Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:23-CR-00021-FL-RN-1
United States of America,
v.
Memorandum & Recommendation
Carlos Alston,
Defendant.
The Second Amendment protects the people’s right to keep and bear arms from improper
government interference. But the contours of the Amendment’s protections are hotly disputed.
This dispute has only intensified since the Supreme Court ruled that a firearms regulation’s
constitutionality depends on its historical pedigree—not a means-ends balancing test.
This case asks the court to examine the Second Amendment’s scope. In doing so, it poses
two questions that are easy to ask but difficult to answer: To begin with, do drug users and those
under felony indictment have Second Amendment rights? And if so, do modern federal laws
limiting their exercise of that right find support in this nation’s history and tradition of firearms
regulation?
I. Background 1
Early in January 2023, a local police officer approached Defendant Carlos Alston as he
was waiting in a restaurant drive-thru lane. The officer reportedly told Alston that there were
warrants for his arrest and ordered him to put his hands up.
1
The factual background comes from the parties’ briefs. The parties do not appear to disagree, at least for now, about
the material facts.
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 1 of 42
The government contends that Alston then grabbed a handgun and pointed it at the officer.
The officer responded by shooting Alston. Alston tried to flee, but he quickly collapsed from his
injuries. Authorities recovered Alston’s handgun and searched his car. Inside, they found a
marijuana cigarette, digital scales, plastic baggies, and about 26 grams of marijuana.
Alston was not a felon at the time of this encounter. He was, however, out on bond after a
North Carolina grand jury indicted him for the felony offense of assault with a deadly weapon with
intent to kill inflicting serious injury. See N.C. Gen. Stat. § 14–32(a) (classifying this crime as a
Class C felony).
In January 2023, the United States charged Alston through a criminal complaint with
possessing a firearm while being a drug addict. About two weeks later, agents from the Bureau of
Alcohol, Tobacco, Firearms, and Explosives arrested and questioned Alston. Alston revealed that
he used marijuana daily. He also shared that he knew he was under indictment when he received
the gun he allegedly brandished at the officer.
Shortly after Alston’s arrest, a federal grand jury indicted him for possession of a firearm
by an unlawful user of, or person addicted to, a controlled substance, in violation of 18 U.S.C.
§ 922(g)(3). It also charged him with receipt of a firearm by a person under felony indictment, in
violation of 18 U.S.C. § 922(n).
Alston then moved to dismiss the federal indictment.
II. Discussion
Alston contends that, after the Supreme Court’s ruling in New York State Rifle and Pistol
Ass’n v. Bruen, 142 S. Ct. 2111 (2022), § 922(g)(3) and § 922(n) violate the Second Amendment.
See Mot. Dismiss at 31–32, D.E. 17. Alston argues that these statutes are unconstitutional because
2
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 2 of 42
the United States cannot identify “a robust historical tradition of firearm regulation that disarmed
citizens based on drug use or being under indictment[.]” Id. at 7.
The United States takes a different view. It first claims that the Second Amendment does
not apply to unlawful drug users or individuals under felony indictment. Resp. Opp’n Mot. Dismiss
at 6, 17, D.E. 20. And even if it does, the government maintains that both § 922(g)(3) and § 922(n)
are grounded in historical traditions regulating firearms. See id. at 10, 23. According to the United
States, laws prohibiting those who are mentally ill, intoxicated, or dangerous from possessing guns
provide historical support for § 922(g)(3). And § 922(n), the government contends, is analogous
to historical laws detaining those under indictment before trial and disarming individuals the
government found untrustworthy. The government thus concludes that each law survives a facial
challenge to its constitutionality.
A. Second Amendment Precedent
The Second Amendment 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. For much of this nation’s history, the Second Amendment received little judicial
attention. It was not until 15 years ago that the Supreme Court determined that—at the very least—
the Amendment protects Americans’ right to keep handguns in the home for self-defense. District
of Columbia v. Heller, 554 U.S. 570, 636 (2008). At issue in Heller was a District of Columbia
law that forbade its residents from keeping handguns in their homes. Id. at 628. The Court held
that the District’s law contravened the Second Amendment. Id. at 635.
In reaching this conclusion, the Court first framed its interpretive strategy: Judges must
endeavor to understand the Amendment’s text according to its original public meaning at the time
3
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 3 of 42
it was adopted. Id. at 576–77. The first part of the text 2—which the Court termed its prefatory
clause—announces its purpose but does not grammatically limit the words that follow. Id. at 577.
The rest of the Amendment 3—its operative clause—does two things. First, it “codifies a
right of the people.” Id. at 579 (internal quotation marks omitted). Comparing the text of the
Second Amendment to other provisions in the Constitution that mention “the people,” the Court
found that it gives rise to “a strong presumption that the Second Amendment right is exercised
individually and belongs to all Americans.” Id. at 581. Second, the operative clause lays out “the
substance of the right: to keep and bear Arms.” Id. (internal quotation marks omitted). Taken
together, the components of the operative clause “guarantee the individual right to possess and
carry weapons in case of confrontation.” Id. at 592.
But this right is not plenary. The Court noted that historical tradition did not confer “a right
to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Id. at 626 (citations omitted). Mid-19th-century evidence, for instance, suggests that the
government may prohibit carrying concealed weapons in public. Id. (citations omitted). And
although the Court did not provide an exhaustive list of permissible firearm regulations, it noted
that “nothing in [its] opinion should 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.” Id. at 626–27.
That said, Heller establishes a floor for constitutional protection—not a ceiling. Id. at 635
(“And whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above
all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth
2
“A well regulated Militia, being necessary to the security of a free State . . .”
3
“. . . the right of the people to keep and bear Arms, shall not be infringed.”
4
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 4 of 42
and home.”). Considering the District of Columbia’s total prohibition on personal firearm
possession within the home, then, the Court had no trouble concluding that it was unconstitutional.
Id.
Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that
the Second Amendment is not confined to the federal government—it applies to states as well. In
McDonald, a handful of local ordinances produced a regulatory scheme akin to the one the Court
struck down in Heller. See id. at 749. Much of the Court’s analysis focused on the incorporation
of the right to keep and bear arms through the Fourteenth Amendment, but it emphatically
reaffirmed Heller’s core holding: “[T]he Second Amendment protects a personal right to keep and
bear arms for lawful purposes, most notably for self-defense within the home.” Id. at 780.
Consistent with other protections guaranteed by the Bill of Rights, the Court held the right to bear
arms may not be infringed by state governments. Id. at 791. Thus, the ordinances were
unconstitutional. Id.
Heller and McDonald established that, at the very least, law-abiding Americans enjoy a
Second Amendment right to possess conventional firearms within their homes for self-defense. In
the decade that followed McDonald, circuit courts developed a two-step test for determining
whether other firearms regulations satisfied the Amendment’s command. See generally Bruen, 142
S. Ct. at 2126–27 (describing circuit court practice). First, the court would determine whether a
challenged law fell within the historical scope of the Second Amendment. See, e.g., Kanter v. Barr,
919 F.3d 437, 441 (7th Cir. 2019). If not, “the regulated activity [was] categorically unprotected,
and the law” was constitutional. United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012)
(quoting Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)).
