USA v. Costigan

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
SAMSON COSTIGAN,
Defendant.
Case No. 3:23-cr-00069-TMB-KFR
REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS
Before the Court is a Motion to Dismiss (hereinafter “Motion”) filed by
Defendant Samson Costigan, requesting dismissal of the Indictment on Second
Amendment grounds.1 The government opposes the Motion.2 Oral argument was
not requested and would not assist the Court. Because the Court is bound by Ninth
Circuit precedent holding that the statute under which Defendant has been charged
is constitutional, the Court recommends that the Motion be DENIED.
I. 	BACKGROUND
On August 17, 2023, Defendant was indicted by grand jury on one count of
Felon in Possession of Firearms and Ammunition, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(8).3 The Indictment alleges that on or about June 5, 2023,
Defendant was in possession of three firearms and two types of ammunition, despite
knowing that he “had been convicted of a crime punishable by imprisonment for a
term exceeding one year.”4 The Indictment further alleges that Defendant has a
prior felony conviction, specifically a 2022 state conviction for manslaughter.5
1 Doc. 24.
2 Doc. 25.
3 Doc. 2.
4 Id. at 1–2; see also 18 U.S.C. § 922(g)(1).
5 Doc. 2 at 2.
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On December 4, 2023, Defendant filed the Motion, arguing that the count
alleged against him should be dismissed pursuant to New York State Rifle & Pistol
Association, Inc. v. Bruen.6 Defendant maintains that pre-Bruen Ninth Circuit
precedent, which consistently upheld the validity of § 922(g)(1), is “no longer good
law” and therefore no longer controls the issue of § 922(g)(1)’s constitutionality.7
Defendant then turns to Bruen’s “history-and-text” standard for determining
whether a gun regulation comports with the Second Amendment and argues that: (1)
he and his alleged conduct are protected by Second Amendment; and (2) there is no
American historical tradition prohibiting convicted felons from possessing
firearms.8 As a result, Defendant argues, § 922(g)(1) unconstitutionally burdens his
Second Amendment right to keep arms.9
The government opposes the Motion, arguing that Bruen did not overturn
Ninth Circuit precedent upholding § 922(g)(1).10 Even if it did, the government
contends, application of the Bruen standard shows that § 922(g)(1) does not violate
the Second Amendment.11 The government therefore urges the Court to decline to
dismiss the Indictment.12
//
6 597 U.S. 1 (2022).
7 Doc. 24 at 9.
8 Id. at 11–33.
9 The Court notes that Defendant asserts both a facial and an as-applied challenge to
§ 922(g)(1). There appears to be little difference between these challenges, as Defendant’s
sole argument is that § 922(g)(1) is unconstitutional in relation to his possession of firearms
while being a felon. Defendant does not discuss his particular circumstances beyond
acknowledging the Indictment’s allegation that a manslaughter conviction was the felony
that subjected him to § 922(g)(1)’s firearms possession ban. Doc. 24 at 1–2. In other words,
Defendant does not argue that any other specific facts in this case, such as those underlying
his prior felony conviction, render § 922(g)(1) unconstitutional as to him. The Court
therefore construes Defendant’s as-applied challenge, to the extent he is truly mounting one,
as differing from his facial challenge only with respect to the fact of his manslaughter
conviction. This difference has no bearing on the Court’s analysis or recommended
disposition.
10 Doc. 25 at 6–7.
11 Id. at 8–19.
12 Id. at 21.
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II. 	LEGAL STANDARD
A party may bring a pretrial motion to raise “any defense, objection, or
request . . . that the court can determine without a trial on the merits.”13 Pursuant
to this rule, a defendant may move to dismiss a “defective” indictment.14 Dismissal
is proper when an indictment is “sought under a statute that is unconstitutional on
its face or as applied.”15
III. DISCUSSION
The Second Amendment reads: “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.”16 The first U.S. Supreme Court case to undertake an “in-depth
examination of the Second Amendment” was District of Columbia v. Heller.17 In
Heller, the Supreme Court concluded that a District of Columbia regulation banning
handgun possession in the home violated the Second Amendment, explaining that
the right to keep and bear arms is an individual right held by the people without
regard to any militia service.18 In so holding, the Supreme Court clarified that
“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons.”19 The Supreme Court further emphasized
that these prohibitions were “presumptively lawful.”20 Two years later, in McDonald
v. City of Chicago, the Supreme Court “repeat[ed] [its] assurances” that Heller “did
not cast doubt on such longstanding regulatory measures as prohibitions on the
possession of firearms by felons.”21
The Ninth Circuit has relied on Heller and McDonald in answering the same
13 Fed. R. Crim. P. 12(b)(1).
14 See United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007).
15 Id.
16 U.S. Const. amend. II.
17 554 U.S. 570, 635 (2008).
