USA v. Roberts

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL ANTHONY ROBERTS,
Defendant.
Case No.: 3:23-cr-00057-TMB-KFR-1
ORDER ON MOTION TO DISMISS
(DKT. 29)
This matter comes before the Court on Defendant Michael Anthony Roberts’ Motion to
Dismiss Count 1 of the Indictment (the “Motion”).1 The Government filed a response in opposition
to Roberts’ Motion.2 The parties did not request oral argument. For the following reasons, the
Motion is DENIED.
I. 	BACKGROUND
In June 2023, Roberts was indicted by a grand jury on charges of Felon in Possession of
Firearms and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8) (Count 1).3 The
Indictment alleges that on or about May 3, 2023, Roberts knowingly possessed a Savage 24V
Series B 20 gauge/30-30 caliber combination rifle and a Ruger AR-556 rifle, eight rounds of 30-
30 caliber ammunition, and five rounds of 20 gauge ammunition.4 The Indictment further alleges
that Roberts possessed these two firearms and ammunition while knowing he had been previously
1 Dkt. 29 (Motion to Dismiss).
2 Dkt. 40 (Government Response in Opposition).
3 Dkt. 2 (Indictment).
4 Id. at 1–2.
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convicted of Criminal Mischief in the Third Degree, a Class C felony property offense punishable
by imprisonment for a term exceeding one year.5 Roberts was therefore barred from possessing
firearms pursuant to §§ 922(g)(1) and 924(a)(8), which prohibit individuals from possessing a
firearm who “ha[ve] been convicted in any court of[] a crime punishable by imprisonment for a
term exceeding one year.”6
In September 2023, Roberts moved to dismiss Count 1 of the Indictment7 pursuant to New
York State Rifle & Pistol Association, Inc. v. Bruen.8 In the Motion, Roberts argues that
§ 922(g)(1)’s prohibition on possession of firearms by individuals convicted of a crime punishable
by imprisonment exceeding one year violates the Second Amendment as applied to his conduct.9
Roberts first contends that he “may claim a protected Second Amendment right” to possess
firearms despite having a prior felony conviction punishable by more than one year, and that his
“possession of a firearm outside his home for purposes of self-defense” is “plainly covered by the
scope of the Second Amendment.”10 Roberts further argues that there is “no American historical
tradition” prohibiting possession of firearms by persons convicted of crimes punishable by more
than one year.11 Thus, Roberts asserts, § 922(g)(1) is unconstitutional as applied to his conduct
and the Indictment should be dismissed.12
5 Id.
6 18 U.S.C. § 922(g)(1) (“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.”); § 924(a)(8) (“Whoever knowingly violates subsection (d) or (g) of section
922 shall be fined under this title, imprisoned for not more than 15 years, or both.”).
7 Dkt. 29.
8 597 U.S. __,142 S. Ct. 2111 (2022).
9 Dkt. 29 at 2.
10 Id. at 16.
11 Id. at 17.
12 Id. at 2.
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The Government opposes the Motion, contesting each of Robert’s arguments.13 First, the
Government argues that the Second Amendment right to possess firearms extends only to “law-
abiding, responsible” citizens keeping or bearing arms for “lawful purposes.”14 As individuals who
have been convicted of a felony are “neither law-abiding [nor] responsible,” the Government
contends, they are “not guaranteed the right to possess firearms under the Second Amendment.”15
Second, the Government argues that even if the Second Amendment’s plain text does protect
Roberts’ right to possess firearms, § 922(g)(1) is “consistent with this Nation’s historical tradition
of firearm regulation.”16 The Government stakes its reasoning in purported historical analogues to
§ 922(g)(1), including laws that disarmed groups of people who “were determined to pose a greater
danger to the public or otherwise defied the rule of law.”17 These analogues included regulations
disarming: (1) Catholics; (2) individuals who refused to swear allegiance to nascent state
governments; (3) felons and the mentally ill; and (4) and those historically “deemed to be
dangerous 	or 	untrustworthy,” 	such 	as 	enslaved 	people, 	freed 	Black 	people, 	and 	Native
Americans.18 Thus, according to the Government, § 922(g)(1) is constitutional as applied to
Roberts.19
13 Dkt. 40.
14 Id. at 8.
15 Id. at 9.
16 Id. at 10 (quoting New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. __,142 S. Ct.
2111, 2126 (2022)).
17 Id. at 14.
18 Id. at 3, 13–19.
19 Id. at 21.
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II. 	LEGAL STANDARDS
A. 	Motion to Dismiss
Under Fed. R. Crim. P. Rule 12(b), “[a] party may raise by pretrial motion any defense,
objection, or request by pretrial motion that the [C]ourt can determine without a trial on the
merits.”20 The Court must decide every pretrial motion before trial unless it finds good cause to
defer and deferment will not adversely affect a party’s right to appeal.21 If the Court grants a
motion to dismiss, it may order the defendant to be released or detained under 18 U.S.C. § 3142
until a new indictment or information is filed.22
B. 	As-Applied Constitutional Challenges
“[A]n indictment sought under a statute that is unconstitutional on its face or as applied
will . . . be dismissed.”23 “Facial and as-applied challenges differ in the extent to which the
invalidity of a statute need be demonstrated.”24 As-applied attacks challenge a set of rules in a
statute, a subset of the statute’s applications, or application of the statute to a specific set of facts.25
A “statute may be invalid as applied to one state of facts and yet valid as applied to another.”26 An
as-applied challenge is the proper vehicle to challenge a statute if a “claimed statutory defect
applies to a sub-category of the people affected by the law.”27 Thus, for as-applied challenges, the
20 Fed. R. Crim. P. 12(b)(1).
21 Fed. R. Crim. P. 12(d); see Fed. R. Crim. P. 47.
22 Fed. R. Crim. P. 12(g).
23 United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007).
24 Isaacson v. Horne, 716 F.3d 1213, 1230 (9th Cir. 2013).
25 Id.
26 Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006).
27 Isaacson, 716 F.3d at 1231; see Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007) (finding that
as-applied challenge was proper vehicle to seek relief for small subgroup of women affected by
absence of medical exception in federal abortion law).
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petitioner must demonstrate “partial . . . invalidation,” such that a “statute may . . . be declared
invalid to the extent that it reaches too far, but otherwise [is] left intact.”28
C. New York State Rifle & Pistol Association, Inc. v. Bruen
In New York State Rifle & Pistol Association, Inc. v. Bruen,29 the U.S. Supreme Court
established a new test to determine whether a firearm regulation comports with the Second
Amendment.30 The Bruen framework “requires courts to assess whether modern firearms
regulations are consistent with the Second Amendment’s text and historical understanding.”31
First, courts must ask whether “the Second Amendment’s plain text covers an individual’s
conduct.”32 If it does not, then the “regulated activity is categorically unprotected”; the regulation
is valid and “the analysis can stop there.”33 But if the Second Amendment’s text covers the conduct
at issue, the conduct is “presumptively protect[ed].”34 Then, courts must ask 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.”35 If a firearm regulation is consistent with
historical tradition, “[o]nly then may a court conclude that the individual’s conduct falls outside
the Second Amendment’s [protection]” and the regulation is constitutionally valid.36
28 Ayotte, 546 U.S. at 329.
29 597 U.S. __,142 S. Ct. 2111 (2022).
30 Id.
31 Id. at 2131.
32 Id. at 2126.
33 Id. (quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)).
34 Id. at 2130.
35 Id.
36 Id.
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III. 	DISCUSSION
Having reviewed the parties’ briefing and Second Amendment jurisprudence, the Court
concludes that § 922(g)(1) is not unconstitutional as applied to Roberts. Therefore, for the
following reasons, the Motion is denied.
A. 	The Supreme Court and the Ninth Circuit Have Consistently Upheld Felon Disarmament
Statutes
The Second Amendment provides that “[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.”37
This 	right 	is 	“not 	unlimited” 	and 	remains 	“subject 	to 	certain 	reasonable, 	well-defined
restrictions.”38 One such restriction is the “longstanding prohibition[] on the possession of firearms
by 	felons.”39 	In 	District 	of 	Columbia 	v. 	Heller,40 	the 	Supreme 	Court 	considered 	the
constitutionality of a Washington, D.C. ban on handgun possession within the home for the
purposes of self-defense.41 While the Court held the total ban unconstitutional under the Second
Amendment,42 it emphasized that “nothing in [its] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and the mentally ill,”43 which
the Court considered “presumptively lawful.”44
37 U.S. C ONST. amend. II.
38 Bruen, 142 S. Ct. at 2156 (citing District of Columbia v. Heller, 554 U.S. 570, 581 (2008)).
39 Heller, 554 U.S. at 626.
40 554 U.S. 570 (2008).
41 Id. at 628.
42 Id. at 635.
43 Id. at 626.
44 Id. at 627 n.26; see id. at 635 (“Assuming that Heller is not disqualified from the exercise of
Second Amendment rights, the District must permit him to register his handgun and must issue him
a license to carry it in the home.” (emphasis added)).
