part of his home detention program rules and conditions, Mr. Vining agreed to not possess or have control of “any firearm(s), deadly weapon(s), or destructive device(s).”

The 2022 case was reinstated, apparently because he violated his diversion agreement. He pleaded guilty to the felony methamphetamine possession charge. On December 2, 2024, he received a one-year sentence, which the court permitted to be served on home detention, prior and consecutive to his other criminal sentence [25-5]. The judgment likewise prohibited him from committing another crime and authorized the community corrections director to move him to the county jail if he violated his placement terms.

On March 13, 2025, a Kosciusko County Community Corrections home detention officer reported to the state court that Mr. Vining violated his conditions [25-7]. According to the notice, law enforcement officers, including officers from the Kosciusko County Drug Task Force, conducted a home visit on March 5, 2025. They reported finding alcohol, a pill bottle containing hydrocodone prescribed to someone else in Mr. Vining's bedroom, 38 firearms, and a silencer.

The petition to revoke (filed March 12, 2025) alleged that he violated home detention conditions that restricted the purchase, possession, control, or consumption of any alcoholic beverage or controlled substance, and that prohibited firearm possession. He admitted to the violations on December 8, 2025 [25-6]. His placement on home detention was revoked; and, on January 16, 2026, he was committed to serve the balance of his sentence in state custody [25-8]. He also was federally indicted for unlawfully possessing a firearm as a felon, which today precipitates his motion to dismiss on constitutional grounds.

DISCUSSION

Mr. Vining calls § 922(g)(1) unconstitutional, both facially and as applied to him. The approaches differ. To succeed on an as-applied challenge, he must show the statute is unconstitutional as applied to the particular facts here. See United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). To succeed on a facial challenge, he must show the statute is unconstitutional in all its applications. City of L.A. v. Patel, 576 U.S. 409, 415 (2015). The court decides the as-applied challenge first because, if it fails, the facial challenge necessarily fails too. See United States v. Salerno, 481 U.S. 739, 745 (1987); United States v. Seiwert, 152 F.4th 854, 860-61 (7th Cir. 2025); Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir. 2012).

Mr. Vining's motion rests on Bruen, and its progenitors and progeny. Bruen reiterated a two-step analysis for determining whether a firearm regulation passes constitutional muster. The first step is textual—whether the Second Amendment's plain text covers a person's conduct such that the Constitution presumptively protects it. Bruen, 597 U.S. at 20. The second step is historical—whether the government can justify its regulation consistent with our Nation's historical tradition of firearm regulation. See id. This step ensures that the regulation fits within the same historical context that lends meaning to the Second Amendment right to bear arms in the first place. See id.; Dist. of Columbia v. Heller, 554 U.S. 570, 592, 620-25 (2008).

This case stumbles on each step. Under the Second Amendment, 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. The Second Amendment generally protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635; see also United States v. Rahimi, 602 U.S. 680, 750 (2024); Bruen, 597 U.S. at 29, 31. The government concedes only that a convicted felon qualifies as part of “the people” protected by the Second Amendment, and for good reason. See United States v. Watson, 171 F.4th 1012, 1018 (7th Cir. 2026) (“Felons․are part of ‘the people’ as members of our national ‘political community.’ ”) (quoting Heller, 554 U.S. at 580).

That stops short of answering the question as applied here: whether a convicted felon still serving a criminal justice sentence qualifies as a law-abiding citizen or otherwise as part of “the people” to enjoy an unfettered right to possess guns. See United States v. Gay, 98 F.4th 843, 846-47 (7th Cir. 2024); see also Kanter v. Barr, 919 F.3d 437, 461 (7th Cir. 2019) (Barrett, J., dissenting) (discussing “civil death” for convicts in custody). Prisoners and probationers alike often lose rights consistent with proper incarceration or supervision. They may retain some measure of individual constitutional rights as part of “the people,” but inevitably these rights are significantly curtailed or even suspended during their sentence.

For instance, the First Amendment affords “the people” the right to assemble, but the “freedom of association is among the rights least compatible with incarceration” such that “[s]ome curtailment of that freedom must be expected in the prison context,” Overton v. Bazzetta, 539 U.S. 126, 131 (2003), and even on supervision, United States v. Sines, 303 F.3d 793, 801 (7th Cir. 2002). The Fourth Amendment protects the right of “the people” to be secure against unreasonable searches and seizures, but its proscription “does not apply within the confines of the prison cell,” Hudson v. Palmer, 468 U.S. 517, 526 (1984), and it does not prevent warrantless and even suspicionless searches of parolees who have significantly diminished privacy interests, Samson v. California, 547 U.S. 843, 849-55 (2006). A felon may be part of “the people” under the Second Amendment too, but a felon in jail cannot have a gun, and “parolees lack the same armament rights as free persons.” Gay, 98 F.4th at 847.

Rather than retain absolute liberty, those who receive an alternative to prison for their crimes enjoy conditional liberty—one hinged on observing tailormade restrictions. Griffin v. Wisconsin, 483 U.S. 868, 874 (1987); State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015). Mr. Vining's federal charge remains unproven, but no one can seriously contend that he was a law-abiding or responsible citizen or otherwise upheld his membership in the political community when, as he admitted in state court, within three months of his sentence he possessed 38 firearms (and a silencer) in contravention of strict conditions of home detention—a form of custody that permitted him to serve his sentence outside prison walls. He promised not to do so twice to achieve his release on home detention after two felony convictions for methamphetamine possession. He received process in state court before his deprivation. By definition, he was not, at the time, a person who has a constitutional right to possess firearms. See Gay, 98 F.4th at 847.

