United States of America v. Jacqusyn Grubb

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1496
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Jacqusyn Grubb,
Defendant - Appellant.
____________
Appeal from United States District Court
for the Northern District of Iowa
____________
Submitted: February 13, 2025
Filed: April 21, 2025
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Before COLLOTON, Chief Judge, BENTON and STRAS, Circuit Judges.
____________
COLLOTON, Chief Judge.
A grand jury charged Jacqusyn Grubb with unlawful possession of a firearm
as an unlawful user of a controlled substance. See 18 U.S.C. § 922(g)(3). Grubb
moved to dismiss the indictment on the ground that the statutory prohibition violated
his right under the Second Amendment as construed in New York State Rifle & Pistol
Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The district court denied the motion, but we

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conclude that the ruling was premature because Grubb’s challenge to the indictment
could not properly be resolved without a trial on the merits. In light of our decision
in United States v. Turner, 842 F.3d 602 (8th Cir. 2016), we remand the case so that
Grubb may choose either to adhere to his guilty plea and forego appellate review or
move to vacate his guilty plea and proceed to trial on the original charge.
Grubb moved to dismiss the indictment. He argued that § 922(g)(3) is
unconstitutional on its face and as applied to him because the statute “should not
apply to a person like [Grubb] who is a user of marijuana, and not a more addictive,
dangerous controlled substance.” The government responded that Grubb’s as-applied
challenge was “premature” because “the facts have not been fully developed.”
The district court concluded that Grubb could not challenge the
constitutionality of the statute as applied to him in a pretrial motion. The court ruled
that the statute was constitutional on its face, but held in abeyance Grubb’s as-applied
challenge pending trial. The court rejected Grubb’s request for an evidentiary hearing
at which the government must put forth evidence that it would present at trial to
facilitate a pretrial ruling on the motion to dismiss. The court explained that Grubb’s
proposal “would amount to a form of unauthorized discovery and the equivalent of
a summary judgment proceeding” that is not available in criminal cases. The court
determined that if Grubb sought to maintain an as-applied challenge to the statute,
“then he must await presentation of evidence at trial.”
Shortly thereafter, Grubb entered a conditional plea of guilty before a
magistrate judge and reserved his right to appeal the denial of the motion to dismiss.
The magistrate judge recommended that the district court accept the plea. Grubb
stipulated to the bare minimum facts required to establish the elements of the offense.
He did not “stipulate to the government’s case.” Cf. post, at 9.
-2-

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The district court then reconsidered its initial ruling on the motion to dismiss
and requested supplemental briefing on whether to resolve Grubb’s motion before
trial. The government argued that the court could not adjudicate an as-applied
challenge to the statute without resolving factual issues related to the alleged offense,
and that the court therefore must wait until trial to resolve the motion.
The district court ultimately concluded that because Grubb stipulated to facts
that satisfied all elements of the offense, the court could resolve his challenge to the
constitutionality of the statute as applied to him. The court noted, however, that the
stipulated facts were “the bare minimum,” and that no case from this circuit resolved
a motion to dismiss “on such barebones facts in a plea agreement.” The court stated
its essential findings on the record, in accordance with Federal Rule of Criminal
Procedure 12(d) and United States v. Baxter, 127 F.4th 1087, 1090-91 (8th Cir.
2025). The court then concluded that § 922(g)(3) was constitutional as applied to
Grubb and denied the motion to dismiss the indictment. The court accepted Grubb’s
conditional guilty plea.
On appeal, Grubb argues that § 922(g)(3) is unconstitutional on its face and as
applied to him. The facial challenge is foreclosed by precedent. United States v.
Seay, 620 F.3d 919, 925 (8th Cir. 2010). On the as-applied challenge, the
government responds that the district court should not have resolved the
constitutional argument without a trial on the merits, but that the stipulated facts that
formed the factual basis for the guilty plea were sufficient to defeat Grubb’s challenge
to the statute as applied to him.
Federal Rule of Criminal Procedure 12 governs pretrial motions in a criminal
case. Rule 12(b)(1) provides that a party may raise by pretrial motion any defense
that “the court can determine without a trial on the merits.” Under Rule 12(d), the
court must resolve every pretrial motion before trial “unless it finds good cause to
defer a ruling” and deferral will not “adversely affect a party’s right to appeal.”
