United States v. Bullock

679 F.Supp.3d 501

UNITED STATES of America, Plaintiff, v. Jessie BULLOCK, Defendant.

No. 3:18-CR-165-CWR-FKB

United States District Court, S.D. Mississippi

Signed June 28, 2023

Jessica Terrill, Kimberly Taft Purdie, Assistant U.S. Attorney, Charles W. Kirkham, U.S. Attorney's Office, Jackson, MS, Gaines H. Cleveland, U.S. Attorney's Office, Gulfport, MS, for Plaintiff.

Before Carlton W. Reeves, District Judge.

ORDER DISMISSING CASE

Carlton W. Reeves, United States District Judge

Gun-rights advocates used to say that the Second Amendment was treated as a "second-class" right. Robert J. Cottrol, Structure, Participation, Citizenship, and Right: Lessons from Akhil Amar's Second and Fourteenth Amendments, 87 Geo. L.J. 2307, 2324 (1999). That all changed in 2008. That year, the Supreme Court decided that the Second Amendment guarantees individuals the right to keep and bear arms in their home for self-defense. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

In so doing, the Court forged a broad definition of the right to bear arms. And in the years since, the Court has continued to expand that definition. See McDonald v. City of Chicago, Illinois, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Firearm restrictions are now presumptively unlawful unless the government can "demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 2126, 213 L.Ed.2d 387 (2022).

In this case, the federal government seeks to imprison Jessie Bullock for possessing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). Mr. Bullock claims that this is a violation of his Second Amendment rights. He observes that he finished serving his sentence long ago, and the available evidence indicates that the firearm the government complains of was kept in the sanctity of his home. Yet Section 922(g)(1)'s ban on gun possession is a lifetime one.

The question presented appears simple: has the government demonstrated that, as to Mr. Bullock, the federal felon-in-possession ban is consistent with America's "historical tradition of firearm regulation"?

The government says the answer is also simple: "yes." It points to more than 120 U.S. District Court decisions which recently determined that the government had met its burden—at least in those cases.

This Court is not so sure. The government's citation to the mere volume of cases is not enough. See Heller, 554 U.S. at 624 n.24, 128 S.Ct. 2783 (rejecting decisions of "hundreds of judges"). There also is doubt about the process those cases used to determine the history of the felon-in-possession ban. In none of those cases did the government submit an expert report from a historian justifying felon disarmament. In none of those cases did the court possess an amicus brief from a historian. And in none of those cases did the court itself appoint an independent expert to help sift through the historical record.

It is unsurprising that the government relies on jurisprudence filled with such methodological flaws. The same errors define the Supreme Court's own Second Amendment jurisprudence.

In Heller, Justice Scalia's opinion for the Court conducted a de novo review of history using the parties' briefs and amicus briefs from academics. That was surprising in light of Justice Scalia's long-held belief that "[s]ign-on, multiple-professor amicus briefs in a case . . . are . . . a political rather than an academic exercise" motivated by "partisanship" and "hopes for preferment." Memorandum from Associate Justice Antonin Scalia to Associate Justice John Paul Stevens, No. 95-1853, Clinton v. Jones, at 2 (April 4, 1997). It was further surprising given Justice Scalia's disapproval of the Court "picking and choosing those [studies] that support its position" while "never explain[ing] why those particular studies are methodologically sound." Roper v. Simmons, 543 U.S. 551, 617, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (Scalia, J., dissenting).

Justice Scalia knew firsthand the risk of cherry-picking briefs to support one's ideological priors. See id. Yet it appears that the Court continues to engage in "law office history"—that is, history selected to "fit the needs of people looking for ammunition in their causes"—in Constitutional interpretation. Gordon S. Wood, The Supreme Court and the Uses of History, 39 Ohio N.U. L. Rev. 435, 446 (2013).

Nevertheless, the standard announced by the Supreme Court in Bruen is the law of the land. It must be enforced. Under that standard, the government has failed to meet its burden.

The federal felon-in-possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amendments were ratified. The government's brief in this case does not identify a "well-established and representative historical analogue" from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self-defense. Bruen, 142 S. Ct. at 2132; see Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1791 (2012) (explaining that "tens of millions" of free-world Americans have criminal records).