18 Id.
19 Id. at 626.
20 Id. at 626 n.26.
21 561 U.S. 742, 786 (2010).
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question Defendant presents here. In United States v. Vongxay, the Ninth Circuit
held that § 922(g)(1) “does not violate the Second Amendment as it applies to [the
defendant], a convicted felon.”22 The court observed that Heller categorized
longstanding prohibitions on the possession of firearms by felons as “presumptively
lawful regulatory measures,” and declared that “[n]othing in Heller can be read
legitimately to cast doubt on the constitutionality of § 922(g)(1).23 Moreover, the
court squarely rejected the defendant’s argument that Heller’s language about
firearm-possession bans for convicted felons was non-binding dicta, explaining that
this language was “integral” to Heller in limiting that decision’s scope.24 In several
subsequent decisions, the Ninth Circuit continued to affirm the validity of §
922(g)(1) on similar grounds.25
Defendant argues that Vongxay is no longer controlling law for two reasons:
(1) Vongxay’s reading of Heller is “incompatible with Bruen, which has repudiated
any reliance on Heller’s list of ‘presumptively lawful’ exceptions to uphold felon
disarmament statutes;” and (2) Vongxay “relied on a line of cases upholding felon
disarmament laws under means-end scrutiny,” an analytical approach that Bruen
rebuked.26 The Court disagrees and instead joins the large number of district courts
within the Ninth Circuit, including in the District of Alaska, in determining that
Bruen did not overturn Vongxay’s holding that § 922(g)(1) does not violate the
Second Amendment.27
22 594 F.3d 1111, 1118 (9th Cir. 2010).
23 Id. at 1115 (quoting Heller, 554 U.S. at 626 n.26).
24 Id.
25 Van Der Hule v. Holder, 759 F.3d 1043, 1051 (9th Cir. 2014) (“We addressed whether §
922(g)(1) violates the Second Amendment in [Vongxay] and determined that it did
not. . . . We see no reason to change our view now.”); United States v. Phillips, 827 F.3d 1171,
1175 (9th Cir. 2016) (stating that the court was required to “assum[e] the propriety of felon
firearm bans . . . under Supreme Court precedent and [its] own”); United States v. Torres,
789 Fed. App’x 655, 657 (9th Cir. 2020) (noting that the court was still “bound under
Vongxay and Heller to assume propriety of felon firearm bans”).
26 Doc. 24 at 8–9.
27 See, e.g., United States v. Delpriore, 634 F. Supp. 3d 654 (D. Alaska 2022); United States v.
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To show that Ninth Circuit precedent has been “effectively overruled,” a party
must demonstrate that “the reasoning or theory of [the] prior circuit authority is
clearly irreconcilable with the reasoning or theory of intervening higher
authority.”28 “The clearly irreconcilable requirement is a high standard. . . . [I]t 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.”29 Rather, if a court “can apply . . . prior circuit
precedent without running afoul of the intervening authority it must do so.”30
Defendant has not shown that Vongxay’s recognition of § 922(g)(1)’s
constitutionality is clearly irreconcilable with Bruen. “Bruen created a new standard
to evaluate whether modern firearms regulations comport with the Second
Amendment, [but] . . . did not question the constitutionality of regulations
disarming felons.”31 To the contrary, the majority opinion in Bruen “recognized the
continuing validity” of these “longstanding” laws and emphasized that its holding
was “in keeping with Heller.”32 Several of the separate opinions similarly recognized
Bruen’s consistency with Heller and McDonald. In a concurrence, Justice
Roberts, No. 3:23-cr-00057-TMB-KFR-1, 2024 WL 50889 (D. Alaska Jan. 4, 2024); United
States v. Filoialii, No. 3:21-cr-00053-JMK, 2023 WL 5832153 (D. Alaska Sept. 8, 2023);
United States v. Owens, No. 3:23-cr-00026-SLG-KFR, 2023 WL 5291341 (D. Alaska Aug. 17,
2023); United States v. Jackson, 656 F. Supp. 3d 1239 (W.D. Wash. 2023); United States v.
Serrano, 651 F. Supp. 3d 1192 (S.D. Cal. 2023); United States v. Hunt, — F. Supp. 3d —, 2023
WL 6439410 (D. Or. 2023); United States v. Gamble, — F. Supp. 3d —, 2023 WL 6460665 (D.
