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United States District Court, D. Oregon.

UNITED STATES of America, v. Kneko Tyray MOORE, Defendant.

Case No. 3:20-cr-00474-IM-1

Decided: January 11, 2023

Natalie K. Wight, United States Attorney, Leah K. Bolstad and Gary Y. Sussman, Assistant United States Attorneys, United States Attorney's Office, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Attorneys for the United States. Matthew A. Schindler, Attorney at Law, 1500 SW 11th Ave, Ste Unit 2101, Portland, OR 97201. Attorney for Defendant.


This matter comes before this Court on Defendant Kneko Tyray Moore's Motion to Dismiss the Indictment. ECF 95. On October 6, 2020, a federal grand jury returned an indictment charging Defendant with Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). ECF 1. Defendant was found guilty on December 10, 2021 following a four-day jury trial. ECF 79. Defendant now moves this Court to dismiss the indictment in his case because Section 922(g)(1) violates the Second Amendment as applied to him, citing the Supreme Court's recent decision in N.Y. State Rifle & Pistol Ass'n v. Bruen, ––– U.S. ––––, 142 S. Ct. 2111, 2129–30, 213 L.Ed.2d 387 (2022). Numerous courts across the country have rejected the argument that Defendant makes in his motion. This Court joins those decisions and finds that Section 922(g)(1) does not violate the Second Amendment. Accordingly, Defendant's motion is DENIED.


In District of Columbia v. Heller, the United States Supreme Court struck down a District of Columbia law banning possession of handguns in the home. 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In so doing, the Supreme Court concluded that the Second Amendment protects the individual right to bear arms. Id. at 625, 128 S.Ct. 2783. However, the Court counseled that this right is not unlimited and that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ․” which the Court described as “presumptively lawful.” Id. at 626, 627 n. 26, 128 S.Ct. 2783. Two years later, in McDonald v. City of Chicago, the Court reiterated that Heller “did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons ․’ ” 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Relying on Heller, the Ninth Circuit has repeatedly held that Section 922(g)(1) does not violate the Second Amendment. See, e.g., United States v. Phillips, 827 F.3d 1171, 1175 (9th Cir. 2016); Van Der Hule v. Holder, 759 F.3d 1043, 1051 (9th Cir. 2014); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010).

Following Heller and McDonald, the Ninth Circuit, adopted a two-step, means-end test to assess the constitutionality of firearms regulations. See Young v. Hawaii, 992 F.3d 765, 783–84 (9th Cir. 2021) (en banc). But in June 2022, the Supreme Court rejected this two-step analysis and instead held that the proper test for whether a regulation violates the Second Amendment is as follows: “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.” Bruen, 142 S. Ct. at 2129–30.

Thus, the issue before this Court is whether Bruen, in stating a new test for assessing constitutionality under the Second Amendment, repudiated Heller and other pre-Bruen Ninth Circuit precedent regarding the constitutionality of Section 922(g)(1). “[W]here the reasoning or theory of [a] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority,” that precedent should be rejected as having been “effectively overruled.” Miller v. Gammie, 335 F.3d 889, 890, 893 (9th Cir. 2003) (en banc). “It is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent.” Close v. Sotheby's, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (citation omitted). “So long as the court can apply [the] prior circuit precedent without running afoul of the intervening authority it must do so.” Id. (citation omitted).


Defendant is a convicted felon. He now brings an as-applied challenge to Section 922(g)(1) contending that his disarmament is inconsistent with the Nation's historical tradition of firearm regulations and is therefore unconstitutional under Bruen.1 ECF 95 at 5–8. The Government responds that Bruen did not effectively overrule Heller and the Ninth Circuit precedent upholding the prohibition on possession of firearms by felons because the cases are not clearly irreconcilable. ECF 96 at 2–3. Moreover, the Government argues that restricting Second Amendment rights to law-abiding citizens is well-rooted in this Nation's history of firearm regulation. Id. at 3.

This Court finds that it can apply pre-Bruen precedent regarding the constitutionality of Section 922(g)(1) without running afoul of Bruen. In Bruen, the majority stated that its holding is “in keeping with Heller.” 142 S. Ct. at 2126. Likewise, Justice Alito, writing in concurrence, noted that Bruen “decides nothing about who may lawfully possess a firearm,” and disturbed nothing from Heller “about restrictions that may be imposed on the possession or carrying of guns.” Id. at 2157 (Alito, J., concurring). Justice Kavanaugh, writing in a concurrence joined by Chief Justice Roberts, reiterated that “the Second Amendment allows a ‘variety’ of gun regulations,” including “presumptively lawful regulatory measures” such as “prohibitions on the possession of firearms by felons.” Id. at 2162 (Kavanaugh, J., concurring).2 Justice Breyer, writing in dissent, stated that Bruen “cast[s] no doubt on” Heller’s treatment of laws prohibiting possession of firearms by felons. Id. at 2189 (Breyer, J. dissenting). Even before Bruen, the Ninth Circuit examined the historical tradition of gun regulation to conclude that Section 922(g)(1) is consistent with the Second Amendment. See Vongxay, 594 F.3d at 1116–18. This Court finds that Bruen is not clearly irreconcilable with the reasoning in Heller or Vongxay. Accordingly, these cases are not overruled by Bruen, and this Court is bound by that precedent.

Further, since Bruen, numerous courts in the Ninth Circuit and across the country have rejected challenges by criminal defendants to the constitutionality of Section 922(g)(1). See, e.g., Range v. Att'y Gen. United States, 53 F.4th 262 (3d Cir. 2022); United States v. Butts, No. CR 22-33-M-DWM, ––– F.Supp.3d ––––, 2022 WL 16553037 (D. Mont. Oct. 31, 2022); United States v. Carleson, No. 3:22-CR-00032-SLG, 2022 WL 17490753 (D. Alaska Oct. 28, 2022); United States v. Siddoway, No. 1:21-CR-00205-BLW, 2022 WL 4482739 (D. Idaho Sept. 27, 2022); United States v. Hill, No. 21CR107 WQH, ––– F.Supp.3d ––––, 2022 WL 4361917 (S.D. Cal. Sept. 20, 2022); see also Butts, No. CR 22-33-M-DWM at *4 n. 4, ––– F.Supp.3d at –––– n.4 (collecting cases). In keeping with these decisions, this Court now finds that the prohibition on the possession of firearms by felons found in Section 922(g)(1) does not violate the Second Amendment.


For the reasons stated above, Defendant's Motion to Dismiss the Indictment, ECF 95, is DENIED.



1.   While Defendant claims to be bringing an as-applied challenge, his motion contains no specific facts about his circumstances or criminal history. This Court therefore finds the cases rejecting facial challenges to Section 922(g)(1) equally applicable.

2.   Moreover, in Heller, McDonald, and Bruen, the Supreme Court repeatedly characterized the Second Amendment right as belonging to law-abiding citizens. See Heller, 554 U.S. at 635, 128 S.Ct. 2783 (“The Second Amendment ․ ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”); McDonald, 561 U.S. at 790, 130 S.Ct. 3020 (“If ․ the safety of [ ] law-abiding members of the community would be enhanced by the possession of handguns in the home for self-defense,” then such possession would be protected by the Second Amendment); Bruen, 142 S. Ct. at 2133 (instructing courts to consider the burden on a “law-abiding citizen's right to armed self-defense”); see also id. at 2122; id. at 2134; id. at 2138; id. at 2150; id. at 2156; id. at 2157 (Alito, J. concurring); id. at 2162 (Kavanaugh, J. concurring).

IMMERGUT, District Judge.

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