Last updated February 28, 2011
This page summarizes federal appellate and district court decisions issued since the U.S. Supreme Court's ruling in District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the court held for the first time, in a 5-4 decision, that the Second Amendment guarantees a law-abiding, responsible citizen's right to possess an operable handgun in the home for self-defense. In McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the Court extended this right to limit state and local governments in addition to the federal government.
The Heller and McDonald decisions have resulted in a flood of Second Amendment challenges that have clogged the nation's courts. Most of these challenges have been rejected, however, as courts held that a wide variety of federal, state and local firearms laws do not impermissibly burden the ability to possess a handgun in the home for self-defense. For more about recent developments in post-Heller jurisprudence and an overview of emerging issues, see LCAV's Post-Heller Litigation Summary.
Please note that the following analysis includes unpublished and unreported decisions. Court rules in a particular jurisdiction may discourage or forbid citation to unpublished and unreported cases. Please also note that the summaries below represent the most recent decision discussing a Second Amendment claim in each case. To the extent possible, the case citations below reflect any relevant subsequent decision or pending appeal.
LCAV also has archived summaries of federal and state cases involving Second Amendment challenges that were decided prior to the Heller decision.
U.S. SUPREME COURT
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)
In McDonald, the United States Supreme Court held in a 5-4 ruling that the Second Amendment applies to state and local governments in addition to the federal government. In doing so, the Court reversed a Seventh Circuit decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois.
The Supreme Court did not reach the issue of whether the Second Amendment applies against the states in District of Columbia v. Heller, the 2008 decision holding for the first time that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense, because that case involved only the laws of the District of Columbia (which is a federal enclave).
As it held in Heller, the Court reiterated in McDonald that the Second Amendment only protects a right to possess a firearm in the home for self-defense, and that a wide variety of gun laws are constitutionally permissible. The McDonald Court stated that:
It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." We repeat those assurances here. Despite municipal respondents' doomsday proclamations, incorporation does not imperil every law regulating firearms.
For more information about the McDonald decision, please visit the McDonald v. City of Chicago resources on our web site.
District of Columbia v. Heller, 128 S. Ct. 2783 (2008)
In Heller, the Supreme Court heard Second Amendment challenges to Washington, D.C.'s decades-old ban on handgun possession and requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device. In considering the meaning of the Second Amendment for the first time in 70 years, the Court examined whether the Amendment protects an individual right to possess firearms, or only protects firearm possession connected to service in a state militia. In a radical departure from its previous interpretation of the Second Amendment, the Court held that the Amendment guarantees an individual right to possess a firearm in the home for self-defense, and struck down the handgun possession ban as well as the safe storage law (which had no exception for self-defense).
The Supreme Court stated, however, that the Second Amendment should not be understood as conferring a "right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court identified a non-exhaustive list of "presumptively lawful regulatory measures," including "longstanding prohibitions" on firearm possession by felons and the mentally ill, as well as laws forbidding firearm possession in sensitive places such as schools and government buildings, and imposing conditions on the commercial sale of firearms.
The Court noted that the Second Amendment is also consistent with laws banning "dangerous and unusual weapons" not in common use at the time, such as M-16 rifles and other firearms that are most useful in military service. In addition, the Court declared that its analysis should not be read to suggest "the invalidity of laws regulating the storage of firearms to prevent accidents."
For more information about Heller and its significance, see our District of Columbia v. Heller page and our publication Gun Regulation and the Second Amendment: Moving Forward After District of Columbia v. Heller.
FIRST CIRCUIT
Court of Appeals
United States v. Rene E., 583 F.3d 8 (1st Cir. 2009)
Affirmed defendant's conviction for illegal possession of a handgun as a juvenile. The court rejected defendant's argument that the federal law violated the Second Amendment, citing "the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns." Examining the history of state and federal laws regulating possession by juveniles, the court stated that "the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms -- those whose possession poses a particular danger to the public."
District Court
Yohe v. Marshall, 2010 U.S. Dist. LEXIS 109415 (D. Mass. Oct. 14, 2010)
Granted defendants' motion for summary judgment on plaintiff's Second Amendment claim. The government had refused to return firearms seized in conjunction with a domestic disturbance to the plaintiff until he provided proof that he was able to possess the weapons under state law, which the plaintiff claimed violated the Second Amendment. The court distinguished the conduct at issue from categorical firearm bans, concluding that, "Channels exist for plaintiff to obtain the weapons."
United States v. Roy, 2010 U.S. Dist. LEXIS 107620 (D. Me. Oct. 6, 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm following commitment to a mental institution. The court concluded that language in Heller and McDonald deeming laws prohibiting the possession of firearms by felons and the mentally ill as "presumptively lawful" foreclosed the defendant's Second Amendment challenge.
United States v. Hart, 726 F. Supp. 2d 56 (D. Mass. July 30, 2010)
Denied defendant's motion to suppress evidence obtained during a traffic stop. The defendant argued that the Second Amendment prevented the suspected possession of a concealed weapon from being an appropriate basis for an investigatory stop. The court stated, "Heller does not hold, nor even suggest, that concealed weapons laws are unconstitutional," noting the Supreme Court's reference to Nineteenth Century concealed weapons cases. The Court noted that McDonald confirmed that the Second Amendment protects a right to possess a handgun in the home for self-defense.
Teng v. Town of Kensington, 2010 DNH 27 (Not for Publication)
Granted defendants' summary judgment motion against plaintiff's civil rights suit. The plaintiff had alleged that the town's refusal to issue her a state concealed firearms license until she provided more background information violated the Second Amendment. The court stated, "Given that Heller refers to outright 'prohibitions on carrying concealed weapons' as 'presumptively lawful,' far lesser restrictions of the sort imposed here…clearly do not violate the Second Amendment."
United States v. Small, 2010 U.S. Dist. LEXIS 13698 (D. Me. Feb. 16, 2010)
Denied defendant's motion to dismiss his indictment for possession of a firearm by a person who had been committed to a mental institution. Following United States v. Murphy [discussed below], the court rejected the defendant's claim that the federal statute infringed upon his Second Amendment right.
United States v. Murphy, 681 F. Supp. 2d 95 (D. Me. 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm by a person who had been committed to a mental institution. The court rejected the defendant's argument that the Second Amendment required a judicial determination of his mental health, quoting the Heller majority's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." The court also noted First Circuit cases suggesting "that groups subject to 'longstanding prohibitions' against gun possession might not have full Second Amendment rights."
United States v. Pettengill, 682 F. Supp. 2d 49 (D. Me. 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm after a conviction for a misdemeanor crime of domestic violence. Following Booker, the court stated that the category of domestic violence misdemeanants was more narrowly drawn (and a more likely indicator of future gun violence) than several "presumptively lawful" categories of firearms regulations discussed in Heller, including laws prohibiting firearm possession by felons and the mentally ill. The court held that the statute satisfied an inquiry under intermediate scrutiny, examining the law's legislative history and the defendant's violent conduct.
United States v. Wyman, 667 F. Supp. 2d 151 (D. Me. 2009)
Affirmed dismissal of defendant's motion to dismiss the charge of possession of a firearm by a person convicted of a misdemeanor crime of domestic violence in violation of federal law. The court cursorily rejected his claim that Heller raised a "substantial question of law" regarding the law's constitutionality, citing United States v. Booker [discussed below].
Marin v. Toldeo, 2009 U.S. Dist. LEXIS 21576 (D.P.R. Mar. 16, 2009)
Dismissed plaintiffs' claim alleging a violation of their Second Amendment rights when defendant law enforcement officers allegedly pursued false prosecutions for possession of illegal firearms against them. The court held that plaintiffs failed to show that the officers' administrative investigations and insistence that plaintiffs renew their firearms permits had abridged their Second Amendment rights.
Schubert v. City of Springfield, 602 F. Supp. 2d 254 (D. Mass. 2009), aff'd, 2009 U.S. App. LEXIS 28251 (1st Cir. Dec. 23, 2009)
Dismissed plaintiff's civil rights suit against a law enforcement officer and local government. Plaintiff had been detained by the police officer, who temporarily confiscated his concealed firearm after being unable to confirm that plaintiff had a license to carry it. Although plaintiff had cited Heller to support his suit, the court noted that plaintiff's right to bear arms was not at issue, and was actually "secured, not restricted, by the state's licensing statute."
United States v. Knight, 574 F. Supp. 2d 224 (D. Me. 2008)
Denied defendant's motion to dismiss his indictment for falsely stating that he was not subject to a domestic violence restraining order in order to purchase a firearm. The court rejected the defendant's argument that Heller rendered the federal prohibition on the sale of firearms to persons facing restraining orders unconstitutional and made his false statement immaterial. Observing that the prohibition only applied to certain court orders and only lasted for the extent of the order, the court found that the law would survive any level of judicial scrutiny and was narrowly tailored to the compelling government interest of reducing domestic violence.
United States v. Booker, 570 F. Supp. 2d 161 (D. Me. 2008)
Denied defendant's motion to reconsider his motion to dismiss his indictment for possession of a firearm by a person previously convicted of a misdemeanor crime of domestic violence. The court deferred the issue of what standard to apply in evaluating post-Heller Second Amendment challenges. Instead, the court held that the law was constitutional because it was similar to laws prohibiting firearm possession by felons and the mentally ill, which Heller, the court stated, had deemed to be "'longstanding prohibitions' that survive Second Amendment scrutiny." The court observed that the prohibition on firearm possession by persons convicted of violent misdemeanors was actually more "tightly cast" than the prohibition against possession by all felons.
SECOND CIRCUIT
Court of Appeals
United States v. Stuckey, 317 Fed. Appx. 48 (2d Cir. 2009) (Unpublished)
Affirmed defendant's conviction for possession of a firearm and ammunition by a convicted felon. The court deemed the defendant's argument that the federal law was unconstitutional to be "unavailing," noting Heller's reference to the longstanding prohibition on firearm possession by felons.
Maloney v. Cuomo, 554 F.3d 56 (2d. Cir. 2009)
Affirmed dismissal of plaintiff's suit challenging a state law prohibiting the possession of a nunchaku (a weapon consisting of two connected wooden sticks). The court rejected the argument that the statute violated the Second Amendment to the extent it prohibited possession of nunchaku in the home. The court stated that it was "settled law" that the Second Amendment only applies to actions by the federal government and that Heller "does not invalidate this longstanding principle." The court also stated that, "to the extent that Heller might be read to question the continuing validity of this principle," it was obligated to follow controlling Supreme Court precedent until that Court ruled otherwise. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
District Court
United States v. Oppedisano, 2010 U.S. Dist. LEXIS 127094 (E.D.N.Y. Nov. 30, 2010)
Ordered that defendant be precluded from introducing evidence that the federal law prohibiting the possession of firearms by convicted felons was unconstitutional as applied to him. In evaluating the merits of the defendant's as applied Second Amendment challenge, the court applied intermediate scrutiny, holding that the prohibition was "substantially related to the important goal of promoting public safety," because the defendant's two driving-while-intoxicated convictions showed that he was "proven to have put others at risk through reckless conduct and poor judgment." The court noted that it did not matter that the defendant's felonies were nonviolent and had occurred sixteen and seventeen years previously.
United States v. Oakes, 2009 U.S. Dist. LEXIS 107599 (D. Vt. Nov. 18, 2009)
Denied defendant's motion to dismiss indictment for possession of a firearm by a convicted felon under federal law. The court rejected his Second Amendment claim, holding that Heller clearly stated that the prohibition on firearm possession by felons remained valid. The court rejected the defendant's argument that United States v. Kitsch [discussed below] required the government to prove that the defendant must be aware of the statute or of the felony conviction, holding that such a burden was not constitutionally required. Finally, the court rebuked the defendant's request for a jury instruction requiring the government to "demonstrate the defendant's prospective dangerousness before limiting his Second Amendment rights," noting that the Tenth Circuit had rejected this argument in United States v. Engstrum [discussed below].
United States v. Rose, 2009 U.S. Dist. LEXIS 66822 (N.D.N.Y. Aug. 3, 2009)
Denied petitioner's claim of ineffective assistance of counsel. The petitioner had claimed, in part, that his appellate counsel was ineffective for not challenging the constitutionality of the federal statute prohibiting possession of a firearm during a crime of violence. The court found that it was not unreasonable for counsel to not raise this challenge since the statute "does not run afoul of the individual right guaranteed by the Second Amendment."
Mr. S. v. Webb, 602 F. Supp. 2d 374 (D. Conn. 2009)
Dismissed plaintiffs' allegation that a state trooper had improperly seized a firearm in violation of their Second Amendment rights. The court held that the right to bear arms applies only to actions by the federal government, not the state. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008)
Denied the government's motion to modify defendant's pretrial bail to add conditions required by federal law for individuals charged with child pornography offenses, including a requirement that the defendant not possess any firearms. The court stated that, prior to Heller, it "might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release." The court found that because the Second Amendment created an individual right to possess a firearm, it also established a liberty interest protected by due process. Applying a balancing test, the court concluded that the bail requirement was unconstitutional on its face, and that due process required providing a defendant with an opportunity to challenge whether the firearm prohibition was "reasonably necessary in his case to secure the safety of the community."
United States v. Erwin, 2008 U.S. Dist. LEXIS 78148 (N.D.N.Y. Oct. 6, 2008)
Denied defendant's motion to dismiss his indictments for making a false statement to a firearms dealer and knowingly possessing a shotgun in violation of a court order of protection. The court held that the federal statutes were not unconstitutional following Heller, citing the Supreme Court's approval of "laws imposing conditions and qualifications on the commercial sale of arms" to uphold the false statement statute. The court also concluded that the order of protection restriction was narrowly tailored to the compelling government interest of reducing domestic violence.
City of New York v. Bob Moates' Sport Shop, 253 F.R.D. 237 (E.D.N.Y. 2008)
Held that Heller did not impact proposed settlement between New York City and certain gun dealers and default judgments against other dealers. According to the court, the federal statute immunizing firearms manufacturers and dealers from civil suits would have mandated the suit's dismissal unless the manufacturer or dealer violated a federal or state statute applicable to the sale or marketing of firearms. Because Heller did not call into question the constitutionality of the federal statutes regulating firearms sales that provided the necessary exception, the court held, the suit did not need to be dismissed.
THIRD CIRCUIT
Court of Appeals
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010)
Affirmed defendant's conviction under federal statute prohibiting possession of a firearm with an obliterated serial number. In evaluating the defendant's Second Amendment challenge, the court noted the possibility that unmarked firearms might be excluded from Second Amendment protection as "dangerous and unusual weapons," without ruling on the question. On the issue of the standard of review in Second Amendment cases, the court held that even if strict scrutiny might be appropriate for some Second Amendment challenges, like categorical bans on classes of firearms, the statute at issue did not severely limit the possession of firearms. Because the statute merely regulated the manner in which persons could exercise their Second Amendment rights, the statute merited intermediate scrutiny. The court concluded that the statute fit closely with the interest of preserving law enforcement's ability to trace firearms recovered in crimes, and would satisfy either intermediate or strict scrutiny.