-3-

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We conclude that a “trial on the merits” was needed to decide Grubb’s pretrial
motion to dismiss the indictment. There is no procedure in federal criminal cases
equivalent to the motion for summary judgment in civil cases, and the government
has no duty to reveal all of its proof before trial. United States v. Nabors, 45 F.3d
238, 240 (8th Cir. 1995); see Fed. R. Crim. P. 16. Permitting summary judgment-like
motions under Rule 12(b) “would enable an end-run around the calibrated framework
for discovery in criminal cases.” United States v. Sampson, 898 F.3d 270, 280 (2d
Cir. 2018). Therefore, “Rule 12 permits pretrial resolution of a motion to dismiss the
indictment only when ‘trial of the facts surrounding the commission of the alleged
offense would be of no assistance in determining the validity of the defense.’” United
States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (quoting United States v.
Covington, 395 U.S. 57, 60 (1969)). In considering a motion to dismiss, a district
court may not “make factual findings when an issue is inevitably bound up with
evidence about the alleged offense itself.” Turner, 842 F.3d at 605 (internal
quotation omitted).
If a district court “determines that the relevant factual evidence is ‘undisputed
in the sense that it is agreed to by the parties,’ pretrial resolution may be appropriate
because ‘a trial of the general issue would serve no purpose.’” Baxter, 127 F.4th at
1091 (quoting Pope, 613 F.3d at 1261). But the government is not required to present
its case in response to a motion to dismiss, and dismissal is not justified based on “the
government’s refusal to come forward with evidence to support its case in the face
of a defendant who has presented his own proof.” Pope, 613 F.3d at 1260. “To
warrant dismissal, it must be clear from the parties’ agreed representations about the
facts surrounding the commission of the alleged offense that a trial of the general
issue would serve no purpose.” Id. at 1261. Unless the prosecution voluntarily
presents the entirety of its evidence in response to a pretrial motion, the court cannot
know the universe of additional facts that will be presented at trial and whether they
will be disputed. See Sampson, 898 F.3d at 282 (“[O]ur research reveals—and the
parties cite—no federal appellate case upholding the authority of a district court to
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require the government, before trial, to make [a detailed presentation of the entirety
of the evidence].”). There is no Second Amendment exception to Rule 12 or Rule 16
that compels the government to present its case in response to a pretrial motion or that
authorizes summary judgment motions for a defendant claiming a right to bear arms.1
The scope of evidence required to determine a motion to dismiss a charge
under § 922(g)(3) is unsettled. This court has never reversed a conviction under
§ 922(g)(3) as a violation of a drug user’s right to keep and bear arms under the
Second Amendment. The Supreme Court thus far has declined to review any case
involving § 922(g)(3) and the Second Amendment. But a few cases in other
jurisdictions have held the statute unconstitutional as applied to particular defendants,
and a panel of this court has hypothesized circumstances in which the statute would
be unconstitutional under Bruen. United States v. Cooper, 127 F.4th 1092, 1096 (8th
Cir. 2025).
With considerable uncertainty in the law, the government is entitled at this
juncture to make a fulsome record on facts surrounding the commission of the offense
and any other facts that may be relevant to resolving a constitutional challenge to
1Decisions involving other constitutional rights follow the same rule. In United
States v. Hobgood, 868 F.3d 744 (8th Cir. 2017), United States v. Cook, 782 F.3d 983
(8th Cir. 2015), and United States v. Anderson, 759 F.3d 891 (8th Cir. 2014), this
court resolved as-applied constitutional challenges raised in pretrial motions only
where the government did not object to the sufficiency of the record and the parties
agreed to the facts at issue. 868 F.3d at 893; 782 F.3d at 985; 759 F.3d at 746-47.
Those decisions do not support compelling the government to present its case in
response to a pretrial motion or forcing resolution of a constitutional challenge on a
preliminary record. See Turner, 842 F.3d at 605 (holding that district court should
have deferred ruling on constitutional vagueness challenge until trial); United States
v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997) (holding that district court’s void-for-
vagueness determination “should be based only the facts as they emerge at trial”). Cf.
post, at 15.