American history might support state-level felon disarmament laws; that at least would align with principles of federalism. It might support disarmament of persons adjudicated to be dangerous—as Justice Barrett found when she sat on the Seventh Circuit. See Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). And it likely does support disarmament of persons convicted of death-eligible offenses. The power to take someone's life necessarily includes the lesser power to disarm them.

The government's arguments for permanently disarming Mr. Bullock, however, rest upon the mirage of dicta, buttressed by a cloud of law review articles that do not support disarming him.¹ In Bruen, the State of New York presented 700 years of history to try and defend its early 1900s-era gun licensing law. That was not enough. Bruen requires no less skepticism here, where the challenged law is even younger.

For the reasons that follow, therefore, Mr. Bullock's motion to dismiss will be granted.

I. Factual and Procedural History

A. Mr. Bullock

In 1992, thirty-one year old Jessie Bullock got into a deadly "bar fight" in Jackson, Mississippi. Docket No. 38 at 44 (quoting U.S. Magistrate Judge F. Keith Ball). He was convicted of aggravated assault and manslaughter. Docket No. 20 at 8. As a result of those felonies, Mr. Bullock served "about 15, 16 years" in state prison and lost several civil rights. Docket No. 38 at 33 (quoting Ella Bullock).²

Mr. Bullock also permanently lost his right to possess firearms and ammunition. At the time, the Second Amendment provided him no safe harbor, no protection. See United States v. Darrington, 351 F.3d 632, 633-34 (5th Cir. 2003). If Mr. Bullock was ever found with firearms or ammunition, he could be charged with a new crime and, if convicted, sent back to prison. See 18 U.S.C. § 922(g)(1).

That is the case before this Court. The government alleges that Mr. Bullock violated § 922(g)(1) by knowingly possessing a firearm on May 3, 2018, when he was about 57 years old.

The grand jury returned its first indictment in August 2018. It charged Mr. Bullock with knowingly possessing a firearm, demanded forfeiture of his firearms and ammunition, and sought a mandatory minimum of 15 years' incarceration.

The government did not arrest Mr. Bullock at that time. It is not clear that Mr. Bullock even knew about the pending charge. Fourteen months passed with no activity.

In October 2019, the grand jury returned a superseding indictment. This charging document amended the sentencing request to no more than 10 years in federal prison.³ More time passed.

Mr. Bullock was finally arraigned in March 2020, around the start of the pandemic. The Magistrate Judge held a detention hearing the next month. After listening to the testimony, Judge Ball thought it "downright silly" to claim that Mr. Bullock "poses a danger to his wife, contrary to her own sworn testimony, contrary to the time that he's been out on bond from this very incident, and no one feeling that he poses such a danger that they needed to go pick him up as early as August of 2018 when he was first indicted." Docket No. 38 at 45-46. Judge Ball released Mr. Bullock on an unsecured bond. Mr. Bullock has remained on bond ever since, without incident.

A series of pandemic-related continuances followed. The continuances were unopposed, as the U.S. Attorney's Office and the Federal Public Defender agreed that trials should proceed first for those defendants detained in jail.

With the pandemic receding in 2022, this matter was almost ready to be tried before a jury of Mr. Bullock's peers. In August of that year, however, he filed the present motion to dismiss. The Court turns to that now.

B. The Present Motion

Mr. Bullock argues that the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen renders the federal felon-in-possession law unconstitutional as applied to him.

Bruen was about the State of New York's handgun rules. While 43 states issued licenses to publicly carry handguns based on "objective criteria," New York and a handful of other states also required citizens to show a "special need" for the handgun. 142 S. Ct. at 2122. When two citizens could not meet that standard, they and a gun-rights organization sued, calling it an unconstitutional infringement of the Second Amendment guarantee.

The U.S. Court of Appeals for the Second Circuit upheld New York's "special need" requirement, finding it " 'substantially related to the achievement of an important governmental interest.' " Id. at 2125 (citation omitted).

In Bruen, however, the Supreme Court rejected that approach. An individual's Second Amendment rights...