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In McDonald v. City of Chicago,45 the Supreme Court held that this Second Amendment
right to possess firearms for self-defense also extended to the States under the Fourteenth
Amendment’s Due Process Clause.46 Affirming Heller, the Court clarified that its present holding
“did not cast doubt on longstanding regulatory measures” such as the “prohibitions on the
possession of firearms by felons.”47 Thus, before Bruen, the Supreme Court had consistently
upheld the constitutionality of federal felon disarmament statutes under the Second Amendment.48
The Ninth Circuit has followed Heller and McDonald in recognizing the facial and as-
applied constitutionality of felon disarmament statutes. In United States v. Vongxay,49 the Ninth
Circuit held that § 922(g)(1) was facially constitutional under the Second Amendment.50 The
Circuit drew a distinction between a “‘virtuous citizen[ry]’ that would protect society through
defensive use of arms against criminals” and “unvirtuous citizens (i.e. criminals),” whose Second
Amendment rights were limited and subject to disarmament laws.51 Noting that “felons are
categorically different from the individuals who have a fundamental right to bear arms,”52 the
Circuit held that § 922(g)(1) was a “limited and narrowly tailored exception to the freedom to
possess firearms, reasonable in its purposes and consistent with the right to bear arms protected
45 561 U.S. 742 (2010).
46 Id. at 791.
47 Id. at 786; see id. (“We repeat [Heller’s] assurances here. Despite municipal respondents’
doomsday proclamations, incorporation does not imperil every law regulating firearms.”).
48 See Caron v. United States, 524 U.S. 308, 309 (1998) (recognizing and applying 18 U.S.C.
§ 922(g)(1) and accompanying sentence enhancement provisions); Taylor v. United States, 495
U.S. 575, 578 (1990) (same); Lewis v. United States, 445 U.S. 55, 64 (1980) (recognizing that
§ 922(g)(1) applies not only to validly convicted felons but also to persons under felony
indictment).
49 594 F.3d 1111 (9th Cir. 2010).
50 Id. at 1118.
51 Id. (emphasis added).
52 Id. at 1115.
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under the Second Amendment.”53 The Circuit considered its holding consistent with Heller, stating
that “nothing in Heller can be read legitimately to cast doubt on the constitutionality of
§ 922(g)(1)” or the “longstanding prohibitions on the possession of firearms by felons and the
mentally ill.”54
Other Ninth Circuit cases followed Heller, McDonald, and Vongxay in holding that
§ 922(g)(1) comports with the Second Amendment. In United States v. Torres,55 the Circuit
recognized that it was “bound under Vongxay and Heller to assume the propriety of felon firearm
bans.”56 Similarly, in United States v. Phillips,57 the Ninth Circuit found that it “must” accept the
presumed constitutionality of felon disarmament statutes under Supreme Court and Ninth Circuit
precedent, and held that a non-violent misprision of felony conviction could serve as the basis for
a felon firearm ban under § 922(g)(1).58 A majority of Circuit Courts similarly have affirmed the
constitutionality of § 922(g)(1) under the Second Amendment.59 Thus, Supreme Court and Circuit
Court precedent affirms the constitutionality of § 922(g)(1).
53 Id. at 1117 (quoting United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004)).
54 Id. at 1114.
55 789 F. App’x 655 (9th Cir. 2020).
56 Id. at 657.
57 827 F.3d 1171 (9th Cir. 2016).
58 Id. at 1175; see also Van Der Hule v. Holder, 759 F.3d 1043, 1051 (9th Cir. 2014) (noting that
§ 922(g)(1) “continues to pass constitutional muster”).
59 See, e.g., United States v. Bogle, 717 F.3d 281, 282 (2d Cir. 2013) (collecting cases affirming
the constitutionality of § 922(g)(1)); United States v. Moore, 666 F.3d 313, 318–19 (4th Cir. 2012);
United States v. Barton, 633 F.3d 168, 175 (3d Cir. 2011); United States v. Joos, 638 F.3d 581,
586 (8th Cir. 2011); United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010); United States v.
Williams, 616 F.3d 685, 693–94 (7th Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1115
(9th Cir. 2010); United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010); United States v.
McCane, 573 F.3d 1037, 1047 (10th Cir. 2009); United States v. Anderson, 559 F.3d 348, 352 (5th
Cir. 2009).
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B. 	Bruen Did Not Repudiate the Constitutionality of Federal Felon Disarmament Statutes
In New York State Rifle & Pistol Association v. Bruen,60 the Supreme Court established a
new test for assessing the constitutionality of gun regulations. Rejecting the previous means-end,
intermediate scrutiny approach, the Court adopted the following standard for applying the Second
Amendment to modern firearms prohibitions:
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. Only then may a court conclude that the individual’s
conduct falls outside the Second Amendment’s “unqualified command.”61
This test requires courts to “assess whether modern firearms regulations are consistent with the
Second Amendment’s text and historical understanding.”62 To determine whether a regulation
violates the Second Amendment, lower courts must consider the following: (1) the lack of a
“distinctly similar historical regulation addressing” a “general societal problem” that has existed
since the 18th century; (2) historical attempts to address the problem but through “materially
different means”; and (3) rejection of or failure to enact “analogous regulations” to control this
problem based on constitutional grounds.63
Roberts argues that Bruen’s framework “supersede[s]” Heller’s text affirming the
constitutionality of felon disarmament and other class-based disarmament regulations.64 First,
Roberts argues that Bruen effectively “abrogated prior case law relying on ‘presumptively lawful’
exceptions to the Second Amendment.”65 Second, Roberts argues that the Second Amendment
60 597 U.S. __,142 S. Ct. 2111 (2022).
61 Id. at 2129–30 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
62 Id. at 2131.
63 Id.
64 Dkt. 29 at 8, 15.
65 Id. at 9.
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right to keep and bear arms is “not limited to ‘law-abiding, responsible citizens.’”66 We address
each of Roberts’ claims in turn.
1. 	Bruen Did Not Abrogate Prior Supreme Court and Ninth Circuit Case Law Relying on
“Presumptively Lawful” Exceptions to the Second Amendment.
Roberts argues that Bruen “repudiated any reliance on Heller’s list of ‘presumptively
lawful’ exceptions to uphold disarmament statutes” and is “clearly irreconcilable with prior
precedent holding that Heller’s list . . . automatically controls.”67 But the Bruen court did not
repudiate—and indeed preserved—Heller’s list of “presumptively lawful” firearm regulations.68
While Bruen changed how courts must assess the constitutionality of firearm regulations, it did
not disturb prior courts’ understanding that the Second Amendment “is not unlimited” and “allows
a ‘variety’ of gun regulations.”69 The majority opinion recognized the continuing validity of
“‘longstanding’ laws forbidding the carrying of firearms,” including those enumerated in Heller.70
The Court clarified its new framework for “analogical reasoning under the Second Amendment is
neither a regulatory straightjacket nor a regulatory blank check,” and that certain regulations may
continue to survive Second Amendment muster.71 Though the Court rejected the commonly used
“two-step” approach for analyzing Second Amendment challenges, it confirmed that its holding
was soundly “in keeping with Heller.”72
In their concurring opinions, Justices Kavanaugh and Alito agreed with the majority
opinion and endorsed Heller and McDonald’s continuing authority. Justice Kavanaugh, joined by
66 Id. at 13.
67 Id. at 11.
68 Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring).
69 Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 636 (2008)); ante, at 2133.
70 Id. at 2133 (affirming Heller’s discussion of the validity of prohibitions on carrying firearms in
sensitive places such as schools and government buildings).
71 Id.
72 Id. at 2126.
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Chief Justice Roberts, noted that Heller and McDonald did not foreclose the constitutionality of
certain firearm prohibitions.73 Quoting Justice Scalia in Heller, Justice Kavanaugh confirmed that
“nothing in [Bruen] should be taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill,” and that such prohibitions are “presumptively lawful
regulatory measures.”74 In his concurrence, Justice Alito further confirmed that the Court’s
holding did not “disturb[] anything that [it] said in Heller or McDonald about restrictions that may
be imposed on the possession or carrying of guns.”75
In his dissent, Justice Breyer, joined by Justices Sotomayor and Kagan, also recognized the
continuing validity of Heller’s “presumptively lawful” regulations.76 Justice Breyer noted that
under Heller, the Second Amendment “was not without limits and could appropriately be subject
to government regulation,” such as the prohibition on the possession of firearms by felons and the
mentally ill.77 Justice Breyer agreed with the majority and concurring opinions that Bruen did not
disturb Heller’s identification of “presumptively lawful” firearm prohibitions,78 and agreed with
Justice Kavanaugh in “understand[ing] the Court’s opinion . . . to cast no doubt on that aspect of
Heller’s holding.”79 Rather than “abrogat[ing]” prior case law relying on Heller’s “presumptively
lawful” Second Amendment regulations, the Bruen court appeared to preserve such prohibitions.