5
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 5 of 42
But if the challenged law plausibly fell within the ambit of the Second Amendment, the
court would proceed to step two. There, it would apply tiered scrutiny to determine whether the
law complied with the Constitution. See Kanter, 919 F.3d at 441–42. If the law burdened the
Second Amendment’s “core”—which circuit courts generally constrained to self-defense in the
home—the court would apply strict scrutiny. See, e.g., Gould v. Morgan, 907 F.3d 659, 671 (1st
Cir. 2018). To survive this analysis, the government would have to show that the law was
“narrowly tailored to achieve a compelling governmental interest.” Kolbe v. Hogan, 849 F.3d 114,
133 (4th Cir. 2017) (citation omitted). But if the law did not burden the Second Amendment’s core
right, circuit courts would apply intermediate scrutiny and uphold the law if it was “substantially
related to the achievement of an important governmental interest.” Libertarian Party of Erie Cnty.
v. Cuomo, 970 F.3d 106, 128 (2d Cir. 2020) (quotation omitted).
Last year, the Supreme Court prescribed a different approach. See Bruen, 142 S. Ct. at
2126–28. In Bruen, the Court reviewed New York’s regulatory scheme governing public-carry
pistol licenses. Id. at 2122. Unlike most states, New York required those who wanted to possess a
handgun for self-defense in public to demonstrate that they had “a special need for self-protection
distinguishable from that of the general community.” Id. at 2123 (quotation omitted). These
licenses were hard to come by, and judicial review upon the denial of a license heavily favored the
government. Id.
Two New Yorkers applied for unrestricted public carry licenses, but the state only offered
them restricted licenses because they could not show that they had a special need for self-defense.
Id. at 2125. While the restricted licenses allowed the applicants to carry their handguns sometimes,
they did not allow them to possess a handgun in public generally. Id. When the applicants
challenged the denial of their unrestricted license applications, the district court denied their
6
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 6 of 42
claims—it found that New York’s licensing regime didn’t burden the core of the Second
Amendment and satisfied intermediate scrutiny. Id. The Second Circuit affirmed. Id.
On review, the Supreme Court held that lower courts’ two-step approach was “one step too
many.” Id. at 2127. While the first step of the analysis—assessing whether a challenged law
burdens conduct protected by the Second Amendment—accords with Heller and McDonald, those
cases do not endorse any form of means-ends scrutiny in determining whether the law is
constitutional. Id. Instead, to establish that a gun law complies with the Constitution, “the
government must 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.” 4 Id.
Testing a firearms restriction’s historical pedigree is easier in some cases than in others.
See id. at 2130–32. If, for instance, “a challenged regulation addresses a general societal problem
that has persisted since the 18th century, the lack of a distinctly similar historical regulation
addressing that problem is relevant evidence that the challenged regulation is inconsistent with the
Second Amendment.” Id. at 2131. But some cases present unprecedented problems unimaginable
to those who drafted the Amendment hundreds of years ago. In those situations, courts must reason
by analogy, deciding whether historical laws that regulated gun ownership are “relevantly similar”
to the law before the court. Id. at 2132 (quotation omitted).
4
Alston contends that 18 U.S.C. § 922(g)(3) and § 922(n) are unconstitutional on their face. Outside the First
Amendment context, the Supreme Court has determined that litigants alleging a statute is facially unconstitutional can
only succeed if they prove that “no set of circumstances exists under which the Act would be valid[,]” United States
v. Salerno, 481 U.S. 739, 745 (1987), or establish that the statute has no “plainly legitimate sweep[,]” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quotation omitted).
This familiar standard might conflict with Bruen. On the one hand, facial challengers usually bear the burden of
proving that the disputed law has no constitutional application. See Salerno, 481 U.S. at 745. But on the other, Bruen
places the burden on the government to establish that a firearm regulation has its roots in American history and
tradition. 142 S. Ct. at 2127. Because the burden allocation in Bruen is clear, the undersigned will decline to apply the
more traditional facial challenge standard.
7
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 7 of 42
While the Court did not exhaust the ways two laws can be “relevantly similar,” it instructed
lower courts to consider two factors: how and why a law burdens an individual’s right to keep and
bear arms. Id. at 2132–33. If a modern law and historical practice impose a similar burden on
individuals’ Second Amendment rights—and do so for similar reasons—the modern law has a
greater chance of passing constitutional muster. Id. at 2133.
The Court stressed that “analogical reasoning under the Second Amendment is neither a
regulatory straightjacket nor a regulatory blank check.” Id. Courts should distinguish modern gun
laws with robust historical roots from those that trace back to outlier statutes that most Americans
would not have accepted. Id. And the government, in meeting its burden of proving that a modern
regulation fits within the traditional constitutional order, need not dredge up “a historical twin”—
but it must “identify a well-established and representative historical analogue[.]” Id. As in Heller,
the Bruen Court declined to exhaustively demarcate the bounds of historical firearms regulation.
Id. at 2134. Instead, it expressed faith in the lower courts to assess the strength of the government’s
purported historical analogues using familiar tools of constitutional analysis. 5 Id.
Turning to the facts before it, the Court found that the “two ordinary, law-abiding” New
Yorkers who were denied unrestricted carry licenses were no doubt part of “‘the people’ whom
the Second Amendment protects.” Id. (citation omitted). It also found that their proposed course
of conduct—carrying handguns in public for self-defense—implicated the textual protections
conferred by the Second Amendment. Id. Thus, the Court concluded, the Amendment
5
Conducting historical analysis can be challenging. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L.
Rev. 849, 856 (1989) (“[I]t is often exceedingly difficult to plumb the original understanding of an ancient text.”). But
the need for judges and lawyers to engage with history to resolve a dispute is hardly unique to the Second Amendment,
see Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. (forthcoming 2023),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4366019#, or constitutional analysis, see William Baude &
Stephen E. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 812 (2019).
8
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 8 of 42
“presumptively guarantees petitioners . . . a right to ‘bear’ arms in public for self-defense.” Id. at
2135.
Because the applicants’ conduct fell within the Second Amendment, the burden shifted to
the government to “identify an American tradition justifying New York’s proper-cause
requirement.” Id. at 2138. In an attempt to meet this burden, the government offered evidence from
five historical eras to serve as analogies for its proper-cause requirement: pre-revolutionary
England, the colonies and early Republic, antebellum America, Reconstruction, and the late-19th
century. See id. at 2135–36.
In considering this evidence, the Court noted that “not all history is created equal.” Id. at
2136. The further a historical practice strays from 1791—the year in which the Second
Amendment was adopted—the less probative it is when determining whether a law complies with
the Amendment’s command. 6 Id. Thus, “courts must be careful when assessing evidence
concerning English common-law rights” because English practice “at any given time in history
cannot be indiscriminately attributed to the Framers of our own Constitution.” Id. Relatedly, they
“must also guard against giving postenactment history more weight than it can righty bear.” Id. To
the extent that evidence from the late-19th century and beyond conflicts with evidence
contemporaneous with the passage of the Second Amendment, the more recent tradition “cannot
provide much insight” into the Amendment’s meaning. Id. at 2154 (citations omitted).