Nev. 2023); United States v. Hill, 629 F. Supp. 3d 1027 (C.D. Cal. 2022); United States v.
Butts, 637 F. Supp. 3d 1134 (D. Mont. 2022); United States v. Yates, No. 23-cr-0031-AMO-1,
2024 WL 69072 (N.D. Cal. Jan. 5, 2024); United States v. Page, No. CR 23-06-H-BMM, 2023
WL 8702081 (D. Mont. Dec. 15, 2023); United States v. Estrada, No. 1:22-cr-00256-BLW,
2023 WL 4181325 (D. Idaho June 26, 2023); United States v. Guthery, No. 2:22-cr-00173-
KJM, 2023 WL 2696824 (E.D. Cal. Mar. 29, 2023); United States v. Chatman, Nos. 22-cr-
00453-CRB-1 & 14-cr-00552-CRB-1, 2023 WL 3509699 (N.D. Cal. May 16, 2023).
28 Miller v. Gammie, 335 F.3d 889, 890, 893 (9th Cir. 2003) (en banc).
29 Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (quoting United States v.
Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017)).
30 Id.
31 United States v. Endsley, No. 3:21-cr-00058-TMB-MMS-1, 2023 WL 6476389, at *3 (D.
Alaska Oct. 5, 2023).
32 Roberts, 2024 WL 50889 at *5 (quoting Bruen, 597 U.S. at 17).
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Kavanaugh—joined by Chief Justice Roberts—approvingly quoted McDonald to
reiterate that the Supreme Court’s Second Amendment jurisprudence should not be
interpreted to “cast doubt on [the] longstanding prohibitions on the possession of
firearms by felons.”33 Justice Breyer—joined by Justices Kagan and Sotomayor in
dissent—agreed with Justice Kavanaugh in “understand[ing] [Bruen] . . . to cast no
doubt on [this] aspect of Heller’s holding.”34 Justice Alito likewise indicated in his
concurrence that Bruen had not “disturbed anything that [the Supreme Court] said
in Heller or McDonald . . . about restrictions that may be imposed on the possession
or carrying of guns.”35 Considerable evidence thus supports the notion that Bruen
preserved Heller and McDonald’s endorsements of the validity of felon disarmament
laws. Accordingly, the Court disagrees with Defendant that Vongxay’s reliance on
these statements renders that case incompatible with Bruen.
Furthermore, to the extent that Vongxay does not follow the precise analysis
articulated in Bruen, this inconsistency does not demonstrate that the two cases are
clearly irreconcilable. In setting forth a new standard for evaluating Second
Amendment challenges, Bruen rejected the widely accepted two-step framework the
Courts of Appeals had previously used. At the first step, the government had an
opportunity to establish the challenged law regulates activity falling outside the
scope of the right as originally understood.36 Courts then ascertained the original
scope of the right based on its historical meaning.37 If the government could prove
the regulated conduct fell beyond the Second Amendment’s original scope, the
analysis stopped there because the regulated activity was “categorically
unprotected.”38 But if the historical evidence was inconclusive or “suggest[ed] the
33 Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring).
34 Id. at 129 (Breyer, J., dissenting).
35 Id. at 72 (Alito, J., concurring).
36 Id. at 18 (citing Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)).
37 Id. (citing United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017)).
38 Id. (quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)) (internal quotation
marks omitted).
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regulated activity was not categorically unprotected,” the analysis proceeded to step
two.39 At the second step, courts analyzed “how close the law c[ame] to the core of
the Second Amendment right and the severity of the law’s burden on that right.”40
If a “core” Second Amendment right was burdened, courts applied strict scrutiny to
determine whether the law was “narrowly tailored to achieve a compelling
governmental interest.”41 Otherwise, courts applied intermediate scrutiny and
considered whether the regulation was “substantially related to the achievement of
an important governmental interest.”42
Bruen rejected the second half of this approach, which it deemed “one step
too many” because Heller and McDonald did not support applying means-end
scrutiny in a Second Amendment context.43 The Supreme Court set forth a new
standard, under which a court must first determine whether “the Second
Amendment’s plain text covers an individual’s conduct.”44 If it does not, then the
regulation is valid and the analysis ends there. But if the Second Amendment’s text
covers the conduct at issue, then the conduct is “presumptively protect[ed],” and the
court must then determine whether the government has met its burden to “justify
its regulation by demonstrating that it is consistent with this Nation’s historical
tradition of firearm regulation.”45 “Only if a firearm regulation is consistent with
this Nation’s historical traditional may a court conclude that the individual’s conduct
falls outside the Second Amendment’s [protection].”46
Vongxay did not apply the means-end scrutiny that Bruen now forbids.