Roberts further argues that because United States v. Vongxay “relied on a line of cases
upholding felon disarmament laws under means-end scrutiny,” an analysis Bruen abolished,
73 Id. at 2162 (“[A]s Heller and McDonald established and the Court today again explains, the
Second Amendment ‘is neither a regulatory straightjacket nor a regulatory blank check.’” (quoting
ante, at 2133)).
74 Id. at 2162 (quoting District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008)).
75 Id. at 2157 (Alito, J., concurring) (internal citations omitted).
76 Id. at 2189 (Breyer, J., dissenting).
77 Id. at 2189–90.
78 Id.
79 Id. at 2189.
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“Vongxay is therefore no longer good law.”80 However, the Bruen court maintained that its holding
was “in keeping with Heller,”81 and Justice Alito insisted the Court’s decision did not “disturb[]
anything that [it] said in Heller . . . about restrictions that may be imposed on the possession or
carrying of guns,” including “presumptively lawful” felon disarmament laws.82
Moreover, Bruen does not discuss Vongxay, and as the Government noted, neither the
Supreme Court nor the Ninth Circuit has overturned it.83 Ninth Circuit precedent is only
“effectively overruled” when “the reasoning or theory of our prior circuit authority is clearly
irreconcilable with the reasoning or theory of intervening higher authority.”84 “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.”85 Rather, if the Court “can apply . . . prior
circuit precedent without running afoul of the intervening authority it must do so.”86 Given the
Bruen court’s careful intent to preserve Heller, its holding is not “clearly irreconcilable” with
80 Dkt. 29 at 10.
81 Bruen, 142 S. Ct. at 2126.
82 Id. at 2157 (Alito, J., concurring); see United States v. Butts, 637 F. Supp. 3d 1134, 1137 (D.
Mont. 2022) (finding that “because Bruen does not disturb the felon dispossession component of
Heller, it does not render 922(g)(1) unconstitutional”); United States v. Siddoway, No. 1:21-CR-
00205-BLW, 2022 WL 4482739, at *1 (D. Idaho Sept. 27, 2022) (noting that “[a]t least five
justices indicated their explicit intent” in Bruen not to overrule Heller and Heller-reliant cases);
United States v. Hill, 629 F. Supp. 3d 1027, 1030 (S.D. Cal. 2022) (observing that “the reasoning
of Vongxay and Heller—on which Vongxay relies—are not ‘clearly irreconcilable with the
reasoning or theory’ of Bruen” and that the court was subsequently “bound by Vongxay and its
progeny” (quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003))).
83 Dkt. 40 at 7.
84 Miller v. Gammie, 335 F.3d 889, 890, 893 (9th Cir. 2003) (en banc) (emphasis added).
85 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)).
86 Id.
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Heller or pre-Bruen Ninth Circuit cases that have relied on its “presumptively lawful” language to
uphold the constitutionality of felon disarmament laws.87
Since Bruen, every district court within the Ninth Circuit has similarly upheld the
constitutionality of § 922(g)(1).88 While the Ninth Circuit has yet to weigh in, of those circuits that
have directly decided the issue, the Fifth, Seventh, Eighth, and Tenth Circuits also have upheld
§ 922(g)(1).89
87 See Siddoway, 2022 WL 4482739, at *2 (noting that the Ninth Circuit’s reasoning in Vongxay
is “consistent” with Bruen’s history and tradition test, and that any “limited tension” between the
cases is insufficient to find Vongxay “effectively overruled”); U.S.A. v. Nevens, No. CR 19-774-
DMG, 2022 WL 17492196, at *2 (C.D. Cal. Aug. 15, 2022) (holding that Bruen did not overrule
Vongxay and other established Ninth Circuit precedent, and that the Court was bound by its
“obligation to construe Ninth Circuit opinions in a manner consistent with Supreme Court
precedent”); United States v. Padgett, No. 3:21-CR-00107-TMB-KFR, 2023 WL 3483929, at *4
(D. Alaska Jan. 4, 2023), report and recommendation adopted, No. 3:21-CR-00107-TMB-KFR,
2023 WL 2986935 (D. Alaska Apr. 18, 2023) (noting that “Bruen did not effectively overrule
Heller and post-Heller precedent” and that district courts upholding § 922(g)(1) have “relied
heavily on the Ninth Circuit’s examination . . . of historical gun regulations,” which is “not clearly
irreconcilable with the reasoning or theory of Bruen”).
88 See, e.g., United States v. Gamble, No. 2:22-CR-00267-JAD-EJY, 2023 WL 6460665 (D. Nev.
Oct. 4, 2023); United States v. Chatman, No. 14-CR-00552-CRB-1, 2023 WL 3509699 (N.D. Cal.
May 16, 2023); United States v. Guthery, No. 2:22-CR-00173-KJM, 2023 WL 2696824 (E.D. Cal.
Mar. 29, 2023); United States v. Jackson, No. CR22-37RSL, 2023 WL 1967199 (W.D. Wash. Feb.
13, 2023); United States v. Moore, No. 3:20-CR-00474-IM-1, 2023 WL 154588 (D. Or. Jan. 11,
2023); United States v. Jackson, No CR 22-1969-TUC-JGZ(JR), 2022 WL 18956628 (D. Ariz.
Dec. 9, 2022), report and recommendation adopted, No. CR 22-1969-TUC-JGZ(JR), 2023 WL
1965424 (D. Ariz. Feb. 13, 2023); United States v. Hill, 629 F.Supp.3d 1027 (S.D. Cal. 2022);
United States v. Siddoway, No. 1:21-CR-00205-BLW, 2022 WL 4482739 (D. Idaho Sept. 27,
2022); U.S.A. v. Nevens, No. CR 19-774-DMG, 2022 WL 17492196 (C.D. Cal. Aug. 15, 2022);
United States v. Butts, 637 F. Supp. 3d 1134 (D. Mont. 2022); United States v. Delpriore, 634
F.Supp.3d 654 (D. Alaska 2022).
89 See United States v. Smith, No. 22-10795, 2023 WL 5814936, at *3 (5th Cir. Sept. 8, 2023)
(finding no plain error where the district court upheld § 922(g)(1) as applied to defendant, “given
the lack of binding authority deeming § 922(g)(1) unconstitutional”); United States v. Hill, No. 22-
2400, 2023 WL 2810289, at *2 (7th Cir. Apr. 6, 2023) (affirming the district court’s finding that
§ 922(g)(1) is not “plainly unconstitutional” and that “[b]ecause the law is unsettled, any error, if
there was one, would not be plain”); United States v. Jackson, 69 F.4th 495, 501 (8th Cir. 2023)
(affirming the district court’s finding that § 922(g)(1) was not unconstitutional as applied to a
defendant with “non-violent” drug offenses); Vincent v. Garland, 80 F.4th 1197, 1202 (10th Cir.
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Notably, 	only 	one 	appellate 	court—the 	Third 	Circuit—recently 	found 	§ 922(g)(1)
unconstitutional as applied to the particular defendant in that case.90 In Range v. Attorney General
United States of America,91 the Third Circuit held that the felon disarmament statute did not
deprive a felon convicted of making a false statement to obtain food stamps of his Second
Amendment right.92 However, the Court limited its holding, describing it as “narrow” and one that
“challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to [the defendant] given
his violation of [the applicable state law].”93
But Range is readily distinguishable on the facts. In that case, the defendant was convicted
of a “nonviolent, non-dangerous misdemeanor”—understating his income on a food stamp
application—and was not incarcerated, instead serving three years’ probation and paying
restitution, costs, and a fine.94 Here, Roberts’ conviction involved Criminal Mischief in the Third
Degree, a Class C felony property crime,95 for which he was sentenced to two-and-a-half years’
imprisonment.96 In his concurring opinion in Range, Circuit Judge Ambro, joined by Circuit
2023) (affirming the district court’s finding that § 922(g)(1) is constitutional for “any convicted
felon’s possession of a firearm”).
90 See Range v. Att’y Gen. United States of Am., 69 F.4th 96 (3d Cir. 2023).
91 69 F.4th 96 (3d Cir. 2023).
92 Id. at 106.
93 Id.
94 Id. at 98–99.
95 ALASKA S TAT. 11.46.482 (Criminal Mischief in the Third Degree) (“A person commits the crime
of criminal mischief in the third degree if, having no right to do so or any reasonable ground to
believe the person has such a right, (1) with intent to damage property of another, the person
damages property of another in an amount of $750 or more; (2) the person recklessly creates a risk
of damage in an amount exceeding $100,000 to property of another by the use of widely dangerous
means; or (3) the person knowingly (A) defaces, damages, or desecrates a cemetery or the contents
of a cemetery or a tomb, grave, or memorial regardless of whether the tomb, grave, or memorial
is in a cemetery or whether the cemetery, tomb, grave, or memorial appears to be abandoned, lost,
or neglected; (B) removes human remains or associated burial artifacts from a cemetery, tomb,
grave, or memorial regardless of whether the cemetery, tomb, grave, or memorial appears to be
abandoned, lost, or neglected.”).
