U.S. v. Miller

604 F.Supp.2d 1162

UNITED STATES of America, v. Jerry L. MILLER, Defendant.

No. 08-cr-10097.

United States District Court, W.D. Tennessee, Eastern Division.

February 26, 2009.

COPYRIGHT MATERIAL OMITTED

James W. Powell, U.S. Attorney's Office, Jackson, TN, for Plaintiff.

ORDER DENYING MOTION TO DISMISS INDICTMENT

J. DANIEL BREEN, District Judge.

On May 23, 2008, a federal grand jury indicted the Defendant, Jerry L. Miller, on one count of being a felon in possession of a firearm. 18 U.S.C. § 922(g). This charge arose from a police search of Miller's residence, which uncovered a Keystone Sporting Arms .22 caliber rifle. The Defendant has filed a motion to dismiss the indictment, alleging that § 922(g) violates his right to bear arms under the Second Amendment, the Due Process Clause in the Fifth Amendment, and the Equal Protection Clause in the Fourteenth Amendment. After due consideration of the arguments presented by the Defendant and the Government, the Court DENIES the motion.

ANALYSIS

I. The Second Amendment and Recent Supreme Court Case Law

The Defendant's motion amounts to a constitutional challenge to the federal statute prohibiting firearm possession by felons. He claims a violation of his right under the United States Constitution to have a firearm in his home to defend himself and his family. His argument principally relies on the recent decision of the United States Supreme Court in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), which struck down a Washington D.C. law criminalizing the possession of handguns by private citizens. (Docket Entry ("D.E.") No. 23, Mot. to Dismiss, at 2.) This ruling was grounded in the Second Amendment of the United States Constitution, which provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. Amend. II. The Heller Court held that this provision of the Bill of Rights codified "the individual right to possess and carry weapons in case of confrontation." Heller, 128 S.Ct. at 2797. Considering the historical context of the Second Amendment, the Court explained that

it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876), "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed. ..."

Id. at 2798-99. The Court also indicated that the right to bear arms was particularly strong in the context of the home, "where the need for defense of self, family, and property is most acute." Id. at 2817.

The statute challenged by Miller states, in part:¹

It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g).² The Defendant argues that, per Heller, the statute's blanket "prohibition against a felon possessing a firearm is an unconstitutional abridgment of [his] fundamental rights." (D.E. 3, Mot. to Dismiss, at 3.)

Miller recognizes, however, that a significant hurdle to his argument was created by Justice Antonin Scalia, the author of Heller, when he included the following language in his opinion:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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.

128 S.Ct. at 2816-17 (emphasis added). As has been recognized by numerous lower courts,³ the clear import of Justice Scalia's statement is a direct refutation of the Defendant's position. See e.g., United States v. Schultz, No. 1:08-CR-75-TS, 2009 U.S. Dist. LEXIS 234, 2009 WL 35225, at *2 (N.D.Ind. Jan. 5, 2009) (stating, in a case involving a felon in possession of a firearm, that "[t]here is no wiggle room to distinguish the present case from the Supreme Court's blanket statement"). Miller attempts to explain away the Supreme Court's clear instruction by labeling it as "unsupported dicta"⁴ that is non-binding as to the issue before this Court. (D.E. 3, Mot. to Dismiss, at 3.)

Black's Law Dictionary defines "dicta"⁵ as:

Opinions of a judge which do not embody the resolution or determination of the specific case before the court. Expressions in [a] court's opinion which go beyond the facts before [the] court and therefore are [the] individual views of [the] author of [the] opinion and not binding in subsequent cases as legal precedent.

Black's Law Dictionary 454 (6th ed. 1990). Under the facts of Heller, the plaintiff was a special police officer who had been denied a registration certificate for his handgun. 128 S.Ct. at 2788. He sought injunctive relief against enforcement of Washington D.C. laws that prevented him from possessing a functional handgun in his home. Id. Unlike the Defendant in this case, Heller was not a felon, nor did he fall into any of the classifications listed in 18 U.S.C. § 922(g), and the firearm regulations at issue applied indiscriminately to all citizens, with some exceptions for law enforcement officials. Id. Also, when the Supreme Court granted the writ of certiorari in Heller, it specifically limited the question of review to

[w]hether the following provisions— D.C.Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 645, 169 L.Ed.2d 417 (2007). Thus, the Defendant is correct that Justice Scalia's statement about the viability of laws banning felons from possessing firearms did not necessarily fall within the scope of the particular controversy before the Heller Court. As such, it would meet the traditional definition of dicta, considering that it had no direct bearing on the Court's holding.

Courts generally treat dicta in case law as non-binding. See, e.g., Kelly v. Burks, 415 F.3d 558, 562 (6th Cir.2005). It would be disingenuous, however, to claim that a clear statement of law from the highest court of the land, though announced in dicta, amounts to no more than a casual suggestion. Most federal circuits have recognized that "by the way" statements made by the Supreme Court resonate more forcefully than dicta from other sources. See, e.g., Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1540 n. 10 (10th Cir.1995) (stating that "[f]ederal courts `are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings") (quoting City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 557 (8th Cir.1993)); United States v. Gaudin, 28 F.3d 943, 956 n. 2 (9th Cir.1994) (noting that Supreme Court dicta binds federal courts when uncontradicted by later opinions); United States v. Santana, 6 F.3d 1, 9 (1st Cir.1993) ("Carefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative when, as in this instance, badges of reliability abound."); Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120 n. 8 (7th Cir.1989) (advising that courts should "respect considered Supreme Court dicta"); Donovan v. Red Star Marine Serv. Inc., 739 F.2d 774, 782 (2d Cir.1984) (stating that "dicta of the nation's highest Court merits the greatest deference"). Nonetheless, as illustrated in Grutter v. Bollinger, 288 F.3d 732 (6th Cir.2002) (en banc), there is some disagreement within the Sixth Circuit as to how much weight the federal judiciary should afford to Supreme Court dicta. In upholding the affirmative action admission policies of the University of Michigan Law School, a majority of the appellate judges applied guidelines found in dicta in the decision of Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Id. at 745-46. In a footnote, former Chief Judge Boyce Martin noted that dicta "carries considerable persuasive authority" when derived from the only Supreme Court case to have addressed a particular issue. Id. at 746 n. 9. He also commented that, faced with a novel issue of law, applying dicta from the Supreme Court "provide[d] a more appropriate basis for [the] opinion" than fashioning a new legal standard. Id. The dissent, on the other hand, took issue with what it referred to as the "Dicta Problem." Id. at 785-87 (Boggs, J., dissenting). Current Chief Judge Danny Boggs criticized the majority for importing certain aspects of Bakke, which he referred to as mere "persuasive authority," and stated that "the holding/dicta distinction demands that we consider binding only that which was necessary to resolve the question before the Court." Id. at 784 n. 9, 787 (Boggs, J., dissenting).

While its legal potency may be debatable, citation to Supreme Court dicta for support is common practice in this circuit. See, e.g., Coles v. Granville, 448 F.3d 853, 858 (6th Cir.2006); Bangura v. Hansen, 434 F.3d 487, 501 (6th Cir.2006). As such, the Heller Court's clear statement—that laws restricting...