Order — United States v. Alston (Dkt. 32, E.D.N.C.)

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An order in United States v. Carlos Alston, No. 5:23-CR-021-FL-1, in the U.S. District Court for the Eastern District of North Carolina, filed October 24, 2023, ruling on the defendant's motion to dismiss the indictment (DE 17). The order states that Magistrate Judge Robert T. Numbers, II issued a memorandum and recommendation to grant the motion in part and deny it in part, that the government objected, and that the court adopts the recommendation and grants in part and denies in part the motion. It recites that the indictment charges one count under 18 U.S.C. §§ 922(n) and 924 and one count under 18 U.S.C. §§ 922(g)(3) and 924, and that the defendant argues both statutes are unconstitutional. The order then sets out the standard of review and discusses case law on § 922(g)(3).

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IN THE UNITED STATES DISTRICT COURT
                  FOR THE EASTERN DISTRICT OF NORTH CAROLINA
                               WESTERN DIVISION

                                     NO. 5:23-CR-021-FL-1


 UNITED STATES OF AMERICA                        )
                                                 )
       v.                                        )
                                                 )                    ORDER
 CARLOS ALSTON,                                  )
                                                 )
                        Defendant.               )



       This matter comes before the court on defendant’s motion to dismiss the indictment for

failure to state an offense. (DE 17). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil

Procedure 72(b), United States Magistrate Judge Robert T. Numbers, II (“the magistrate judge”)

issued a memorandum and recommendation (“M&R”), wherein it is recommended that the court

grant in part and deny in part defendant’s motion. The government timely filed objections to the

M&R and defendant responded. In this posture, the issues raised are ripe for ruling. For the

reasons that follow, the court adopts the recommendation of the magistrate judge and grants in part

and denies in part defendant’s motion.

                                         BACKGROUND

       Indictment filed January 4, 2023, charges defendant with one count of willfully receiving

a firearm while knowing he was under indictment for a crime punishable by imprisonment for a

term exceeding one year in violation of 18 U.S.C. §§ 922(n) and 924 and one count of knowingly

possessing a firearm while knowing he was an unlawful user of and addicted to a controlled

substance in violation of 18 U.S.C. §§ 922(g)(3) and 924. Defendant moved to dismiss the

indictment February 28, 2023, on the grounds that 18 U.S.C. §§ 922(n) and 922(g)(3) are




        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 1 of 11

unconstitutional. After obtaining an extension of time, the government responded, and the

magistrate judge ordered supplemental briefing. A hearing on the motion was held before the

magistrate judge May 31, 2023, and the M&R was issued July 18, 2023. After obtaining

extensions of time, both parties filed objections August 15, 2023.

                                    COURT’S DISCUSSION

A.     Standard of Review

       “A party may raise by pretrial motion any defense, objection, or request that the court can

determine without a trial on the merits.” Fed. R. Crim. P. 12. At any time before trial, a defendant

can raise a motion asserting “a defect in the indictment or information, including: . . . failure to

state an offense.” Fed. R. Crim. P. 12(b)(3)(B).

       The court may “designate a magistrate judge . . . to submit to a judge of the court proposed

findings of fact and recommendations for the disposition [of a motion to dismiss indictment].” 28

U.S.C. § 636(b)(1). Any party may object to the magistrate judge’s proposed findings and

recommendations, and the court “shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is made.” Id. The

court does not perform a de novo review where a party makes only “general and conclusory

objections that do not direct the court to a specific error in the magistrate’s proposed findings and

recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a specific and

timely filed objection, the court reviews only for “clear error,” and need not give any explanation

for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.

2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the

court may accept, reject, or modify, in whole or in part, the findings or recommendations made by

the magistrate judge.” 28 U.S.C. § 636(b)(1).



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        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 2 of 11

B.      Analysis

       The M&R recommends that this court find that § 922(n), willfully receiving a firearm while

under felony indictment, “passes constitutional muster,” but § 922(g)(3), knowingly possessing a

firearm while knowingly being a user of and addicted to a controlled substance, does not.

