United States v. McNulty

684 F.Supp.3d 14

UNITED STATES of America, v. James P. MCNULTY, Defendant

CRIMINAL ACTION NO. 22-10037-WGY

United States District Court, D. Massachusetts

Signed July 27, 2023

Charles Dell'Anno, Assistant U.S. Attorney, David G. Tobin, United States Attorneys Office, Boston, MA, for United States of America.

Alyssa Thrasher Hackett, Law Office of Alyssa T. Hackett, Boston, MA, Sandra M. Gant, Cara McNamara, Jane F. Peachy, Public Defenders, Federal Public Defender Office, Boston, MA, for Defendant.

MEMORANDUM OF DECISION

YOUNG, JUDGE of the UNITED STATES¹

James P. McNulty ("McNulty") was indicted under 18 U.S.C. § 922(a)(1)(A) for selling firearms without a license. See Indictment, ECF No. 1. He moved to dismiss his indictment by placing singular reliance on the Supreme Court's decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). See Def.'s Mot. Dismiss, ECF No. 30. The test for determining firearm regulation under Bruen is multi-faceted. Courts are to begin their analyses by charting out the exact parameters of a defendant's indicted conduct and then determine whether the Second Amendment, under its plain text, covers the defendant's conduct. See Bruen, 597 U.S. 1, 142 S. Ct. 2111, 2129-2130, 213 L.Ed.2d 387 (2022). If the Second Amendment does grant protection to the challenged conduct, courts proceed to the next step and assess whether the regulation that allegedly impinges a defendant's Second Amendment right is consistent with the Nation's historical tradition of firearm regulation. Id. at 2131. If it is, then the regulation survives; if it is not, the regulation violates the Second Amendment. At its core, McNulty's motion to dismiss primarily addresses the latter half of the Bruen inquiry, and rests on the argument that the government cannot prove that 18 U.S.C. § 922(a)(1)(A) is consistent with the Nation's historical tradition of firearm regulation. McNulty, however, never clears the initial phase of the Bruen inquiry -- the Second Amendment is not implicated under the facts giving rise to McNulty's indictment. Analysis ends there. Proceeding to the second step of the Bruen inquiry would at best be earnest, at worst, impetuous, and in either case, wholly without merit. This is especially so when one bears in mind that this case is, at its base, a challenge to regulations that in substance limit the sale of firearms at a time when gun violence is palpable. Yet this Court's decision is not influenced by the color of the public interest. It is based on fidelity to Supreme Court precedent.

I. FACTUAL BACKGROUND

From January 2021 to April 2021, McNulty offered for sale and sold at least fifty-five firearms without a license. See Indictment at 1. On February 17, 2022, McNulty was indicted for dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A). See generally id.

On December 14, 2022, McNulty filed a motion to dismiss, to which, on January 19, 2023, the government filed a response. See Def.'s Mot. Dismiss, ECF No. 30; see Gov's Response Def.'s Mot. Dismiss, ECF No. 36.

On January 23, 2023, this Court heard argument on McNulty's motion and then entered an order denying the motion. ECF No. 39. McNulty later pleaded guilty, ECF No. 77, waiving any reliance on his motion to suppress. Nevertheless, the Court explains its rationale for the denial of McNulty's motion since the impact of Bruen is a significant jurisprudential concern.

II. ANALYSIS

McNulty's argument in his motion to dismiss is simple. He recounts the recent case of Bruen where the Supreme Court made the test for assessing challenges to firearms regulations under its own past cases more explicit. In Bruen, the Supreme Court explained that part of this inquiry is an assessment of whether "modern firearm regulations are consistent with the Second Amendment's text and historical understanding." Bruen, 597 U.S. 1, 142 S. Ct. 2111, 2118, 213 L.Ed.2d 387 (2022). Against this backdrop, McNulty asserts that the regulations in question here that led to his indictment do not comport with the Nation's historical tradition of firearm regulation, and consequently, this case must be dismissed. See generally Def.'s Mot. Dismiss. This Court disagrees not necessarily because McNulty's argument has no merit -- the Court makes no ruling in that regard -- but because it cannot be held that the Second Amendment is implicated in this case and therefore the arguments that flow from Bruen's historical tradition analysis do not engage.

