USA v. Barber

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMES EDWARD BARBER,
Defendant.
Case No. 3:22-cr-00065-SLG-MMS
ORDER RE MOTION TO DISMISS PURSUANT TO NEW YORK RIFLE AND
PISTOL ASSOCIATION V. BRUEN
Before the Court at Docket 41 is Defendant’s Motion to Dismiss Pursuant to
New York Rifle and Pistol Association v. Bruen. The Government filed a response
in opposition to the motion at Docket 43.
Mr. Barber seeks an order dismissing the Indictment, which charges him
with being a Felon in Possession of a Firearm, in light of the Supreme Court’s
recent decision in New York State Rifle & Pistol Association v. Bruen.1 	In Bruen,
the Supreme Court held that
when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. 	To
justify its regulation, the government may not simply posit that the
regulation promotes an important interest. 	Rather, the government
must demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation.2
1 142 S. Ct. 2111, 2126 (2022).
2 Id.
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Mr. Barber, who is a felon, asserts that 18 U.S.C. § 922(g)(1) impermissibly
burdens his Second Amendment right to keep and bear arms.3 	According to Mr.
Barber, “[t]his law is unconstitutional as applied to Mr. Barber, because the
Government cannot ‘meet [its] burden to identify an American tradition’” that
prohibited people with a felony conviction from possessing firearms.4 	Therefore,
he maintains, the indictment must be dismissed.
The government responds that Ninth Circuit precedent, which holds that
felon-in-possession statutes do not violate the Second Amendment, “has not been
overruled by an en banc court or the Supreme Court.” 5 And the government notes
that when it filed its opposition in December 2022, one Circuit Court of Appeals,
the Third Circuit, and 61 district courts, had upheld the constitutionality of Section
922(g)(1) post-Bruen.6
I. 	Second Amendment jurisprudence prior to Bruen
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
3 Docket 41 at 42.
4 Docket 41 at 42 (quoting Bruen, 142 S. Ct. at 2138) 	A panel on the Third Circuit had held that
the statute was constitutional but that opinion has been vacated and rehearing on banc is currently
pending 	Range v. Att’y Gen. United States, 53 F.4th 262 (3d Cir. 2022) (per curiam), reh’g en
banc granted, opinion vacated, 56 F.4th 992 (3d Cir. 2023).
5 Docket 43 at 3.
6 Docket 43 at 3-6.
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Arms, shall not be infringed.”7 Like other constitutionally protected rights, the right
to bear arms is “subject to certain reasonable, well-defined restrictions.”8 In other
words, “[l]ike most rights, the right secured by the Second Amendment is not
unlimited.”9 	Limitations on the Second Amendment were recognized prior to
Bruen; as relevant here, the Supreme Court and the Ninth Circuit have consistently
acknowledged that the Second Amendment’s protections do not extend to the
possession of firearms by felons.
In District of Columbia v. Heller, the Supreme Court extensively reviewed
the pre- and post-Second Amendment history of firearms rights in the United
States. 	The Supreme Court held that Washington, D.C.’s ban on handgun
possession within the home violated the Second Amendment.10 In so holding, the
Supreme Court emphasized that “nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons.”11 The
Supreme Court stated that the prohibition on the possession of firearms by felons
was “presumptively lawful.”12 Two years later, in McDonald v. City of Chicago, the
Supreme Court explained that “[w]e made it clear in Heller that our holding did not
7 U.S. CONST . amend. II.
8 Bruen, 142 S. Ct. at 2156 (citing District of Columbia v. Heller, 554 U.S. 570, 581 (2008)).
9 Heller, 554 U.S. at 626.
10 Id. at 635.
11 Id. at 626.
12 Id. at 627 n.26.
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cast doubt on such longstanding regulatory measures as ‘prohibitions on the
possession of firearms by felons . . . .’” 13
The 	Ninth 	Circuit 	has 	relied 	on 	Heller 	and 	McDonald 	to 	uphold 	the
constitutionality of Sections 922(g)(1) and 924(a)(2). In United States v. Vongxay,
the Circuit held that Ҥ 922(g)(1) does not violate the Second Amendment as it
applies to Vongxay, a convicted felon.”14 The Circuit recognized that “the historical
question has not been definitively resolved,” but noted that “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).’” 15 	In Van Der Hule v. Holder, the Circuit held that “§
922(g)(1) continues to pass constitutional muster.”16 	In United States v. Phillips,
the Ninth Circuit stated that, “under Supreme Court precedent and our own,” the
court “must” “assum[e] the propriety of felon firearm bans.”17
13 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626–27).
14 594 F.3d 1111, 1118 (9th Cir. 2010).
15 Id. at 1118 (alterations in original) (quoting Don B. Kates, Jr., The Second Amendment: A
Dialogue, 49 L AW & CONTEMP. PROBS. 143, 146 (1986)) (citations omitted); see also id. at 1117
(stating that “[f]elons are often, and historically have been, explicitly prohibited from militia duty”)
(citation omitted).
16 759 F.3d 1043, 1051 (9th Cir. 2014).
17 827 F.3d 1171, 1175 (9th Cir. 2016).