96 See Dkt. 4 (Sealed Pretrial Services Report) at 12.
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Judges Greenaway, Jr., and Montgomery-Reeves, distinguished Range’s conduct from more
serious criminal behavior, acknowledging that “arming those who pose a threat to the orderly
functioning of society . . . would be a dangerous precedent.”97 Thus, Range’s constitutional
analysis of § 922(g)(1) as applied to a nonviolent, non-dangerous misdemeanant who was not
sentenced imprisonment has limited application to Roberts, who committed a third-degree felony
property crime and was subsequently incarcerated.98
The Range court further observed that § 922(g)(1) was unconstitutional as applied to Range
because under a Bruen analysis, “the Government ha[d] not shown that our Republic has a
longstanding history and tradition of depriving people like Range of their firearms.”99 While this
means the Range court found the Government did not carry its burden in this case, it does not
foreclose the presentation of persuasive evidence in another case assessing the constitutionality of
§ 922(g)(1). Moreover, this case remains an outlier among appellate courts, and both appellate and
district courts have declined to follow it.100 Further, the Third Circuit wields no precedential
97 Range, 69 F.4th at 113 (J. Ambro, concurring).
98 See United States v. Harrison, No. 3:22-CR-455, 2023 WL 4670957, at *8 (N.D.N.Y. July 20,
2023) (comparing Range, “the food stamp fraudster who pleaded guilty to an unusual state law
misdemeanor,” to the defendant, whose “prior misconduct involve[d] an actual federal felony:
his . . . federal drug conviction”).
99 Range, 69 F.4th at 106.
100 See United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023) (declining to follow Range and
upholding § 922(g)(1) as applied to all convicted felons); United States v. Warren, No. 22-CR-
231(DLI), 2023 WL 5978029, at *6 (E.D.N.Y. Sept. 14, 2023) (noting that Range “goes against
the weight of the authority analyzing § 922(g)(1)’s constitutionality in Bruen’s wake”); United
States v. Harrison, No. 3:22-CR-455, 2023 WL 4670957, at *8 (N.D.N.Y. July 20, 2023) (noting
that “the list of post-Bruen precedent that is actually favorable to defendant’s Second Amendment
text-and-history argument basically begins and ends with the en banc opinion in Range”).
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authority over district courts in the Ninth Circuit, and this Court remains bound by Ninth Circuit
precedent upholding the constitutionality of § 922(g)(1).101
2. 	The District of Alaska Has Consistently Upheld the Constitutionality of § 922(g)(1).
Like every other district court in the Ninth Circuit to have decided the issue, the District of
Alaska 	has 	consistently 	upheld 	the 	constitutionality 	of 	§ 922(g)(1). 	In 	United 	States 	v.
Delpriore,102 a defendant was convicted of violating § 922(g)(1) for possessing firearms knowing
he had been previously convicted of Misconduct Involving a Controlled Substance in the Third
Degree, a state crime carrying a term of imprisonment exceeding one year.103 Given the “Supreme
Court’s previous emphasis on the validity of prohibitions on the possession of firearms by felons
continues after Bruen,” the district court reasoned that the Supreme Court would uphold the facial
constitutionality of § 922(g)(1) under the Bruen framework.104 Since Delpriore, every decision
within the District of Alaska also has upheld § 922(g)(1).105 Although district court opinions “do
101 See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc); United States v. Barber,
No. 3:22-CR-00065-SLG-MMS, 2023 WL 4157177, at *1 (D. Alaska June 23, 2023) (“The Court
notes that the Third Circuit’s decision in Range is narrow and not controlling in this Circuit.”).
102 634 F. Supp. 3d 654, 656 (D. Alaska 2022).
103 Id. at 655; Dkt. 380 (Judgment).
104 Id. at 658.
105 See United States v. Filoial II, No. 3:21-CR-00052-JMK, 2023 WL 5832153, at *1 (D. Alaska
Sept. 8, 2023) (“First, the Court concurs that United States v. Vongxay, 594 F.3d 1111 (9th Cir.
2010) remains binding precedent upon the Court. Second, the Court has previously recognized
historical analogues that support a consistent application of 18 U.S.C. § 922 with the Second
Amendment. Lastly, the Court shall remain consistent with other district courts within the Circuit
in its constitutional interpretation of 18 U.S.C. § 922(g)(1).”); United States v. Owens, No. 3:23-
CR-00026-SLG-KFR, 2023 WL 5291341 (D. Alaska Aug. 17, 2023) (observing that § 922(g)(1)
“remains valid post-Bruen and in light of Ninth Circuit precedent”); United States v. Barber,
No. 3:22-CR-00065-SLG-MMS, 2023 WL 4157177 (D. Alaska June 23, 2023) (denying a motion
to reconsider under Range v. Att’y Gen. United States, and upholding § 922(g)(1)); United States
v. Cleveland-McMichael, No. 3:21-CR-00119-SLG, 2023 WL 2613548 (D. Alaska Mar. 23, 2023)
(“Because 18 U.S.C. § 922(g)(1) criminalizes the possession of firearms by felons, this Court
determines that the statute would be upheld by the Supreme Court using the interpretation method
pronounced 	in 	Bruen.”); 	United 	States 	v. 	Carleson, 	No. 3:22-CR-00032-SLG, 	2022 	WL
17490753, at *3 (D. Alaska Oct. 28, 2022) (upholding § 922(g)(1) post-Bruen); see also United
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not bind other district courts within the same district,” they “are relevant for their persuasive
authority.”106 “It should go without saying that courts may rely on persuasive but nonbinding
authority so long as it is in line with the rules that do bind them.”107 As such, this Court may rely
on the persuasive authority of prior decisions within the District of Alaska that have upheld the
constitutionality of § 922(g)(1).
3. 	Neither Heller Nor Bruen Determined the Scope of Second Amendment Protections.
Roberts argues that because felons “are not categorically excluded from our national
community,” he is among “the people” covered by Second Amendment protections.” 108 Roberts
posits that neither Heller nor Bruen limited the Second Amendment’s scope to “law-abiding,
responsible citizens,” and that such references were “meant to establish a floor, not a ceiling.”109
The Court declines to adopt Roberts’ reasoning. Roberts is correct that neither Heller nor
Bruen explicitly addressed whether and to what extent an individual’s criminal history is relevant
to the scope of Second Amendment rights. However, Roberts uses this ambiguity to argue that he
is entitled to such protections though he is an individual convicted of a criminal mischief felony.
Neither Heller nor Bruen directly reaches this issue. Additionally, Roberts’ argument overlooks
States v. Ryno, No. 3:22-CR-00045-JMK, 2023 WL 3736420, at *9 (D. Alaska May 31, 2023)
(noting that “a chorus of district courts have upheld § 922(g)(1)”).
106 City of Fresno v. United States, 709 F. Supp. 2d 888, 909 (E.D. Cal. 2010).
107 United States v. Garcia, No. 2:21-CR-00224-CDS-VCF-1, 2023 WL 1110567, at *3 (D. Nev.
Jan. 30, 2023) (quoting JW Gaming Dev., LLC v. James, 544 F. Supp. 3d 903, 926 n.13 (N.D. Cal.
2021)).
108 Dkt. 29 at 14.
109 Id. at 15; see id. (arguing the Bruen court “held that, at the very least, [law-abiding] people are
protected by the Second Amendment” and that it likely protects other populations as well
(emphasis in original)).
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the repeated references in both Heller and Bruen to “law-abiding” citizens in describing the scope
of Second Amendment protections.110
In Heller, the Court struck down a D.C. law banning the use of handguns in the home.111
However, the Court clarified that this Second Amendment right extended to “law-abiding,
responsible citizens,”112 and that “nothing in [the Court’s] opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons.”113 Further, the Court
reasoned that this Second Amendment right only extended to Heller insofar as he was otherwise
“not disqualified from the exercise of Second Amendment rights.”114 The Court accepted the
petitioners’ argument that if the handgun ban was found unconstitutional, Heller could still be
disqualified from obtaining a license if he was found to be a “felon” or “insane.”115 While Roberts
may be correct that the Heller court did not fully address how an individual’s criminal history may
impact their Second Amendment rights, this Court must give meaning to Heller’s specific
references to a “law-abiding, responsible citizen[ry]” in defining the scope of its holding.116
Extending Heller, the Bruen court held that 	the Second Amendment protects an
individual’s right to carry a handgun publicly for self-defense.117 Yet, like Heller, the Court
110 See District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (reasoning that the Second
Amendment “elevate[d] above all other interests the right of law-abiding, responsible citizens to
use arms in defense of hearth and home” (emphasis added)); N.Y. State Rifle & Pistol Ass’n, Inc.
v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2156 (2022) (striking down New York’s proper-cause
requirement because it “prevent[ed] law-abiding citizens with ordinary self-defense needs from
exercising their right to keep and bear arms” (emphasis added)).