Costigan v. Yost, 334 Fed. Appx. 460 (3d. Cir. 2009) (Unpublished)
Affirmed dismissal of inmate's petition for habeas corpus relief following conviction under federal law prohibiting possession of a firearm during the commission of a crime of violence. The court held that the statute was not invalidated by Heller, which held that the Second Amendment right was limited, and did not address the statute at issue in this matter.
United States v. Ross, 323 Fed. Appx. 117 (3d Cir. 2009) (Unpublished)
Affirmed defendant's convictions for possession of a firearm in furtherance of a drug trafficking crime, possession of a machine gun, possession of a pistol with an obliterated serial number, and possession a pistol converted to a machine gun. The court rejected defendant's argument that the federal statute prohibiting possession of a machine gun violated the Second Amendment following Heller. The court stated that although the Supreme Court found "that the textual elements of the Second Amendment 'guarantee the individual right to possess and carry weapons in case of confrontation,'" the Heller Court limited its holding to protecting the ability of law-abiding citizens to possess handguns for self-defense.
District Court
United States v. Huet, 2010 U.S. Dist. LEXIS 123597 (W.D. Pa. Nov. 22, 2010)
Granted defendant's motion to dismiss indictment for aiding and abetting the possession of a firearm by a convicted felon in violation of federal law. The defendant, who was not prohibited by law from possessing guns, owned and kept a rifle in her home even though her significant other was a convicted felon. The court observed that "the crux of the government's case" against the defendant was her possession of the firearm within her home. The court held that the application of the federal "aiding and abetting" statute to the felon-in-possession prohibition "implicates the protections of the Second Amendment. Were this Court to permit this Indictment to go forward, the Court would be countenancing the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon, and not because of some affirmative act taken by the citizen." The court concluded that the indictment represented a "substantial, if not unfettered, infringement on her Second Amendment right to keep arms."
United States v. Woodson, 2010 U.S. Dist. LEXIS 114735 (D. Del. Oct. 28, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm by a convicted felon under federal law. The court stated that the defendant's Second Amendment challenge was foreclosed by Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill."
Ortiz-Martinez v. United States, 2010 U.S. Dist. LEXIS 64434 (D.N.J. June 24, 2010) (Not for Publication)
Dismissed the petitioner's habeas corpus petition, which argued that Heller rendered his convictions, under federal laws prohibiting possession of a firearm by a felon and during the commission of a crime, unconstitutional. The court stated that Heller found that the Second Amendment right was not unlimited, noting that several categories of firearms regulations, including felon-in-possession laws, had been found constitutional.
Bane v. City of Philadelphia, 2010 U.S. Dist. LEXIS 61259 (E.D. Pa. June 18, 2010)
Granted in part city's motion to dismiss plaintiff's civil suit resulting from arrest and seizure of firearms. The court rejected the plaintiff's claim that his Second Amendment right had been violated. The court noted that the plaintiff could still retrieve his firearms under state law, and that the firearms were lawfully seized, one as incidental to a crime, and the other following the plaintiff's consent to the seizure.
United States v. Korbe, 2010 U.S. Dist. LEXIS 57259 (W.D. Pa. June 9, 2010)
Denied defendant's motion to dismiss indictment charging, in part, possession of a firearm by an unlawful drug user in violation of federal law. The court rejected the defendant's Second Amendment challenge to the statute, noting that the Second Amendment right is not unlimited, and that the statute was a "presumptively lawful" prohibition that would satisfy any level of scrutiny.
Banks v. Gallagher, 686 F. Supp. 2d 499 (M.D. Pa. 2009)
Denied plaintiff's motion for summary judgment in civil suit against local law enforcement. The court held, in relevant part, that plaintiff's Second Amendment claim was precluded by Supreme Court precedent holding that the Second Amendment does not apply to the states, "[r]egardless of the dicta in Heller or the strength of the Ninth Circuit's argument [in Nordyke v. King, discussed below] that the Second Amendment will be selectively incorporated against the States through the Fourteenth Amendment." [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
Deorio v. Del. County, 2009 U.S. Dist. LEXIS 65176 (E.D. Pa. July 27, 2009)
Granted defendants' motion to dismiss the plaintiff's suit. The petitioner's firearms had been confiscated by the police after a protective order was issued against him, and he alleged that the confiscation violated the Second Amendment. The court rejected this argument, finding that the Second Amendment "right to own guns" is not unlimited and that jurisdictions "may lawfully regulate weapons."
United States v. Smith, 2009 U.S. Dist. LEXIS 47382 (E.D. Pa. June 5, 2009)
Denied defendant's motion to vacate his convictions under federal laws prohibiting the possession of a firearm by a felon and the carrying of a firearm during a crime of violence. The court rejected the defendant's argument that his counsel was ineffective for failing to challenge the constitutionality of the federal felon-in-possession statute under the Second Amendment, since Heller did not articulate a limitless right to possess weapons and the Supreme Court had stated that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. Burton, 2009 U.S. Dist. LEXIS 25410 (E.D. Pa. Mar. 25, 2009)
Dismissed petitioner's application for writ of habeas corpus, which alleged that the federal statute prohibiting possession of a firearm by a felon was unconstitutional. The court noted Heller's statement that "nothing in [the] opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons," before concluding that plaintiff had failed to seek proper judicial authorization to file his petition.
United States v. Zemba, 2009 U.S. Dist. LEXIS 20973 (W.D. Pa. Mar. 10, 2009), aff'd, 2009 U.S. App. LEXIS 19181 (3d Cir. Aug. 25, 2009)
Dismissed petitioner's writ challenging his conviction for possession of a firearm as a convicted felon. The petitioner alleged that the federal law was unconstitutional following Heller. Although the court dismissed the writ on procedural grounds, it noted that Heller would offer "no relief" to the petitioner, since the Supreme Court held that the right to bear arms was not unlimited and stated that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. Willaman, 2009 U.S. Dist. LEXIS 18560 (W.D. Pa. Mar. 5, 2009)
Denied petitioner's motion to vacate his conviction for possession of an unregistered machine gun in violation of federal law. While the petitioner's motion was deemed untimely, the court further held that, contrary to his assertion of an unconditional right to possess firearms, Heller recognized a limited individual right that did not include the right to possess a machine gun.
United States v. Lewis, 50 V.I. 995 (D.V.I. 2008)
Denied defendant's motion to dismiss his indictment under the federal law prohibiting possession of a firearm within 1,000 feet of a school zone and the Virgin Islands law prohibiting unlawful possession of a concealed firearm. The court held that the statutes were not unconstitutional following Heller, concluding first that a school zone fell within the "sensitive places" exception recognized in that case. Additionally, the court held that because the Second Amendment does not apply to the states, it does not apply to the territorial Virgin Islands. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
Welsch v. Twp. Of Upper Darby, 2008 U.S. Dist. LEXIS 65500 (E.D. Pa. Aug. 26, 2008)
Plaintiff sought return of firearms confiscated by the police as part of an investigation into a gun owner's suicide and challenged the township's policy requiring either a court order or the police superintendent's permission to retrieve confiscated weapons. The court granted the defendants' motion for summary judgment to the extent that the policy required a court order, but declared the policy unconstitutional to the extent that it provided the police superintendent with "unfettered discretion" in determining who could retrieve their firearms without a court order.
United States v. Kitsch, 2008 U.S. Dist. LEXIS 58904 (E.D. Pa. Aug, 1, 2008)
Granted defendant's motion for leave to require the government to prove scienter with regard to his status as a felon. The defendant had been indicted under the federal statute prohibiting possession of firearms, ammunition, and body armor by a convicted felon. He had cooperated with a law enforcement investigation and believed that his conviction was set aside following the investigation's completion. The court articulated the applicable rule as "where an element of a statute has the effect of making otherwise lawful conduct a criminal offense...the presumption [exists] that the element includes a scienter requirement." The court held that the word "knowingly" in the statute modified both the elements of possession and the defendant's awareness of his status as a convicted felon.
While the court stated that it would have made the same ruling pre-Heller, it noted that its interpretation of the statute had the "added benefit of avoiding potential doubts post-Heller about the statute's constitutionality." Because, the court stated, Heller identified an enumerated constitutional right, and "a statute that imposes criminal penalties for the exercise of an enumerated constitutional right despite defendant's reasonable belief in good faith that he has complied with the law must, at the very least, raise constitutional doubts."
United States v. Walters, 2008 U.S. Dist. LEXIS 53455 (D.V.I. July 15, 2008)
Denied defendant's motion to dismiss his indictment for possession of a firearm within 1,000 feet of a school zone under federal law and unauthorized possession of a firearm under Virgin Islands code. The court cited pre-Heller decisions and Heller's discussion of certain "presumptively lawful regulatory measures" to conclude that the Second Amendment right "is not unfettered."
FOURTH CIRCUIT
Court of Appeals
United States v. Chester, 628 F.3d 673 (4th Cir. 2010)
Vacated district court decision denying defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. The district court had determined that the statute was constitutional by analogizing it to the prohibition on possession by felons that Heller had deemed among a list of "presumptively lawful regulatory measures." The circuit court criticized certain other courts' treatment of the "presumptively lawful" category "as a kind of 'safe harbor' for unlisted regulatory measures," because that approach "approximates rational-basis review." The court held that some level of heightened scrutiny analysis was appropriate if the statute imposed a burden on protected conduct. Assuming that domestic violence misdemeanants are protected by the Second Amendment, the court held that the defendant's claim "is not within the core right identified in Heller--the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense--by virtue of Chester's criminal history as a domestic violence misdemeanant," and that intermediate scrutiny was the appropriate test. The court remanded the decision to the district court to evaluate the statute under intermediate scrutiny.
United States v. Nichols, 2010 U.S. App. LEXIS 25 (4th Cir. Jan. 4, 2010) (Unpublished)
In denying defendant's appeal of sentence following conviction under federal law prohibiting possession of firearms by convicted felons, the court rejected defendant's reference to Heller, stating that decision was "inapposite because it [did] not deal with violations of [this statute]."
United States v. Riley, 2010 U.S. App. LEXIS 24 (4th Cir. Jan. 4, 2010) (Unpublished)
Dismissing defendant's challenge to his sentence for violating federal drug laws, which included an enhanced sentencing range due to his possession of a dangerous weapon during the commission of the crime. The court rejected the defendant's argument that Heller required greater scrutiny before applying a sentence enhancement for lawful firearm possession, including the establishment of a nexus between possession of a firearm and commission of the crime. The court held that, given Heller’s discussion of an non-exhaustive list of presumptively lawful prohibitions, the case had no effect on the sentencing guidelines.
United States v. Cooper, 351 Fed. Appx. 814 (4th Cir. 2009) (Unpublished)
[Same fact pattern and holding as in Riley immediately above.]
Kodak v. Holder, 342 Fed. Appx. 907 (4th. Cir. 2009) (Unpublished)
Affirmed dismissal of plaintiff's complaint, which sought to prevent the Attorney General from enforcing the federal ban on armor-piercing ammunition. The plaintiff had argued that the ban violated the Second Amendment because armor-piercing ammunition was vital to a citizens' militia and reduced the risk of death when used for self-defense. Concluding that the ban did not violate the Second Amendment, the court found that the plaintiff's argument was foreclosed by Heller's discussion of the constitutionality of banning military-style weapons. The court also noted that armor-piercing ammunition is not in common use by law-abiding citizens, although "[e]ven if possession of armor-piercing ammunition would be more common were it not banned, it does not necessarily follow that it would be commonly used by law-abiding citizens for lawful purposes, considering the great risk such ammunition poses to law enforcement officers."
United States v. Rhodes, 322 Fed. Appx. 336 (4th Cir. 2009) (Unpublished)
Affirmed petitioner’s sentence for federal drug crimes, which included a sentence enhancement for petitioner’s firearm possession in connection with the crimes. The court rejected petitioner’s argument that the weapon enhancement violated his Second Amendment right to possess a firearm within his home, holding that the Second Amendment right is not unlimited and is curtailed by a variety of presumptively lawful measures.
United States v. McRobie, 2009 U.S. App. LEXIS 617 (4th Cir. Jan. 14, 2009) (Unpublished)
Affirmed defendant's conviction for possession of a firearm by a person committed to a mental institution under federal law. The court cited Heller's longstanding prohibitions on possession by felons and the mentally ill in rejecting his Second Amendment claim.
United States v. Brunson, 292 Fed. Appx. 259 (4th Cir. 2008) (Unpublished)
Affirmed defendant's conviction for possession of a firearm as a convicted felon under federal law. The court deemed "meritless" the defendant’s contention that the statute was unconstitutional under the Second Amendment.
District Court
United States v. Lunsford, 2011 U.S. Dist. LEXIS 4753 (S.D. W. Va. Jan. 18, 2011)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm by a convicted felon. Noting the Fourth Circuit's discussion in United States v. Chester [discussed above], the court held that the prohibition on firearm possession by felons was facially valid as one of the "presumptively lawful regulatory measures" discussed in Heller. Citing Chester's discussion of the possibility that a presumptively lawful statute might still be vulnerable to an as applied challenge, the court stated that it was "not at all convinced that the language of Heller has left open the possibility of as-applied challenges to [the felon-in-possession statute.]" Despite that reservation, the court examined the defendant's as-applied challenge, observing uncertainty about whether felons were protected by the Second Amendment at the time of the Amendment's ratification before concluding that the statute met intermediate scrutiny. The court found that the statute advanced the goals of "protecting the safety and lives of citizens and preventing crime…by proscribing gun ownership and possession for certain classes of 'presumptively dangerous individuals.'"
United States v. Smith, 2010 U.S. Dist. LEXIS 98511 (S.D. W. Va. Sept. 20, 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm following conviction of a misdemeanor crime of domestic violence. Rejecting the defendant's Second Amendment challenge, the court held that the statute was "presumptively lawful" because it was analogous to the class of felon-in-possession laws approved in Heller. Additionally, the statute satisfied intermediate scrutiny, which was appropriate in part because the defendant was "several steps removed from the 'core' of the Second Amendment's protections," given his past convictions, and the fact that he had not been possessing his firearm for self-defense or in his home. Citing Staten [discussed below]and Tooley [discussed above], the court determined that the law was "substantially related to an important government interest, namely, the prevention and reduction of domestic violence involving firearms."
United States v. Luviano-Vega, 2010 U.S. Dist. LEXIS 98432 (E.D.N.C. Sept. 20, 2010)
Denied defendant's motion to dismiss charges under federal laws prohibiting possession of a firearm by a convicted felon and by an illegal alien. The court held that neither Heller nor any other case established the right of an illegal alien to possess a firearm under the Second Amendment, and that the law was "a valid exercise of Congressional power."