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§ 922(g)(3). The district court concluded that there was no “contested defense” that
required a trial, because Grubb stipulated to the bare minimum facts that were
necessary to establish the elements of the offense. But the contested defense in this
case involves a constitutional challenge to the statute, not a defense to the elements
of the charge. Because it is possible that the government may be required to establish
additional facts beyond the unadorned elements to defeat a constitutional challenge,
the court cannot say definitively that “trial of the facts surrounding the commission
of the alleged offense would be of no assistance in determining the validity of the
defense.” Covington, 395 U.S. at 60. We thus conclude that the district court was
correct in its initial ruling that if Grubb seeks to maintain an as-applied challenge to
the constitutionality of § 922(g)(3), then he must await the presentation of evidence
at trial. Of course, if the parties also seek to present evidence bearing on the
constitutional question that is inadmissible at the trial of the charged offense, then the
district court has mechanisms to receive that evidence outside the presence of a jury
or separate from the trial of the charge.
In a similar situation, this court in Turner concluded that where a district court
resolved a pretrial motion on the merits when it should have deferred a ruling until
trial, the proper disposition of the defendant’s appeal was a remand for further
proceedings. 842 F.3d at 605-06. We explained that if the district court had informed
the defendant that he could not both plead guilty and obtain appellate review of his
constitutional challenge, then the defendant could have moved to withdraw his guilty
plea and proceeded to trial on the original charge. Turner concluded that a remand
was appropriate so that the defendant could consider this choice.
When Grubb entered his conditional guilty plea before the magistrate judge,
the district court in its first decision had already informed Grubb that his as-applied
challenge was premature, and that a ruling would have to await a trial. Grubb elected
to plead guilty anyway, and the magistrate judge recommended acceptance. Yet the
district court did not immediately accept the guilty plea, and Grubb was entitled to
-6-

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change his mind and withdraw his plea for any reason or no reason until the court
accepted the plea. Fed. R. Crim. P. 11(d)(1). Before the district court accepted the
guilty plea, the court had reversed course, ordered supplemental briefing on the as-
applied challenge, and ultimately ruled on the merits of the as-applied constitutional
claim. As such, Grubb ended up in a situation comparable to that of the defendant in
Turner, and we conclude that the same disposition is warranted.2
For these reasons, the district court’s order denying Grubb’s motion to dismiss
is reversed, the judgment is vacated, and the case is remanded for further proceedings
consistent with this opinion.
STRAS, Circuit Judge, concurring in the judgment.
What happens when a defendant conditionally pleads guilty after the district
court denies a motion to dismiss the indictment? If the defendant “reserv[es] in
writing the right to” appeal the issue, Fed. R. Crim. P. 11(a)(2), we address it unless
contested facts needed to be resolved. Apparently not for Second Amendment
challenges, however, which the court believes must presumptively be taken to trial
or waived. I will not join any opinion treating the Second Amendment as a “second-
class right, subject to an entirely different body of rules.” N.Y. State Rifle & Pistol
2There is no “customary practice,” post, at 16, that would require this panel to
forego a timely resolution of this appeal simply because United States v. Perez, No.
24-1553, a case involving § 922(g)(3), was argued in January 2025. The briefs in
Perez show that the case involves a challenge to a conviction after a jury trial and
thus does not concern a motion under Rule 12 or withdrawal of a guilty plea under
Turner. The cited comment of the presiding judge at oral argument in Perez
suggested only that three panels hearing § 922(g)(3) cases in January 2025 may
coordinate among themselves on “common issues.” The other two panels filed
decisions without waiting for Perez. The parties have not cited Perez as a related
case or sought a stay. Cf. post, at 16 n.7 (citing orders granting motions to stay).
-7-

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Ass’n v. Bruen, 597 U.S. 1, 70 (2022) (quoting McDonald v. City of Chicago, 561
U.S. 742, 780 (2010) (plurality opinion)). This one does, so I concur only in the
judgment.
I.