111 Heller, 554 U.S. at 636.
112 Id. at 635.
113 Id. at 626.
114 Id. at 635.
115 Id. at 631.
116 Id. at 635.
117 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2156 (2022).
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unambiguously applied its holding to “ordinary, law-abiding citizens.”118 The Court clarified that
Heller and McDonald “recognized . . . the right of an ordinary, law-abiding citizen to possess a
handgun in the home for self-defense,”119 and that the “right of law-abiding, responsible citizens
to use arms” for self-defense “demands . . . unqualified deference.”120 Notably, the Court
highlighted the “law-abiding” nature of the petitioners—“two ordinary, law-abiding, adult
citizens”—in designating them “part of ‘the people’” the Second Amendment was designed to
protect.121 Thus, “[t]he focus in Bruen was on ‘regulations impacting law-abiding citizens.’ To the
Bruen court, those ‘law-abiding citizens’ were the individuals—‘the people’—who held a Second
Amendment right to possess firearms.”122
Further, applying its history and tradition test, the Bruen court found that none of the
historical limitations put forth by the Government “operated to prevent law-abiding citizens with
ordinary self-defense needs from carrying arms in public for that purpose.”123 As such, New
York’s handgun law violated the Second Amendment because it “prevent[ed] law-abiding citizens
with ordinary self-defense needs from exercising their right to keep and bear arms.”124 Contrary
to Roberts’ argument, Bruen’s consistent references to “law-abiding citizens,” together with its
118 Id. at 2122 (“In this case, petitioners and respondents agree that ordinary, law-abiding citizens
have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold,
consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an
individual’s right to carry a handgun for self-defense outside the home.” (emphasis added)).
119 Id. at 2122.
120 Id. at 2131.
121 Id. at 2134.
122 United States v. Padgett, No. 3:21-CR-00107-TMB-KFR, 2023 WL 3483929, at *5 (D. Alaska
Jan. 4, 2023), report and recommendation adopted, No. 3:21-CR-00107-TMB-KFR, 2023 WL
2986935 (D. Alaska Apr. 18, 2023) (quoting United States v. Nutter, 624 F. Supp. 3d 636, 641
(S.D. W. Va. 2022)).
123 Bruen, 142 S. Ct. at 2150 (emphasis added).
124 Id. at 2156.
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careful preservation of Heller and its “presumptively lawful” felon disarmament regulations, seem
to exclude, rather than include, non-law-abiding individuals from the scope of its holding.125
Alternatively, Roberts casts Bruen’s references to “law-abiding persons” as “dicta” upon
which the Government cannot rely in satisfying Bruen’s history and tradition test.126 This Court
disagrees. Bruen’s references to a “law-abiding” citizenry are not dicta, but rather the Court
“limit[ing] the scope of [its] holding[].”127 “[S]uch limitations are integral to [courts’] holdings.”128
Given the Heller and Bruen courts’ ambiguity in defining the scope of Second Amendment rights,
the Court sees some basis for Roberts’ argument that the Second Amendment is not limited to
125 See also United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (“[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 & C ONTEMP . P ROBS . 143, 146 (1986))); United
States v. Ingram, No. 18-557, 2022 WL 3691350, at *3 (D.S.C. Aug. 25, 2022) (“By distinguishing
non-law-abiding citizens from law-abiding ones, the dicta in Heller and McDonald clarifies the
bounds of the plain text of the Second Amendment. This, coupled with the majority’s focus in
Bruen on the Second Amendment rights of ‘law-abiding citizens’ throughout the opinion,
convinces this Court that the Supreme Court would conclude that [felon-in-possession and
comparable statutes] fail to infringe on any Second Amendment rights.”).
126 Dkt. 29 at 15 (“If there was any ambiguity [about whether the Second Amendment applies to
people with a criminal history], Bruen clarifies that [its language] does not delineate the scope of
the Second Amendment. Although Heller reasoned that the Second Amendment protected the right
of law-abiding persons to use arms in defense of ‘hearth and home,’ Bruen held that the Second
Amendment’s protections do extend outside the home. And the insistence throughout Bruen that
the government bears the burden of proving any regulation as consistent with this Nation’s
historical traditions commands that the government prove its case not by dicta but by actual
evidence.”).
127 Vongxay, 594 F.3d at 1115.
128 Id. And, even if these references are dicta, “Supreme Court dicta commands deference and may
not be lightly discarded.” United States v. Butts, 637 F. Supp. 3d 1134, 1138 (D. Mont. 2022)
(internal quotations omitted) (citing United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17
(9th Cir. 2000) (en banc)).
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“law-abiding, responsible citizens.”129 However, in light of Heller and Bruen’s repeated references
to a “law-abiding” citizenry, Roberts cannot argue that these cases affirmatively protected the
Second Amendment rights of convicted felons. As Roberts observes, the Heller court “did not
have occasion to address whether criminal history is relevant when construing the full scope of the
protected right,” and the Bruen court also “d[id] not delineate the scope of the Second
Amendment.”130 Given these inconsistencies, the Court declines to rule on this aspect of Roberts’
argument at this time.
C. Section 922(g)(1) Is Not Unconstitutional as Applied to Roberts
Even if Bruen did not preserve Heller’s “presumptively lawful” felon disarmament
regulations, § 922(g)(1) is not unconstitutional as applied to Roberts under a Bruen analysis. Under
Bruen, the threshold question is whether an individual’s conduct is protected by the plain text of
the Second Amendment.131 If it is, the individual’s conduct is “presumptively” constitutional and
“the government must demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation.”132 Roberts argues that under this analysis, § 922(g)(1) violates the
Second Amendment as applied to him.133 First, Roberts argues that his conduct is protected by the
Second Amendment.134 Second, Roberts argues that the Government failed to establish a historical
tradition of “distinctly similar” firearm regulations.135 We address each of Roberts’ arguments in
turn.
129 See United States v. Guthery, No. 2:22-CR-00173-KJM, 2023 WL 2696824, at *4 (E.D. Cal.
Mar. 29, 2023) (observing that the Bruen court “did not decide ‘who may lawfully possess a
firearm’”).
130 Dkt. 29 at 15.
131 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2126 (2022).
132 Id. at 2126, 2130.
133 Dkt. 29 at 2.
134 Id. at 16.
135 Id. at 17.
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1. 	The Court Presumes, Without Deciding, that the Second Amendment Protects Roberts’
Conduct.
Roberts argues that his conduct, “possession of a firearm outside his home for purposes of
self-defense,” is “plainly covered” by the scope of the Second Amendment under Bruen.136 Thus,
he “has standing to assert that application of 18 U.S.C. § 922(g)(1) violates his Second
Amendment right to bear arms.”137 The Second Amendment states that “the right of the people to
keep and bear Arms[] shall not be infringed,”138 and the Supreme Court has clarified that the
“individual right to possess and carry weapons . . . does not depend on service in the militia.”139
Bruen held that Second Amendment protections extend beyond the home for the purposes of self-
defense.140 Roberts was indicted for carrying firearms and ammunition outside his home, allegedly
for the purposes of self-defense.141 Thus, at first blush it seems that his conduct is, at least facially,
covered by the plain text of the Second Amendment.
However, Roberts’ conduct was not mere “possession of a firearm outside his home for
purposes of self-defense,” as he asserts.142 His conduct involved the possession of firearms and
ammunition “knowing he had previously been convicted of a crime punishable by imprisonment
for a term exceeding one year.”143 Roberts’ argument that he is a part of “the people” protected by
the Second Amendment lies in direct tension with Bruen’s repeated references to “law-abiding
136 Id. at 16.
137 Id.
138 U.S. C ONST. amend. II.
139 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2127 (2022) (citing
District of Columbia v. Heller, 554 U.S. 570, 592 (2008)).
140 Id. at 2156.
141 Dkt. 2; Dkt. 29 at 16.
142 Dkt. 29 at 16.
143 Dkt. 2.
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citizens” and its explicit preservation of Heller’s holding.144 There is an argument that felons—as
people who are not “law-abiding”—are excluded from the Second Amendment’s reach.145
However, the Court ultimately presumes that Roberts’ conduct is covered by the Second
Amendment for two reasons: (1) the Ninth Circuit has not decided whether the Second
Amendment extends to felons post-Bruen; and (2) the Government prevails in the second part of
the Bruen inquiry.
Lower courts have adopted competing approaches to determine whether a particular
individual’s conduct falls within the plain text of the Second Amendment as a member of “the
people.”146 One approach suggests there are “certain groups of people—for example, felons—who
fall entirely outside the Second Amendment’s scope.”147 This approach finds support in Heller and
144 Bruen, 142 S. Ct. at 2156; see United States v. Padgett, No. 3:21-CR-00107-TMB-KFR, 2023
WL 3483929, at *6 (D. Alaska Jan. 4, 2023), report and recommendation adopted, No. 3:21-CR-
00107-TMB-KFR, 2023 WL 2986935 (D. Alaska Apr. 18, 2023) (noting that “Bruen clearly does
not undermine prior holdings that felons are not among ‘the people’ protected by the Second
Amendment” because of its “careful attempts to clarify, reiterate, and keep with Heller,” including
“‘the people’ analysis that undergirds the Heller principles driving Bruen”).