6
The Supreme Court did not squarely address how much weight lower courts should accord historical practices near
the adoption of the Fourteenth Amendment. Bruen, 142 S. Ct. at 2138. Though it noted the scholarly debate
surrounding the effect of the Fourteenth Amendment on the freedoms guaranteed by the Bill of Rights, the Court was
content to conclude that public perception of the right to carry arms in public varied little in the decades between the
ratification of the Second and Fourteenth Amendments. Id.; see also id. at 2163 (Barrett, J., concurring) (“[T]he Court
avoids another ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of
an individual right when the Fourteenth Amendment was ratified in 1868 or when the Bill of Rights was ratified in
1791. Here, the lack of support for New York’s law in either period makes it unnecessary to choose between them.”)
(cleaned up).
9
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 9 of 42
After wading through the historical evidence, the Court held that the government failed to
meet its burden in justifying the proper-cause requirement. Id. at 2156. “Apart from a few late-
19th-centry outlier jurisdictions,” the Court found, “American governments simply have not
broadly prohibited the public carry of commonly used firearms for personal defense.” Id. Nor did
they force citizens to prove that they had a special need for self-defense unshared by the rest of the
population. Id. Thus, New York’s regulatory scheme was unconstitutional. Id.
In a footnote, the Court briefly discussed the other restrictions that states impose on firearm
ownership. See id. at 2138 n.9. When the Court decided Bruen, 43 states maintained “shall issue”
public carry licensing schemes. Id. at 2123–24. In these states, authorities were given little
discretion—they had to issue public carry licenses so long as the applicant satisfied certain
objective threshold requirements. Id. Six states and the District of Columbia had “may issue”
schemes like New York’s. Id. Regulators in may-issue states enjoyed more leeway in denying
citizens’ applications to carry in public, “usually because the applicant ha[d] not demonstrated
cause or suitability for the relevant license.” Id. at 2124.
While the Court determined that New York’s may-issue licensing framework
impermissibly burdened the right to keep and bear arms, it noted that “nothing in [its] analysis
should be interpreted to suggest” that other states’ shall-issue schemes were unconstitutional. Id.
at 2138 n.9 (quotation omitted). This is because those schemes “do not require applicants to show
an atypical need for armed self-defense” and therefore do not prevent “law-abiding, responsible
citizens” from exercising their rights. Id. (same). Justice Kavanaugh echoed this sentiment in his
concurrence. Id. at 2162 (Kavanaugh, J., concurring) (“[S]hall-issue licensing regimes are
constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing
regime does not operate in that manner in practice.” (citation omitted)).
10
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 10 of 42
Against this constitutional backdrop, the undersigned will turn to the government’s
arguments in favor of § 922(n) and § 922(g)(3).
B. Whether Alston, as an Indicted Drug User, Enjoys the Second Amendment’s
Protections
The United States first contends that the Second Amendment does not apply to Alston
because—as an unlawful drug user under indictment—he is not a member of “the people” who
enjoy the Amendment’s protections. Resp. Opp’n Mot. Dismiss at 6–10, 17–23. It offers two
justifications for this conclusion: First, both Heller and Bruen focused on the rights of law-abiding
citizens, and Alston falls outside that category. See id. at 6–9, 17–18. Second, both the majority
opinion and Justice Kavanaugh’s concurrence in Bruen noted that the Court’s opinion was not
intended to disturb 43 states’ shall-issue public carry licensing regimes, many of which preclude
drug addicts and those under indictment from obtaining firearms. See id. at 9–10, 19. The
government is wrong.
The United States correctly notes that the majority and Justice Kavanaugh repeatedly refer
to the Second Amendment rights of law-abiding citizens. But those references do not support the
government’s position that “the Supreme Court repeatedly described the Second Amendment right
as belonging only to law-abiding citizens.” Id. at 18 (citation and internal quotation marks omitted)
(emphasis added). At no point in Bruen (or Heller or McDonald) did the Supreme Court hold that
only those with an unblemished criminal record enjoy Second Amendment rights.
In fact, the Court had no occasion to consider this question in Bruen. Instead, it merely
noted that it was “undisputed” that the petitioners were “two ordinary, law-abiding, adult citizens”
who were considered “part of ‘the people’ whom the Second Amendment protects.” Bruen, 142 S.
Ct. at 2134 (citation omitted). From there, the Court moved on to whether the Second Amendment
11
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 11 of 42
protected their proposed conduct. So the United States cannot rely on Bruen to categorically
exclude Alston and those like him from the Second Amendment’s protections. 7
What’s more, the Supreme Court’s statements on who falls within the scope of “the people”
for Second Amendment purposes cut against the government’s position. For example, the Court
began its analysis in Heller “with a strong presumption that the Second Amendment right is
exercised individually and belongs to all Americans.” 554 U.S. at 581 (emphasis added). This
presumption arose based on a review of similar language throughout the Constitution. The Court
explained that each time the Constitution mentions “‘the people,’ the term unambiguously refers
to all members of the political community, not an unspecified subset.” Id. at 580. So long as an
individual is “part of [the] national community or . . . [has] otherwise developed a sufficient
connection with this country to be considered part of that community[,]” the Constitution confers
its individual rights—including the right to keep and bear arms—upon him. Id. (quoting United
States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).
To agree with the United States, this court would need to understand “the people” in the
Second Amendment context differently than it interprets that phrase in every other section of the
Constitution. But the Supreme Court has rejected this approach. See Bruen, 142 S. Ct. at 2156
(“The constitutional right to bear arms in public for self-defense is not a second-class right, subject
to an entirely different body of rules than the other Bill of Rights guarantees.”) (citation and
internal quotation marks omitted). Courts should thus give “the people” in the Second Amendment
7
Undoubtedly, being a law-abiding citizen has some benefits in the context of a Second Amendment challenge. The
Supreme Court has noted that “whatever else [the Second Amendment] leaves to future evaluation, it surely elevates
above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
Heller, 554 U.S. at 635. But to say that law-abiding citizens stand at the peak of the Second Amendment’s protections
is not to say that they stand alone.
12
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 12 of 42
its most natural (and internally consistent) interpretation—as encompassing all members of the
political community.
This court, in other words, must determine whether Alston’s drug use and felony
indictment remove him from the political community entitled to constitutional protections. The
United States has provided no reason to reach that conclusion, and the Supreme Court’s guidance
discussed above shows that Alston enjoys the same constitutional rights as every other citizen. So
the undersigned rejects the United States’ argument that Alston falls outside the Second
Amendment’s protection based solely on his status as a drug user under indictment. 8
The United States’ second argument about Alston’s eligibility for Second Amendment
rights fares no better. That argument claims that Bruen’s approval (in a footnote in the majority
opinion and in a concurring opinion by Justice Kavanaugh) of the shall-issue licensing regimes
used by most states establishes “that the Second Amendment’s protections do not extend to people
who are not law-abiding.” Resp. Opp’n Mot. Dismiss at 19.