There is no dispute about the basic facts. Jacqusyn Grubb filed a timely motion
to dismiss his indictment, which raised both facial and as-applied Second Amendment
challenges to the drug-user-in-possession statute. See 18 U.S.C. § 922(g)(3). The
district court immediately denied the first but initially deferred the as-applied
challenge until trial. When Grubb decided to conditionally plead guilty and
specifically reserved his ability to appeal the “issues raised” in the motion to dismiss,
the district court changed its mind. See Fed. R. Crim. P. 11(a)(2). Based on the
stipulated facts that he used marijuana and, during a traffic stop, was in possession
of it and two pistols, the district court decided it had enough to deny the as-applied
challenge.
II.
Procedurally, Grubb and the district court did exactly as the Federal Rules of
Criminal Procedure require. Rule 12 allows parties to raise “by pretrial motion any
defense, objection, or request that the court can determine without a trial on the
merits.” Id. 12(b)(1). The court thought that there was no “good cause” to wait and
decided the motion because the parties had stipulated to the necessary facts. Id.
12(d). Having lost his motion, Grubb reserved his right to appeal the denial, just as
the rules contemplate. See id. 11(a)(2). That is presumably why the court made clear
in the order that Grubb had “properly preserved his right to appeal th[e] order in the
conditional plea, so there [was] no risk to his ability to obtain review of his motion”
on appeal or otherwise. See id. 12(d).
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A.
The district court was right that a motion like this one can be resolved without
“a trial on the merits” when the facts necessary to decide it are not “bound up” with
evidence about the alleged offense. United States v. Turner, 842 F.3d 602, 604–05
(8th Cir. 2016) (citations omitted). Indeed, another panel just said so. See United
States v. Baxter, 127 F.4th 1087, 1090 (8th Cir. 2025). In Baxter, we made clear that
pretrial resolution “may be appropriate” when the facts are “undisputed in the sense
that [they are] agreed to by the parties.” Id. at 1091 (quoting United States v. Pope,
613 F.3d 1255, 1261 (10th Cir. 2010) (Gorsuch, J.)). Here, they were because Grubb
stipulated to the government’s case before the court accepted his guilty plea. In other
cases, it might be the government seeking a quick decision, which could lead it to
disclose what it expects to prove at trial to smooth the way for a guilty plea. And
sometimes, as Baxter recognized, no factual findings are needed at all. See id.; see,
e.g., United States v. Connelly, 668 F. Supp. 3d 662, 668 (W.D. Tex. 2023)
(“assum[ing] without deciding that the Government’s drug[-]use allegations are true”
so it could “decide the legal issues presented without further factual findings”), aff’d
in part, rev’d in part on other grounds, 117 F.4th 269 (5th Cir. 2024).
As long as the court does not get ahead of the jury by resolving factual matters
relating to the defendant’s “guilt or innocence,” Pope, 613 F.3d at 1259, the motion
can and should be decided before trial. Absent “good cause,” after all, district courts
are not supposed to keep the parties waiting. Fed. R. Crim. P. 12(d).
B.
Where the district court went wrong was how it approached the merits of
Grubb’s Second Amendment challenge. See United States v. Cooper, 127 F.4th 1092,
1094–95 (8th Cir. 2025). It seemed to assume that satisfaction of the elements of the
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drug-user-in-possession statute was enough to overcome any Second Amendment
problems.
The flaw in this approach is obvious. It is inconsistent with our recognition
that some applications of the statute are unconstitutional. See id. at 1097 (involving
the same district court); United States v. Veasley, 98 F.4th 906, 917–18 (8th Cir.
2024); see also Bruen, 597 U.S. at 38–39. Just knowing that the elements are
satisfied makes clear that Grubb was a drug user and possessed a firearm, but not
whether criminalizing his behavior is “consistent with the Nation’s historical tradition
of firearm regulation.” Bruen, 597 U.S. at 24; see Baxter, 127 F.4th at 1091
(explaining that short-circuiting the analysis leaves appellate courts with an
“underdeveloped record” that makes deciding the constitutional challenge all but
impossible (citation omitted)). It cannot tell us, in other words, whether this is one
of the constitutional or unconstitutional applications of the statute.