145 This Court has reached similar conclusions in considering the as-applied constitutionality of
other provisions of § 922(g). See Padgett, 2023 WL 3483929, at *6 (“There is a strong argument
to be made based upon Bruen’s repeated references to ‘law-abiding citizens’ that the Second
Amendment’s exclusion from ‘the people’ includes those convicted of misdemeanors crimes of
domestic violence [under § 922(g)(9)].”); United States v. Endsley, No. 3:21-cr-00058-TMB-
MMS-1, at *5 (D. Alaska June 5, 2023), report and recommendation adopted, No. 3:21-CR-
00058-TMB-MMS-1, 2023 WL 6476389 (D. Alaska Oct. 5, 2023) (upholding § 922(g)(3) under
Bruen’s history and tradition test, but finding that the defendant was among “the people” protected
by the Second Amendment because “the government has not proffered evidence of any past
convictions, felonious or violent, that would potentially bar [the defendant] from being part of the
Second Amendment’s plain text. . . . There is, therefore, nothing in the record to indicate that [the
defendant] has lost his right to vote, to serve on juries, or hold political office.”).
146 See United States v. Padgett, No. 3:21-CR-00107-TMB-KFR, 2023 WL 2986935, at *5–7 (D.
Alaska Apr. 18, 2023) (outlining two competing approaches adopted by lower courts to discern
the scope of Second Amendment rights).
147 Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (J. Barrett, dissenting), abrogated by Bruen,
142 S. Ct. 2111; United States v. Young, 2022 WL 16829260 (W.D. Penn. November 7, 2022) (“In
other words, as the Government contends, and this Court agrees, Bruen, Heller and McDonald
dictate that Defendant's alleged conduct does not fall within the scope of the Second Amendment's
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Bruen’s references to “ordinary, law-abiding citizens” and posits that all non-law-abiding
citizens—“i.e., criminals”—are categorically excluded from Second Amendment protections.148
Another approach is a rights-based analysis, asserting that “all people have the right to keep
and bear arms but that history and tradition support Congress’s power to strip certain groups of
that right.”149 This theory draws comparisons to the First, Fourth, Ninth, and Tenth Amendments,
under which certain groups of people, including felons, retain vested constitutional rights.150 This
approach also finds support in Heller, which identifies “the people” 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.”151
Roberts argues under this rights-based approach that the Second Amendment applies to all
people rather than a particular “subset,” and that he is a “member of the political community”
protected by the Second Amendment.152 However, as noted in then-Judge Barrett’s dissent in
Kanter v. Barr,153 “these approaches will typically yield the same result; one uses history and
tradition to identify the scope of the right, and the other uses that same body of evidence to identify
the scope of the legislature’s power to take it away.”154
protections due to his felony drug convictions.”); United States v. Riley, 635 F.Supp.3d 411, 424
(E.D. Va. Oct. 13, 2022) (“A plain reading of the text demonstrates that ‘the people’ remains
limited to those within the political community and not those classified as felons.”)
148 See Padgett, 2023 WL 2986935, at *5–6.
149 Kanter, 919 F.3d at 452 (J. Barrett, dissenting) (internal citations omitted).
150 See, e.g., Entler v. Gregoire, 872 F.3d 1031, 1043 (9th Cir. 2017) (affirming that the First
Amendment protects the filing of criminal complaints by convicted felons); United States v. Lara,
815 F.3d 605, 609 (9th Cir. 2016) (affirming that the Fourth Amendment protects convicted felons
against unreasonable searches and seizures).
151 Heller, 554 U.S. at 580–81.
152 Dkt. 29 at 14.
153 919 F.3d 437, 452 (7th Cir. 2019) (J. Barrett, dissenting), abrogated by New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022).
154 Id.
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The Ninth Circuit has not adopted a specific approach post-Bruen,155 and only one district
court outside the Ninth Circuit has ruled on whether Second Amendment protections apply to
criminal mischief felons in the context of § 922(g)(1).156 However, several district courts within
the Ninth Circuit have followed the categorical-exclusion approach, interpreting Bruen’s “law-
abiding” provisos to mean that certain groups of non-law-abiding people, regardless of their
underlying convictions, are not part of “the people” protected by the Second Amendment.157
155 See United States v. Vongxay (acknowledging that while “most 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),” this “historical question has not been
definitively resolved” (internal quotations omitted)); see also United States v. Padgett, No. 3:21-
CR-00107-TMB-KFR, 2023 WL 2986935, at *7 (D. Alaska Apr. 18, 2023).
156 See United States v. Sternquist, No. 22-CR-473(DLI), 2023 WL 6066076, at *1 (E.D.N.Y. Sept.
15, 2023) (upholding § 922(g)(1) both on its face and as applied, and reasoning that “Bruen did
not disturb and, if anything, endorsed prior Supreme Court dicta assuring the validity of
‘longstanding prohibitions’ of felon firearm possession”).
157 See, e.g., United States v. Robinson, No. 2:22-CR-00212-TL, 2023 WL 5634712, at *4 (W.D.
Wash. Aug. 31, 2023) (observing that district courts in the Ninth Circuit have “h[eld] that
§ 922(g)(1) survives a Bruen challenge as applied to persons with non-violent felony convictions,
and other courts have suggested they would uphold the statute even under a fresh historical
analysis”); United States v. Guthery, No. 2:22-CR-00173-KJM, 2023 WL 2696824, at *4 (E.D.
Cal. Mar. 29, 2023) (reiterating the Ninth Circuit’s opinion in United States v. Phillips, 827 F.3d
1171, 1174 (9th Cir. 2016), that “felons are categorically different from individuals who have the
right to bear arms”); U.S.A. v. Ramos, No. 2:21-CR-00395-RGK-1, 2022 WL 17491967, at *3
(C.D. Cal. Aug. 5, 2022) (“It thus appears that the Supreme Court has no qualms about a statute
that withholds firearms from those who do not obey the law—even if they are non-violent—
because those individuals are not part of “the people” protected by the Second Amendment.
Accordingly, the Court has serious doubts that the plain text of the Amendment applies to
Defendant, and could find Section 922(g)(1) constitutional on those grounds alone.”); United
States v. Butts, 637 F. Supp. 3d 1134, 1137 (D. Mont. 2022) (noting that the Heller “[c]ourt
recognized that certain individuals may be ‘disqualified from the exercise of Second Amendment
rights’”); see also Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment
Adjudication, 133 YALE L.J. 1, 18 (forthcoming 2023) (“We would not be surprised, however, if
some courts simply exclude domestic violence misdemeanants at Bruen’s step one, which some
courts have already done for felons and unlawful immigrants—treating them as outside ‘the
people’ covered by the plain text.”); United States v. Padgett, No. 3:21-CR-00107-TMB-KFR,
2023 WL 3483929, at *5 (D. Alaska Jan. 4, 2023), report and recommendation adopted, No. 3:21-
CR-00107-TMB-KFR, 2023 WL 2986935 (D. Alaska Apr. 18, 2023) (noting that “[c]ases
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Further, this Court has previously considered the argument that both felons and domestic violence
misdemeanants, as people who were “neither law-abiding or responsible,” are not of “the people”
Bruen contemplated to be protected by the Second Amendment.158
Given these disparate approaches to determining whether an individual’s conduct is plainly
covered by the Second Amendment, the Court assumes that the Second Amendment’s plain text
covers Roberts’ conduct, and proceeds to analyze whether the Government has carried its burden
to show that § 922(g)(1) is consistent with this Nation’s historical tradition of firearm regulation.
2. 	Section 922(g)(1) Is Consistent with This Nation’s Historical Tradition of Firearm
Regulation.
Even if the Second Amendment’s plain text presumptively protects Roberts’ conduct, the
Court concludes the Government satisfied its burden in demonstrating that § 922(g)(1) “is
consistent with this Nation’s historical tradition of firearm regulation.”159
If an individual’s conduct is covered by the Second Amendment’s plain text, courts must
“assess whether modern firearms regulations are consistent with the Second Amendment’s text
and historical understanding.”160 To do this, this Court must engage in analogical reasoning; it
must compare a historical regulation to a modern firearm regulation to determine if the two are
“relevantly similar.”161 This only requires the Government to “identify a well-established and
representative historical analogue, not a historical twin. . . . [E]ven if a modern-day regulation is
interpreting Bruen in the context of § 922(g)(1) have held that ‘the people’ do not include those
convicted of felonies”).
158 See Padgett, 2023 WL 3483929, at *5 (citing case law excluding felons from “the people” and
advancing a similar justification to exclude domestic violence misdemeanants from the Second
Amendment’s protections).