But, once again, Bruen’s language does not go as far as the United States would like. The
Court approved of shall-issue regimes as a general matter because they “do not require applicants
to show an atypical need for armed self-defense,” and therefore “do not necessarily prevent law-
abiding, responsible citizens from exercising their Second Amendment right to public carry.”
Bruen, 142 S. Ct. at 2138 n.9 (citation and internal quotation marks omitted). Thus, while states
cannot give regulators unfettered discretion to determine who can carry a firearm in public, they
8
The conclusion that someone is a member of “the people” described in the Second Amendment does not deprive the
government of the ability to restrict the rights protected by that Amendment. Then-Judge Barrett explained this point
in her Kanter dissent. Mere membership in the national community does not automatically guarantee “the people”
unfettered access to guns. See Kanter, 919 F.3d at 453 (Barrett, J., dissenting). “Instead,” she wrote, “it means that the
question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather
than whether they possess the right at all.” Id. In other words, while the court may uphold a law because its pedigree
traces back to the longstanding historical practices of this nation, it may not simply justify the law by stating that a
class of “the people” lacks constitutional protections to begin with.
13
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 13 of 42
may condition an applicant’s receipt of a public carry license on objective measures like passing a
background check or completing a firearms safety course. Id. Justice Kavanaugh made similar
points. Id. at 2162 (Kavanaugh, J., concurring) (noting that shall-issue regimes rely on objective
criteria and “do not require a showing of some special need apart from self-defense”).
The Court’s discussion of shall-issue regimes does two things. First, it reinforces the
substantial Second Amendment rights enjoyed by those who qualify as ordinary, law-abiding
citizens. And second, it recognizes, in a general sense, that states can restrict the public carry rights
of criminals or otherwise irresponsible citizens. It goes no further than that.
And there is no question that shall-issue regimes are subject to constitutional challenges
after Bruen. The majority noted that individuals can still challenge shall-issue licensing regimes if
they are “put toward abusive ends[.]” Id. at 2138 n.9 (majority opinion). And Justice Kavanaugh
pointed out that “shall-issue licensing regimes are constitutionally permissible, subject of course
to an as-applied challenge if” the regime does not operate constitutionally in practice. Id. at 2162
(Kavanaugh, J., concurring). So the Supreme Court’s general approval of shall-issue licensing
regimes does not mean that drug users or those under indictment are excluded from the Second
Amendment’s protections wholesale.
In sum, Heller and Bruen may have focused on the rights of law-abiding citizens, but the
Second Amendment’s protections extend to a broader political community—a community that
includes Alston. So the undersigned now turns to whether Alston’s particular conduct—receiving
and possessing a firearm—is protected by the Second Amendment. If so, the government must
establish that its restrictions on Alston’s ability to engage in that conduct have a basis in our
country’s historical tradition of firearms regulation.
14
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 14 of 42
C. Whether 18 U.S.C. § 922(n)’s Restriction on Alston’s Ability to Ship, Receive,
or Transport Firearms while Under Felony Indictment Is Constitutional
Alston is charged with violating 18 U.S.C. § 922(n). Indictment at 1, D.E. 11. That statute
makes it illegal for anyone “under indictment for a crime punishable by imprisonment for a term
exceeding one year” to ship, receive, or transport a firearm or ammunition. 9
The statute’s roots trace back to the 1938 Federal Firearms Act, which barred individuals
under federal indictment for a crime of violence from shipping firearms in interstate commerce. 10
5 Cong. Ch. 850, § 2(e), 52 Stat. 1250, 1251 (repealed). The FFA aimed to “combat roaming
criminals crossing state lines.” United States v. Quiroz, 629 F. Supp. 3d 511, 517 (W.D. Tex. 2022)
(citation omitted). Congress amended the statute in 1961, removing the requirement that the
charged crime was one of violence. See Act of Oct. 3, 1961, Pub. L. No. 87–342, 75 Stat. 757
(repealed).
It later passed the Gun Control Act of 1968 “to provide support to Federal, State, and local
law enforcement officials in their fight against crime and violence[.]” Pub. L. No. 90–618 § 101,
82 Stat. 1213, 1213 (codified at 18 U.S.C. § 921 et seq.). That statute outlawed the receipt of a
firearm by any individual under felony indictment—state or federal. See Pub. L. No. 90–618 § 102,
82 Stat. 1213, 1216, 1220. And nearly 20 years later, “Congress combined all prohibitions against
persons under indictment into what is now § 922(n)’s current form.” Quiroz, 629 F. Supp. 3d at
518.
Alston concedes that his state indictment implicates § 922(n). See Mot. Dismiss at 23. And
although his conduct—receiving a firearm—enjoys presumptive Second Amendment protection,
9
The statute also requires that the action have a nexus to interstate or foreign commerce. 18 U.S.C. § 922(n).
10
The FFA also made it a crime to ship firearms to individuals who the seller had reason to believe were under
indictment.
15
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 15 of 42
the government has shown that § 922(n) is constitutional because it is part of a longstanding
tradition of restricting the rights of those under indictment.
1. Does Alston’s Alleged Conduct Fall Within the Second Amendment’s
Protections?
As discussed above, Alston is a member of “the people” protected by the Second
Amendment. Under § 922(n), his conduct at issue is the receipt of a firearm. This conduct enjoys
presumptive Second Amendment protection. As a logical matter, it is impossible to “keep” or
“bear” arms without first receiving them. If the Second Amendment protects the possession and
use of firearms, it must also protect their acquisition—otherwise, the Amendment would protect
nothing at all. See, e.g., Teixeira v. Cnty. of Alameda, 873 F.3d 670, 677–78 (9th Cir. 2017); Ezell,
651 F.3d at 704 (“The right to possess firearms for protection implies a corresponding right to
acquire and maintain proficiency in their use[.]”). Thus, the government must prove that this
nation’s historical tradition justifies the statute. Bruen, 142 S. Ct. at 2126.
2. Is the United States’ Regulation of Alston’s Conduct Under § 922(n)
Consistent with the Nation’s Historical Tradition of Firearms
Regulation?
The United States points to two historical analogues to support § 922(n)’s constitutionality.
First, it relies on the historical practice of detaining indicted defendants before trial. Resp. Opp’n
Mot. Dismiss at 25–28. And second, it maintains that there is a historical tradition of disarming
those seen as dangerous or untrustworthy. 11 Id. at 28–31.
Bruen instructs that, when considering a statute’s constitutionality under the Second
Amendment, courts must assess whether the government has shown that the “regulation is
consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2126.
11
Because the government’s first argument on this point is persuasive, the undersigned will not (at this point) address
the dangerousness argument.
16
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 16 of 42
In this case, the United States has not pointed to any laws explicitly restricting the ability of those
under indictment to ship, receive, or transfer firearms or ammunition.
Instead, the government argues that the burdens imposed by laws allowing pretrial
detention of indicted defendants are sufficiently analogous to justify § 922(n)’s constitutionality.
