United States v. Jordan

1

UNITED STATES OF AMERICA, v. (1) JAMES DOUGLAS JORDAN, Defendant.

No. EP-22-CR-01140-DCG-1

United States District Court, W.D. Texas, El Paso Division

January 11, 2023

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT

DAVID C. GUADERRAMA, UNITEDSTATESDISTRICTJUDGE

The Government charges Defendant James Douglas Jordan with violating a federal statute barring felons from possessing firearms and ammunition. Indictment, ECF No. 4; see also 18 U.S.C. § 922(g)(1). Claiming that the felon-in-possession statute no longer passes constitutional muster after the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 142 S.Ct 2111 (2022), Defendant moves to dismiss the indictment. Mot ECF No. 28.

The Fifth Circuit has repeatedly rejected other criminal defendants' arguments that the felon-in-possession statute violates the Second Amendment. Although those decisions pre-date Bruen, the Court remains unconvinced that Bruen overturned those holdings. In any event, under Fifth Circuit precedent, a district court lacks the power to declare that an intervening Supreme Court decision overturns an otherwise binding Fifth Circuit case. And even if this Court did have that power, it would follow the weight of post-Bruen authority from district courts in this Circuit upholding the statute. The Court therefore rejects Defendant's constitutional challenge to 18 U.S.C. § 922(g)(1) and DENIES Defendant's motion to dismiss the indictment.

I. BACKGROUND

The Government alleges that, on or about July 10, 2019, Defendant knowingly possessed a firearm and ammunition that had travelled in and affected interstate and foreign commerce.^[1]Indictment at 1. Defendant has two prior felony convictions: a 2011 conviction for conspiring to defraud the United States, and a 2014 conviction for theft and securities fraud. Mot. at 2, 13-14; see also Resp., ECF No. 31, at 2-3. The Government therefore charges Defendant with violating 18 U.S.C. § 922(g)(1), see Indictment at 1, which makes it “unlawful for any person ....who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce[] any firearm or ammunition,” 18 U.S.C. § 922(g).

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. DEFENDANT CLAIMS THAT 18 U.S.C. § 922(G)(1) VIOLATES THE SECOND AMENDMENT BY BARRING HIM FROM KEEPING AND BEARING ARMS. See generally Mot. Defendant therefore moves to dismiss the indictment.^[2] See id. at 1, 14.

II. DISCUSSION

A. Fifth Circuit Precedent

The Fifth Circuit has held or otherwise stated in numerous binding, published opinions that the Second Amendment does not prohibit Congress from barring felons from possessing firearms.^[3]

1. Emerson

The earliest such opinion is United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), in which the Fifth Circuit considered a Second Amendment challenge to a different subsection of Section 922(g)-specifically, 18 U.S.C. § 922(g)(8)(C)(ii), which prohibits “any person ....who is subject to a court order that ....explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury” from possessing firearms.

Based on a lengthy analysis of the Second Amendment's text and history, the Emerson court first determined that the Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.”^[4] See 270 F.3d at 227-60. The Fifth Circuit explained, however, that although

the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.

Id. at 261 (emphasis omitted). For instance, the panel quoted from a law review article stating that “Colonial and English societies of the eighteenth century, as well as their modern counterparts, have excluded infants, idiots, lunatics, and felons from possessing firearms.” Id. at 226 n.21 (cleaned up) (emphasis added) (quoting Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 OKLA. L. REV. 65, 96 (1983)); see also Id. (“Nor does it seem that the Founders considered felons within the common law right to arms or intended to confer any such right upon them.” (quoting Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 266 (1983))). The Emerson panel thus opined in dicta that “it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.” Id. at 261 (emphasis added). Applying that general principle to the facts of the case, the panel held that Section 922(g)(8)(C)(ii), “as applied to Emerson, d[id] not infringe his individual rights under the Second Amendment.” Id. at 260.