United States v. Staten, 2010 U.S. Dist. LEXIS 91653 (S.D. W.Va. Sept. 2, 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm following a conviction for a misdemeanor crime of domestic violence. The defendant alleged that the statute violated the Second Amendment, facially and as applied to him. Citing United States v. Skoien [discussed above], the court applied intermediate scrutiny, rejecting strict scrutiny in part because the defendant's possession of firearms was "outside the core protections offered by the Second Amendment." In concluding that the statute met intermediate scrutiny, the court cited research connecting firearms in the home to domestic violence and noted that the statute only applied to offenders who had previously committed violent crimes.
Brown v. United States, 2010 U.S. Dist. LEXIS 91528 (M.D.N.C. Sept. 2, 2010)
Recommended denial of petitioner's motion to vacate his conviction under federal law prohibiting possession of a firearm by a convicted felon. The court denied the petitioner's claim of ineffective assistance of counsel due to his attorney's failure to raise a Second Amendment challenge to the statute, stating that "the Supreme Court specifically noted that the Heller opinion should not be taken to cast doubt on prohibitions against felons possessing firearms."
Philson v. United States, 2010 U.S. Dist. LEXIS 70896 (E.D.N.C. July 14, 2010)
Granted government's motion to dismiss petitioner's challenge to convictions under federal firearms law prohibiting possession of firearms by convicted felons. In support, the court noted Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. Mohamadi, 2010 U.S. Dist. LEXIS 60318 (E.D. Va. June 17, 2010)
Denied defendant's motion for judgment of acquittal, which had alleged that the federal law prohibiting firearm possession by convicted felons violated the Second Amendment. The court stated that, "In dicta, the Court made clear that its decision 'should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,'" noting that the Fourth Circuit had applied that language to uphold felon-in-possession statutes.
United States v. Tooley, 717 F. Supp. 2d 580 (S.D. W. Va. 2010)
Denied defendant's motion to dismiss federal indictments for making false statements on firearms transfer forms and possession of a firearm following a conviction for a misdemeanor crime of domestic violence. The court stated that Heller's "dicta" deeming certain categories of regulations "presumptively lawful" should be read narrowly, and that restrictions on the "core" Second Amendment right "would most likely be subject to exacting scrutiny." The court concluded that intermediate scrutiny was appropriate because the defendant's right to carry a firearm was "within the scope of Second Amendment protection, but outside of its 'core.'" The court upheld the statute at issue, finding that it was reasonably tailored to the compelling interest of preventing domestic violence. [See also United States v. Tooley, 717 F. Supp. 2d 580 (S.D. W. Va. 2010) (finding that McDonald v. City of Chicago did not merit reconsideration of the district court's decision to apply intermediate scrutiny).]
United States v. Chapman, 2010 U.S. Dist. LEXIS 58680 (S.D. W. Va. June 14, 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of firearms by individuals subject to domestic violence protective orders. In evaluating the defendant's Second Amendment challenge to the statute, the court followed United States v. Tooley [discussed below]. The court held that it was appropriate to evaluate the statute under intermediate scrutiny because the defendant was not within the "core" of the Second Amendment right since the protective order had been issued because he was found to pose a likely threat of future violence. The court found that the interest of protecting public safety was compelling, and that the time-limited prohibition on firearm possession during a restraining order was sufficiently tailored to meet at least intermediate scrutiny.
United States v. Brown, 715 F. Supp. 2d 688 (E.D. Va. 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of firearm following a conviction for a misdemeanor crime of domestic violence. After conducting a lengthy historical analysis of the right to bear arms, the court concluded that the defendant's past criminal conduct had disqualified him from Second Amendment protection, and that the possession of firearms by persons convicted of domestic violence misdemeanors, as opposed to law-abiding, responsible citizens, fell "outside the scope of the Second Amendment as understood in light of its history and our nation's constitutional development."
United States v. Hill, 2010 U.S. Dist. LEXIS 49815 (D. Md. May 20, 2010)
Denied defendant's motion to dismiss his indictment under federal law prohibiting the possession of a firearm by a convicted felon. The court cited the Fourth Circuit's decision in United States v. Brunson [discussed above] and Heller's "affirmation of the 'longstanding prohibitions on the possession of firearms by felons,'" in rejecting his Second Amendment challenge.
United States v. Walker, 2010 U.S. Dist. LEXIS 39473 (E.D. Va. Apr. 21, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. Examining the defendant's argument that the federal statute was unconstitutional under the Second Amendment, the court held that the statute was among the class of "presumptively lawful regulatory measures" identified in Heller. The court stated that the statute was as justified as the prohibition on firearm possession by convicted felons due to "the clear intent of Congress to close a 'dangerous loophole' involving violent criminals." Additionally, the court found that the statute also satisfied intermediate scrutiny, finding a "reasonable fit" between the statute and the goal of reducing domestic gun violence because the statute "specifically targets violent offenders."
United States v. Masciandaro, 648 F. Supp. 2d 779 (E.D. Va. 2009)
Affirmed defendant's conviction under federal regulation forbidding possession of a loaded weapon in a motor vehicle in a national park. The court rejected defendant's facial and as-applied Second Amendment challenges to the regulation, emphasizing that Heller's "narrow holding" was focused on the right to use arms in the home. The court stated that the restriction did not place a "substantial obstacle" in front of the defendant's exercise of the Second Amendment. Moreover, the court argued, national park parking lots are "sensitive places" as identified in Heller's discussion of "presumptively lawful regulatory measures." Regarding the defendant's facial challenge, the court found that even if there were situations where a person would need a loaded firearm in a motor vehicle for immediate self-defense, the law could be read to include a common law self-defense exception to avoid constitutional problems.
Aderinto v. Sessions, 2009 U.S. Dist. LEXIS 76379 (D.S.C. July 30, 2009), adopted by, 2009 U.S. Dist. LEXIS 76304 (D.S.C. Aug. 26, 2009)
Recommended granting defendants' summary judgment motion in civil rights action by plaintiff following her conviction under municipal law prohibiting unlawful possession of a weapon (the plaintiff had been carrying a tree branch in a public library). The magistrate judge held that, even assuming that the branch constituted arms, the plaintiff's Second Amendment claim failed because the Heller Court had noted "the continued validity of 'longstanding prohibitions' on the 'carrying of firearms in sensitive places such as schools and government buildings.'"
Newbold v. United States, 2009 U.S. Dist. LEXIS 64250 (M.D.N.C. July 27, 2009)
Recommended dismissal of petitioner's motion to vacate his conviction under federal law prohibiting possession of a firearm by a convicted felon. The court rejected the petitioner's Second Amendment challenge, noting that Heller did not impact the prohibition on firearm possession by felons.
United States v. Carter, 2009 U.S. Dist. LEXIS 61019 (S.D. W. Va. July 13, 2009)
Denied defendant's motion to dismiss indictment for possession of a firearm while a drug user. The court adopted the reasoning in United States v. Chafin [discussed below], finding the statute constitutional under the Second Amendment.
United States v. Pruess, 2009 U.S. Dist. LEXIS 63584 (W.D.N.C. July 2, 2009)
Denied defendant's motion to dismiss charge of possession of ammunition by a convicted felon. The court deemed defendant's contention that the federal statute was unconstitutional following Heller to have "no merit."
Lucas v. Driver, 2009 U.S. Dist. LEXIS 79807 (N.D. W. Va. June 4, 2009), adopted by, 2009 U.S. Dist. LEXIS 79806 (N.D. W. Va. Sept. 3, 2009)
Recommended the dismissal of an inmate's application for habeas corpus relief. The magistrate judge rejected the inmate's argument that the federal statute prohibiting firearm possession by a convicted felon violated the Second Amendment following Heller, given that "the Supreme Court specifically carved out an exception for continuing the prohibition of felons possessing firearms."
United States v. Holbrook, 613 F. Supp. 2d 745 (W.D. Va. 2009)
Rejected defendant's challenge to convictions under federal laws prohibiting possession of a firearm after conviction of a misdemeanor crime of domestic violence and making a false statement in order to obtain a firearm. The defendant claimed that Heller made it unconstitutional to prohibit her from possessing a firearm within her home. The court found this claim "unsupported," stating that Heller anticipated that many firearm prohibitions not expressly mentioned in the decision would remain "presumptively lawful."
Sweets v. United States, 2009 U.S. Dist. LEXIS 34553 (D. Md. Apr. 21, 2009)
Denied petitioner's motion to vacate his conviction. The court held, without discussion, that his conviction for conspiracy to possess firearms in furtherance of a drug trafficking crime did not violate the Second Amendment.
United States v. Bumm, 2009 U.S. Dist. LEXIS 34624 (S.D. W. Va. Apr. 17, 2009)
Denied defendant's motion to dismiss charges under federal laws prohibiting the possession of firearms by an unlawful controlled substance user and making false statements in order to purchase a firearm. Defendant argued that the possession statute was unconstitutional and that the information provided on the form was therefore not material. The court disagreed, adopting and following the reasoning in United States v. Chafin [discussed below].
United States v. Moore, 2009 U.S. Dist. LEXIS 32953 (W.D.N.C. Apr. 17, 2009)
Denied defendant's motion to dismiss his indictment under federal law for possession of a firearm as a convicted felon. Citing Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons," the court rejected the defendant's Second Amendment argument.
United States v. Skeens, 589 F. Supp. 2d 757 (W.D. Va. 2008)
Defendant was charged with possession of a firearm by a convicted felon under federal law after law enforcement seized a number of firearms owned by his wife and kept in their home. In preparation for sentencing, the defendant objected to the base offense level used to develop sentencing guidelines, asserting that the level should have been lowered under a provision that authorized reduction if the defendant "possessed all ammunition and firearms solely for lawful sporting purposes or collection." The court held that the defendant had failed to present any evidence to justify the reduction, but noted that, in considering whether a reduced offense level was appropriate, it was not considering a handgun owned by the defendant's wife and kept next to her bed for self-defense. The judge remarked that, "While the Second Amendment does not immunize the possession of a firearm by a convicted felon, it does seem incongruous to sentence Mr. Skeens more harshly in part because of his wife's constitutionally-protected possession of a firearm."
United States v. Chafin, 2008 U.S. Dist. LEXIS 95809 (S.D. W. Va. Nov. 18, 2008)
Denied defendant's motion to dismiss his indictment for making false statements on a firearms transaction record in order to purchase a weapon from a dealer, selling a firearm to an unlawful drug user, and knowing possession of a firearm while a drug user. The court noted that Heller addressed much broader statutes and "sanctioned some well-rooted, public-safety-based exceptions to the Second Amendment right that appear consistent with Congress' determination that those unlawfully using or addicted to controlled substances should not have firearms at the ready." While a citizen could conceivably challenge the form structure under Heller, the court stated, no reading of Heller would support overturning the prohibition on false statements.
Minotti v. Whitehead, 584 F. Supp. 2d 750 (D. Md. 2008)
Denied inmates' requests for habeas and injunctive relief in challenge to federal Bureau of Prisons regulation that denied early release to prisoners convicted of felonies related to the carrying, possession, or use of firearms. The court dismissed one plaintiff's reliance on Heller as irrelevant and "weak at best," since his firearm possession was inside a car, "while the focus of the decision in Heller was on the inherent right of self-defense central to the Second Amendment in the context of defense of one's home."
United States v. Borgo, 2008 U.S. Dist. LEXIS 86560 (W.D.N.C. Oct. 16, 2008)
Denied defendant's motion to dismiss charge under federal law prohibiting possession of a firearm by a convicted felon. The court cited Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. Guerrero-Leco, 2008 U.S. Dist. LEXIS 103448 (W.D.N.C. Oct. 3, 2008)
Denied defendant's motion to dismiss his indictment for possession of a firearm by an illegal alien. The court held that the Second Amendment only applies to American citizens and does not protect persons who unlawfully enter the United States.
United States v. Solis-Gonzalez, 2008 U.S. Dist. LEXIS 110133 (W.D.N.C. Sept. 26, 2008)
Recommended the denial of defendant's motion to dismiss his indictment for possession of a firearm by an illegal alien under federal law. The court held that the Second Amendment does not extend to aliens in possession of firearms, and noted that "decisions by this Court as well as other district courts across the country consistently hold that Heller does not undermine the constitutionality of prohibitions under [the federal firearms laws]."
United States v. Burris, 2008 U.S. Dist. LEXIS 81030 (W.D.N.C. Aug. 25, 2008)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm by a convicted felon. The court found that Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons," confirmed the statute's constitutionality.
United States v. Loveland, 2008 U.S. Dist. LEXIS 77389 (W.D.N.C. Aug. 21, 2008)
Denied defendant's motion to dismiss his indictment for possession of a firearm by a convicted felon under federal law and his attempt to overturn his original federal conviction for possession of an unregistered firearm. The court cited Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons," and declined to read Heller to conflict with the firearm registration requirements.
United States v. Hall, 2008 U.S. Dist. LEXIS 59641 (S.D. W. Va. Aug. 4, 2008)
Denied defendant's motion to suppress. The court concluded that the Second Amendment did not conflict with laws prohibiting the carrying of a concealed weapon without a permit, possession of a firearm by a convicted felon, and carrying of a firearm for an unlawful purpose.
Mullenix v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 2008 U.S. Dist. LEXIS 51059 (E.D.N.C. July 2, 2008)
Granted defendant ATF's motion for summary judgment. Plaintiff, a federally licensed firearms dealer, had sued ATF, alleging that the agency improperly denied him permission to import a reproduction of a World War II-era machine gun. The court held that the Second Amendment is not unlimited and does not preclude federal restrictions on the types of weapons that may be imported.
FIFTH CIRCUIT
Court of Appeals
United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010)
Affirmed defendant's conviction for possession of a firearm as a convicted felon. The court rejected the defendant's claim that the federal statute violated his Second Amendment right, noting Heller's dicta regarding the longstanding prohibition on firearm possession by felons.
United States v. Bledsoe, 334 Fed. Appx. 711 (5th Cir. 2009) (Unpublished)
Affirmed defendant's conviction for conspiring to make false material representations to a federally licensed firearms dealer in order to acquire a handgun at the age of 19. The court did not reach the defendant's argument that the federal law prohibiting possession of a handgun by someone under 21 violated the Second Amendment following Heller. The court stated that the Supreme Court recognized that "a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit."
United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) (Unpublished)
Affirmed defendant's conviction for possessing a handgun on postal property in violation of federal regulations. The court held that, assuming that the defendant's Second Amendment right extended to carrying a handgun in his car (which had been parked on postal property), his challenge still failed because the regulation stemmed from the postal service's constitutional authority as a property owner, the parking lot was a "sensitive place" falling within a presumptively lawful category of laws recognized in Heller, and the defendant was not obligated to park in the lot.
United States v. Moore, 326 Fed. Appx. 794 (5th Cir. 2009) (Unpublished)
Denied defendant's appeal from his conviction for possession of a firearm as a convicted felon under federal law. The court found that the Anderson decision (discussed below) foreclosed the defendant's Second Amendment argument.
Triplett v. Roy, 326 Fed. Appx. 720 (5th Cir. 2009) (Unpublished)
Affirmed district court's denial of inmate's petition to challenge the constitutionality of his conviction for being a felon in possession of a firearm under federal law. The court cited Heller’s "longstanding prohibitions" and Anderson (discussed below) in support of its holding.