159 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2130 (2022).
160 Id. at 2131.
161 Id. at 2132 (quoting Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. R EV. 741, 773
(1993)).
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not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional
muster.”162 If a historical regulation imposed a similar “burden [on] a law-abiding citizen’s right
to armed self-defense” as a modern regulation and had a similar justification, it is a proper
historical analogue.163 To assist courts in identifying unconstitutional regulations, Bruen directed
lower courts to consider: (1) the lack of a “distinctly similar historical regulation addressing” a
“general societal problem” that has existed since the 18th century; (2) historical attempts to address
the problem but through “materially different means”; and (3) rejection of or failure to enact
“analogous regulations” to control this problem based on constitutional grounds.164
To identify relevant historical analogues under Bruen, the Court must examine “how and
why 	the 	regulations 	burden 	a 	law-abiding 	citizen’s 	right 	to 	armed 	self-defense.”165
Section 922(g)(1) was enacted as part of the Gun Control Act of 1968,166 which sought to “keep
firearms 	away” 	from 	groups 	of 	people 	Congress 	deemed 	“potentially 	irresponsible 	and
dangerous.”167 Congress declared that the purpose of the Act was to “provide support to Federal,
State, and local law enforcement officials in their fight against crime and violence” and clarified
that it did not seek to “discourage or eliminate the private ownership or use of firearms by law-
abiding citizens for lawful purposes.”168 In a Senate Report, Congress further noted that allowing
criminals access to firearms was “contrary to the public interest” and of “serious national concern”
162 Id. at 2133.
163 Id.; see id. (“[W]hether modern and historical regulations impose a comparable burden on the
right of armed self-defense and whether that burden is comparably justified are ‘central’
considerations when engaging in an analogical inquiry.” (quoting McDonald v. Chicago, 561 U.S.
742, 767 (2010))).
164 Id. at 2131.
165 Id. at 2133.
166 18 U.S.C. §§ 921–934.
167 Huddleston v. United States, 415 U.S. 814, 828 (1974) (quoting 114 C ONG. R EC . 21784 (1968)
(statement of Rep. Emanuel Celler)).
168 Pub. L. No. 900618, § 101, 82 Stat. 1213.
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warranting protective legislation.169 Thus, § 922(g)(1) addressed a “general societal problem”—
the increasing availability of firearms to convicted criminals—and it purported to burden the right
to self-defense by prohibiting such access. Bruen instructs that historical analogues to § 922(g)(1)
must be identified using these same “how and why” criteria.170
The Court determines that the Government carried its burden in demonstrating that
§ 922(g)(1) is “part of the historical tradition that delimits the outer bounds of the right to keep
and bear arms.”171 The Government proffers several historical analogues to § 922(g)(1), including:
(1) Catholic disarmament laws;172 (2) nascent state loyalty laws;173 (3) disarmament of those
“deemed to be dangerous or untrustworthy, such as those unwilling to swear an oath of allegiance
to the colonies or the states, slaves, freed blacks, and Native Americans”;174 (4) disarmament of
felons, fugitives, drug addicts, and the mentally ill;175 and (5) civil forfeiture laws.176 In each of
169 S. Rep. No. 90-1501, at 22 (1968); see United States v. Yancey, 621 F.3d 681, 683 (“Congress
enacted the exclusions in § 922(g) to keep guns out of the hands of presumptively risky people.”);
United States v. Carter, 669 F.3d 411, 415 (4th Cir. 2012) (“Placed in the wrong hands, firearms
present a grave threat to public safety, and for this reason, the Anglo-American right to bear arms
has always recognized and accommodated limitations for persons perceived to be dangerous.”).
170 Bruen, 142 S. Ct. at 2133.
171 Id. at 2127.
172 Dkt. 40 at 14 (citing English and American colonial laws that “disarm[ed] classes of people
who were deemed to pose a threat to the rule of law, including Catholics”).
173 Id. at 15–16 (citing early Pennsylvania and Virginia loyalty oath statutes, which disarmed adult
male inhabitants who “refused to swear their allegiance and fidelity to the state[s]”).
174 Id. (citing Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 200 (5th Cir. 2012) (listing scholarly pieces recognizing the authority of
Revolutionary Era state and federal governments to “confiscate weapons from anyone deemed
untrustworthy” and that “various jurisdictions . . . have forbidd[en] suspect groups from having
arms”) (internal quotations omitted))).
175 Id. at 18 (citing to Second Amendment precursors and state laws disarming convicted criminals,
and noting that “[c]ertain classes have been almost universally excluded”—including “the idiot,
the lunatic, and the felon, on obvious grounds” (quoting Thomas M. Cooley, A TREATISE ON
C ONSTITUTIONAL LIMITATIONS 40 (Boston, Little Brown & Co. 1890))).
176 Id. at 18–19 (citing historical laws impacting other civic rights forfeited upon criminal
conviction).
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these examples, Parliament or early state legislatures “disarmed groups from possessing firearms
on the basis that they were determined to pose a greater danger to the public or otherwise defied
the rule of law.”177 Like § 922(g)(1), these early regulations sought to protect the general populace
from the misuse of firearms by high-risk individuals, including criminals, and burdened the right
to bear arms by prohibiting access. Thus, they are appropriate historical analogues to § 922(g)(1).
Guided by the Bruen court’s focus on “founding-era historical precedent,”178 the Court
considers pre-Revolutionary and Founding Era congressional testimony on the scope of the Second
Amendment and its precursors especially persuasive.179 Pre-Revolutionary legal scholars have
noted that disarming criminals and those who “have no[] . . . [i]nterest in preserving the public[]
[p]eace” was integral to the functioning of a well-regulated republic society.180 In Heller, the Court
identified a “highly influential . . . proposal” for amending the Constitution to include a right to
bear 	arms 	drafted 	by 	the 	1787 	Pennsylvania 	delegation—a 	“precursor” 	to 	the 	Second
177 Dkt. 40 at 14.
178 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2132 (2022)
(commending 	Heller 	for 	its 	consideration 	of 	“founding-era 	historical 	precedent,” 	which
“exemplifie[d] [the] kind of straightforward historical inquiry” the Bruen court sought to adopt).
The Bruen court also considered historical precedent from “before, during, and even after the
founding” to determine whether there was a “comparable tradition of regulation” to the New York
handgun regulation. Id. at 2132. Thus, courts are not foreclosed from considering regulations from
a variety of timepoints. But the Court expressed skepticism about the probative value of regulations
with “temporal distance from the founding,” such as those from “roughly a century before the
founding” and “late-19th-century laws,” which “shed little light on how to properly interpret the
Second Amendment.” Id. at 2144, 2154.
179 See Dkt. 40 at 16–17.
180 See U.S.A. v. Ramos, No. 2:21-CR-00395-RGK-1, 2022 WL 17491967, at *4 (C.D. Cal. Aug.
5, 2022) (quoting John Trenchard & Walter Moyle, An Argument Shewing, That a Standing Army
is Inconsistent with a Free Government, and Absolutely Destructive to the Constitution of the
English Monarchy 7 (1697))); see also Saul Cornell & Nathan DeDino, A Well Regulated Right:
The Early American Origins of Gun Control, 73 FORDHAM L. R EV. 487, 506–08 (2004) (“The law
demonstrates that in a well-regulated society, the state could disarm those it deemed likely to
disrupt society.”).
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Amendment.181 The proposed language posited “no law shall be passed for disarming the
people . . . unless for crimes committed, or real danger of public injury from individuals.”182 While
the Founders did not include this provision in the Second Amendment, scholars have noted this is
because the legislative authority to exclude criminals from the right to keep and bear arms “was
implicitly understood.”183 Moreover, in United States v. Skoien,184 the Seventh Circuit noted that
in the Founding Era, “[m]any of the states, whose own constitutions entitled their citizens to be
armed, did not extend this right to persons convicted of crime.”185 Even if the Founding Era does
not offer a precise “historical twin,” these “representative historical analogues” reveal a consistent
tradition of keeping firearms out of the hands of criminals and other individuals “deemed likely to
disrupt society.”186
181 District of Columbia v. Heller, 554 U.S. 570, 604 (2008).
182 Id. at 658 (Stevens, J., dissenting); see id. at 625 (noting that the federal government “did not
significantly regulate the possession of firearms by law-abiding citizens” (emphasis added)).
183 Ramos, 2022 WL 17491967, at *4 (quoting S TEPHEN P. HALBROOK , THE FOUNDERS ’ S ECOND
AMENDMENT 273 (2008)).
184 614 F.3d 638 (7th Cir. 2010).