A. Standard of Review

When adjudicating a motion to dismiss a criminal case, courts accept the factual allegations pled in the indictment as true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16, 72 S.Ct. 329, 96 L.Ed. 367 (1952). An indictment that "describes all of the elements of the charged offense using the words of the relevant criminal statute" is usually sufficient for the purposes of surviving a motion to dismiss. United States v. Wells, 766 F.2d 12, 22 (1st Cir. 1985).

The burden that the defendant must meet for a court to grant his motion to dismiss is a demanding one. United States v. McPhail, No. 14-10201-DJC, 2015 WL 2226249, at *2 (D. Mass. May 12, 2015)(Casper, J.). So as not to encroach on the fundamental role of the grand jury, courts exercise their discretion to dismiss indictments with caution. United States v. Thomas, 519 F. Supp. 2d 141, 143-44 (D. Me. 2007) (quoting Whitehouse v. U.S. Dist. Ct., 53 F.3d 1349, 1360 (1st Cir. 1995)). For a motion to dismiss in a criminal case to succeed, it must be shown "that, as a matter of law, the prosecution will not be able to prove each of the elements of the charged offense." United States v. Sidoo, 468 F. Supp. 3d 428, 436 (D. Mass. 2020) (Gorton, J.) (citing United States v. Huet, 665 F.3d 588, 596-97 (3d Cir. 2012)).

B. The Challenged Regulations

The primary federal provision that McNulty challenges is 18 U.S.C. section 922 which forbids anyone "except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms." 18 U.S.C. § 922(a)(1)(A).

The federal licensing scheme under 18 U.S.C. section 922(a)(1)(A) for firearms also incorporates any respective state licensing schemes. McNulty therefore also challenges the Massachusetts State licensing scheme under Massachusetts General Laws ch. 140 sections 122-123.

C. Pre-Bruen Second Amendment Challenge Landscape

In Bruen, the Supreme Court synopsized the precedential framework that governed Second Amendment challenges to regulations. This recapitulation is imperative to understanding Bruen and is therefore set out here:

The starting point of this saga is District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Heller's methodology, in assessing challenges to the District of Columbia law that generally prohibited the possession of handguns, coalesced an assessment of constitutional text with historical examinations. The Supreme Court began by analyzing the normal and or dinary meaning of the Second Amendment's language and concluded that the individual's right to possess and carry weapons in case of confrontation was guaranteed and did not depend on service in the militia. Id. at 580-600, 128 S.Ct. 2783. The Heller Court then sought to confirm whether its finding was supported by the historical background of the Second Amendment and discovered that it was. Id. at 602, 128 S.Ct. 2783.

Following an analysis rooted in both constitutional text and history, the Heller Court concluded that the District of Columbia law on handgun possession did violate the Second Amendment. Yet the Heller Court did not say this without prefacing it with the following:

. . . the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not 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.

Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

Two years after Heller, the Supreme Court heard a challenge to laws that effectively banned handgun possession at one's home in Chicago by almost all private citizens, rather similar to the laws declared unconstitutional in Heller. See McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The analysis in McDonald, in large part, centered on the question whether the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment right illuminated in Heller. Id. at 750, 130 S.Ct. 3020. That analysis is but tangential to this Court's decision here. The salient feature of McDonald, for the purpose of this analysis, is McDonald's reaffirmance and reiteration of Heller's precedent. Moreover, and importantly, the Court in McDonald yet again remarked that the Second Amendment right to carry firearms was not unlimited:

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "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." Id., at 626-627, 128 S.Ct. at 2816-2817. We repeat those assurances here.

McDonald, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894, (2010).

Following Heller and McDonald, the Courts of Appeals developed a two-step test to assess Second Amendment claims. See Bruen, 597 U.S. 1, 142 S. Ct. 2111, 2125, 213 L.Ed.2d 387 (2022). Under the...