United States v. Anderson, 559 F.3d 348 (5th Cir. 2009)
Affirmed defendant's conviction under federal law prohibiting possession of a firearm as a convicted felon. The court found that Heller "provided no basis" for reconsidering prior circuit case law holding that the statute did not violate the Second Amendment.
District Court
United States v. Wali, 2010 U.S. Dist. LEXIS 133645 (N.D. Tex. Dec. 14, 2010)
Dismissed defendant's motion to dismiss indictment for possession of a firearm by a convicted felon in violation of federal law. Without discussion, the court stated that the defendant's challenge was dismissed in light of circuit precedent holding that the statute was constitutional.
Dority v. Roy, 2010 U.S. Dist. LEXIS 84403 (E.D. Tex. Aug. 17, 2010)
Adopted magistrate judge's recommendation to dismiss inmate's habeas corpus petition, which included a Second Amendment challenge to the federal statute prohibiting firearm possession by convicted felons. The court stated that Heller and McDonald made clear that it did not cast doubt on laws prohibiting the possession of firearms by felons and the mentally ill.
Mills v. Roy, 2010 U.S. Dist. LEXIS 84408 (E.D. Tex. July 7, 2010), adopted by, 2010 U.S. Dist. LEXIS 84407 (E.D. Tex. Aug. 17, 2010)
Recommended dismissal of petitioner's habeas corpus petition, which challenged his conviction for possession of a firearm by a convicted felon under the Second Amendment. The court rejected the petitioner's argument, noting that Heller did not give a felon a right to possess a firearm.
Bell v. United States, 2010 U.S. Dist. LEXIS 84331 (E.D. Tex. July 7, 2010), adopted by, 2010 U.S. Dist. LEXIS 84327 (E.D. Tex. Aug. 17, 2010)
[Same facts and holding as Mills above.]
United States v. Williams, 2009 U.S. Dist. LEXIS 112316 (W.D. La. Oct. 13, 2009), adopted by, 2009 U.S. Dist. LEXIS 112279 (W.D. La. Dec. 2, 2009)
Recommended denial of inmate's petition for a writ of habeas corpus, which raised a Second Amendment challenge to the application of sentence enhancements based on the presence of firearms in his home at the time of his arrest for drug crimes. In addition to noting that Heller did not apply retroactively, the court said that the case would not help the defendant, who had already been convicted of felonies and whose possession included submachine guns, both of which excluded him from Second Amendment protection.
White v. Bragg, 2009 U.S. Dist. LEXIS 31698 (W.D. Tex. Mar. 30 2009), writ of habeas corpus dismissed at, 2010 U.S. Dist. LEXIS 40695 (W.D. Tex. Apr. 23, 2010)
Dismissed prisoner's petition for a writ of habeas corpus, which asserted Second Amendment challenges to his federal convictions for possession of a firearm in connection with drug trafficking and possession of a firearm and ammunition by a convicted felon. The court noted that the Heller Court "specifically stated that its opinion should not cast doubt on the prohibition on felons possessing firearms."
Piscitello v. Bragg, 2009 U.S. Dist. LEXIS 21658 (W.D. Tex. Feb. 18, 2009)
Dismissed prisoner's petition for a writ of habeas corpus, which asserted a Second Amendment challenge to his federal conviction for possession of a firearm by an unlawful drug user. The petitioner argued that the conviction infringed upon his constitutional right to possess a firearm in his home for self-defense or hunting, but the court held that Heller did not invalidate the law at issue. The court noted Heller's discussion of certain categories of "presumptively lawful regulatory measures" to conclude that "the right to possess a handgun is limited and subject to various regulations restricting the [Second Amendment] right." The court found that "Congress' determination that those unlawfully using or addicted to controlled substances should not have firearms at the ready is consistent with well-rooted, public-safety-based exceptions to the Second Amendment right."
Lineberry v. United States, 2008 U.S. Dist. LEXIS 79657 (E.D. Tex. Oct. 7, 2008)
Denied inmate's petition for writ of habeas corpus. The court held that Heller does not invalidate the federal law prohibiting convicted felons from possessing firearms.
Doshier v. Roy, 2008 U.S. Dist. LEXIS 67824 (E.D. Tex. Aug. 29, 2008)
Denied inmate's petition for writ of habeas corpus. The court held that Heller does not invalidate the federal law prohibiting convicted felons from possessing firearms.
SIXTH CIRCUIT
Court of Appeals
United States v. Whisnant, 2010 FED App. 0499N (6th Cir.) (Not Recommended for Full-Text Publication)
Affirmed defendant's convictions under federal laws prohibiting possession of firearms by convicted felons and possession of unregistered machine guns. The defendant challenged the felon prohibition statute on Second Amendment grounds, but the court rejected that claim, following United States v. Carey [discussed below].
United States v. Carey, 602 F.3d 738 (6th Cir.)
Affirmed denial of petitioner’s motion to expunge his felony conviction in order to possess a firearm under federal law. The petitioner argued that the denial of his expungement request denied him access to his fundamental Second Amendment right. The court disagreed, stating that, "Because Congress's prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with the congressionally-created expungement exception...do not violate the Second Amendment."
United States v. Khami, 362 Fed. Appx. 501 (6th Cir. 2010) (Not Recommended For Full-Text Publication)
Affirmed denial of defendant's motion to dismiss conviction for possession of a firearm as a convicted felon under federal law. The court held that Heller's remarks regarding the constitutionality of felon possession statutes "carries significant weight in our analysis, especially since Defendant appears to be raising a facial challenge to this statute…Even an as applied challenge would be difficult for Defendant to mount since he was on electronic tether at the time of the search and had two prior drug felony convictions, which suggests that Defendant likely is within the category of felons to whom the rationale in Heller would clearly apply."
Hamblen v. United States, 591 F.3d 471 (6th Cir. 2009)
Affirmed denial of petitioner's motion to vacate convictions for possession of machine guns and possession of unregistered firearms under federal law. The court stated that the petitioner's challenge was directly foreclosed by the Heller Court, which had stated that the Second Amendment did not protect weapons "not typically possessed by law-abiding citizens for lawful purposes." The court rejected the suggestion that restrictions on machine guns might be unconstitutional, stating that, "whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use."
United States v. Hamer, 319 Fed. Appx. 366 (6th Cir. 2009) (Not Recommended For Full-Text Publication)
Affirmed defendant's conviction for possession of a firearm as a convicted felon under federal law. The defendant claimed that Heller created a defense unavailable during his trial, but the court deemed this argument unavailing. Heller, the court noted, did not involve a challenge to a statute restricting a convicted felon from possessing firearms.
United States v. Frazier, 314 Fed. Appx. 801 (6th Cir. 2008) (Not Recommended For Full-Text Publication)
Denied defendant's appeal of his conviction under federal law prohibiting possession of firearms by convicted felons. The court held that Heller established that such a prohibition was permissible under the Second Amendment.
District Court
United States v. Majid, 2010 U.S. Dist. LEXIS 130962 (N.D. Ohio Dec. 10, 2010)
Denied defendant's motion to dismiss indictment for unlawful possession of an unregistered short-barreled rifle in violation of federal law. The defendant argued that the statute was unconstitutional, contending that the firearm at issue was a weapon in common use and was therefore protected by Heller. The court held that the rifle was "not a weapon that is typically possessed by law-abiding citizens for lawful purposes," noting further that the defendant could have either registered the firearm or purchased a longer barrel in order to comply with the federal law. The defendant further requested to present facts regarding the commonality of the rifle at trial, but the court held that "a jury trial is not the appropriate forum to challenge the constitutionality of this statute."
Pruitt v. United States, 2010 U.S. Dist. LEXIS 122723 (E.D. Tenn. Nov. 18, 2010)
Denied petitioner's motion to vacate his conviction for possession of a firearm by a convicted felon in violation of federal law. The court stated that the petitioner's Second Amendment claim "misreads the Court's holding in Heller," and that the petitioner's conduct "falls squarely within the valid and constitutional limitations specifically recognized by the Court prohibiting felons from possessing firearms."
United States v. Priest, 2010 U.S. Dist. LEXIS 96804 (E.D. Mich. Sept. 16, 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting the possession of a firearm with an obliterated or altered serial number. In rejecting the defendant's claim alleging a vindictive prosecution motivated in response to the defendant's exercise of his Second Amendment right, the court held that "there is no protected right to possess a firearm with an obliterated or altered serial number," citing the Third Circuit's decision in United States v. Marzzarella.
Jackman v. Shartle, 2010 U.S. Dist. LEXIS 42954 (N.D. Ohio May 3, 2010)
Dismissed petitioner's motion seeking a writ of habeas corpus, which included a Second Amendment challenge to his conviction under the federal law prohibiting the possession of firearms by convicted felons. The court held that Heller did not create a defense available at the time of the petitioner's conviction, because the decision did not involve restrictions on the possession of firearms by felons.
Wilson v. United States, 2010 U.S. Dist. LEXIS 28727 (E.D. Tenn. Mar. 25, 2010)
Dismissed plaintiff's suit against the federal government following the denial of his attempt to purchase a firearm due to his felony conviction. The court rejected the plaintiff's Second Amendment challenge, noting that the right to possess a firearm "is not unlimited," and that Heller explicitly recognized the constitutionality of laws prohibiting felons from possessing firearms or ammunition.
Greene v. Hamblen County Bd. of Zoning Appeals, 2009 U.S. Dist. LEXIS 99856 (E.D. Tenn. Oct. 27, 2009)
Dismissed plaintiff's Second Amendment claim that a local zoning board infringed on his Second Amendment right in denying a zoning variance to allow for target shooting on his property. The court stated that the Second Amendment applies only to the federal government. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Smith, 2009 U.S. Dist. LEXIS 93948 (E.D. Mich. Oct. 8, 2009)
Denied defendant's motion to dismiss indictment for possession of body armor as a convicted felon. The court held that the federal statute was constitutional, given the Heller majority's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill."
Slough v. Telb, 644 F. Supp. 2d 978 (N.D. Ohio 2009)
Dismissed plaintiff's Second Amendment claim emerging from the seizure of his firearms (and subsequent dismissal from his job due to the firearms) in connection with law enforcement defendants' allegedly false investigation into allegations of domestic violence. The court noted that because the "weight of authority holds that the individual right to bear arms may not be enforceable against the states," there was not an established constitutional right to pursue against the defendants, who were therefore entitled to qualified immunity. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
Estate of Hickman v. Moore, 2009 U.S. Dist. LEXIS 56072 (E.D. Tenn. July 1, 2009)
Dismissed estate's claim alleging that defendant law enforcement officers had targeted him for harassment due to the decedent's exercise of his Second Amendment right. The court found that Circuit precedent held that the Second Amendment does not apply to state and local governments. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Metcalf, 2009 U.S. Dist. LEXIS 54365 (W.D. Mich. June 19, 2009)
Transferred petitioner-inmate's habeas petition to the Sixth Circuit for evaluation as a successive habeas petition. The petitioner had raised a Second Amendment challenge against his conviction for possession of a firearm as a convicted felon. The court stated that it "intimates no position on the merits of [petitioner's] argument," noting that the Sixth Circuit had not issued any published decisions on the constitutionality of felon-in-possession statutes, although similar arguments had been rejected across multiple circuits.
Richardson v. United States, 2009 U.S. Dist. LEXIS 25644 (M.D. Tenn. Mar. 27, 2009)
Denied petitioner's motion to vacate his sentence following his conviction under federal law for possession of a firearm while a convicted felon. Citing Frazier [discussed above], the court concluded that the Second Amendment right did not extend to "certain categories of individuals," including convicted felons.
Livingston v. Francis, 2009 U.S. Dist. LEXIS 24503 (E.D. Mich. Mar. 26, 2009)
Dismissed plaintiff's complaint alleging a variety of constitutional violations and injuries related to a protective order issued against him. Plaintiff raised a facial challenge to a Michigan law that authorizes a court to prohibit a person subject to a protective order from possessing a firearm. The court held that the Second Amendment does not apply to the states. The court also rejected plaintiff's challenge to the federal statute prohibiting persons subject to protective orders from possessing firearms, noting that other courts that had addressed the issue after Heller had upheld the constitutionality of this and related statutes. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Miller, 604 F. Supp. 2d 1162 (W.D. Tenn. 2009)
Denied defendant's motion to dismiss his indictment under federal law prohibiting the possession of a firearm by a convicted felon. The court rejected the defendant's Second Amendment argument, stating that Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons," represented a "direct refutation" of the defendant's position. The court conceded that the discussion was arguably dicta, since it had no "direct bearing" on Heller's holding, but that it was, at a minimum, "considerable persuasive authority," observing the "overwhelming weight of [post-Heller] authority" finding the statute constitutional.
In rejecting the defendant's due process and equal protection arguments, the court noted that the Second Amendment was not a fundamental right. In examining the due process claim, the court found that the statute survived intermediate scrutiny, noting the importance of preventing gun violence, the substantial relationship between gun possession by felons and violent crime, and Congress' wider latitude in using legislation to combat gun violence.
McCormick v. United States, 2009 U.S. Dist. LEXIS 11570 (E.D. Tenn. Feb. 17, 2009)
Denied defendant's motion to vacate his conviction for possession of a firearm by a convicted felon. The court found that the defendant's Second Amendment challenge to the federal law lacked merit given the Heller Court's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. Henry, 2008 U.S. Dist. LEXIS 60780 (E.D. Mich. Aug. 7, 2008)
Denied defendant's motion to dismiss his indictment under federal law prohibiting the possession of a firearm by a convicted felon. The court noted Heller's narrow holding and statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. Garnett, 2008 U.S. Dist. LEXIS 112728 (E.D. Mich. July 18, 2008)
Denied defendant's motion for bond pending appeal. The court rejected the defendant's contention that Heller established a substantial question regarding his conviction for unlawful possession of machine guns and silencers under federal law. The court concluded that, "Nothing in [Heller] casts doubt on the constitutionality of federal regulations over…machineguns and silencers."
SEVENTH CIRCUIT
Court of Appeals
United States v. Davis, 2010 U.S. App. LEXIS 26082 (7th Cir. Dec. 22, 2010) (Unpublished)
Dismissed defendant's appeal challenging his conviction for possession of a firearm by a convicted felon in violation of federal law. The court held that the defendant's Second Amendment challenge was foreclosed by McDonald's repetition of Heller's dictum regarding the validity of laws prohibiting firearm possession by felons.
United States v. Yancey, 621 F.3d 681 (7th Cir. 2010)
Affirmed defendant's conviction for possession of a firearm while an unlawful drug user in violation of federal law. The court found that the prohibition met intermediate scrutiny because it was "substantially related to the important governmental interest in preventing violent crime," although it noted that "a different kind of firearm regulation might require a different approach." The court stated that the prohibition against habitual drug abusers possessing firearms was analogous to the prohibition on possession by felons; moreover, like the mentally ill, habitual drug abusers "are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms." The court further noted research demonstrating the connection between drug use and violent crime, and that the defendant could have possessed firearms legally if he stopped abusing drugs.