Defendant objects to the first recommendation and the government objects to the second. After

de novo review of the magistrate judge’s opinion, the court overrules both objections and adopts

the recommendation in the M&R.

       The Second Amendment to the Constitution provides that 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. Section 922(n) makes it unlawful for “any person who is under

indictment for a crime punishable by imprisonment for a term exceeding one year to . . . receive

any firearm or ammunition which has been shipped or transported in interstate or foreign

commerce,” and § 922(g)(3) forbids the same conduct by anyone “who is an unlawful user of or

addicted to any controlled substance.” In Bruen, the Supreme Court determined

       the standard for applying the Second Amendment is as follows: When the Second
       Amendment's plain text covers an individual's conduct, the Constitution presumptively
       protects that conduct. The government must then justify its regulation by demonstrating
       that it is consistent with the Nation's historical tradition of firearm regulation. Only then
       may a court conclude that the individual's conduct falls outside the Second Amendment's
       unqualified command.

New York State Rifle and Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2126 (2022).

According to Bruen, some cases are relatively straightforward: “when a challenged regulation

addresses a general societal problem that has persisted since the 18th century,” the presence of a

“similar historical regulation addressing the problem is relevant evidence that the challenged

regulation” is consistent with “the understandings of those who ratified” the Constitution.     Id. at

2131-32. “Other cases implicating unprecedented societal concerns or dramatic technological

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        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 3 of 11

changes may require a more nuanced approach.” Id. at 2132. “Whether modern and historical

regulations impose a comparable burden on the right of armed self-defense and whether that

burden is comparably justified are central considerations when in engaging in [the required]

analogical inquiry.” Id. at 2133. Precedent points to at least two metrics: “how and why the

regulations burden” Second Amendment rights. Id.

       1.      § 922(n)

       Defendant argues that the government’s authority to deprive those under felony indictment

of their liberty pending trial is not an appropriate historical analogue for modern restrictions on

those individuals’ receipt of firearms. The court disagrees.

       The magistrate judge determined, and defendant agrees, that the plain text of the Second

Amendment covers defendant’s person and conduct.               Defendant objects, however, to the

magistrate judge’s determination that the historical burdens imposed by laws allowing pretrial

detention of indicted defendants are sufficiently analogous to modern-day restrictions on the

receipt of firearms in interstate commerce by those individuals.

       The case of individuals under felony indictment is one of the “straightforward” instances

noted in Bruen, in which the challenged law addresses a societal problem present at the time of the

founding. The English Bill of Rights, adopted after “James II was overthrown in the Glorious

Revolution,” is the ancestor of both the Second and Eighth Amendments. Timbs v. Indiana, 139

S. Ct. 682, 688 (2019); see also District of Columbia v. Heller, 554 U.S. 570, 598 (2008)

(explaining the circumstances of the adoption of that document).          The Eighth Amendment

provides, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted,” and the analogous clause of the English Bill of Rights provides

much the same thing. See Timbs, 139 S. Ct. at 688. Neither provision, however, “has been thought



                                                 4

        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 4 of 11

to accord a right to bail in all cases,” especially “where the punishment may be death,” Carlson v.

Landon, 342 U.S. 524, 545 (1952), as was the case with most felony offenses at the time of the

founding. See Lange v. California, 141 S. Ct. 2011, 2023 (2021) (“The felony category then was

a good deal narrower than now . . . , with the felony label mostly reserved for crimes punishable

by death.”). The same document thus provides historical support for the individual’s right to bear

arms and the government’s ability to detain that individual, suspending temporarily any right to

armament, upon probable cause that the individual has committed a felony. Where § 922(n)

restricts the right of those under felony indictment to bear arms to a lesser degree than restrictions

present at the founding, the government has carried its burden to show that the provision is

consistent with the Nation’s historical tradition of firearm regulation. 1

         Defendant argues that indictment and pretrial detention are not sufficiently analogous

where different burdens of proof apply to each. Although a defendant may be indicted upon a

finding by a grand jury that the defendant committed a crime by the preponderance of the evidence,

he may be detained pending trial only upon a determination that clear and convincing evidence

shows that “no condition or combination of conditions will reasonably assure the safety of any

other person and the community.” 18 U.S.C. § 3142(e). This difference in the burden of proof,

however, is a modern distinction not operative at the time of the founding. See Patricia M. Wald

& Daniel J. Freed, The Bail Reform Act of 1966: A Practitioner’s Primer, A M. BAR ASS’N J., Oct.

