United States v. Le

669 F.Supp.3d 754

UNITED STATES of America, Plaintiff, v. Nhat Quang LE, Defendant.

No. 4:23-cr-00014-SHL-HCA

United States District Court, S.D. Iowa, Central Division

Signed April 11, 2023

Mallory E. Weiser, United States Attorney's Office, Des Moines, IA, for Plaintiff.

James S. Nelsen, Stowers & Nelson PLC, West Des Moines, IA, Christopher Anton Clausen, Mays & Clausen Law Office, Ames, IA, for Defendant.

ORDER DENYING MOTION TO DISMISS COUNTS 2 AND 3

STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE

In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court held that firearms restrictions are constitutional only if they are "consistent with this Nation's historical tradition of firearm regulation." 597 U.S. 1, 142 S. Ct. 2111, 2126, 213 L.Ed.2d 387 (2022). Defendant Nhat Quang Le argues that 18 U.S.C. § 922(g)(3), which criminalizes the possession of firearms by a person "who is an unlawful user of or addicted to any controlled substances," does not satisfy Bruen. The Court concludes that it is bound by Eighth Circuit precedent upholding the facial constitutionality of § 922(g)(3) and therefore DENIES Le's Motion to Dismiss.

I. Background

On January 19, 2023, a grand jury in the Southern District of Iowa returned a three-count Indictment charging Le with one count of Possession with Intent to Distribute a Controlled Substance (Count 1) and two counts of Unlawful User in Possession of a Firearm (Counts 2 and 3). (ECF 17.) Counts 2 and 3 allege that Le possessed a firearm at a time when he "knew he was an unlawful user of, or addicted to, a controlled substance." (Id., p. 2.) Le moves to dismiss Counts 2 and 3, arguing there is no "historical tradition" of prohibiting unlawful drug users from possessing firearms. (ECF 31.) He therefore argues that 18 U.S.C. § 922(g)(3) is facially unconstitutional in violation of the Second Amendment.

II. Legal Analysis

A. Bruen's Legal Framework for Analyzing the Constitutionality of Firearm Laws and Regulations.

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects the right of "law-abiding, responsible citizens" to possess firearms for self-defense. 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In the years that followed, most federal courts of appeal began adopting and applying some form or another of means-end scrutiny to determine whether firearm laws were constitutional. See, e.g., United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). This generally entailed a two-step approach in which the courts would, first, determine whether the regulated conduct fell within the scope of the Second Amendment right from a historical perspective, and, if so, second, whether the challenged regulation satisfied some level of constitutional scrutiny (either intermediate or strict, depending on the circumstances). See, e.g., Focia, 869 F.3d at 1285.

Bruen held that this two-step approach "is one step too many." 142 S. Ct. at 2127. "Step one . . . is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history." Id. "But Heller and McDonald [v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)] do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Id.

The Eighth Circuit appears not to have adopted the sort of means-end scrutiny the Supreme Court held to be improper in Bruen. Instead, when the Eighth Circuit considered constitutional challenges to firearms restrictions post-Heller, it sometimes started with the standard set forth in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), for evaluating a statute's facial constitutionality. See, e.g., United States v. Seay, 620 F.3d 919, 922 (8th Cir. 2010). Under this standard, the defendant "must establish that no set of circumstances exists under which [the statute] would be valid." Id. (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). If the defendant could not satisfy this standard, the facial challenge failed and the Eighth Circuit turned to a two-prong approach for evaluating the as-applied challenge (if one was made): "[the defendant] must establish (1) that the Second Amendment protects his particular conduct, and (2) that his prior [ ] conviction is insufficient to justify the challenged regulation of Second Amendment rights." United States v. Adams, 914 F.3d 602, 605 (8th Cir. 2019).