United States v. Williams, 616 F.3d 685 (7th Cir. 2010)
Affirmed defendant's conviction for possession of a firearm by a convicted felon in violation of federal law. The court rejected the defendant's as-applied Second Amendment challenge to the statute, noting that whether convicted felons are outside the scope of the Second Amendment was an open question. The court noted that Heller only referred to bans on firearm possession by felons as "presumptively lawful," suggesting that certain as-applied challenges could be successful. Applying intermediate scrutiny to the law, the court held that the government demonstrated that the law was substantially related to the government interest in preventing felon access to guns, noting the defendant's past acts of violence.
United States v. Skoien, 614 F.3d 638 (7th Cir. 2010)
Affirmed defendant's conviction for possession of a firearm following a conviction for a misdemeanor crime of domestic violence under federal law. The en banc court stated that Heller indicated "that some categorical disqualifications [on firearm possession] are permissible: Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons." Addressing what it deemed the "'levels of scrutiny' quagmire," the court examined the statute using intermediate scrutiny. The Seventh Circuit stated that "preventing armed mayhem" was an important governmental objective, and that the statute's substantial relationship to this objective was established by "[b]oth logic and data," noting various studies demonstrating the role of firearms in domestic violence and the recidivism rate among domestic abusers. The court also noted the possibility of the expungement of a misdemeanant's conviction and the potential restoration of the right to possess a firearm.
United States v. Spaulding, 366 Fed. Appx. 670 (7th Cir. 2010)
Affirmed defendant's conviction for carrying a firearm during and in relation to a drug trafficking offense under federal law. The court rejected the defendant's contention that the Second Amendment required the government to prove that the firearm was actually used in the facilitation of the drug crime. The court held that nothing in Heller affected the court's prior expansive reading of the "in relation to" requirement. Citing Jackson, discussed below, the court held that the statute at issue did not implicate constitutionally protected conduct, so the Seventh Circuit was not required to examine whether it satisfied any particular level of scrutiny.
Justice v. Town of Cicero, 577 F.3d 768 (7th Cir. 2009)
Affirmed district court's dismissal of plaintiff's suit against the Town of Cicero. The plaintiff argued that the town's ordinance prohibiting the possession of unregistered firearms violated the Second Amendment. The court held that the Second Amendment does not apply to the states, but remarked that even if the Amendment does apply to state conduct, "there is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance," which "merely regulated gun possession," as opposed to prohibiting it. The court stated that Heller does not "purport to invalidate any and every regulation on gun use," and that the ordinance "leaves law-abiding citizens free to possess guns" in a manner consistent with Heller.
United States v. King, 333 Fed. Appx. 92 (7th Cir. 2009) (Unpublished)
Upheld the application of a sentence enhancement for the possession of a firearm in connection with defendant's federal drug crimes. The court rejected the defendant's Second Amendment challenge, citing United States v. Jackson [discussed below] to hold that the sentence enhancement was "not erroneous as long as there was some link between the conspiracy and the weapon." The court concluded that a sufficient link was established here, where a firearm had been used to threaten a snooping neighbor and another gun was hanging inside the defendant's house "where it was readily accessible for protecting the methamphetamine lab in the garage."
United States v. Jackson, 555 F.3d 635 (7th Cir. 2009)
Affirmed defendant's conviction under federal law prohibiting possession of firearms in furtherance of drug crimes. The court rejected the argument that the possession was for self-defense, noting that the defendant had been distributing illegal drugs from his home and that the Second Amendment only extended to protect "lawful self-protection, not…all self-protection." The Second Amendment did not, the court stated, provide a right to be armed while committing a felony, or to have a firearm nearby for protection in the commission of a crime.
District Court
Mishaga v. Monken, 2010 U.S. Dist. LEXIS 123491 (C.D. Ill. Nov. 22, 2010)
Denied defendant Illinois State Police director's motion to dismiss a complaint seeking declaratory and injunctive relief related to the Illinois requirement that a person have a state Firearm Owner's Identification Card (FOID Card) in order to possess a weapon. The plaintiff, "a resident of Ohio who frequently travels to Illinois," alleged that the denial of her application to acquire a FOID Card (because she did not possess an Illinois driver's license) violated her Second Amendment right to possess a firearm for protection while staying in her friends' home during trips to Illinois. The court observed that the parties had not "addressed the issue of the scope of the right of a guest in a home to possess a weapon." Assuming that the plaintiff possessed the same right as a homeowner to possess a firearm under the Second Amendment, the court held that the statute impermissibly prohibited her from possessing a firearm for self-defense in her friends' home.
United States v. Murray, 2010 U.S. Dist. LEXIS 116367 (W.D. Wis. Oct. 26, 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. While the court found the defendant's Second Amendment challenge to the federal law to be untimely, it held that the challenge would be rejected regardless. The court noted that United States v. Skoien [discussed above] "left open the question whether 'a misdemeanant who has been law abiding for an extended period must be allowed to carry guns again,'" but that the defendant's 2005 domestic disturbance and recent history of alcohol abuse supported the conclusion that he should not be exempt from the firearm prohibition.
Ezell v. Chicago, 2010 U.S. Dist. LEXIS 108341 (N.D. Ill. Oct. 12, 2010)
Denied plaintiffs' motion for a preliminary injunction in litigation challenging a Chicago ordinance's ban on shooting ranges. In evaluating the motion, the court stated that, "The Second Amendment provides that each may possess a weapon; it does not include the right to have training on that weapon within a specific distance from their residence." While the plaintiffs urged the court to review the statute under strict or intermediate scrutiny, the court declined to adopt either, "[b]ecause the firing range ban does not categorically prohibit any individual resident from possessing a firearm but instead requires them to travel outside of the City's borders for one hour of firing range training." Even if the court did apply intermediate scrutiny, it noted, the plaintiffs still failed to demonstrate irreparable harm that would merit a preliminary injunction.
Dowdy v. Cross, 2010 U.S. Dist. LEXIS 100810 (S.D. Ill. Sept. 24, 2010)
Although the court dismissed on other grounds the petitioner's argument in his habeas corpus action that a firearm sentencing enhancement violated the Second Amendment, it stated that, "Nothing in Heller or McDonald suggests that a federal firearm sentencing enhancement…is invalid. Put simply, the Second Amendment does not protect one's right to possess a firearm to deal illegal drugs."
United States v. Barrett, 2010 U.S. Dist. LEXIS 99524 (W.D. Wis. Sept. 21, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm by an unlawful drug user in violation of federal law. The court rejected the defendant's Second Amendment challenge, citing United States v. Yancey for the proposition that prohibiting drug users from possessing firearms "is substantially related to the strong governmental purpose in preventing violent crime." The court rejected the defendant's claim that he needed his firearm for lawful self-protection, stating that "his need for self-protection plainly arose out of long-term involvement in the drug trade."
Cardenas v. City of Chicago, 2010 U.S. Dist. LEXIS 63196 (N.D. Ill. June 25, 2010)
Granted defendants' motion for summary judgment. The plaintiff had sued the City of Chicago, alleging in part a violation of his Second Amendment right in law enforcement's seizure of and refusal to return his unregisterable firearms. The court rejected the challenge, noting that the Second Amendment did not apply to state or local governments. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
Gonzalez v. Village of West Milwaukee, 2010 U.S. Dist. LEXIS 46281 (E.D. Wis. May 11, 2010)
In concluding that the defendant law enforcement officers had probable cause to arrest the plaintiff (who had been openly carrying a firearm), the court noted that, "The Supreme Court has never held that the Second Amendment protects the carrying of guns outside the home," citing Heller.
United States v. Hendrix, 2010 U.S. Dist. LEXIS 33756 (W.D. Wis. Apr. 6, 2010)
Denied defendant's request for a hearing on the constitutionality of the federal law prohibiting the possession of a firearm by an unlawful drug user. The court emphasized the "minimal nature of the burden" imposed by the statute, which only prohibits persons from possessing firearms while using drugs. The court stated that, "Preventing criminal users of controlled substances from possessing guns is not a restriction on the values that the Second Amendment protects, which, to repeat, is the right of law-abiding citizens to possess handguns in their homes for self-protection."
Santiago v. United States, 2009 U.S. Dist. LEXIS 106109 (N.D. Ill. Nov. 12, 2009)
Denied defendant's motion to vacate his conviction for possession of a firearm by a convicted felon under federal law. Citing Heller, the court stated that, "Restrictions on the possession of firearms by felons do not violate their Second Amendment rights."
United States v. Lacy, 2009 U.S. Dist. LEXIS 103532 (E.D. Wis. Nov. 6, 2009)
Denied defendant's motion to dismiss indictment for possession of a firearm by an unlawful drug user under federal law. The court rejected the defendant's Second Amendment challenge, stating that, "Heller recognizes expressly that 'longstanding prohibitions on the possession of firearms' are permissible. Nothing in Heller indicates that [this statute] somehow falls outside the range of permissible limitations on the right to bear arms."
Sanders v. Dir.: U.S. Selective Serv. Sys., 2009 U.S. Dist. LEXIS 96106 (W.D. Wis. Oct. 15, 2009)
Dismissed plaintiff's complaint relating to his status as a felon prohibited from firearm possession. The court noted that the Supreme Court "has yet to apply" the Second Amendment to state laws, and that courts have repeatedly affirmed that prohibiting firearm possession by felons is constitutional. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Murray, 663 F. Supp. 2d 709 (W.D. Wis. 2009)
Recommended that the court deny defendant's motion in limine, which sought to require the government to prove that the he knew it was unlawful to possess a firearm (because he had been convicted of a misdemeanor crime of domestic violence). The court stated that it was "sensitive to the constitutional concerns raised" by Heller, but that "Nothing in Heller bolsters Murray's argument about the level of mens rea the government must prove to establish the charged violation."
Smith v. President of the United States, 2009 U.S. Dist. LEXIS 81047 (E.D. Wis. Aug. 21, 2009)
Dismissed pro se plaintiff's complaint for failure to state a claim. The plaintiff had argued that the fact that his felony conviction disqualified him from firearm ownership violated the Second Amendment. The court cited Heller to support that, "In general, the Constitution does not prevent either the federal or state governments from limiting a convicted felon's civil rights, including the right to carry a firearm."
NRA v. City of Evanston, 2009 U.S. Dist. LEXIS 35563 (N.D. Ill. Apr. 27, 2009)
Granted in part and denied in part Evanston's motion to dismiss plaintiffs' amended complaint. Plaintiffs alleged that Evanston's ordinance, which prohibited handgun possession but included an exception for possession in the home for self-defense, violated the Second Amendment because it prevented them from lawfully transporting their handguns to or from their homes and prohibited handgun possession for purposes other than self-defense in the home and at places of business. Although Evanston's counsel argued that the ordinance did not prohibit lawful transportation, and assured the court that plaintiffs would not be prosecuted for transporting their firearms, the court held that the plaintiffs had raised a fair question as to whether the ordinance violated the Second Amendment because the statute was silent about the transportation of handguns kept at the home for self-defense, despite a significant list of other exceptions.
Miller v. Holinka, 2009 U.S. Dist. LEXIS 31776 (W.D. Wis. Apr. 14, 2009)
Denied petitioner's petition for a writ of habeas corpus, which challenged his conviction under the federal law prohibiting possession of a firearm by a convicted felon. The court found that Heller did not affect his conviction and emphasized the "limited nature" of the Heller ruling, noting the statement in the majority opinion that, "nothing in our opinion should be taken to cast doubt on long standing prohibitions on the possession of firearms by felons."
Brett N. v. Cmty. Unit Sch. Dist. No. 303, 2009 U.S. Dist. LEXIS 12444 (N.D. Ill. Feb. 18, 2009)
Dismissed plaintiff student's suit alleging that a school's policy prohibiting any fighting, including self-defense, violated his constitutional rights. The court held that there is no "broadly applicable constitutional right to self-defense." The court distinguished Heller's narrow holding, stating that the Second Amendment protects the right to use firearms for the lawful self-defense of one's home and family.
United States v. Radencich, 2009 U.S. Dist. LEXIS 3692 (N.D. Ind. Jan. 20, 2009)
Denied defendant's motion to dismiss his indictment for possession of a firearm by a convicted felon in violation of federal law. The court rejected defendant's Second Amendment challenge, noting Heller's statement that the opinion was not meant to cast doubt on "longstanding prohibitions on the possession of firearms by felons."
United States v. Schultz, 2009 U.S. Dist. LEXIS 234 (N.D. Ind. Jan. 5, 2009)
Denied defendant's motion to dismiss an indictment under federal law prohibiting possession of a firearm by a convicted felon. The court cited Heller's "clear, unambiguous instruction" that the Court "was not casting doubt on the constitutional validity of laws banning the possession of firearms by felons." In evaluating the defendant's equal protection challenge, the court found that Heller did not declare a "fundamental" right to bear arms, applying intermediate scrutiny in upholding the statute.
United States v. Luedtke, 589 F. Supp. 2d 1018 (E.D. Wis. 2008)
Denied defendant's motion to dismiss his indictment under federal law prohibiting possession of firearms and ammunition by a person subject to a domestic violence injunction. Conceding that the firearm prohibitions for persons subject to domestic violence injunctions and convicted of domestic violence misdemeanors did not constitute "longstanding prohibitions" as identified in Heller's discussion of several "presumptively lawful" categories of firearms regulations, the court observed that the prohibitions were of the same type, and were similar enough to prohibitions on possession by felons and the mentally ill to survive Second Amendment scrutiny. The court noted that all of these prohibitions served the same purpose of "keeping firearms out of the hands of categories of potentially irresponsible persons." The court rejected defendant's contention that the statute was too broad and contained insufficient procedural protections, holding that the Second Amendment did not demand that a firearms law require a specific finding of danger and that the statute would survive even a strict scrutiny analysis.
Range v. Indiana, 2008 U.S. Dist. LEXIS 90993 (N.D. Ind. Nov. 6, 2008)
Dismissed plaintiffs' complaint alleging that an Indiana law prohibiting the carrying of a handgun by a person convicted of domestic violence violated the Second Amendment. The court held that the statute was well within the "unexhaustive list" of "presumptively lawful regulatory measures" approved in Heller.
United States v. Li, 2008 U.S. Dist. LEXIS 100867 (E.D. Wis. Sept. 22, 2008), adopted by, 2008 U.S. Dist. LEXIS 97286 (E.D. Wis. Oct. 15, 2008)
Recommended the denial of defendant's motion to dismiss indictment under federal law prohibiting possession of a handgun by a person convicted of a misdemeanor crime of domestic violence. The court rejected the defendant's Second Amendment challenge, stating that Heller instructed that "persons whose conduct had rendered them a danger to others could also be prohibited from possessing firearms without running afoul of the Second Amendment."