See Resp. Opp’n Mot. Dismiss at 30–31. While some defendants were allowed out on bond while
they awaited trial, there is no evidence that defendants had a constitutional right to bail. And if the
government had the ability to completely deprive a defendant of his liberty ahead of trial, it stands
to reason that it had the ability to impose lesser restrictions on a defendant’s conduct, such as
restricting a defendant’s right to ship, receive, or transport firearms while awaiting trial. The
undersigned agrees.
Since the English Bill of Rights was enacted, the government has been able to detain those
accused of serious crimes—whether violent of not—before trial. See Carlson v. Landon, 342 U.S.
524, 545–46 (1952). In England, for example, nonviolent crimes like “embezzling or
destroying the king’s armor or warlike stores” worth more than 20 shillings and counterfeiting
certain coins were felonies punishable by death. See 4 William Blackstone, Commentaries on the
Laws of England 94, 98–99, 101 (Cooley ed. 1871). And “[i]n felonies,” Blackstone wrote, “no
bail [could] be a security equivalent to the actual custody of the person.” Id. at 296. Even in non-
felony cases, Parliament had the authority to mandate that those accused of certain crimes be
detained before trial. Id. at 297 (“Regularly, in all offences either against the common law or act
of parliament, that are below felony, the offender ought to be admitted to bail, unless it be
prohibited by some special act of parliament.”).
English justices of the peace, therefore, had no authority to release murderers, arsonists, or
those suspected of treason before trial. Id. at 297–98. But they had some discretion to bail
17
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 17 of 42
“[p]ersons charged with other felonies, or manifest and enormous offences, not being of good
fame[.]” Id. at 298. Unlike justices of the peace, the court of king’s bench could bail those
suspected “of any crime whatsoever . . . according to the facts of the case.” Id.
Taken together, English practice suggests that a person under felony indictment had no
fundamental right to bail, but he could be released based on an individual assessment of his
situation in some cases. And even if a presumptive right to bail for less serious crimes existed,
Parliament could abrogate it by statute.
The American federal government largely inherited this tradition. The Judiciary Act of
1789 created a statutory right to bail “except where the punishment may be death[.]” Ch. 20, § 33,
1 Stat. 73, 91. In capital cases, the Act allowed judges to exercise discretion over pretrial release
based on “the nature and circumstances of the offense, and of the evidence[.]” Id.
The Eighth Amendment’s ratification in 1791 did not limit the government’s authority in
this area. Although the Eighth Amendment prohibits excessive bail, it “fails to say all arrests must
be bailable.” Carlson, 342 U.S. at 546; see also Salerno, 481 U.S. at 754 (“The only arguable
substantive limitation of the Bail Clause is that the Government’s proposed conditions of release
or detention not be ‘excessive’ in light of the perceived evil.”). So it was Congress—not the
Constitution—that determined “the classes of cases in which bail shall be allowed in this country.”
Carlson, 342 U.S. 545.
History from both England and the founding era establish the government’s authority to
immediately and totally deprive someone under felony indictment of their liberty pending trial.
Any right to pretrial release was a matter of legislative grace—not constitutional mandate.
But that still leaves whether this historical practice is an appropriate analogue for § 922(n).
18
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 18 of 42
To resolve this question, Bruen instructs courts to consider “how and why” the modern
regulation and its purported historical analogue burden the right to self-defense. 142 S. Ct. at 2133.
The court’s “central considerations” are “whether modern and historical regulations impose a
comparable burden on the right of armed self-defense and whether that burden is comparably
justified[.]” Id. (cleaned up).
On the question of comparable burden on the right of armed self-defense, §922(n) fares
well when compared to the historical practice of pretrial detention for serious crimes. Pretrial
detention burdened an individual’s right to keep and bear arms completely, though temporarily.
People in prison cannot possess guns, but founding-era defendants could re-arm themselves if they
were acquitted (or, often, convicted). See C. Kevin Marshall, Why Can’t Martha Stewart Have a
Gun?, 32 Harv. J. L. & Pub. Pol’y 695, 708 (2009) (“[O]ne can with a good degree of confidence
say that bans on convicts possessing firearms were unknown before World War I.”).
Section 922(n), on the other hand, provides a more limited restriction on a defendant’s right
to self-defense. While he cannot obtain new firearms while under indictment, the statute does not
prohibit him from retaining a firearm he already possesses and using it for self-defense. At worst,
§ 922(n) imposes an equal burden on a defendant’s right to armed self-defense when compared to
pretrial detention. If someone comes under indictment without already possessing a gun, he will
not be able to obtain one under the statute. But in the aggregate, § 922(n) imposes a lesser burden
than pretrial incarceration because those who already own firearms can retain them.
And both the historical practice of pretrial detention and §922(n) find their justification
from the same source: a grand jury’s formal accusation that there is probable cause to believe the
defendant committed a serious crime. That accusation—memorialized by an indictment—
fundamentally alters the relationship between the state and the accused. The most extreme effect
19
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 19 of 42
of an indictment is that it allows the state to “immediately depriv[e] the accused of her freedom.”
Kaley v. United States, 571 U.S. 320, 329 (2014). And if an indictment can justify a total and
immediate deprivation of liberty, it also justifies lesser deprivations—like limiting a defendant’s
ability to ship, transport, or receive a firearm. See id.
Compared to this nation’s historical tradition of allowing pretrial detention for serious
offenses, § 922(n) imposes a lesser overall burden on the right to armed self-defense. And like
pretrial detention, § 922(n) requires a finding of probable cause by a grand jury before it can restrict
an indicted individual’s liberties. Put differently, the challenged statute accomplishes a similar
“why” through a less restrictive “how.” So while the United States has not identified a “historical
twin” for § 922(n), it has established that the historical system of pretrial detention in founding-
era America is “analogous enough to pass constitutional muster.” Bruen, 142. S. Ct. at 2133
(emphasis removed). Thus, the court should deny Alston’s motion to dismiss the first count of his
indictment.
D. Whether § 922(g)(3)’s Restriction on Alston’s Ability to Possess a Firearm
Due to His Regular Drug Use Is Constitutional
The indictment’s second charge alleges that Alston violated the federal prohibition on
possession of a firearm by anyone who is “an unlawful user of [or] addicted to any controlled
substance[.]” Indictment at 1 (quoting 18 U.S.C. § 922(g)(3)). Federal courts have concluded that
“Congress enacted the exclusions in § 922(g) to keep guns out of the hands of presumptively risky
people.” United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010) (citations omitted). And in its
attempt to “suppress[] armed violence[,]” Congress concluded that drug users are too risky to
possess firearms. Id. at 684.
Although the statute does not define “unlawful user,” courts of appeal have generally
required the government to prove that the defendant regularly used controlled substances, did so
20
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 20 of 42
for a long time, and possessed a firearm near the time of drug use. See, e.g., United States v. Tanco-
Baez, 942 F.3d 7, 15 (1st Cir. 2019) (finding that the government must prove “(1) the defendant
used controlled substances regularly, (2) that the use took place over a long period of time, and (3)
that the use was proximate to or contemporaneous with his possession of a firearm”) (citations
omitted); see also United States v. Bowens, 938 F.3d 790, 793–94 (6th Cir. 2019) (“[T]he
Government needed to prove that the defendants were regular and repeated users of marijuana[.]”)