Baxter already provides direction on what to do when faced with an
“underdeveloped record”: “remand” to determine whether the “issue is appropriate
for pretrial resolution,” and if so, to make “the factual findings required under Rule
12(d).” 127 F.4th at 1091 (citation omitted). Cooper provides the relevant questions
to ask once the case goes back. Did “using marijuana make [Grubb] act like someone
who is ‘both mentally ill and dangerous’”? Cooper, 127 F.4th at 1096 (quoting
Veasley, 98 F.4th at 913). Did he “induce terror” or “pose a credible threat to the
physical safety of others with a firearm”? Id. (first quoting Veasley, 98 F.4th at 918;
and then quoting United States v. Rahimi, 602 U.S. 680, 700 (2024)).
Answering those questions will allow the district court to determine whether
criminalizing Grubb’s behavior was “consistent with the” Second Amendment.
Bruen, 597 U.S. at 24. If a factual dispute about the charged offense gets in the way,
then—and only then—will Grubb have to choose between taking a plea and
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preserving his Second Amendment as-applied challenge by going to trial. See
Turner, 842 F.3d at 605–06; see also Pope, 613 F.3d at 1259.
III.
“Getting to the right answer [here] should not have been hard.” United States
v. Jackson, 121 F.4th 656, 659 (8th Cir. 2024) (Stras, J., dissenting from denial of
reh’g en banc). Baxter provided the roadmap, see 127 F.4th at 1090–91, and it is our
duty to follow it. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en
banc) (“It is a cardinal rule in our circuit that one panel is bound by the decision of
a prior panel.” (citation omitted)).
Consider the similarities. Both defendants filed timely pretrial motions to
dismiss their indictments on the same ground: their prosecutions under the drug-user-
in-possession statute, 18 U.S.C. § 922(g)(3), conflicted with the Second Amendment
as applied to them. See Baxter, 127 F.4th at 1090; Fed. R. Crim. P. 12(b)(1). In each,
the district court denied the motion before accepting the conditional guilty plea.3 See
Baxter, 127 F.4th at 1089. And both used almost identical language in their plea
agreements to preserve their ability to appeal the denial of their motions to dismiss.
Compare Conditional Plea Agreement, United States v. Grubb, No. 2:23-cr-01014
(N.D. Iowa Sept. 19, 2023) (stating that “the only issues reserved for appeal are the
issues raised in defendant’s Motion to Dismiss filed on August 11, 2023”), with
Conditional Plea Agreement, United States v. Baxter, No. 4:23-cr-00108 (S.D. Iowa
Sept. 27, 2023) (“preserv[ing] the right to appeal the Court’s denial of Defendant’s
3To be sure, Grubb signed his plea agreement before the district court decided
his as-applied Second Amendment challenge. It makes no difference, however,
because the court did not accept either the agreement or the guilty plea until after it
denied his motion to dismiss, just like in Baxter. The court then assured Grubb,
consistent with Baxter, that he had “properly preserved his right to appeal” the
decision by entering a conditional guilty plea.
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motion to dismiss entered on September 22, 2023”). There really is no need to do
anything here but cite Baxter and remand for a determination of “whether th[e] issue
is appropriate for pretrial resolution.” Baxter, 127 F.4th at 1091; see Mader, 654 F.3d
at 800.
Perhaps unhappy with Baxter’s guidance, the court says more—a whole lot
more. In fact, it flips the script by holding that Grubb must go to trial to get an
answer because, “[u]nless the prosecution voluntarily presents the entirety of its
evidence,” there is no telling what the “universe” of “facts surrounding the
commission of the offense” might be. Ante at 4–5. Baxter says exactly the opposite.
See 127 F.4th at 1091 (“[P]retrial resolution may be appropriate . . . .” (emphasis
added)); see also United States v. Adams, 914 F.3d 602, 605–06 (8th Cir. 2019)
(affirming the pretrial denial of a motion to dismiss the indictment based on
undisputed facts about where and how the defendant possessed a firearm).
The court pays lip service to the idea that the defendant and the government
could come to some sort of agreement on the facts, but rules out that option for
Grubb. Then it ignores the very next line in Baxter, which recognizes that “the
district court . . . can decide [some] legal issues . . . without making any factual
findings.” 127 F.4th at 1091. And it goes on to reject Baxter’s approach of leaving
it to the “district court to determine” on remand whether it has enough to decide the
challenge under Cooper, which was not available the first time around. Id. Even
worse, it does so without explaining how or why the facts of Grubb’s crime are so
obviously “bound up” in his Second Amendment challenge that they must be tried.