Tate v. United States, 2008 U.S. Dist. LEXIS 68965 (E.D. Wis. Sept. 4, 2008)
Denied petitioner's motion to vacate his conviction for possession of a firearm by a convicted felon under federal law. The court held that the petitioner's Second Amendment claim failed on the merits, citing Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. LePage, 2008 U.S. Dist. LEXIS 69395 (W.D. Wis. Aug. 26, 2008)
Denied defendant's motion for post-conviction relief, which argued in part that he was denied effective assistance of counsel when his attorney failed to challenge the constitutionality of the federal statute prohibiting possession of a firearm by a convicted felon. The court rejected this argument, commenting that, "It is not ineffective for a lawyer to refrain from arguing an issue that has no legal basis."
United States v. Kilgore, 2008 U.S. Dist. LEXIS 69393 (W.D. Wis. Aug. 26, 2008)
Denied defendant's motion to dismiss his indictment for possession of a firearm by a convicted felon under federal law. Responding to the defendant's Second Amendment challenge, the court stated that, "Nothing in Heller restricts the federal government from criminalizing the possession of firearms by felons."
Reynolds v. Sherrod, 2008 U.S. Dist. LEXIS 60456 (S.D. Ill. Aug. 8, 2008)
Dismissed petitioner's habeas corpus action challenging his conviction under federal law prohibiting the possession of a firearm by a convicted felon. The court deemed the petitioner's argument that the Second Amendment invalidated his conviction to be "meritless."
Simmons v. Gillespie, 2008 U.S. Dist. LEXIS 81424 (C.D. Ill. Aug. 1, 2008), adopted by, 2008 U.S. Dist. LEXIS 74446 (C.D. Ill., Aug. 20, 2008)
Recommended the denial of defendant's motion to dismiss a lawsuit brought by a police officer who had been prohibited by the police chief from possessing or carrying any firearms while off-duty without the chief's authorization. The officer sued and the court held that the complaint had stated a possible claim for a Second Amendment violation, because the policy prohibited the officer from "all private, lawful possession and use of firearms."
United States v. Woodington, 2008 U.S. Dist. LEXIS 56827 (E.D. Wis. July 25, 2008)
Recommended the denial of defendant's motion to dismiss his indictment for possession of firearm by a convicted felon. Responding to the defendant's Second Amendment challenge, the magistrate judge noted the Supreme Court's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
United States v. Robinson, 2008 U.S. Dist. LEXIS 60070 (E.D. Wis. July 23, 2008)
Denied defendant's motion to dismiss his indictment under the federal law prohibiting the possession of a firearm by a convicted felon. The court found little support for the defendant's claim that the statute was unconstitutional under the Second Amendment, noting that the defendant had carried a concealed weapon in public and then drawn it against a police officer.
EIGHTH CIRCUIT
Court of Appeals
United States v. Jacobson, 2011 U.S. App. LEXIS 562 (8th Cir. Jan. 11, 2011)
Affirmed district court's sentence imposed upon defendant following his convictions for possession of a firearm by an unlawful drug user and conspiracy to distribute methamphetamine, which included a sentence enhancement because of the defendant's possession of a firearm in connection with the crime. The court rejected the defendant's Second Amendment challenges, finding that the defendant's guilty plea waived his challenge to the firearm possession conviction, and that courts had relied upon Heller's discussion of "longstanding prohibitions on the possession of firearms" to dismiss challenges to various sentencing enhancements.
United States v. Seay, 620 F.3d 919 (8th Cir. 2010)
Affirmed defendant's conviction for possession of a firearm while an unlawful drug user in violation of federal law. The court held that the law was "the type of 'longstanding prohibition on the possession of firearms' that Heller declared presumptively lawful,'" noting the numerous other courts that had upheld the constitutionality of this and other federal firearms laws since Heller.
United States v. Fincher, 538 F.3d 868 (8th Cir. 2008)
Affirmed defendant's conviction for unlawful possession of a machine gun and an unregistered sawed-off shotgun in violation of federal law. The court found that the defendant's conduct was not protected by the Second Amendment, because his organization, an unrecognized militia, was not affiliated with an organized state militia. The court held that the defendant's possession would not be protected under Heller, given the Supreme Court's affirmation of prohibitions on short-barreled shotguns and the fact that machine guns are dangerous and unusual weapons "not in common use by law-abiding citizens for lawful purposes."
Unites States v. Irish, 285 Fed. Appx. 326 (8th Cir. 2008) (Unpublished)
Denied defendant's motion for a writ of habeas corpus following his guilty plea under federal law prohibiting possession of a firearm as a convicted felon. The court cursorily rejected the defendant's claim that the Second Amendment barred laws prohibiting firearm possession by felons.
District Court
United States v. Flores, 2010 U.S. Dist. LEXIS 120847 (D. Minn. Nov. 15, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm by an illegal alien. The court held that even if illegal aliens were protected by the Second Amendment, the statute was constitutional as one of the class of "presumptively lawful regulatory measures" described in Heller.
Walters v. City of Hazelwood, 2010 U.S. Dist. LEXIS 112727 (E.D. Mo. Oct. 22, 2010)
Granted defendants' summary judgment motion in civil suit by plaintiff seeking the return of seized firearms. The plaintiff argued that the city's requirement of a court order for the return of the seized weapons violated the Second Amendment, but the court disagreed, concluding that "Heller and McDonald did not establish the right to possess a specific firearm that plaintiff asserts here."
Judd v. United States, 2010 U.S. Dist. LEXIS 86065 (W.D. Ark. July 23, 2010), adopted by 2010 U.S. Dist. LEXIS 86057 (W.D. Ark. Aug. 20, 2010)
Recommended denial of plaintiff's motion for post-conviction relief, which included a Second Amendment challenge to the federal law prohibiting the possession of firearms by convicted felons. The court deemed this argument to be "without merit," citing United States v. Irish (discussed above).
Dorr v. Weber, 2010 U.S. Dist. LEXIS 48950 (N.D. Iowa May 18, 2010)
Granted in part defendants' motion for summary judgment in plaintiffs' lawsuit following the denial of their applications for concealed weapons permits under Iowa state law. The court held that the plaintiffs' Second Amendment claims failed "because there was no violation of the Second Amendment." The court stated that Heller did not establish a right to carry a concealed weapon, and recognized instead that prohibitions on concealed carrying were lawful. The court also noted that the Second Amendment had not been held to apply to the states. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Bena, 2010 U.S. Dist. LEXIS 33945 (N.D. Iowa Apr. 6, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm in violation of a court order under federal law. The court rejected the defendant's Second Amendment challenge, stating that the statute satisfied any level of scrutiny. The statute, the court observed, targeted a compelling government interest, preventing or reducing domestic violence, and, was narrowly tailored through "procedural safeguards [which] ensure that individuals are not erroneously deprived of their constitutional right to keep and bear a firearm."
Bethel v. Wagner, 2009 U.S. Dist. LEXIS 76452 (D. Neb. Aug. 26, 2009)
Granted county sheriff's motion for summary judgment in plaintiff's lawsuit alleging the violation of his Second Amendment right following the denial of his application for a permit to purchase a handgun under state law. Plaintiff had previously been convicted of unlawfully carrying a concealed weapon, a crime that disqualified him from receiving a permit. The court found that the defendant had failed to state a claim for a violation of the Second Amendment, stating that "under Heller, there is no basis for concluding that the bar against convicted persons possessing firearms would run afoul of the Second Amendment, even assuming the Second Amendment applies to the states." [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Rick, 2009 U.S. Dist. LEXIS 58751 (E.D. Ark. July 9, 2009)
Denied defendant's motion to dismiss indictment for possession of a firearm by a convicted felon. The court rejected defendant's Second Amendment challenge to the federal law, noting "the dicta in Heller to the effect that laws prohibiting felons from possessing firearms are presumptively lawful."
United States v. Bowers, 2009 U.S. Dist. LEXIS 29911 (D. Neb. Apr. 7, 2009)
Denied defendant's application for a certificate of appealability to challenge the constitutionality of a sentence enhancement for gun possession in connection with criminal activity. The court held that although it might be debatable whether the government must show a connection between the gun possession and the criminal conduct, nothing in Heller altered the sentencing enhancement's requirement that a sentencing court balance all available facts and circumstances.
Williams v. Padden, 2009 U.S. Dist. LEXIS 14005 (D. Minn. Feb. 23, 2009), aff'd, 2009 U.S. App. LEXIS 28056 (8th Cir. Dec. 22, 2009)
Granted defendant police officers' summary judgment motion. In a civil suit alleging procedural and substantive due process violations, the plaintiff alleged that the officers violated her "right" to possess a lawfully permitted handgun. The court noted that although the Second Amendment protected the plaintiff's right to possess a firearm, it was "not clear whether the Second Amendment should be incorporated against the states," and that a Second Amendment claim would fail because the plaintiff "was not deprived of her right to possess a handgun, nor was that right burdened in any meaningful way." [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
Holter v. United States, 2008 U.S. Dist. LEXIS 107011 (D.N.D. Dec. 1, 2008)
Denied defendant's motion to vacate his conviction for possession of a firearm by a convicted felon. The court cited Heller and United States v. Irish (discussed above) in rejecting the defendant's Second Amendment claim.
Swait v. University of Nebraska at Omaha, 2008 U.S. Dist. LEXIS 96665 (D. Neb. Nov. 25, 2008)
Held that the plaintiff had failed to state a claim in his suit alleging, in part, that the university's decision to expel him for carrying a concealed weapon violated his Second Amendment right. The court found that "states can prohibit the carrying of a concealed weapon without violating the Second Amendment" and noted that the Second Amendment right was "not unqualified," citing Heller's list of presumptively lawful prohibitions.
United States v. Lippman, 2008 U.S. Dist. LEXIS 88685 (D.N.D. Oct. 20, 2008)
Denied petitioner's motion to vacate his conviction for possession of a firearm while subject to a domestic violence restraining order under federal law. The court stated that, in Heller, "The Supreme Court clearly stated that its opinion does not overturn the longstanding prohibitions on the possession of firearms by felons and other prohibited persons."
United States v. Perkins, 2008 U.S. Dist. LEXIS 72892 (D. Neb. Sept. 12, 2008), adopted by, 2008 U.S. Dist. LEXIS 83236 (D. Neb. Sept. 23, 2008)
Recommended the denial of the defendant's motion to dismiss his indictment for possessing an unregistered silencer in violation of federal law. The defendant argued that the statute infringed his right to possess firearms in his home for self-defense. The court found that silencers are "dangerous and unusual weapons" not in common use and that defendant's challenge to the silencer registration requirement was "without merit" in light of Heller and Fincher (discussed above).
Johnson v. United States, 2008 U.S. Dist. LEXIS 51148 (E.D. Mo. July 2, 2008)
Denied defendant's motion to vacate his conviction for possession of a firearm by a convicted felon in violation of federal law. The court held that, in Heller, the Supreme Court "completely foreclosed" the defendant's Second Amendment claim.
NINTH CIRCUIT
Court of Appeals
United States v. Duckett, No. 09-50362 (9th Cir. Dec. 16, 2010) (Not for Publication)
Dismissed appellant's challenge to federal law prohibiting the possession of a firearm by a convicted felon. The court held that the appellant's Second Amendment challenged was "squarely foreclosed" by United States v. Vongxay [discussed below]. In a concurring opinion, one judge stated that, were the court not bound by Vongxay, "I would examine whether, notwithstanding the Supreme Court's dicta in District of Columbia v Heller, the government has a substantial interest in limiting a non-violent felon's constitutional right to bear arms."
United States v. Morsette, 622 F.3d 1200 (9th Cir. 2010)
Denied defendant's appeal following conviction for assaulting individuals in his home. While the defendant claimed that Heller and McDonald required that he be allowed to offer a proposed jury instruction stating that "In the home, the need for self-defense and property defense is most acute," the court held that neither case altered the law governing self-defense and that both only addressed the possession of weapons for self-defense, not the use of them.
United States v. Schwindt, 2010 U.S. App. LEXIS 9722 (9th Cir. May 4, 2010) (Unpublished)
Affirmed defendant's conviction under federal law prohibiting possession of firearms by convicted felons. The court held that the defendant's Second Amendment challenge to the statute was foreclosed by Heller's reference to longstanding prohibitions on firearm possession by convicted felons.
United States v. Hatfield, 2010 U.S. App. LEXIS 8271 (9th Cir. Apr. 16, 2010) (Unpublished)
Affirmed defendant's conviction for possession of an unregistered sawed-off shotgun under federal law. The court rejected the argument that the possession was constitutionally protected, "because modern sawed-off shotguns are not typically possessed for lawful purposes and constitute 'dangerous and unusual weapons,' beyond the scope of the Second Amendment's protection."
United States v. Parker, 2010 U.S. App. LEXIS 5609 (Mar. 17, 2010) (Unpublished)
Affirmed district court's denial of defendant's motion to dismiss. In rejecting the defendant's Second Amendment challenge to the federal statute prohibiting firearm possession by convicted felons, the court noted that a similar argument had recently been rejected in United States v. Vongxay, discussed immediately below.
United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010)
Affirmed defendant's conviction for violation of federal statute prohibiting possession of firearms by convicted felons. The court held that, "Nothing in Heller can be read legitimately to cast doubt on the constitutionality" of the statute. The court found that pre-Heller circuit precedent rejecting a similar challenge was still binding and that other circuits had reached similiar conclusions before and after Heller. The court also noted that the prohibition is "consistent with the explicit purpose of the Second Amendment to maintain 'the security of a free State.'"
United States v. Ritchie, 2010 U.S. App. LEXIS 1046 (9th Cir. Jan. 15, 2010) (Unpublished)
Affirmed defendant's conviction for possession of a firearm as a convicted felon. The court briefly held that the district court properly denied the defendant's Second Amendment challenge to his conviction under the federal law, stating that the Supreme Court emphasized in Heller that "its ruling did not change the longstanding prohibitions on possession of firearms by felons."
United States v. McCartney, 2010 U.S. App. LEXIS 28778 (9th Cir. Nov. 20, 2009) (Unpublished)
Affirmed defendant's conviction under federal statutes prohibiting possession of machine guns and destructive devices. The court rejected the defendant's Second Amendment challenge, stating that the machine guns, silencers, grenades, and directional mines he had been caught possessing were dangerous weapons not in common use and were therefore not protected by the Second Amendment.
United States v. Smith, 329 Fed. Appx. 109 (9th Cir. 2009)
Denied defendant’s appeal of his conviction under federal law prohibiting possession of firearms and ammunition by convicted felons. The court stated that Heller explicitly held that felons have no constitutional right to possess firearms under the Second Amendment.
Nordyke v. King, 563 F.3d 439 (9th Cir. 2009) (Note: The Ninth Circuit vacated this decision and reheard this case en banc)
Plaintiffs, owners of a business promoting gun shows, challenged an Alameda County ordinance prohibiting the possession of firearms or ammunition on county property. The Ninth Circuit upheld the ordinance, rejecting, among other arguments, the plaintiffs' Second Amendment claim. Although the court held that the Second Amendment is a fundamental right that applies to state and local governments through the Fourteenth Amendment, it concluded that the ordinance prohibiting firearm possession on county-owned property did not violate the Second Amendment. The court observed that the ordinance did not "meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it." The court also analogized the prohibition on county-owned property to the "presumptively lawful" category of laws prohibiting possession in sensitive places discussed in Heller.