1966, at 630-39 (explaining that the law “mark[ed] the first major overhaul of federal bail law

since 1789”).



1
          District courts are divided on whether § 922(n) is consistent with the Second Amendment, and no circuit
courts have decided the issue. See, e.g., United States v. Holden, 70 F.4th 1015, 1018 (7th Cir. 2023) (finding it likely
that § 922(n) would survive a facial challenge in a case that did not present such challenge squarely); United States
v. Kays, 624 F. Supp. 3d 1262, 1268 (W.D. Okla. 2022) (holding that § 922(n) does not violate the Second Amendment
where proper historical analogues exist); United States v. Quiroz, 629 F. Supp. 3d 511 (W.D. Tex. 2022) (finding
“little evidence that § 922(n) . . . aligns with this Nation’s historical tradition).

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          Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 5 of 11

       Accordingly, defendant’s argument that § 922(n) is unconstitutional under the Second

Amendment is without merit, and defendant’s motion in this part is denied.

       2.      922(g)(3)

       The government objects to the magistrate judge’s recommendation that the court dismiss

defendant’s charge of knowingly possessing a firearm while knowing he was an unlawful user of

and addicted to a controlled substance in violation of 922(g)(3), on the grounds that defendant is

not a person with Second Amendment rights, that his conduct is not protected by the Second

Amendment, and that the provision is consistent with the Nation’s traditions of firearms regulation.

The court disagrees.

               a.      Whether defendant has Second Amendment rights

       The government argues that only law-abiding Americans, from which class unlawful users

of controlled substances are excluded, are entitled to keep and bear arms. As explained in the

M&R, however, the Supreme Court had no occasion in Bruen to consider whether unlawful drug

users possess Second Amendment rights, because it was “undisputed that petitioners . . . [,] two

ordinary, law-abiding, adult citizens[, were] part of ‘the people’ whom the Second Amendment

protects.” Bruen, 142 S. Ct. at 2134. The Supreme Court has remarked previously that the

Constitution’s use of the phrase “the people” in “six other provisions” to refer “unambiguously . .

. to all members of the political community,” creates “a strong presumption that the Second

Amendment right is exercised individually and belongs to all Americans.” Heller, 554 U.S. at

581. Supreme Court precedent therefore suggests strongly that all Americans, including those who

confess to regular unlawful drug use, enjoy Second Amendment protection.

       In light of these remarks by the Supreme Court, the government’s references to decisions

by the United States Court of Appeals for the Fourth Circuit assertedly withdrawing Second



                                                 6

        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 6 of 11

Amendment rights from certain classes of people are unconvincing and inapposite. Before Bruen

was decided, the Fourth Circuit applied a “streamlined analysis” for challenges to regulations

stated in Heller to be “presumptively lawful.” Hamilton v. Pallozzi, 848 F.3d 614, 623 (4th Cir.

2017). This analysis “supplant[ed] the historical inquiry with the more direct question of whether

the challenger’s conduct is within the protected Second Amendment right of ‘law-abiding,

responsible citizens to use arms in defense of hearth and home.’” Id. at 624 (citing Heller, 554

U.S. at 635). The streamlined inquiry, however, applied to a limited set of regulations, such as

bans on possession of firearms by those who entered the country illegally, see United States v.