(citation omitted); United States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001) (explaining that drug
use must be “consistent, prolonged, and close in time to [the defendant’s] gun possession”)
(citation and internal quotation marks omitted). But see United States v. Carnes, 22 F.4th 743, 749
(8th Cir. 2022) (requiring the government to prove that the defendant “was actively engaged in the
use of a controlled substance during the time he possessed firearms”).
Alston admitted to ATF agents that he uses marijuana (a controlled substance under federal
law) daily. Thus, the undersigned assumes that he is an “unlawful user” or drug addict under
§ 922(g)(3). 12 He also does not dispute that he possessed a firearm. See Mot. Dismiss at 8.
Alston’s conduct—possessing a firearm—implicates the Second Amendment and is
entitled to presumptive protection. And the government has identified no suitable historical
analogue justifying its prohibition on unlawful users of controlled substances (or drug addicts)
possessing firearms.
1. Does Alston’s Alleged Conduct Fall Within the Second Amendment’s
Protections?
Because Alston is a member of “the people” who enjoy Second Amendment protection,
the court need only determine whether § 922(g)(3)’s prohibition on possession burdens conduct
12
The conclusion that Alston is an “unlawful user” or drug addict for the purposes of his facial challenge to § 922(g)(3)
does not affect whether he is an “unlawful user” or drug addict at any later stage of his case.
21
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 21 of 42
protected by the Amendment. It does. In both Heller and Bruen, the Supreme Court made clear
that the Second Amendment protects an individual’s right to possess firearms. See Heller, 554
U.S. at 636 (establishing that Americans have a right to keep handguns in their homes for self-
defense); Bruen, 142 S. Ct. at 2156 (“The constitutional right to bear arms in public for self-defense
is not a second-class right[.]”) (citation and internal quotation marks omitted). Thus, to justify
§ 922(g)(3), the government must supply the court with an appropriate historical analogue.
2. Is the United States’ Regulation of Alston’s Conduct Under
§ 922(g)(3) Consistent with the Nation’s Historical Tradition of
Firearms Regulation?
The United States contends that three historical practices are similar enough to § 922(g)(3)
to render the statute constitutional. First, it claims that the statute is similar to laws detaining the
mentally ill. Resp. Opp’n Mot. Dismiss at 12–13. It then alleges that the statute is similar to early
American laws regulating gun use while intoxicated. Id. at 13–16. And the government’s final
justification for § 922(g)(3) is a bit of a catch-all—it maintains that the legislature has long had
the power to disarm “individuals deemed to be dangerous or risky[.]” Id. at 16. By the
government’s own admission, “none of the pre-twentieth century historical analogues are a ‘dead
ringer’ or ‘historical twin’ for 18 U.S.C. § 922(g)(3).” Id. (quoting Bruen, 142 S. Ct. at 2133). Still,
it asks the court to find that its cited sources are “analogous enough . . . to pass constitutional
muster.” Id. (quoting Bruen, 142 S. Ct. at 2133).
a) The Mentally Ill
The United States first alleges that “longstanding prohibitions on the possession of firearms
by . . . the mentally ill” may serve as a proper historical analogue to § 922(g)(3). Id. at 12 (quoting
Heller, 554 U.S. at 626). “Although being under the influence of a controlled substance is not
tantamount to mental illness,” the government contends, “both conditions can render a person
22
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 22 of 42
incapable of safely and responsibly possessing a firearm.” Id. As historical support for this
argument, it cites one piece of scholarship discussing English practice, several sources suggesting
that the founders equated drunkenness with madness, and four court cases (three of which are
nonbinding).
The government’s analysis begins with English history. “In England,” it contends, “justices
of the peace could lock up dangerous lunatics and seize their property.” Id. (citing Richard Moran,
The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1880), 19
L. & Soc’y Rev. 487 (1985)). Moran’s article is the sole source the United States provides for this
assertion. The piece centers around the trial (and successful insanity plea) of one man—James
Hadfield—after he was charged with treason for attempting to murder King George III in 1800.
See Moran, supra, at 492–508. Before Hadfield’s trial, the criminally insane were rarely detained.
See id. at 515. But the outrage that ensued after his acquittal prompted Parliament to pass the
Criminal Lunatics Act of 1800, which “formalized the detention of alleged offenders otherwise
beyond the statutory reach of the criminal law.” Id. Among other things, the law allowed for the
detention of any individual “who, upon arraignment, [was] found to be insane.” Id. at 513.
Although the government makes no direct reference to it, Moran’s article does briefly
discuss at least one statute passed before the ratification of the Second Amendment: the Vagrancy
Act of 1744. See id. at 488, 509–10. That law, passed by Parliament, provided that “it shall and
may be lawful for any two or more Justices of the Peace, where such Lunatick or mad person shall
be found . . . to cause such Person to be apprehended, and kept safely locked up in some secure
Place” for treatment. 17 Geo. 2, c. 5, § 20.
Once a mentally unstable person was detained, the Act allowed local officials to deport the
“Lunatick” to his place of legal residence. Id. The authorities could also seize a limited amount of
23
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 23 of 42
his property to pay for his removal, lodging, and treatment. Id. The individual could be detained
only for as long “as such Lunacy or Madness shall continue[,]” and the cost of keeping, relocating,
and curing him had to be “proved upon Oath” before his property could be seized. Id. But the Act
did not mandate prison time or removal—as an alternative, it provided that “any Friend or Relation
of such Lunaticks” could “take them under their own Care and Protection” if they so chose. Id.
§ 21.
The United States cites to two pre-Bruen circuit court cases to suggest that, like English
officials, 18th-century American justices of the peace could lock up lunatics the community
considered dangerous. Resp. Opp’n Mot. Dismiss at 12 (citing Yancey, 621 F.3d at 685; Beers v.
Att’y Gen. of the U.S., 927 F.3d 150, 157 (3rd Cir. 2019), vacated, 140 S. Ct. 2758 (2020)). These
cases, in turn, both cite a single law review article claiming that, “in eighteenth-century America,
justices of the peace were authorized to ‘lock up’ ‘lunatics’ who were ‘dangerous to be permitted
to go abroad.’” Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia
v. Heller and Jud. Ipse Dixit, 60 Hastings L.J. 1371, 1377 (2009) (quoting Henry Care, English
Liberties, or the Free-Born Subject’s Inheritance 329 (6th ed. 1774)).
English Liberties, which lies at the bottom of this pile of citations, does not go as far as the
government suggests. The line of scholarship (and resulting caselaw) discussed above traces back
to a single page in the piece, which provides a template “Warrant to Secure a Lunatic.” Care, supra,
at 329. The example warrant is not American in origin—it, alongside over 100 pages of other stock
documents, was drafted by an English legal scholar named Dr. Richard Burn. Id. at 246. These
templates were included in English Liberties “[f]or the help and improvement of Justices of the
Peace[.]” Id.