United States v. Davis, 304 Fed. Appx. 473 (9th Cir. 2008) (Unpublished)
Affirmed defendant's conviction for carrying a concealed weapon on an airplane in violation of federal law. The court rejected the defendant's Second Amendment claim, stating that Heller "specified that nothing in that opinion was intended to cast doubt on the prohibition of concealed weapons in sensitive places."
United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008) (Unpublished)
Affirmed defendant's convictions under federal law for conspiracy to manufacture unregistered short-barreled rifles, possession of a firearm as a convicted felon, possession of a machine gun, and possession of a short-barreled rifle. The court rejected the defendant's proposed jury instruction regarding the Second Amendment, holding that Heller protected a "limited individual right to possess a firearm" that does not include the right to possess machine guns or short-barreled rifles, or possession by convicted felons.
District Court
Peruta v. County of San Diego, 2010 U.S. Dist. LEXIS 130878 (S.D. Cal. Dec. 10, 2010)
Granted defendant county sheriff's motion for summary judgment in plaintiffs' challenge to sheriff's policy applying California concealed handgun licensing law. The plaintiffs alleged that the sheriff's denial of their applications for licenses—because the plaintiffs each failed to establish "good cause" for the issuance of a license (as required by state law)—violated the Second Amendment, which they claimed protected the right to carry a loaded handgun in public. Although the court did not determine whether the Second Amendment extends beyond the home, the court held that the defendant's policy "would pass constitutional muster even if it burdens protected conduct." Although the plaintiffs advocated for the application of strict scrutiny, the court held that "fundamental constitutional rights are not invariably subject to strict scrutiny." Noting the application of intermediate scrutiny in other cases, the court held that, at most, intermediate scrutiny applied to the challenge, remarking that, "If it exists, the right to carry a loaded handgun in public cannot be subject to a more rigorous level of judicial scrutiny than the "core right" to possess firearms in the home for self-defense." The court concluded that the policy was reasonably related to important and substantial interests in "reducing the number of concealed weapons in public in order to reduce the risks to other members of the public who use the streets and go to public accommodations" and in "reducing the number of concealed handguns in public because of their disproportionate involvement in life-threatening crimes of violence, particularly in streets and other public places."
Gieryk v. Ochoa, 2010 U.S. Dist. LEXIS 134748 (C.D. Cal. Nov. 2, 2010), adopted by Gieryk v. Ochoa, 2010 U.S. Dist. LEXIS 134719 (C.D. Cal., Dec. 17, 2010)
Recommended the dismissal of inmate's petition for a writ challenging his conviction under California law prohibiting the possession of a firearm by a convicted felon. While the inmate claimed that his conviction violated the Second Amendment, the court disagreed, noting Heller and McDonald's affirmation of laws prohibiting firearm possession by felons.
United States v. Ligon, 2010 U.S. Dist. LEXIS 116272 (D. Nev. Oct. 20, 2010)
Denied defendant's motion for a writ of error coram nobis, seeking to overturn his conviction under federal law prohibiting possession of a firearm by a convicted felon. Subsequent to his firearm possession conviction, the defendant's underlying felony conviction was overturned. As a result, the defendant argued, both his conviction under the federal felon-in-possession law as well as the resulting ongoing prohibition on his possession of firearms violated his Second Amendment right. In evaluating the defendant's as applied challenge, the court stated that the strict scrutiny test was appropriate, because "[a] law that burdens the exercise of a fundamental right is subject to strict scrutiny," and, the court continued, in McDonald, the Supreme Court held that the Second Amendment right is fundamental. Although the defendant's firearm possession appeared to be for hunting and collecting purposes, and therefore not for the protected purpose of self-defense discussed in Heller and McDonald, the statute also satisfied strict scrutiny because the defendant was "under disability when he possessed the weapons" due to his previous conviction.
United States v. Stacy, 2010 U.S. Dist. LEXIS 110497 (S.D. Cal. Oct. 18, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm while an unlawful drug user under federal law. In evaluating the defendant's Second Amendment challenge, the court noted that the defendant had not made any showing that he had possessed the firearm for self-defense. While the statute fell within the "presumptively lawful" categories of firearms regulations discussed in Heller, the court held, it would also survive review under heightened scrutiny. Although the defendant claimed that he was operating a marijuana dispensary in compliance with state law, the court remarked that that did not have any impact on the presumptively lawful nature of the federal statute.
Montana Shooting Sports Ass'n v. Holder, 2010 U.S. Dist. LEXIS 104301 (D. Mont. Aug. 31, 2010), adopted by, 2010 U.S. Dist. LEXIS 104286 (D. Mont. Sept. 29, 2010)
Recommended dismissal of plaintiffs' suit seeking declaratory judgment on the constitutionality of a Montana state law which declared that firearms manufactured and sold within the state are not subject to federal firearms laws. The plaintiffs argued that the Heller and McDonald decisions required the federal government to support federal firearms laws with specific findings. The court disagreed, noting the discussion of several "presumptively lawful" categories of firearms regulations in both decisions. Additionally, while the plaintiffs had not alleged a Second Amendment claim, the court held that neither case extended the Second Amendment to protect firearm manufacturers and dealers. "If anything," the court said, "Heller recognized that firearms manufacturers and dealers are properly subject to regulation by the federal government under existing federal firearms laws."
Saldinger v. Santa Cruz County Superior Court, 2010 US. Dist. LEXIS 94347 (N.D. Cal. Aug. 24, 2010)
Denied petitioner's motion for habeas corpus relief following her conviction for brandishing an imitation firearm in violation of state law. The court held that the petitioner could not show a high probability of succeeding in her Second Amendment challenge to her conviction. Although she claimed that the brandishing of a BB gun (alongside threats to shoot her neighbors if they later trespassed) was constitutionally protected conduct, the court stated that "there is no constitutional right to unreasonably brandish a firearm to prevent a future trespass." The petitioner, the court noted, could not demonstrate that the neighbors ever actually trespassed on her property, and the neighbors had complied with the petitioner's initial request to vacate the premises.
Warden v. Nickels, 697 F. Supp. 2d 1221 (W.D. Wash. 2010)
Granted defendant's motion to dismiss plaintiff's lawsuit challenging a Seattle Parks Department rule prohibiting the possession of firearms in certain city parks facilities. The court rejected the plaintiff's Second Amendment challenge, holding that the Second Amendment only applies to the federal government. Citing Heller in analyzing whether the rule comports with Washington's state constitution, the court concluded that the rule was a valid prohibition on firearm possession in a "sensitive place," and had no impact on possession in the home for self-defense. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Call, 2010 U.S. Dist. LEXIS 23030 (D. Nev. Mar. 11, 2010)
Denied defendant's motion to dismiss indictment under federal laws prohibiting possession of machine guns. The court found that the magistrate judge properly rejected the defendant's Second Amendment challenge, because Heller "did not find that possession of machine guns is protected by the Second Amendment."
United States v. Napier, 2010 U.S. Dist. LEXIS 1284 (E.D. Cal. Jan. 8, 2010)
Recommended denial of the petitioner's motion seeking the return of certain firearms. The court found that the petitioner remained prohibited from possessing the guns under California law due to a disqualifying criminal conviction, and rejected his argument that he was entitled to the weapons under the Second Amendment, citing the petitioner's concession that the Second Amendment did not apply to the states. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Sanchez, 2009 U.S. Dist. LEXIS 116063 (D. Ariz. Nov. 20, 2009), adopted by, 2009 U.S. Dist. LEXIS 115951 (D. Ariz. Dec. 10, 2009)
Recommended denial of the defendant's motion to dismiss his indictment under federal law prohibiting the possession of a firearm by a person subject to a domestic violence restraining order. The court rejected the defendant's Second Amendment challenge, noting Heller's discussion of several categories of firearms regulations that the decision did not call into doubt, including felon-in-possession laws. The court held that the statute at issue would survive even strict scrutiny, commenting that, "unlike the prohibition against firearm possession by felons, this prohibition is only temporary and lasts only as long as the order remains effective. This is presumably the time period when the risk of violence is the greatest."
Burns v. Mukasey, 2009 U.S. Dist. LEXIS 103511 (E.D. Cal. Nov. 6, 2009), adopted by, 2010 U.S. Dist. LEXIS 12335 (E.D. Cal. Feb. 11, 2010)
Recommended dismissal of plaintiff's Second Amendment claims in lawsuit seeking the return of a firearm from law enforcement. Criminal charges against the plaintiff had been dismissed, but a restraining order was still in effect against him. While the court held that the Second Amendment did not apply to the states, it stated that, if the Amendment did apply, the plaintiff had alleged sufficient questions about the validity of the statute to survive a motion to dismiss, given the potential issues of first impression. [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
Young v. Hawaii, 2009 U.S. Dist. LEXIS 28387 (D. Haw. Apr. 1, 2009), reh'g denied, 2009 U.S. Dist. LEXIS 62707 (D. Haw. July 2, 2009)
Dismissed plaintiff's Second Amendment challenge following the denial of his application for a permit to carry a concealed firearm. The plaintiff argued that the Hawaii statute gave a local chief of police unfettered discretionary power to grant or deny licenses in violation of the Second Amendment. The court stated that Heller did not overrule longstanding precedent that the Second Amendment only applied against the federal government. Heller, the court found, was additionally inapplicable because the statute at issue "pertains only to the carrying of weapons on one's person and does not constitute a complete ban to the carrying of weapons or pertain to possessing weapons in one's home, and it provides an exception for those who can establish a fear of injury." [Note: subsequent to this decision, the U.S. Supreme Court held that the Second Amendment applies to state and local governments as well as the federal government in McDonald v. City of Chicago.]
United States v. Lyles, 2009 U.S. Dist. LEXIS 23382 (N.D. Cal. Mar. 11, 2009)
Denied defendant's motion to dismiss his indictment for possession of a firearm by a controlled substance user in violation of federal law. Without discussion, the court held that Heller did not overrule Ninth Circuit precedent holding that the statute was not unconstitutionally vague.
United States v. Kennedy, 593 F. Supp. 2d 1221 (W.D. Wash. 2008), vacated, 327 Fed. Appx. 706 (9th Cir. 2009)
Denied the government's motion to modify the defendant's pretrial bail conditions under the Adam Walsh Act (which requires the imposition of bail conditions against persons charged with certain crimes against children). In denying the government's motion, the court noted that Pretrial Services offered a supplemental report recommending that the defendant be prohibited from possessing a firearm (a mandatory bail condition under the Act). The court expressed concern about this practice, observing that it would take away a defendant's "constitutional right…not because of a conviction, but because a person was merely charged. This right would be lost notwithstanding a lack of showing that Defendant is a potentially violent individual, or that he even owns firearms." Note: on appeal, the Ninth Circuit panel directed the court to impose the firearm prohibition without discussion of any Second Amendment implications.
United States v. Baron, 2008 U.S. Dist. LEXIS 100398 (E.D. Wash. Nov. 25, 2008)
Denied defendant's motion to vacate his conviction for possession of a firearm by a convicted felon under federal law. The court found that Heller did not call the statute's constitutionality into question and that therefore defense counsel's failure to raise a Heller argument did not constitute ineffective assistance.
United States v. Heredia-Mendoza, 2008 U.S. Dist. LEXIS 96599 (W.D. Wash. Nov. 18, 2008)
Denied defendant's motion to dismiss indictment for possession of a firearm in furtherance of a drug trafficking crime in violation of federal law. The defendant had argued that his possession of a gun in the home was for self-defense and that the underlying statute therefore violated Heller. The court found that Heller did not hold "that individuals have a constitutional right to possess a firearm under any and all circumstances, including those that are unlawful," even if the defendant also possessed the firearm for the "dual purpose" of self-protection and facilitating drug trafficking.
United States v. Potter, 2008 U.S. Dist. LEXIS 117848 (W.D. Wash. Oct. 31, 2008)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm in the furtherance of drug trafficking. The court rejected the defendant's argument that the law violated the Second Amendment, stating that, "Heller plainly stands for the proposition that the Second Amendment only prohibits total bans on the possession of handguns kept in the home for lawful purposes."
United States v. Bonner, 2008 U.S. Dist. LEXIS 80765 (N.D. Cal. Sept. 23, 2008)
Denied defendant's motion to dismiss his indictment under federal law prohibiting the possession of body armor by a person convicted of a violent felony. Although the defendant asserted that the statute unconstitutionally burdened his Second Amendment right to defend himself, the court disagreed, finding that Heller did not apply to the defendant as a "restricted person" who had been convicted of a felony. The court rejected the defendant's argument that it was always a "lawful purpose" to wear body armor, allegedly a "'purely defensive' weapon," for self-defense, citing Heller's discussion of several "presumptively lawful" categories of firearms regulations, including felon-in-possession laws.
United States v. Harden, 2008 U.S. Dist. LEXIS 54717 (D. Or. July 16, 2008)
Denied defendant's motion to dismiss indictment for possession of a firearm by a convicted felon under federal law. The court quoted Heller's statement that, "The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
TENTH CIRCUIT
Court of Appeals
United States v. Reese, 627 F.3d 792 (10th Cir. 2010)
Reversed district court's decision granting defendant's motion to dismiss indictment for possession of a firearm by a person subject to a domestic violence protective order in violation of federal law. While the district court had rejected the defendant's facial Second Amendment challenge to the statute, it granted the defendant's as-applied challenge, finding that the order of protection issued against the defendant was not "narrowly tailored to serve the governmental interest of reducing domestic violence," particularly given that the defendant and his ex-wife had no in-person contact. Following Marzzarella and Skoien [discussed above], the court of appeals adopted intermediate scrutiny, concluding that the application of the firearms prohibition to the defendant was substantially related to the government's interest in keeping firearms out of the hands of persons judicially determined to pose a credible threat to members of their families. No particular finding of a future threat of violence was needed because the defendant was explicitly prohibited from possessing guns by the terms of the protective order and had consented to the imposition of the order. The court further noted that the statute would also survive strict scrutiny if that test were applied.
United States v. Richard, 350 Fed. Appx. 252 (10th Cir. 2009) (Unpublished)
Affirmed dismissal of defendant's Second Amendment challenge to federal statute prohibiting possession of a firearm while an unlawful drug user. Citing Heller's discussion of longstanding prohibitions, the court stated that, "the individual right to bear arms protected by the Second Amendment is subject to appropriate restrictions like those contained in [the statute at issue]."
United States v. Gieswein, 346 Fed. Appx. 293 (10th Cir. 2009) (Unpublished)
Affirmed defendant's conviction for possession of a firearm while a convicted felon. The court rejected the defendant's Second Amendment challenge to the federal law, citing United States v. McCane [discussed below] and Heller’s discussion of the longstanding prohibition on felon possession.