Turner, 842 F.3d at 605 (citation omitted).
Not to mention the court’s approach conflicts with how we have dealt with
pretrial challenges in the past. See, e.g., United States v. Hobgood, 868 F.3d 744, 747
(8th Cir. 2017); United States v. Cook, 782 F.3d 983, 985–87 (8th Cir. 2015); United
States v. Anderson, 759 F.3d 891, 893 (8th Cir. 2014). Our cases recognize that
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criminal defendants must wait for an answer only if their constitutional challenge
depends on contesting facts about the offense charged. See Turner, 842 F.3d at 605.
If instead, as Baxter points out, Grubb were to argue that his prosecution violates the
Second Amendment notwithstanding any disputed facts or stipulate to all the relevant
facts to get a ruling on the motion to dismiss, “a trial . . . would serve no purpose.”
127 F.4th at 1091 (quoting Pope, 613 F.3d at 1261); see Adams, 914 F.3d at 605–06.
At that point, given that the burden of proof falls on the government to prove the
constitutionality of the statute, see Rahimi, 602 U.S. at 691, it must convince the
district court that it still needs a trial.4 See Baxter, 127 F.4th at 1091.
That is how things are supposed to work, but don’t just take my word for it.
District courts routinely deal with as-applied constitutional challenges in exactly this
way, including those arising under the Second Amendment.5 Even if they could use
4The court’s belief that a trial is almost always necessary may be an indication
that it is still living in a pre-Bruen world. See Bruen, 597 U.S. at 70. Before Bruen,
we had a test in this circuit that required the defendant to prove, “[a]t a minimum . . .
that the Second Amendment protects his particular conduct.” Adams, 914 F.3d at
605; see United States v. Jackson, 69 F.4th 495, 506 n.4 (8th Cir. 2023) (placing the
burden on the defendant to show “that his prior felony conviction is insufficient to
justify the” stripping of Second Amendment rights), cert. granted, judgment vacated,
144 S. Ct. 2710 (2024). If the focus is exclusively on the underlying conduct, rather
than the historical analogues, then one may reach the erroneous conclusion that the
Second Amendment right is exclusively tied to what the defendant did, the offense
conduct itself. Post-Bruen, however, everything has changed. The government now
bears the burden to prove that its regulation falls within the historical tradition,
meaning that what matters most in an as-applied Second Amendment challenge is
whether there are any historical analogues for the regulation, not whether the
“particular conduct” is protected. See Rahimi, 602 U.S. at 691.
5Compare United States v. Okello, 688 F. Supp. 3d 905, 909 (D.S.D. 2023)
(deciding as-applied Second Amendment and vagueness challenges to § 922(g)(3)
before trial based on the allegations agreed to by the parties in their briefs), and
United States v. Harvey, 609 F. Supp. 3d 759, 762 (D. Neb. 2022) (relying on
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further guidance on the scope of the underlying right, they do not need us
micromanaging when and how to decide pretrial motions. See, e.g., United States v.
Robinson, 2025 WL 777667, at *2 (N.D. Iowa Mar. 11, 2025) (deferring a Second
Amendment as-applied challenge to a § 922(g)(3) charge until trial based on Baxter
and Cooper). Baxter did not think so, and neither do I. See Baxter, 127 F.4th at 1091
(leaving it up to the district court on remand to determine whether Baxter’s challenge
can be addressed before trial).
The problems do not end there. Today’s opinion opens a Pandora’s box of
practical difficulties. For example, when at trial will the government be able to
present evidence on the relevant historical analogues? Cf. Fed. R. Evid. 401
(describing the standard for relevant evidence); Cooper, 127 F.4th at 1096 (allowing
the government to raise any analogues we may have “missed”). How would it
introduce evidence about the defendant’s criminal history to prove that he is a danger
to others? See Cooper, 127 F.4th at 1096; Fed. R. Evid. 404(b)(1) (prohibiting prior-
bad-act evidence to prove a defendant’s propensity for crime). And perhaps most
problematic of all would be having the government present evidence that a
defendant’s drug use led him to act like someone who is mentally ill and dangerous.