24
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 24 of 42
Unsurprisingly, then, the template “Warrant to Secure a Lunatic” largely mirrors the
English practice under the Vagrancy Act of 1744. Two witnesses had to swear an oath that the
suspect was “by lunacy so far disordered in his senses, that he [was] dangerous to be permitted to
go abroad[.]” Id. at 329. Upon that showing, the warrant ordered officials to apprehend the suspect
and place him into the care of a third-party—not a government detention facility—”only so long
as such lunacy or disorder shall continue, and no longer.” Id. And the third party was entitled to a
“reasonable allowance” from the suspect for housing him. Id.
The government bears the burden of identifying a historical analogue that justifies
§ 922(g)(3). Bruen, 142 S. Ct. at 2127. But neither English Liberties (which does not appear in the
government’s brief) nor the scholarship and cases that cite it show that the stock “Warrant to
Secure a Lunatic” (or anything like it) saw use in the American colonies. See id. at 2149
(discounting the analogical value of surety laws because the government “offer[ed] little evidence
that authorities ever enforced” them). Even if the colonies did import mid-18th-century English
practice governing the detention of the insane, however, this tradition cannot serve as a suitable
historical analogue to § 922(g)(3).
First, the laws serve different purposes. Broadly understood, both the Vagrancy Act of
1744 and § 922(g)(3) are intended to promote public safety. Beyond this highly general similarity,
however, the laws address different societal problems. Most obviously, the historical practices
discussed above did not attempt to regulate firearms or other weapons. Instead, the Vagrancy Act
of 1744 sought to remedy the danger posed to society when someone falls victim to temporary
insanity. Section 922(g)(3), by contrast, aims to disarm all individuals who regularly use controlled
substances.
25
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 25 of 42
Compared to the English law, § 922(g)(3) is both over-and-underinclusive—many people
who use controlled substances are not so irrational that they cannot function in society generally,
and many severely mentally ill people are not unlawful users of controlled substances. Thus, the
laws seek to remedy different problems and target different subsects of the people.
The United States concedes that “being under the influence of a controlled substance is not
tantamount to mental illness[.]” Resp. Opp’n Mot. Dismiss at 12. It maintains, however, that “both
conditions can render a person incapable of safely and responsibly possessing a firearm.” Id.
This may be true. But the government cites no examples of early American laws or
traditions that treated the intoxicated and the insane similarly. Instead, the United States cites a
book written by Benjamin Rush that “equated drunkenness with a temporary fit of madness” and
a more recent work that claims 18th-century commentators “designated habitual drinking as a form
of insanity.” Id. at 12–13 (citations and internal quotation marks omitted). The scattered opinions
of a few founding-era observers—whose private thoughts on drinking were not codified into law—
do not shed meaningful light on the historical pedigree of § 922(g)(3).
But even if the court finds that the laws serve the same purpose, § 922(g)(3)’s operation
bears little resemblance to the Vagrancy Act of 1744 (or any early-American practice that traces
back to it). Under English law, if a mentally ill individual imperiled the community, he could be
deported to his location of origin or detained—but only until his fit of madness wore off. See 17
Geo. 2, c. 5, § 20; Care, supra, at 329. In fact, neither the Vagrancy Act of 1744 nor the template
warrant in English Liberties mandated incarceration at all—both allowed the mentally ill
individual to be placed with a willing third party rather than serve time in jail. See 17 Geo. 2, c. 5,
§ 21; Care, supra, at 329. And while the individual’s property could be seized, the seizure was
limited to assets necessary to pay back the costs of detaining, relocating, and curing him. See 17
26
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 26 of 42
Geo. 2, c. 5, § 20; Care, supra, at 329. None of the individual’s possessions—including his
weapons—could be taken simply because the government thought he was too dangerous to own
them.
Section 922(g)(3), by comparison, punishes a broader swath of conduct and does so more
severely. While English law only allowed officials to apprehend those who were experiencing a
mental break, § 922(g)(3) allows the government to disarm and punish all unlawful users of a
controlled substance regardless of their sobriety or mental acuity at the time they possessed a
firearm. A person who uses controlled substances and owns a gun—but never mixes the two—
could be convicted under the statute. Thus, even if intoxication is like a “temporary fit of madness,”
see Resp. Opp’n Mot. Dismiss at 12 (quotation omitted), § 922(g)(3) allows the government to
prosecute individuals for possessing a firearm when they are not “mad.” Section 922(g)(3) also
imposes up to 15 years in prison for its violation. 13 See 28 U.S.C. § 924(a)(8). This is a far cry
from the punishments contemplated by the Vagrancy Act of 1744 and the template warrant in
English Liberties, which only authorized detention until the fit of lunacy subsided.
This is not to say that those at risk of a mental breakdown may enjoy unfettered access to
firearms. But Congress has already enacted a law curbing access to firearms by the mentally
unwell. The United States Code prohibits anyone “who has been adjudicated as a mental defective
or who has been committed to a mental institution” from possessing a gun. 18 U.S.C. § 922(g)(4).
Drug users and the mentally ill are distinct (if sometimes overlapping) subsections of the people.
The legislature, in enacting both § 922(g)(3) and § 922(g)(4), recognized this difference. So even
if regulations preventing the mentally ill from possessing firearms are “presumptively lawful[,]”
13
If the defendant has three previous convictions for a violent felony or serious drug offence, the court must impose
at least a 15-year sentence and can sentence an offender to life in prison. 18 U.S.C. § 924(e)(1).
27
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 27 of 42
Heller, 554 U.S. at 626 n.26, the government still bears the burden of showing why this lawfulness
extends to § 922(g)(3). It has not done so here.
In sum, English and colonial American traditions regulating the mentally ill differ from
§ 922(g)(3) in both purpose and operation. The government has not identified “a well-established
and representative historical analogue,” Bruen, 142 S. Ct. at 2133 (emphasis removed), for
§ 922(g)(3) arising out of these regulations.
b) The Intoxicated
The government next maintains that § 922(g)(3) is analogous “to historical laws that
prohibited carrying a firearm while under the influence of alcohol.” Resp. Opp’n Mot. Dismiss at
13. It cites three founding-era laws, a handful of Reconstruction-era acts, and several state statutes
enacted since 1931. See id. at 13–15. The undersigned will discuss the laws from each historical
era in turn.
The three founding-era laws the government offers as historical analogues for § 922(g)(3),
broadly speaking, prevented people from discharging firearms or possessing them in public while
drunk. See id. at 13. First, in 1655, colonial Virginia criminalized “shoot[ing] any gunns at
drinkeing” unless the shooting took place at a marriage or a funeral. 1 William Hening, Statutes
At Large: Being a Collection of All the Laws of Virginia from the First Session of the Legislature,
in the Year 1619 401–02 (1823). A violation of this act carried with it no carceral penalty—instead,
the offender had to forfeit 100 pounds of tobacco to the colonial militia. Id. Second, shortly before
the founding, New York imposed a fine of 20 shillings on anyone who discharged a firearm in
residential areas on New Year’s Eve and the first two days of January, fearing that intoxicated
colonists would cause damage in their revelry. Ch. 1501, 5 Colonial Laws of New York 244–46
(1984). And third, a 1746 New Jersey statute provided that soldiers could have their weapons taken
28
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 28 of 42
away if they showed up to training “in Arms disguised in Liquor[.]” Samuel Allinson, Acts of the
Gen. Assembly of the Province of New-Jersey 140 (1776). If the soldier did appear intoxicated at
training, he could be placed under supervision and fined. Id. at 141.