United States v. Nolan, 342 Fed. Appx. 368 (10th Cir. 2009) (Unpublished)
Affirmed defendant's sentence for possession of a firearm while a convicted felon under federal law. The court held that Heller's discussion of the longstanding prohibition against felon possession "specifically foreclosed" the defendant's Second Amendment argument.
In re United States, 578 F.3d 1195 (10th Cir. 2009)
Granted the government's writ of mandamus and directed the district court not to instruct the jury on the defendant's proposed Second Amendment defense. Previously, the district court granted the defendant's request to offer a jury instruction on whether he posed a prospective risk of violence as an affirmative defense against the federal criminal charge of possession of a firearm by a person convicted of a domestic violence misdemeanor. The appellate court found that "the district court's order offers no support for its conclusion that an affirmative defense exists based upon 'no prospective risk of violence,' and the instruction invites the jury to second-guess the congressional classification inherent in [the statute]." The court noted that Heller identified a non-exhaustive list of "presumptively lawful regulatory measures" and stated that nothing in that opinion precluded inclusion of a general prohibition on possession by domestic violence misdemeanants. In a dissent, a judge argued that "substantial questions" requiring further briefing exist about how to constitutionally apply the statute, particularly given that it is not a longstanding prohibition.
United States v. McCane, 573 F.3d 1037 (10th Cir. 2009)
Affirmed defendant's conviction for possession of a firearm as a convicted felon. The court rejected the defendant's argument that the federal law violated the Second Amendment, noting Heller's approval of longstanding prohibitions against felon possession. In a concurrence, a judge discussed whether, "given the undeveloped history of felon dispossession laws," there existed a "possible tension between Heller's dictum and its underlying holding" and expressed "concern that the dictum inhibits lower courts from exploring the contours of Heller and its application to firearm restrictions."
United States v. Artez, 290 Fed. Appx. 203 (10th Cir. 2008) (Unpublished)
Affirmed dismissal of defendant's motion to quash his indictment under federal law for possession of a sawed-off shotgun. Defendant argued that the possession was protected by the Second Amendment, but the court disagreed, noting that Heller explicitly stated that the Second Amendment did not protect short-barreled shotguns and other weapons not typically possessed for lawful purposes.
District Court
United States v. Hill, 2010 U.S. Dist. LEXIS 86111 (D. Kan. Aug. 17, 2010)
Denied defendant's motion to dismiss indictment under federal law prohibiting possession of a firearm by a convicted felon. The court held that according to "Heller's dictum," "the Second Amendment does not protect a felon's right to possess firearms." The court further held that the Supreme Court's McDonald decision reaffirmed the Second Amendment limits articulated in Heller.
United States v. Gillman, 2010 U.S. Dist. LEXIS 63453 (D. Utah June 24, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm while subject to a protective order, in violation of federal law. The defendant argued that the statute violated the Second Amendment, facially and as applied to him. The court rejected this claim, concluding that the statute was among the list of "presumptively lawful regulatory measures" discussed in Heller, although it acknowledged that, "it is unclear where the boundaries are for what should be considered a presumptively lawful restriction." Here, the court noted, the statute was less restrictive than both the statute at issue in Heller and the federal law prohibiting firearm possession by convicted felons.
United States v. Yanez-Vasquez, 2010 U.S. Dist. 8166 (D. Kan. Jan. 28, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm by an illegal alien in violation of federal law. The court rejected the defendant's Second Amendment challenge, finding that illegal aliens are not protected by the Second Amendment. Moreover, the court held, the statute at issue ought to be included as one of the "presumptively lawful regulatory measures" discussed in Heller.
United States v. Bay, 2009 U.S. Dist. LEXIS 106874 (D. Utah Nov. 13, 2009)
Denied defendant's motion to dismiss indictment for possession of a firearm by a convicted felon under federal law. Applying strict scrutiny to the law, the court rejected the defendant's Second Amendment challenge, citing "the Supreme Court's express approval of prohibitions on the possession of firearms by felons." In response to the defendant's argument that his wife's ability to possess firearms was impeded by the prohibition, the court noted that felons are not prohibited from living in homes with firearms, only from actually or constructively possessing them.
United States v. Mills, 2009 U.S. Dist. LEXIS 105227 (W.D. Okla. Nov. 10, 2009)
Denied petitioner's motion to set aside his conviction for possession of a firearm as a convicted felon under federal law, following United States v. McCane [discussed above].
Angelos v. United States, 2009 U.S. Dist. LEXIS 94734 (D. Utah Oct. 7, 2009)
Denied motion for reconsideration on Second Amendment challenge to convictions under federal laws prohibiting possession of a firearm in furtherance of drug trafficking and possession of a stolen firearm. The court found that Heller did not establish grounds for relief on this claim.
United States v. Prince, 2009 U.S. Dist. LEXIS 54116 (D. Kan. June 26, 2009), rev'd on other grounds, United States v. Prince, 2010 U.S. App. LEXIS 2118 (10th Cir. Feb. 1, 2010)
Denied defendant's motion to dismiss charge under federal law prohibiting possession of a firearm by an unlawful user of a controlled substance. The court rejected defendant's contention that the statute violated the Second Amendment following Heller, stating that the individual right is not unlimited and only protects the interests of law-abiding citizens, not persons using firearms in illegal activity.
Lund v. Salt Lake City Corp., 2008 U.S. Dist. LEXIS 98722 (D. Utah Dec. 4, 2008)
In examining plaintiff's suit claiming the use of excessive force by members of law enforcement in responding to the suspicion that the plaintiff was in possession of a gun in a public park, the court noted Heller in dicta, observing that, "[b]y itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment."
ELEVENTH CIRCUIT
Court of Appeals
United States v. Nicoll, 2010 U.S. App. LEXIS 21319 (11th Cir. Oct. 14, 2010) (Unpublished)
Affirmed defendant's convictions, which included conviction for possession of a firearm by a convicted felon under federal law. The court rejected the defendant's Second Amendment challenge to the statute, quoting the Supreme Court's statement in McDonald that neither that decision nor Heller "cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons."
United States v. Thorton, 2010 U.S. App. LEXIS 18511 (11th Cir. Sept. 3, 2010) (Unpublished)
Affirmed defendant's convictions under federal laws prohibiting possession of a firearm by a convicted felon and possession of a firearm in a crime of violence. The court held that the defendant's challenges were "without merit," citing United States v. Rozier [discussed below].
United States v. Feaster, 2010 U.S. App. LEXIS 17855 (11th Cir. Aug. 24, 2010) (Unpublished)
Affirmed in part defendant's convictions for possession of a firearm by a convicted felon and possession of a firearm in furtherance of a drug crime in violation of federal law. The court stated that statutes disqualifying felons from possessing firearms do not violate the Second Amendment, citing United States v. Rozier [discussed below].
United States v. Goodlow, 2010 U.S. App. LEXIS 15870 (11th Cir. July 29, 2010) (Unpublished)
Affirmed defendants' drug convictions under federal law. The court rejected one defendant's argument that a sentence enhancement for possession of a firearm violated the Second Amendment. The court stated that, "There is no support in Heller for the invalidation of the firearm enhancement on the basis of the Second Amendment."
United States v. Rozier, 598 F.3d 768 (11th Cir. 2010)
Affirmed defendant's conviction for possession of a firearm and ammunition by a convicted felon. The court rejected the defendant's Second Amendment challenge, holding that the federal statute was constitutional, "even if a felon possesses a firearm purely for self-defense." The court stated that "statutory restrictions of firearm possession...are a constitutional avenue to restrict the Second Amendment right of certain classes of people," and concluded that convicted felons were such a class.
United States v. White, 593 F.3d 1199 (11th Cir. 2010)
Affirmed defendant's conviction under federal law prohibiting possession of a firearm by a person convicted of a domestic violence misdemeanor. The court dismissed the defendant's Second Amendment challenge, concluding that the staute was included in the set of presumptively lawful longstanding prohibitions on firearm possession recognized in Heller. The court noted that this statute only prohibited possession by persons who had previously committed a violent crime, unlike the blanket prohibition on felon possession that had been approved in Heller.
United States v. Banks, 350 Fed. Appx. 419 (11th Cir. 2009) (Unpublished)
Affirmed in part defendant's conviction for possession of a firearm and ammunition by a convicted felon under federal law. The court found "no merit" in the defendant’s Second Amendment challenge.
United States v. Battle, 347 Fed. Appx. 478 (11th Cir. 2009) (Unpublished)
Affirmed defendant's conviction for possession of a firearm as a convicted felon under federal law. The court rejected the defendant's Second Amendment challenge as "without merit," citing Heller’s reference to the longstanding prohibition on felon possession.
United States v. Tagg, 572 F.3d 1320 (11th Cir. 2009)
Affirmed defendant's conviction for possession of pipe bombs in violation of federal law. The court rejected his assertion that his possession was protected by the Second Amendment. Citing Heller, the court found that pipe bombs are "not typically possessed by law-abiding citizens for lawful purposes," unlike handguns.
United States v. Brye, 318 Fed. Appx. 878 (11th Cir. 2009) (Unpublished)
Affirmed defendant's conviction under federal laws prohibiting possession of a firearm and ammunition by convicted felons. The court found no precedent supporting the position that convicted felons could not be convicted for firearm possession, noting Heller’s affirmation of the longstanding prohibition on felon possession.
District Court
United States v. Thompson, 2010 U.S. Dist. LEXIS 94790 (M.D. Ala. Aug. 26, 2010), adopted by, 2010 U.S. Dist. LEXIS 94974 (M.D. Ala. Sept. 13, 2010)
Recommended the denial of defendant's motion to dismiss an indictment under federal law prohibiting possession of a firearm while a convicted felon. The court held that United States v. Rozier, discussed above, foreclosed the defendant's Second Amendment challenge.
United States v. Lewis, 2010 U.S. Dist. LEXIS 95661 (N.D. Ga. Aug. 23, 2010)
Denied defendant's motion to dismiss indictment for possession of a firearm by an illegal alien under federal law. The court held, without discussion, that the statute is not unconstitutional under the Second Amendment following Heller.
Leon-Estrada v. Secretary, Dep't of Corr., 2010 U.S. Dist. LEXIS 89467 (M.D. Fla. Aug. 4, 2010)
Denied petitioner's writ of habeas corpus which alleged that that the petitioner's trial counsel was ineffective for failing to argue that the federal law prohibiting the possession of firearms by convicted felons violated the Second Amendment. The court stated that references in Heller and McDonald to the continued validity of laws prohibiting the possession of firearms by convicted felons foreclosed this claim.
United States v. Rush, 635 F. Supp. 2d 1301 (M.D. Ala. 2009)
Denied defendant's motion to dismiss indictment for possession of a firearm in furtherance of a drug-trafficking crime under federal law. The court stated that "Heller is of no help to [the defendant]…Even considering the importance given by the Supreme Court to the right to self-defense, this court cannot conclude that such a 'right' allows a person to insert himself intentionally into dangerous and illegal activity."
United States v. Abner, 2009 U.S. Dist. LEXIS 2494 (M.D. Ala. Jan. 14, 2009)
Dismissed defendant's as-applied challenge to the federal statute prohibiting possession of a firearm by a convicted felon. The court remarked that, "Even though [the statute] has a strikingly large scope--a scope that might be arguably called into question by a fair reading of Heller's rationale--the court does not find, under the particular circumstances presented in this case, a constitutional violation as applied."
Bruley v. Vill. Green Mgmt. Co., 592 F. Supp. 2d 1381 (M.D. Fla. 2008), affirmed by Bruley v. LBK, LP, 333 Fed. Appx. 491 (11th Cir. 2009)
Granted defendant employer's motion for summary judgment in plaintiff's suit arguing that his termination for possessing a firearm in his home and elsewhere on the employer's property violated his Second Amendment right to possess a firearm for self-defense. The court noted Heller's "evinced a constitutional imperative" to permit self-defense in the home, but observed that "whatever Second Amendment right Bruley may have to possess a firearm in his apartment, it cannot be stretched to create a wrongful discharge cause of action under Florida law against a private employer which fires an employee for carrying a firearm on company property."
LaRoche v. United States, 2008 U.S. Dist. LEXIS 89553 (S.D. Ga. Nov. 4, 2008)
Denied defendant's appeal of motion to vacate conviction. The defendant had asserted that the federal statute prohibiting possession of a stolen firearm violated the Second Amendment. The court found the defendant's arguments to be "without merit" and "frivolous," citing Heller's "basic qualifier," that the Second Amendment right is not unlimited.
Jennings v. Mukasey, 2008 U.S. Dist. LEXIS 82465 (M.D. Fla. Sept. 22, 2008)
Denied the government's motion to dismiss plaintiff's lawsuit. Plaintiff, an individual whose conviction for a misdemeanor crime of domestic violence had been expunged, alleged that the U.S. Attorney had threatened to prosecute him if he chose to lawfully possess a firearm or work in the firearms industry. The court denied the government's motion to dismiss the suit, finding that, "[i]n light of District of Columbia v. Heller, Plaintiff raises a viable claim that the violation of his Second Amendment right to bear arms also deprives him of the right to earn a livelihood."
United States v. Boffil-Rivera, 2008 U.S. Dist. LEXIS 84633 (S.D. Fla. Aug. 12, 2008)
Recommended the denial of the defendant's motion to dismiss his indictment under federal law prohibiting possession of a firearm by an illegal alien. The court noted that the defendant's apparent concession that some illegal aliens ought to be prohibited from firearm possession voided his facial challenge to the statute. Quoting Heller's analysis of constitutional history, the court found that the individual right identified in Heller only extends to citizens.
United States v. Singletary, 2008 U.S. Dist. 61012 (M.D. Ga. Aug. 11, 2008)
Denied defendant's motion to dismiss his indictment for possession of a firearm by a convicted felon under federal law. The court stated that "the Supreme Court's decision in Heller does not draw into the question the constitutionality of the felon in possession statute."
D.C. CIRCUIT
Court of Appeals
No relevant appellate decisions.
District Court
Heller v. District of Columbia, 698 F. Supp. 2d 179 (D.D.C. 2010)
Denied plaintiffs' summary judgment motion and granted defendants' cross-motion in Second Amendment challenge to the District of Columbia's firearms registration requirements and prohibitions on assault weapons and large capacity ammunition feeding devices. Based on Heller's discussion of classes of "presumptively lawful regulatory measures," the court concluded that, where a law "implicates the core Second Amendment right, namely, 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home,'" intermediate scrutiny ought to apply.
The court concluded that the "ample evidence" provided by the District Council "of the ways in which the registration requirements will effectuate the goal of promoting public safety" established a "substantial nexus" between the registration scheme and the government's interest sufficient for intermediate scrutiny. The court deferred to the Council's conclusion that assault weapons and large capacity magazines "constitute[d] weapons that are not in common use, are not typically possessed by law-abiding citizens for lawful purposes and are 'dangerous and unusual' within the meaning of Heller." As a result, these weapons were not within the scope of the core Second Amendment right; at the same time, the court observed that there was sufficient evidence to find that those prohibitions would also satisfy intermediate scrutiny.