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Prior 	to 	Bruen, 	other 	circuits 	also 	recognized 	that 	federal 	statutes
criminalizing felons possessing firearms do not violate the Second Amendment.
After Heller, the Courts of Appeals have unanimously upheld the constitutionality
of § 922(g)(1) against facial attacks.18
II. 	The Bruen framework
After Heller, many circuits used a two-step test when considering whether a
statute 	or 	regulation 	comported 	with 	the 	Second 	Amendment.19 	In 	Bruen,
however, the Supreme Court held that the two-step test was “one step too many”20
and instead announced a single-step analysis:
when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. 	To
justify its regulation, the government may not simply posit that the
regulation promotes an important interest. 	Rather, the government
must demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation.21
Despite this change in the Second Amendment analytical framework, nothing in
Bruen indicates that the Supreme Court has repudiated its earlier pronouncements
that the Second Amendment’s protections do not extend to felons. 	The Bruen
Court explained that Heller does not support the two-step means-ends scrutiny
18 See, e.g., United States v. Bogle, 717 F.3d 281, 282 n.1 (2d Cir. 2013) (collecting cases).
19 See Bruen, 142 S. Ct. at 2126–27, for a discussion of the two-step analysis.
20 Id. at 2127.
21 Id. at 2126.
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applied by the circuit courts,22 but it did not alter Heller’s statement that the
prohibition of firearms by felons is “longstanding” and “presumptively lawful.”23
Indeed, the Bruen majority noted that the holding is “in keeping with Heller.”24
Justice Kavanaugh, joined by Chief Justice Roberts, stated that Bruen does not
disturb what the Court said in Heller about the restrictions imposed on possessing
firearms, namely the “longstanding prohibitions on the possession of firearms by
felons.”25 Justice Alito stated in his concurrence: “Nor have we disturbed anything
that we said in Heller or McDonald . . . .” 26 Justice Breyer, joined by Justices Kagan
and Sotomayor, stated that Bruen “cast[s] no doubt on” Heller's treatment of laws
prohibiting firearms possession by felons. 27
As of December 2022, only one circuit court had considered a post-Bruen
challenge to the constitutionality of Section 922(g)(1); it held that the statute was
constitutional.28 	However, that circuit decision has since been vacated and a
petition for rehearing en banc has been granted. The Government lists 61 district
22 Id. at 2127.
23 See United States v. Ingram, Case No. 0:18-557-MGL-3, 2022 WL 3691350, at *2 (D.S.C. Aug.
25, 2022) (“The Court agrees with the government that Bruen clarified and ‘reiterated[,]’ rather
than modified, the constitutional ruling in Heller.”).
24 142 S. Ct. at 2126.
25 Id. at 2162 (Kavanaugh, J., concurring) (citation omitted).
26 Id. at 2157 (Alito, J., concurring).
27 Id. at 2189 (Breyer, J., dissenting).
28 Range v. Att’y Gen. United States, 53 F.4th 262 (3d Cir. 2022) (per curiam), reh’g en banc
granted, opinion vacated, 56 F.4th 992 (3d Cir. 2023).
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court cases in its brief that it indicates have each upheld the statute’s continuing
validity post-Bruen. 	In United States v. Hill, the Southern District of California
concluded that “the reasoning of Vongxay and Heller—on which Vongxay relies—
are not ‘clearly irreconcilable with the reasoning or theory’ of Bruen. Accordingly,
Bruen did not ‘effectively overrule’ Vongxay and this Court is bound by Vongxay
and its progeny.”29 	In United States v. Siddoway, the District of Idaho concluded
that “[t]he Ninth Circuit’s reasoning in Vongxay is consistent with that critical
second prong. 	The court determined that ‘[o]ur examination . . . of historical gun
restrictions 	. 	. 	. 	lends 	credence 	to 	the 	post-Heller 	viability’ 	of 	the 	previous
determination 	that 	18 	U.S.C. 	§ 	922(g)(1) 	does 	not 	violate 	the 	Second
Amendment.”30 	The District of Idaho concluded that it was thus bound by
Vongxay.31 	This Court has not identified any district court that has found the
federal felon in possession statutes to be unconstitutional when applying the
analytical framework set forth in Bruen.
29 Case No. 21cr107 WQH, 2022 WL 4361917, at *3 (S.D. Cal. Sept. 20, 2022) (quoting Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003)). 	The District Court was also “persuaded by the
historical analysis performed by the Court of Appeals for the D.C. Circuit in Medina v. Whitaker,
913 F.3d 152, 158–60 (D.C. Cir. 2019), which ‘look[ed] to tradition and history’ and concluded that
‘the historical evidence and the Supreme Court’s discussion of felon disarmament laws leads us
to reject the argument that non-dangerous felons have a right to bear arms.’” Id.
30 Case No. 1:21-cr-00205-BLW, 2022 WL 4482739, at *2 (D. Idaho Sept. 27, 2022) (alterations
and omissions in original) (quoting Vongxay, 594 F.3d at 1116).
31 Id.
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CONCLUSION
The Court finds that the Supreme Court’s previous emphasis on the validity
of prohibitions on the possession of firearms by felons continues after Bruen.
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. 	For that reason, the motion at
Docket 41 is DENIED.
DATED this 21st day of February, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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