2. Darrington

About two years later, the Fifth Circuit elevated Emerson's dicta to a binding holding in United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003). The defendant in Darrington challenged the constitutionality of 18 U.S.C. § 922(g)(1)-the same statute that Defendant challenges here. Id. at 633-34. Cross-referencing Emerson's historical citations indicating “that legislative prohibitions on the ownership of firearms by felons are not considered infringements on the historically understood right to bear arms protected by the Second Amendment,” the Darrington court held that “Section 922(g)(1) does not violate the Second Amendment.” Id. (citing Emerson, 270 F.3d at 226 n.21, 261).^[5]

3. Everist

Shortly thereafter, the Fifth Circuit held once again in United States v. Everist that “[i]t is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.” 368 F.3d 517, 519 (5th Cir. 2004). Even though the Fifth Circuit had upheld Section 922(g)(1) in Darrington just a few months earlier, Everist did not cite or otherwise acknowledge that binding precedent. See id. Instead, the Everist court independently decided- just as the Darrington court had-that the Emerson panel's statement that “felons . . . may be prohibited from possessing firearms” defeated the defendant's constitutional challenge to Section 922(g)(1). See id. (quoting Emerson, 270 F.3d at 260-61).

4. Anderson

Several years later, in United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009), the Fifth Circuit considered whether Darrington survived the Supreme Court's intervening decision in District of Columbia v. Heller, which invalidated the District of Columbia's ban on possessing usable handguns in the home. Because the Heller Court insisted that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” the Anderson court determined that Heller did not undermine Darrington. 559 F.3d at 352 & n.6 (cleaned up) (quoting Heller, 554 U.S. 570, 626 (2008)). The Fifth Circuit therefore “reaffirm[ed] Darrington and the constitutionality of § 922(g).”^[6] Id. at 352.

5. Scroggins

The following year, the Fifth Circuit explicitly reaffirmed Emerson, Darrington, Everist, and Anderson in its published opinion in United States v. Scroggins, which reiterated “that criminal prohibitions on felons (violent or nonviolent) possessing firearms” do not violate the Second Amendment. 599 F.3d 433, 451 (5th Cir. 2010).

6. Massey

Most recently, in United States v. Massey, the Fifth Circuit adhered to its ruling in Anderson that Section 922(g)(1) does not violate the Second Amendment. 849 F.3d 262, 265 (5th Cir. 2017) (citing Anderson, 559 F.3d at 352 & n.6).

B. Bruen

Notably, however, all of the above-cited Fifth Circuit cases predate the Supreme Court's recent opinion in New York State Rifle & Pistol Ass'n v. Bruen, which modified the legal standard courts must apply when determining whether a firearms regulation violates the Second Amendment. See 142 S.Ct. at 2125-30. Defendant maintains that Bruen requires this Court to declare Section 922(g)(1) unconstitutional notwithstanding the long line of pre-Bruen Fifth Circuit cases upholding it. Mot. at 4.

In Bruen, the Supreme Court ruled that New York's policy of issuing public-carry handgun licenses “only when an applicant demonstrates a special need for self-defense” violated the Second Amendment. 142 S.Ct. at 2122. Expanding on its earlier holdings in Heller^[7] and McDonald v. Chicago^[8] that the Second Amendment “protect[s] the right of an ordinary, lawabiding citizen to possess a handgun in the home for self-defense,” the Bruen Court held that the Second Amendment likewise “protect[s] an individual's right to carry a handgun for self-defense outside the home.” Id. (emphasis added).

Between Heller and Bruen, many federal Courts of Appeals-including the Fifth Circuit^[9]-had adopted a “two-step test” to determine whether a firearms regulation violated the Second Amendment. Id. at 2125-27 & n.4. Under that framework, the court would first “determine whether the challenged law impinges upon a right protected by the Second Amendment.” Hollis v. Lynch, 827 F.3d 436, 446 (5th Cir. 2016) (quoting Nat'l Rifle Ass'n of Am., Inc. v ATF, 700 F.3d 185, 194 (5th Cir. 2012) (“NRA”)). “To...