Rather, in addition to relying on Heller, the Ninth Circuit examined the Second
39 Id. (quoting Kanter, 919 F.3d at 441) (internal quotation marks omitted).
40 Id. (quoting Kanter, 919 F.3d at 441) (internal quotation marks omitted).
41 Id. at 18–19 (quoting Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017)) (internal quotation
marks omitted).
42 Id. at 19 (quoting Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012)).
43 Id.
44 Id. at 24.
45 Id.
46 Id.
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Amendment’s text and historical understanding. The Ninth Circuit observed that
“denying felons the right to bear arms is consistent with the explicit purpose of the
Second Amendment” and noted that it had identified analogous “historical gun
restrictions” that supported § 922(g)(1)’s constitutionality.47 Although Vongxay did
not fully engage in the core historical analysis that Bruen now requires and
acknowledged that “the historical question ha[d] not been definitively resolved,”48
“that limited tension between Vongxay and Bruen is not enough to find that Bruen
effectively overruled Vongxay.”49
In sum, the Court remains bound by Vongxay because it is possible to apply
that case’s reasoning consistently with Bruen. Though Defendant requests the Court
to examine the history of felon-in-possession laws, the Court declines to do so
because it would not change the Court’s position that Vongxay commands a ruling
that § 922(g)(1) is constitutional.
//
47 Vongxay, 594 F.3d at 1116–17; see also id. at 1118 (“[M]ost scholars of the Second
Amendment agree that the right to bear arms was ‘inextricably . . . tied to’ the concept of a
‘virtuous citizen[ry]’ that would protect society through ‘defensive use of arms against
criminals, oppressive officials, and foreign enemies alike,’ and that ‘the right to bear arms
does not preclude laws disarming the unvirtuous citizens (i.e. criminals).’” (quoting Don. B.
Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS. 143, 146 (1986))).
48 Id. at 1118.
49 United States v. Jackson, 656 F. Supp. 3d 1239, 1243 (W.D. Wash. 2023) (internal quotation
marks omitted); see also supra note 27 (listing examples of district courts within the Ninth
Circuit that have addressed § 922(g)(1) and determined that Bruen did not overrule
Vongxay); see also Vincent v. Garland, 80 F.4th 1197, 1199–1202 (10th Cir. 2023)
(determining that Bruen did not abrogate circuit precedent that relied on Heller’s language
about “longstanding” felon-in-possession restrictions to uphold § 922(g)(1), explaining that
Bruen “did not indisputably and pellucidly abrogate” that precedent); United States v.
Jackson, 69 F.3th 495, 502, 505 n.3 (8th Cir. 2023) (concluding that § 922(g)(1) is
constitutional based on historical tradition of legislatures “employ[ing] status-based
restrictions to disqualify categories of persons from possessing firearms,” and opining that
in Heller, the Supreme Court “presumed that . . . regulations [forbidding the possession of
firearms by felons] are constitutional because they are constitutional,” though the Supreme
Court “termed the conclusion presumptive because the specific regulations were not at issue
in Heller”); United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023) (rejecting argument
that district court committed plain error by determining § 922(g)(1) is constitutional and
compiling intra-circuit cases holding the same).
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IV. CONCLUSION
The Court concludes that § 922(g)(1) remains constitutional in the wake of
Bruen. Therefore, the Court recommends that Defendant’s Motion to Dismiss at
Docket 24 be DENIED.
DATED this 11th day of January, 2024 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge
to hear and determine matters pending before the Court. For dispositive matters, a
magistrate judge reports findings of fact and provides recommendations to the
presiding district court judge.50 A district court judge may accept, reject, or modify,
in whole or in part, the magistrate judge’s findings and recommendations.51
A party may file written objections to the magistrate judge’s findings and
recommendations within fourteen (14) days.52 A response to the objections may be
filed within seven (7) days after any objection is filed.53 Objections and responses
are limited to five (5) pages in length and should not merely reargue positions
previously presented. Rather, objections and responses should specifically identify
the findings or recommendations objected to, the basis of the objection, and any legal
//
//
50 28 U.S.C. § 636(b)(1)(B).
51 Id. § 636(b)(1)(C).
52 Id.; L.M.J.R. 7(a)(1).
53 L.M.J. R. 7(a)(2).
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authority in support. Reports and recommendations are not appealable orders. Any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of
the district court’s judgment.54
54 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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