Carpio-Leon, 701 F.3d 974, 981 (4th Cir. 2012), or those with felony convictions. See United

States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012). When the constitutionality of 922(g)(3) was

presented squarely to the Fourth Circuit, that court declined to adopt the government’s view that

“dangerous and non-law-abiding citizens are categorically excluded from the historical scope of

the Anglo-American right to bear arms . . . , assum[ing] that [the defendant’s] circumstances

implicate[d] the Second Amendment,” and decided the case before it on other issues. United States

v. Carter, 669 F.3d 411, 416 (4th Cir. 2012). Where the Supreme Court has suggested strongly

that all Americans enjoy some degree of Second Amendment protection, and where the Fourth

Circuit has never held users of illicit drugs to be excluded from that protection, the court adopts

the magistrate judge’s determination that, for purposes of his § 922(g)(3) charge, defendant

remains a person who possesses Second Amendment rights.

               b.     Whether defendant’s conduct is protected by the Second Amendment

       The government argues that the relevant conduct for purposes of constitutional inquiry is

“possessing a firearm while being an unlawful drug user,” contending that defendant’s “conduct

in possessing the firearm cannot be divorced from the then-existing condition which made such



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        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 7 of 11

possession inherently dangerous.” (DE 30 at 6). This argument is directly foreclosed by Bruen,

which analyzed separately whether petitioners were “part of ‘the people’ whom the Second

Amendment protects,” and “whether the plain text of the Second Amendment protect[ed

petitioner’s] proposed course of conduct.” 142 S. Ct. at 2134. The government’s position

conflates the inquiry conducted above with the separate question of whether the statute at issue

burdens the right to “keep and bear arms.” U.S. Const. amend. II. The court “has little difficulty

concluding that” § 922(g)(3), which prohibits the receipt of firearms, burdens conduct within the

ambit of the Second Amendment. Id.

               c.     Whether § 922(g)(3) is consistent with historical traditions

       Cases implicating societal concerns not present at the founding, such as unlawful drug use,

require a nuanced approach. See Bruen, 142 S. Ct. at 2132. While courts “should not uphold

every modern law that remotely resembles a historical analogue, because doing so risks endorsing

outliers that our ancestors would never have anticipated . . . , analogical reasoning requires only

that the government identify a well-established and representative historical analogue, not a

historical twin.” Id. at 2133 (emphasis in original). The government offers three categories of

historical analogue, all of which were canvassed thoroughly by the magistrate judge.

       The government first points to “English law in existence at the time of (and just after) the

founding [which] allowed for some detention of the acutely mentally ill.” (DE 30 at 11). But the

government provides no evidence that this English practice “was acted on or accepted in the

colonies.” Bruen, 142 S. Ct. at 2136. In addition, the government’s citation to a concurring

opinion in Bruen by Justices Kavanaugh and Alito, in which the justices expressed their view that

regulations disarming “felons and the mentally ill” are constitutional, is inapposite given that




                                                8

        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 8 of 11

neither § 922(g)(1), which disarms felons, or § 922(g)(4), which disarms the mentally ill, are at

issue in this case.

        The government argues next that colonial, early American, and Reconstruction-era statutes

limiting the use of firearms by intoxicated persons provide a sufficient historical analogue. The

government points to laws from colonial Virginia, New York, and Rhode Island that forbade

shooting guns at drinking events, in taverns, or on certain holidays. (See DE 30 at 16). None of

these laws, however, forbade the possession or acquisition of firearms; they outlawed only the

active use of such weapons at sensitive times. The government’s reference to nineteenth century

laws limiting the intoxicated from using firearms similarly falls short where those laws apply only

to actually intoxicated persons, not persons likely so to become.

        Finally, the government contends that there is “a tradition of disarmament of individuals

and groups which [the] legislature found to be dangerous.” (DE 30 at 22); see also Kanter v. Barr,

919 F.3d 437, 464 (7th Cir. 2019) (Barrett, J., dissenting) (“History . . . support[s] the proposition

that the state can take the right to bear arms away from a category of people that it deems

dangerous[,] . . . mak[ing] that judgment on a class-wide basis.”). Colonial Massachusetts and

New Hampshire disarmed “those who carried arms in a manner that spread fear or terror,” (DE 30

at 22), and other colonies disarmed “entire groups deemed dangerous or untrustworthy, including

those who refused to swear allegiance to the colony or the Revolution’s cause; enslaved persons;

and Native Americans.” (Id. at 23) (citing to statutes in Connecticut, Delaware, Massachusetts,

New Jersey, New York, North Carolina, Pennsylvania, and Virginia). While these restrictions

would not pass constitutional muster today, they do show an understanding present at the founding

that certain groups may present a special danger when armed. The “how” of these laws is relatively

straightforward: those “disaffected to the cause of America,” for example, simply were disarmed.