In at least one respect, Bruen may have abrogated Eighth Circuit precedent. United States v. Adams placed the burden on the defendant to prove the Second Amendment protected his conduct, whereas Bruen places the burden of proof on the Government to show historical evidence supporting the regulation in question. 142 S. Ct. at 2127. Beyond the placement of the burden of proof, however, there is nothing in Bruen that expressly abrogates cases like Adams and United States v. Seay. For example, although Bruen eschewed "two-step" tests insofar as the second step engages in means-end scrutiny of a firearm regulation, there are nonetheless still two parts to the Bruen analysis: first, courts must determine whether "the Second Amendment's plain text covers an individual's conduct," and, if so, second, the Government must provide historical evidence to show the regulation is sufficiently analogous to Founding-era restrictions. 142 S. Ct. at 2129-30. Apart from who bears the burden of proof, this is similar to the two-part test used by the Eighth Circuit in Adams. In fact, in a very recent case, the Eighth Circuit essentially held that the two-step Bruen test is functionally the same as the two-step test from Adams, and thus prior cases that ruled in the Government's favor at step one remain good law. See United States v. Sitladeen, 64 F.4th 978, 985-88 (8th Cir. 2023).

With this background in mind, the Court will address Le's facial constitutional challenge to 18 U.S.C. § 922(g)(3).

B. Pre-Bruen Precedent from the Eighth Circuit Upholding the Constitutionality of Section 922(g)(3) Remains Good Law.

In Seay, the Eighth Circuit squarely rejected a facial constitutional challenge to § 922(g)(3). 620 F.3d at 925. Seay identified many cases in which the constitutionality of § 922(g)(3) had been upheld, but none in which it was struck down. See id. The Eighth Circuit concluded:

Nothing in Seay's argument convinces us that we should depart company from every other court to examine § 922(g)(3) following Heller. Further, § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213. Moreover, in passing § 922(g)(3), Congress expressed its intention to "keep firearms out of the possession of drug abusers, a dangerous class of individuals." United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010), pet. for cert. filed, 78 U.S.L.W. 3731 (U.S. June 1, 2010) (No. 09-1470). As such, we find that § 922(g)(3) is the type of 'longstanding prohibition[ ] on the possession of firearms' that Heller declared presumptively lawful. See 128 S. Ct. at 2816-17. Accordingly, we reject Seay's facial challenge to § 922(g)(1).

Id. If Seay remains good law, this Court of course must follow it by denying Le's Motion to Dismiss. See, e.g., Dean v. Searcey, 893 F.3d 504, 511 (8th Cir. 2018).

Except for comparing the pedigree of § 922(g)(3) to other firearms restrictions in the Gun Control Act of 1968, Seay did not expressly engage in the sort of historical analysis that Bruen requires. There was, for example, no discussion in Seay of Founding-era firearms restrictions to determine whether § 922(g)(3) is "analogous enough to pass constitutional muster." Bruen, 142 S. Ct. at 2133. This contrasts Seay from other pre-Bruen cases in the Eighth Circuit involving challenges to other provisions of § 922(g). In United States v. Bena, for example, the Court carefully analyzed the "pre-existing right to bear arms" as it would have been understood in the Founding era before rejecting a constitutional challenge to § 922(g)(8), which criminalizes firearm possession by persons subject to a court order of protection for domestic abuse. 664 F.3d 1180, 1183-84 (8th Cir. 2011); see also United States v. Hammond, 656 F.Supp.3d 857, 860 (S.D. Iowa Feb. 15, 2023) (concluding that Bena remains good law because it "essentially foreshadowed Bruen by focusing on text and history and declining to engage in means-end scrutiny").

All the same, nothing in Bruen expressly repudiates the holding of Seay. To the contrary, in a concurring opinion in Bruen, Justice Kavanaugh (joined by Chief Justice Roberts) reiterated the earlier admonitions of Justices Scalia (in Heller) and Alito (in McDonald) 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 . . ." Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783)). As Seay relied heavily on the same "longstanding prohibition" language in affirming the facial constitutionality of § 922(g)(3), see 620 F.3d at 925, it is difficult for this Court to conclude Seay is no longer good law. Instead, the proper course is to treat Seay as binding and "leav[e] to [the Eighth Circuit] the prerogative of overruling its own decisions." United States v. Coonce, 932 F.3d 623, 641 (8th Cir. 2019) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)); see also United States v. Wendt, 650 F.Supp.3d 672, 680 (S.D. Iowa Jan. 11, 2023) (declining to interpret Bruen as having invalidated firearm restrictions under the Bail Reform Act...