See Cooper, 127 F.4th at 1095; see also Veasley, 98 F.4th at 912. The evidence most
relevant to a Second Amendment challenge, in other words, may be highly prejudicial
and entirely irrelevant to a defendant’s guilt or innocence on the charged offense. See
Fed. R. Evid. 403 (excluding evidence when its “probative value is substantially
outweighed” by a danger of “unfair prejudice”). Unless making it difficult is exactly
the point, to discourage defendants from bringing as-applied Second Amendment
challenges. See Fed. R. Crim. P. 12(b); Baxter, 127 F.4th at 1091; Pope, 613 F.3d at
1260.
uncontested facts to deny a Second Amendment challenge in a pretrial motion to
dismiss), with United States v. Wako, 752 F. Supp. 3d 1112, 1119 (D.S.D. 2024)
(holding a Second Amendment as-applied challenge until after trial because the
factual issues were bound up with the offense).
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We do not treat other constitutional rights this way. Consider United States v.
Hobgood, which involved a defendant who filed a pretrial motion to dismiss the
indictment on the ground that his interstate-stalking prosecution violated the First
Amendment. See 868 F.3d at 746. There, the district court denied his motion to
dismiss the indictment based on stipulated facts, even though how he committed the
charged offense was the central question. See id. His argument, after all, was that the
internet messages he sent to an ex-girlfriend—the very facts underlying his
conditional guilty plea—were protected First Amendment speech. See id. at 747.
Hobgood is by no means an outlier. In United States v. Anderson, we
confronted another pretrial First Amendment challenge and concluded that a
“morphed image”—one that had a minor’s face superimposed onto an adult woman
engaged in explicit sexual conduct—was not protected by the First Amendment. 759
F.3d at 893. Even though the image was the entire basis of the charge, meaning that
“the facts surrounding the commission of the alleged offense” could have helped
there too, Turner, 842 F.3d at 604 (citation omitted), we addressed the constitutional
challenge and affirmed the conviction. See Anderson, 759 F.3d at 896. We have also
approached a void-for-vagueness challenge much the same way based on nothing
more than the facts alleged in the indictment.6 See Cook, 782 F.3d at 985, 990. There
should not be one set of rules for Second Amendment challenges and another for
other constitutional rights. See Bruen, 597 U.S. at 70 (making clear that courts cannot
“subject [Second Amendment challenges] to an entirely different body of rules”).
6The same went for Second Amendment as-applied challenges, at least before
today. See Adams, 914 F.3d at 605–06 (rejecting one following a conditional guilty
plea after determining that “[i]t [was] not plain or obvious that the Second
Amendment protect[ed] Adams’s conduct” of “carry[ing] a concealed weapon in a
vehicle” (emphasis added)).
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IV.
One final point on procedure. This is not the only Second Amendment as-
applied challenge to the drug-user-in-possession statute before us. In just the month
before this case was argued, three separate panels heard one. Two have already
finished their work and issued decisions. See generally Baxter, 127 F.4th at 1087;
Cooper, 127 F.4th at 1092. The third told the parties at oral argument that they could
expect “coordina[tion]” among the panels. See Oral Argument at 0:25–1:11, United
States v Perez, No. 24-1553 (8th Cir. Jan. 16, 2025) (Loken, J.). That panel is not yet
done. If we were just applying Baxter, I would not worry about skipping the queue
because the Perez panel is just as bound by it as we are. But given that the court does
more today, I think it would have been appropriate to follow our customary practice,
which is to stay later-argued cases and let the first-in-time panel finish its work.7 For
that additional reason, I cannot join the court’s opinion.
______________________________
7See, e.g., Order Granting Motion to Stay, Gilpin v. United States, No. 23-1131
(8th Cir. Nov. 21, 2023) (holding the case in abeyance pending the court’s decision
in United States v. Veasley); Order, United States v. Wilson, No. 23-3014 (8th Cir.
Feb. 28, 2024) (same); Order, United States v. Smith, No. 23-3570 (8th Cir. Feb. 21,
2024) (same); Order, Clark v. United States, No. 23-3104 (8th Cir. Dec. 14, 2023)
(same).
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