185 Id. at 640 (citing S TEPHEN P. HALBROOK , THE FOUNDERS ’ S ECOND A MENDMENT 273 (2008)).
186 See Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of
Gun Control, 73 FORDHAM L. R EV. 487, 506–08 (2004); United States v. Vongxay, 594 F.3d 1111,
1118 (9th Cir. 2010); Ramos, 2022 WL 17491967, at *5 (finding that, “even if the Founding Era
provides no historical twin to Section 922(g)(1), there are an abundance of representative historical
analogue[s]” to suggest § 922(g)(1) is “consistent with this Nation's historical tradition of firearm
regulation”); United States v. Collette, 630 F. Supp. 3d 841, 850 (W.D. Tex. 2022) (“[T]his Nation
has a historical tradition of excluding felons and those who abuse their rights to commit violence
from the rights and power of ‘the people[.]’”); United States v. Nutter, 624 F. Supp. 3d 636, 645
(S.D.W. Va. 2022) (“Nothing in the historical record suggests a popular understanding of the
Second Amendment at the time of the founding that extended to preserving gun rights for groups
who pose a particular risk of using firearms against innocent people.”); Thomas M. Cooley, A
TREATISE ON C ONSTITUTIONAL L IMITATIONS 40 (Boston, Little Brown & Co. 1890))) (“Certain
classes have been almost universally excluded [from the right to keep and bear arms]—the idiot,
the lunatic, and the felon, on obvious grounds.”); see also United States v. Padgett, No. 3:21-CR-
00107-TMB-KFR, 2023 WL 3483929, at *6 (D. Alaska Jan. 4, 2023), report and recommendation
adopted, No. 3:21-CR-00107-TMB-KFR, 2023 WL 2986935 (D. Alaska Apr. 18, 2023) (“The
Court finds that the government has met its burden and demonstrated that § 922(g)(9) is consistent
with this Nation’s historical tradition of firearm regulation.”).
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The Government further observes there is a “robust historical tradition of forfeiting several
important rights” when an individual commits a crime, such as the right to vote, serve on a jury,
and hold public office.187 While such regulations are not a precise historical analogue to
§ 922(g)(1), they lend insight into how Congress and state legislatures historically have forced
individuals to forfeit other fundamental rights “as a legitimate consequence of a felony
conviction.”188 Based on this evidence, the Court concludes that § 922(g)(1) is constitutional as
applied to Roberts because it is “consistent with the Nation’s historical tradition of firearm
regulation.”189 The Court determines that the Government carried its burden in demonstrating that
§ 922(g)(1) is “part of the historical tradition that delimits the outer bounds of the right to keep
and bear arms.”190
3. 	Roberts’ Argument That There Is No American Historical Tradition Prohibiting Firearm
Possession by Felons Is Unpersuasive.
Roberts argues that § 922(g)(1) is unconstitutional as applied to him because there is no
“robust tradition of distinctly similar historical regulation[s]” addressing convicted criminals’
access to firearms.191 Roberts asserts: (1) there is no historical analogue to § 922(g)(1) that
“permanently disarm[s] citizens based on criminal history prior to the 20th century”; (2) such a
regulation does not comport with colonial and Founding Era history; (3) there is no tradition of
disarming “unvirtuous” citizens; and (4) and early American disarmament laws are too attenuated
to support § 922(g)(1).192 The Court is not persuaded by Roberts’ arguments.
187 Dkt. 40 at 18.
188 Id. at 18.
189 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2130 (2022).
190 Id. at 2127.
191 Dkt. 29 at 17.
192 Id. at 17–31.
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While Roberts correctly notes that § 922(g)(1) and its immediate precursors only arose in
the 	twentieth 	century,193 	the 	historical 	record 	indicates 	that 	representative 	analogues 	to
§ 922(g)(1)—such as those discussed by the Government—arose much earlier, including during
the Founding Era.194 As illustrated by early debates and attitudes to firearm regulation during the
drafting of the Second Amendment, as well as nascent state laws barring the use of firearms by
criminals, there appears to be a strong tradition of such firearm regulation in the colonial and
Founding Eras.195 Early regulations and binding Supreme Court and Ninth Circuit jurisprudence
also reveal that the Second Amendment is intrinsically tied to the idea of a “virtuous” citizenry,
whereby only “law-abiding” or “peaceable” citizens have the right to keep and bear arms.196
Roberts further observes that certain laws placed temporal limits on criminal firearm bans,
and contends that such limits indicate earlier generations addressed the problem of firearm misuse
193 Id. at 17 (noting that the 1938 National Firearms Act prohibited possession of firearms by
persons convicted of certain felonies).
194 See Dkt. 40 at 13–19 (citing 1 W. & M., Sess. 1, c. 15, in 6 The Statutes of the Realm 71-73
(1688) (disarming Catholics); 1 W. & M., Sess. 2, c. 2, in 6 The Statutes of the Realm 143 (1688)
(disarming Catholics, but granting Protestants a right to bear arms); Michael A. Bellesiles, Gun
Laws in Early America: The Regulation of Firearms Ownership, 1607–1794, 16 LAW & HIST.
R EV. 567, 574 (1998) (discussing Maryland, Virginia, and Pennsylvania colonial-era laws
disarming Catholics during the Seven Years’ War); Joseph G.S. Greenlee, The Historical
Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 WYO . L. R EV. 249, 263
(2020) (same); Act of June 13, 1777, § 1 (1777), 9 The Statutes at Large of Pennsylvania from
1652–1801 110, 111–113 (William Stanley Ray ed., 1903) (disarming Pennsylvania inhabitants
who refused to swear loyalty to the commonwealth); An Act to Oblige the Free Male Inhabitants
of this State Above a Certain Age to Give Assurance of Allegiances to the Same, and for Other
Purposes ch. III (1777), 9 Statutes at Large; Being a Collection of All the Laws of Virginia, from
the First Session of the Legislature in the Year 1619 281, 281 (William W. Hening ed., 1821)
(disarming Virginia inhabitants who refused to swear loyalty to the State); Address and Reasons
of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
(Second Amendment precursor noting that “citizens have a personal right to bear arms unless for
crimes committed”).
195 See id.
196 See U.S.A. v. Ramos, No. 2:21-CR-00395-RGK-1, 2022 WL 17491967, at *4 (C.D. Cal. Aug.
5, 2022); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010).
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through “materially different means” rather than a “categorical, lifetime ban” on firearm
possession.197 He points to two instances in which such bans were not enacted to suggest a general
pattern of legislatures rejecting firearm regulation.198 While not every State enacted disarmament
statutes, Roberts’ arguments dismiss numerous nascent state firearm bans on criminals and other
groups deemed a threat to public safety. As Roberts acknowledges, “at various times, the United
States regulated . . . firearm possession by those feared to be violent.”199 Roberts also sidesteps
Bruen’s instruction to identify historical analogues to modern regulations based on “how and why
the regulations burden a law-abiding citizen’s right to armed self-defense,”200 and focuses instead
on how early regulations are “dissimilar” from § 922(g)(1).201 But the Government need only offer
evidence of a “well-established and representative historical analogue, not a historical twin.”202
Moreover, early American disarmament laws barring certain groups, including felons and
other classes of people deemed dangerous or untrustworthy, are not too attenuated to lend historical
analogical support for § 922(g)(1). Rather, these laws are “distinctly similar” to § 922(g)(1) in
“how and why” they burden an individual’s right to armed self-defense; like § 922(g)(1), they
sought to safeguard public safety by limiting access to firearms by persons perceived to be a threat
to society. While both Roberts and the Government correctly observe that many pre-Revolutionary
and early American disarmament laws were biased by racial animus and remain unquestionably
problematic,203 these laws share a core legislative purpose with § 922(g)(1). And, as the Court has
previously explained, governments “may restrict firearm possession to groups viewed as
197 Dkt. 29 at 29–30.
198 Id. at 30.
199 Id.
200 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2133 (2022).
201 Dkt. 29 at 30.
202 Bruen, 142 S. Ct. at 2133.
203 Dkt. 29 at 26–28; Dkt. 40 at 18.
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dangerous in modern times, not only to those viewed as dangerous in 1791.”204 Here, the colonial,
pre-Revolutionary, and early American historical practice of felon disarmament demonstrates that
people who committed crimes were viewed as dangerous in the late-eighteenth century. Thus,
§ 922(g)(1) is consistent with this Nation’s well-established historical tradition of “banning
dangerous people from possessing guns.”205 In so holding, the Court follows every other district
court in the Ninth Circuit, including the District of Alaska, in finding § 922(g)(1) constitutional
under Bruen’s historical framework.
IV. 	CONCLUSION
The Court concludes that 18 U.S.C. §§ 922(g)(1) and 924(a)(2) criminalizing the
possession of firearms by felons are not unconstitutional as applied to Roberts, and his conduct
falls outside of the scope of the Second Amendment’s protections. Accordingly, the Court
DENIES the Motion.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 4th day of January, 2024.
/s/ 	Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
204 United States v. Padgett, No. 3:21-cr-00107-TMB-KFR, 2023 WL 2987935, at *9 (D. Alaska
Apr. 18, 2023).
205 Kanter v. Barr, 919 F.3d 437, 465 (7th Cir. 2019) (J. Barrett, dissenting), abrogated by Bruen,
142 S. Ct. 2111.
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