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        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 9 of 11

See, e.g., Act of Mar. 14, 1776, ch. VII, 1775-76 Mass. Act 31-32, 35 (“[E]very male person above

sixteen years of age . . . who shall neglect or refuse to subscribe a . . . declaration of [loyalty], . . .

shall be disarmed and have taken from him in manner hereafter directed, all such arms, ammunities

[sic] and warlike implements, as by the strictest search can be found in his possession or belonging

to him"); Act of May 5, 777, ch. 3, Va. Stat. 281-82 (directing county officials “to cause . . .

recusants to be disarmed”); Act of June 13, 1777, ch. 756 §§ 2, 4, 1777 Pa. Laws 110, 111-13

(“[A]ll male white inhabitants of [Pennsylvania] above the age of eighteen years, shall . . . take

and subscribe [an] oath or affirmation . . . and every person above the age aforesaid refusing or

neglecting to take and subscribe the said oath or affirmation . . . shall during the time of such

neglect or refusal . . . be disarmed.” Native Americans’ ability to acquire guns was curtailed where

colonists were prohibited from selling arms to them. See, e.g., Ch. 58, § 2 (1633), Charters and

General Laws of the Colony and Province of Massachusetts Bay 132, 133 (1814) (“And it is

ordered, that no person whatsoever, shall . . . . sell, give or barter, directly or indirectly, any gun

or guns, powder, bullets, shot, lead, to any Indian whatsoever”). 2

         The “why” of these laws, however, do not neatly map onto the purpose of § 922(g)(3):

colonial and early American laws preventing dangerous individuals from owning guns reflected a

fear that those guns might be used to overthrow the government, whereas § 922(g)(3) simply seeks

to promote public safety. See, e.g., Act of Apr. 1, 1778, ch. 796, §§ 1-3, 5, 10 (disarming recusants

where “the welfare and happiness of the good people of this commonwealth do, next under God,

entirely depend upon the maintaining and supporting the independence and sovereignty of the

state”). Although the government is correct that “violence against the state undoubtedly meant




2
        The text of these statutes is drawn from the Repository of Historical Gun Laws, an online database maintained
by the Center for Firearms Law at Duke University School of Law.

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        Case 5:23-cr-00021-FL-RN Document 32 Filed 10/24/23 Page 10 of 11

violence against loyal soldiers or innocent civilians,” (DE 24), historical laws protecting one

interest are not a good analogue for modern laws protecting a byproduct of that interest. 3

         Accordingly, the government has not met its burden of proving that § 922(g) is consistent

with the Second Amendment. Thus, defendant’s motion in this part is granted, and count two of

the indictment is dismissed.

                                                 CONCLUSION

         Based on the foregoing, the court ADOPTS the recommendation of the M&R.

Defendant’s motion to dismiss the indictment (DE 17) is GRANTED IN PART and DENIED IN

PART. Count two of the indictment is DISMISSED.

         SO ORDERED, this the 24th day of October, 2023.



                                                       _____________________________
                                                       LOUISE W. FLANAGAN
                                                       United States District Judge




3
          District courts are divided on the constitutionality of § 922(g)(3), and the Fifth Circuit is the only federal
appellate court to decide the issue to date. See, e.g., United States v. Daniels, 77 F.4th 337, 355 (5th Cir. 2023)
(finding “the government’s theory of danger-based disarmament” unconvincing when advanced in support of the
constitutionality of § 922(g)(3)); United States v. Posey, No. 2:22-CR-83, 2023 WL 1869095 at *9, (N.D. Ind. Feb.
9, 2023) (finding that the historical record contains sufficient analogues for § 922(g)(3)); United States v. Harrison,
No. CR-22-328, 2023 WL 1771138 at *6 (finding such analogues insufficient).

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