The challenge in United States v. Morales-Lopez, 20-0027 (D. Utah 6/30/2022), was not based on the Second Amendment issues discussed in Bruen, but on vagueness concerns. The district found § 922(g)(3) to be constitutionally void for vagueness, vacating the trial conviction, holding the statute fails to give meaning to its prohibitions: (i) fails to define “user”; (ii) fails to define temporal proximity between unlawful drug use and possession; (iii) any definition of “core conduct” also fails to save the statute. The district court would have also upheld an applied challenge.
Since Bruen various district court opinions have upheld the constitutionality of various portions of 922(g):
United States v. Jackson, 2022 WL 4226229 (D. Minnesota 9/13/2022)(denying facial constitutional challenge based on Bruen’s reaffirmance that neither Heller or McDonald disturb “longstanding prohibitions on the possession of firearms by felons and the mentally ill”; denying “as applied challenge” based on Eighth circuit precedent that, historically, gun restrictions were not limited to those deemed “dangerous,” but were “directed at citizens who were not law-abiding and responsible.”
United States v. Cockerham, No 21-Cr-0006 (S.D. Mississippi 9/13/2022) (Denies constitutional challenge on motion to dismiss 922(g)(1); district court acknowledges prior Fifth Circuit precedent post-Heller and McDonald upholding the constitutionality of 922(g); court relies on Daniels (district of Mississippi) opinion for proposition that restrictions on felons “ha[ve] a long and established history in English and American common law,” and cites to 2022 district court opinions that have rejected the facial constitutional challenge after Bruen.
United States v. Trinidad, No. 21-Cr-00398 (D.P.R. 9/12/2022) — challenge to 922(g)(1) (felon in possession) (District court ordered further briefing but commented that (i) two law review articles are “a far cry from ‘well-established and representative historical analogue” depriving felons, or people like them, the right to keep and bear arms”; (ii) rejected gov’t argument that felons are not one of “the people” protected by the Second Amendment, based on Eleventh Circuit opinion in United States v. Jimenez-Shiloh, 34 F.3d 1042, 1046 (11th Cir. 2022); and (iii) dismissed Circuit reliance on Heller dictum re longstanding prohibitions on felons as presumptively lawful);
United States v. Kays, 2022 WL 3718519 (W.D. OK 8/29/2022) (Denied Second Amendment challenge to 922(g)(8) (subject to a domestic protective order) and 922(n) (under indictment). Conduct covered by Second Amendment (refuses to limit Bruen to persons not accused of violating any laws – right not predicated on classification, but conduct). Held: “Although the historical record regarding domestic violence prohibitions is problematic, that does not prevent the government from carrying its burden here. Those subject to a domestic violence protective order should logically be denied weapons for the same reasons that domestic violence misdemeanants are. Like 922(g)(9), 922(g)(8)’s prohibition is consistent with the longstanding and historical prohibition on the possession of firearms by felons. See Heller, 554 U.S. at 626.”
United States v. Nutter, 21-cr-00142 (S.D. W.Va 8/29/2022) (Denies Second Amendment challenge to 922(g)(9) – possession after conviction for misdemeanor domestic violence offense). Court assumes possession of guns in common use is protected activity, sole issue “whether the prohibition at issue would have been viewed as consistent with the Second Amendment in the founding era.” Absence of prohibitions on firearm possession by people convicted of domestic violence is not dispositive given the change in legal landscape. Cites history of complete bans on gun ownership (slaves, freed blacks, Native Americans), Justice Barrett’s dissent in 2019 case analyzing history of regulations on felons supporting the regulation of the right to bear arms of those people deemed “dangerous.”
United States v. Ingram, 2022 WL 3691350 (D. S.C. 8/25/2022) (Denies facial constitutional challenge to 922(g)(1) (felon in possession) and 924(c)). Notes Heller, Bruen focus on “law-abiding” citizens, neither 922(g)(1) nor 924(c) operate to infringe on Second Amendment right – appears to suggest that right can be regulated as to non, law-abiding citizens.
United States v. Jackson, 2022 WL 3582504 (W.D. Okla. 8/19/2022): (Denied Second Amendment challenge to 922(g)(9) (possession of firearms after conviction of a misdemeanor crime of domestic violence). (Held, conduct protected by plain text as it prohibits possession even for a lawful purpose such as self-defense. Gov’t fails to address history of firearm possession by domestic violence offenders, instead arguing by analogy to restrictions on felons and restrictions from surety laws (Bruen). Commentary from legal scholars finds a paucity of evidence excluding domestic violence offenders from Second Amendment protections). Domestic violence misdemeanants can logically be viewed as “ ‘relevantly similar to felons’ who should be ‘denied weapons for the same reasons.’ ” Jackson, 2022 WL 3582504, at *3.
United States v. Daniels, 2022 WL 2654232 (S.D. Mississippi 7/8/2022): District court denied constitutional challenge to 922(g)(3) (unlawful user in possession), relying on pre-Bruen decisions finding historical restrictions, e.g., United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (“many states” had “restricted the right of habitual drug abusers or alcoholics to possess or carry firearms” as part of an “unbroken history of regulating the possession and use of firearms dating back to the time of the Amendment’s ratification,” analogizing disarmament of drug abusers to disarmament of felons) (gov’t could disarm “unvirtuous citizens”); finding (i) 922(g)(3)’s restriction on “any firearm or ammunition” regulates conduct covered by plain text of Second Amendment; (ii) citing Bruen’s language about “ordinary law-abiding, adult citizens” as “part of ‘the people’ whom the Second Amendment protects.” The court questions whether “unlawful” drug users are “law-abiding” under text of Amendment;
FEC
Attached please find United States v. Morales-Lopez, No. 20-0027 (D. Utah 6/30/2022) (922(g)(3) (“unlawful user” or “addicted” in possession), the only case since Bruen to have upheld a challenge to the constitutionality of any portion of 18 U.S.C. 922(g).