Even so, our country's history and tradition have long recognized the government's ability to disarm felons serving criminal justice sentences. Mr. Vining says the government cannot prove a founding-era tradition of disarmament for a person with his felony convictions, but the court sees the opening question as applied to him and our country's history differently. See Gill v. Linnabary, 63 F.4th 609, 615 (7th Cir. 2023) (the “specifics” are “important” in an as-applied challenge); see, e.g., Seiwert, 152 F.4th at 860, 866 (assessing “particular facts of his case” in reviewing motion to dismiss indictment under Bruen); Gay, 98 F.4th at 847 (considering prior convictions and current parole status); United States v. Williams, 113 F.4th 637, 662 (6th Cir. 2024) (considering prior felonies and their nature in Bruen challenge).

Under the Second Amendment, the government must identify “a well-established and representative historical analogue, not a historical twin.” Bruen, 597 U.S. at 30. “[T]he Second Amendment permits more than just those regulations identical to ones that could be found in 1791,” Rahimi, 602 U.S. at 691-92, so “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster,” Bruen, 597 U.S. at 30. “Why and how the regulation burdens the right are central to this inquiry.” Rahimi, 602 U.S. at 692; see also United States v. Hemani, No. 24-1234, slip op. at 5 (U.S. June 18, 2026) (examining “purpose and operation” to assess whether a contemporary law mirrors a well-established historical analogue); Bruen, 597 U.S. at 29.

Mr. Vining was a two-time felon still serving an executed sentence on home detention. See Hildebrandt v. State, 770 N.E.2d 355, 360 (Ind. Ct. App. 2002) (classifying alternative correctional program like home detention as an executed sentence). “Section 922(g)(1), insofar as it prohibits felons who are completing their criminal sentences from possessing firearms, fits neatly within the principles underlying the Second Amendment.” United States v. Quailes, 126 F.4th 215, 224 (3d Cir. 2025) (disarmament of convicts on parole, probation, or supervised release consistent with tradition) (quotations omitted); see also United States v. Giglio, 126 F.4th 1039, 1044 (5th Cir. 2025) (cataloguing numerous historical precursors to hold § 922(g)(1) constitutional as applied to a defendant found armed while on supervised release because “convicts could be required to forfeit their weapons and were prevented from reacquiring arms until they [ ] finished serving their sentences”); United States v. Goins, 118 F.4th 794, 802 (6th Cir. 2024) (“our nation's historical tradition of forfeiture laws․supports disarming those on parole, probation, or supervised release”); United States v. Moore, 111 F.4th 266, 272 (3d Cir. 2024) (“convict may be disarmed while he completes his sentence”); accord Kanter, 919 F.3d at 460-61 (Barrett, J., dissenting) (citing cases explaining that a felon who was sentenced to a term less than life historically saw his rights suspended during his sentence even if not forever destroyed). Even if yet among “the people” within the Second Amendment's meaning, our Nation's history and tradition nonetheless authorized his disarmament as a felon still serving a criminal justice sentence.

Consistent with the wisdom of deciding constitutional questions on their narrowest ground, see Miller v. Downey, 915 F.3d 460, 464 (7th Cir. 2019), whatever else the court might have to say about our history and tradition for those who commit drug felonies can wait. And any individualized assessment of dangerousness is unnecessary when the historical tradition at the time of the Second Amendment and thereafter was to forbid, as a group, those felons or convicts who still were serving a sentence for their crimes, though one can envision why someone on home detention with 38 firearms might pose stark risks of danger, not least to those who come to his house to supervise him. See also Hemani, slip op. at 15 n.6 (reiterating that categorical bans remain permissible with pre-deprivation process and dangers of misuse); Watson, 171 F.4th at 1022 (history “reflect[s] the boundaries of the legislature's power to enact class-wide disarmament laws consistent with the Second Amendment”); United States v. Jackson, 110 F.4th 1120, 1127 (8th Cir. 2024) (“legislatures traditionally possessed discretion to disqualify categories of people from possessing firearms to address a danger of misuse by those who deviated from legal norms, not merely to address a person's demonstrated propensity for violence”); United States v. Regalado, 709 F. Supp.3d 619, 628-31 (N.D. Ind. 2023) (same).

Mr. Vining points to United States v. Hembree, 165 F.4th 909 (5th Cir. 2026), which held § 922(g)(1) to be unconstitutional as applied to a defendant whose predicate felony offense was methamphetamine possession, but even it recalled that “violating the terms of one's release by possessing arms while on parole” would “doom a defendant's as-applied challenge” to this statute, id. at 913 (quoting United States v. Hernandez, 159 F.4th 425, 428 (5th Cir. 2025)). It likewise dooms the as-applied challenge here.

The same must be said of his facial challenge. For one, rejecting his as-applied challenge necessarily means the statute cannot be characterized as unconstitutional in all its applications. See Seiwert, 152 F.4th at 860-61. For another, given the current state of things, the law otherwise forecloses a facial challenge. See United States v. Prince, 171 F.4th 1009, 1011 (7th Cir. 2026) (§ 922(g)(1) valid in many applications and cannot be declared facially unconstitutional).

CONCLUSION

Accordingly, the court DENIES the motion to dismiss the indictment [17].

SO ORDERED.

FOOTNOTES

1.   The court takes judicial notice of public court records, including orders from Mr. Vining's state court criminal matters in Cause Nos. 43C01-2204-F6-265 and 43C01-2402-F4-261. In re Lisse, 905 F.3d 495, 496 (7th Cir. 2018).

2.   Level 4 felony possession of methamphetamine requires the amount of drugs involved to be between 10 and 28 grams, or between 5 and 10 grams in conjunction with an enhancing circumstance. Ind. Code § 35-48-4-6.1(c). The exhibits don't say which scenario existed.

Damon R. Leichty Judge, United States District Court