United States v. Delaney

1

UNITED STATES OF AMERICA, v. KEVIN DELANEY, Defendant.

No. 22 CR 463

United States District Court, N.D. Illinois, Eastern Division

November 7, 2023

MEMORANDUM OPINION & ORDER

ROBERT W. GETTLEMAN UNITED STATES DISTRICT JUDGE

Defendant Kevin Delaney is charged with one count of being a prohibited person in possession of ammunition, in violation of 18 U.S.C § 922(g)(1). Section 922(g)(1) prohibits possession of ammunition by individuals who have been convicted of a felony. Defendant moves to dismiss the indictment, claiming that the pending charge violates his rights under the Second Amendment to the United States Constitution. For the reasons discussed below, defendant's motion to dismiss the indictment (Doc. 24) is granted.

BACKGROUND

Defendant is charged with unlawful possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) prohibits the possession of firearms and ammunition by individuals convicted of felonies, or any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” Defendant has a criminal record that includes prior felony convictions for aggravated battery and being a felon in possession of a firearm. According to the government, on September 29, 2021 while on supervised release for a federal conviction for unlawfully possessing a firearm, defendant possessed a firearm loaded with six cartridges containing ammunition which he allegedly used to shoot Victim A. A federal grand jury returned a one-count indictment against defendant on September 20, 2022.

On July 19, 2023, defendant filed the instant motion to dismiss the indictment in this case based on an alleged violation of his rights under the Second Amendment of the United States Constitution as applied to the facts of his case. He raises the issue based on the Supreme Court's ruling in New York Rifle & Pistol Assn. v. Bruen, 142 S.Ct. 2111 (2022) (“Bruen”), and the Seventh Circuit's ruling in Atkinson v. Garland, 70 F.4th 1018 (7th Cir. 2023) (“Atkinson”).

The Second Amendment to the U.S. Constitution 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. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court determined that “the right secured by the Second Amendment is not unlimited.” Id. at 626. In dicta, the Court cautioned that its decision did not cast doubt on “longstanding prohibitions on the possession of firearms by felons.” Id. In McDonald v. Chicago, 561 U.S. 742 (2010), the Court further held that the Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the Fourteenth Amendment. Id. at 750. Under Heller and McDonald, lower federal courts adopted a two-step, means-end framework to analyze challenges to firearms regulations under the Second Amendment. See, e.g., Ezell v. City of Chicago, 846 F.3d 888, 893 (7th Cir. 2017); see also Kanter v. Barr, 919 F.3d 437, 441-42 (7th Cir. 2019).

Recently, however, in Bruen, the Supreme Court considered the meaning of the Second Amendment and articulated an analytical framework to determine whether a firearm regulation is constitutional. The Court again emphasized that certain firearms regulations remain constitutional, and that its newly articulated framework is “consistent with Heller and McDonald.” Id. at 2122. It held that “when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.” Id. at 2126. When the Second Amendment's plain text protects certain conduct, the government can regulate such conduct only if it can “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. at 2127. (Emphasis added). Otherwise, the court must conclude that the individual's firearm-related conduct is protected because it falls within the Second Amendment's “unqualified command.” Id. at 2126 (internal quotations omitted).

The Bruen Court provides two avenues of historical inquiry. The first avenue of inquiry is a “straightforward historical inquiry,” which applies when “a challenged regulation addresses a general societal problem that has persisted since the 18th century.” Id. at 2131. Under this inquiry, courts must identify a “distinctly similar historical regulation addressing that problem.” Id. The second avenue of inquiry is by “analogy.” Id. at 2132. Because “[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868,” there is not always straightforward correspondence, and unprecedented societal concerns or dramatic technological changes may require a “more nuanced approach.” Id. Under these circumstances, the Bruen Court directed courts to consider “historical analogies” to the challenged regulation to determine whether the regulation sufficiently resembles historically acceptable restrictions. Id.

Evaluating whether a historical regulation is a proper analogue for a for a “distinctly modern” firearm regulation requires a determination of whether the two regulations are “relevantly similar.” Id. The Bruen Court directed lower courts to centrally consider “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Id. at 2133. The Court emphasized that “analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” Id. It requires a “well-established and representative historical analogue, not a historical twin.” Id. (Emphasis in original).

In Atkinson, the Seventh Circuit remanded a civil litigant's as-applied constitutional challenge to § 922(g)(1) for further analysis under Bruen. See 70 F.4th 1018, 1023 (7th Cir. 2023). The plaintiff was convicted of felony mail fraud 24 years earlier and filed his complaint pursuant to 18 U.S.C. § 925A. Id. at 1021-22. Because the district court dismissed his complaint before the Court articulated its “text and history” test in Bruen, and because the parties' appellate briefing did “not grapple with Bruen,” the majority opinion in Atkinson remanded the matter “to allow the district court to undertake the Bruen analysis in the first instance.” Id. at 1022. The court reasoned that “Bruen leaves no room for doubt: text and history, not a means-end analysis, now define the controlling Second Amendment inquiry.” Id. at 1020. It also directed the government to “develop its contention that the plain text of the Second Amendment does not protect felons and other offenders impacted by § 922(g)(1)” on remand, and to “conduct a more substantial historical analysis.” Id. at 1024.

The Seventh Circuit instructed the government to develop a record that addresses a series of “interrelated and non-exhaustive questions” which are intended to “help focus the proper analysis on remand.” Id. at 1023. These questions are:

1. Does § 922(g)(1) address a ‘general societal problem that has persisted since the 18th century?' ... If this problem existed during a relevant historical period, did earlier generations address it with similar or ‘materially different means?';

2. What does history tell us about disarming those convicted of crimes generally and of felonies in particular? Among other sources, the parties could look to commentary from the Founders, proposals emerging from the states' constitutional ratifying conventions, any actual practices of disarming felons or criminals more generally around the time of the Founding, and treatment of felons outside of the gun context (to the extent this treatment is probative of the Founders' views of the Second Amendment). When considering historical regulations and practices, the key question is whether those regulations and practices are comparable in substance to the restriction imposed by § 922(g) (1). To answer the question, the district court and the parties should consider how the breadth, severity, and the underlying rationale of the historical examples stack up against § 922(g)(1);

3. Are there broader historical analogues to § 922(g)(1) during the periods that Bruen emphasized, including, but not limited to, laws disarming ‘dangerous' groups other than felons? The parties should not stop at compiling lists of historical firearms regulations and practices. The proper inquiry, as we have explained, should focus on how the substance of the historical examples compares to § 922(g)(1);

4. If the district court's historical inquiry identifies analogous laws, do those laws supply enough of a historical tradition (as opposed to isolated instances of regulation) to support § 922(g)(1)? On this front, the parties should provide details about the enforcement, impact, or judicial scrutiny of these laws, to the extent possible;

5. If history supports Atkinson's call for individualized assessments or for a distinction between violent and non-violent felonies, how do we define a non-violent or a non-dangerous felony? And what evidence can a court consider in assessing whether a particular felony conviction was violent? For instance, can a court consider the felony conviction itself, the facts of the underlying crime, or sentencing enhancements? Bruen shows that these distinctions should also have firm historical support. See 142 S.Ct. at 2132-33 (explaining that the court must assess whether modern and historical regulations are ‘relevantly similar,' including in terms of how and why the regulations burden gun rights).”

Id. at 1023-24.

The Atkinson court...