Taken together, these laws fail to serve as a historical analogue to § 922(g)(3) for two
reasons.
First, in Bruen, the Supreme Court cast doubt on the notion that a few isolated colonial
laws can establish a robust historical practice. See 142 S. Ct. at 2142 (“[W]e doubt that three
colonial regulations could suffice to show a tradition of public-carry regulation.”) (emphasis in
original). Here, the government can point to only three statutes passed within a span of more than
100 years of colonial history regulating the use of firearms while intoxicated. Such a spotty
historical tradition cannot form a firm foundation for § 922(g)(3).
Second—and more fundamentally—these laws did not burden conduct protected by the
Second Amendment in a similar way to § 922(g)(3). At the highest level of abstraction, both the
colonial laws and § 922(g)(3) get at the same “why”: drugs and guns don’t mix. But the similarities
end there. The Virginia law was enacted to make sure colonists knew when their settlement was
under attack, 14 and the New Jersey law aimed to ensure the orderly functioning of the militia. 15
Understood broadly, § 922(g)(3) also seeks to prevent the intersection of intoxicants and
firearms. But the challenged statute goes further: it attempts to promote general safety by
completely disarming all individuals who frequently use drugs. Put differently, while the three
14
When the Virginia law was passed, colonists warned others about impending Indian attacks by discharging weapons.
The government banned “shoot[ing] any gunns at drinkeing” because it feared that colonists would be unable to
differentiate between warning shots and drunken volleys. See Hening, supra, at 401. It also worried that colonists
were wasting gunpowder “in vaine, that might be reserved” for conflicts with Native Americans. Id.
15
The New Jersey restriction discussed above was part of a colonial statute entitled “An Act for Better Settling and
Regulating the Militia of This Colony of New-Jersey, for the Repelling Invasions, and Suppressing Insurrections and
Rebellions.” See Allinson, supra, at 139.
29
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 29 of 42
colonial acts were passed to prevent the simultaneous use of drugs and guns, § 922(g)(3) seeks to
prevent the potential combination of drugs and guns generally.
But even if the colonial laws and § 922(g)(3) strike at the same “why,” the methods they
employ to prevent the interaction of drugs and guns are patently different. None of the three
colonial statutes prohibited intoxicated individuals—much less those who are habitually, though
not presently, intoxicated—from possessing weapons. The Virginia law only criminalized firing
weapons while drinking, and it made exceptions for weddings and funerals. The New York law
prohibited everyone (intoxicated or sober) from firing weapons in certain locations for three days
out of the year. And while the New Jersey law barred individuals from showing up to military
training drunk, it only applied to soldiers. The act neither prevented the average citizen from
discharging weapons while intoxicated nor prohibited soldiers from shooting guns while drinking
outside of training. And not one of the three laws imposed incarceration or disarmament for
violation—each, at most, carried with it a fine.
Compared to these historical regulations, § 922(g)(3)’s sweep is staggering. Unlike the
colonial laws, which sought to prohibit the active combination of liquor and firearms, the
challenged statute completely prohibits individuals from possessing firearms based solely on their
status as an “unlawful user” of controlled substances. In other words, it doesn’t matter whether the
individual was intoxicated when he possessed a gun.
Section 922(g)(3) is also far more punitive—as discussed above, those who violate it can
spend years in prison. See 18 U.S.C. § 924(e)(1). Put simply, the operation of § 922(g)(3) bears
little resemblance to the colonial laws regulating the intersection of guns and intoxicants. The
challenged statute applies to those who are not presently intoxicated, and it imposes a complete
30
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 30 of 42
ban on gun possession. The three colonial acts regulating firearm use while drinking are not
“analogous enough” to § 922(g)(3) “to pass constitutional muster.” Bruen, 142. S. Ct. at 2133.
The government next points to a handful of Reconstruction-era laws to justify § 922(g)(3).
See Resp. Opp’n Mot. Dismiss at 14. In Bruen, the Court did not settle the analogical value of laws
passed near the ratification of the Fourteenth Amendment. 142 S. Ct. at 2137–38; id. at 2163
(Barrett, J., concurring). It did, however, note that “post-Civil War discussions of the right to keep
and bear arms . . . ’do not provide as much insight into [the Second Amendment’s] original
meaning as earlier sources.’” Id. at 2137 (quoting Heller, 554 U.S. at 614). And these discussions
are of even less value here than in Bruen because § 922(g)(3) is a creature of federal, not state,
law. The original public meaning of the Second Amendment, as applied to the federal
government’s actions, was fixed upon the Constitution’s ratification in 1791—not the Fourteenth
Amendment’s ratification in 1868. Id. at 2132 (explaining that the Constitution’s “meaning is fixed
according to the understandings of those who ratified it”) (citation omitted). Thus, when assessing
federal laws, courts should give less weight to laws from the mid-to-late-1800s than they give to
laws from the founding era.
But even if the government’s proffered Reconstruction-era laws were entitled to full
weight, they fail to support § 923(g)(3)’s constitutionality. The United States cites to six state laws
that barred “intoxicated persons from possessing, using, or receiving firearms.” Resp. Opp’n Mot.
Dismiss at 14. But like the colonial laws discussed above, these statutes only targeted the active
combination of alcohol and guns. See Kan. Gen. Stat., Crimes & Punishments § 282 (1868)
(prohibiting “any person under the influence of intoxicating drink” from “carrying on his person a
pistol, bowie-knife, dirk or other deadly weapon” in the state); 1878 Miss. Laws 175–76, § 2
(criminalizing the sale of pistols and pistol cartridges to the intoxicated); 1883 Mo. Laws 76, § 1
31
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 31 of 42
(outlawing the concealed carry of deadly weapons while intoxicated); 1883 Wis. Sess. Laws 290,
ch. 329, § 3 (“It shall be unlawful for any person, in a state of intoxication, to go armed with any
pistol or revolver.”); 1890 Okla. Sess. Laws 495, art. 47, § 4 (prohibiting public officers from
carrying arms while intoxicated); 1899 S.C. Acts 97, no. 67, § 1 (prohibiting intoxicated
individuals—or those pretending to be intoxicated—from “discharg[ing] any gun, pistol, or other
firearms while upon or within fifty yards of any public road, except upon his own premises”).
Like the colonial statutes discussed above, none of the Reconstruction-era laws imposed a
total ban on firearm possession for those who drink. Instead, they prohibit specific conduct while
drunk: purchasing a firearm or carrying it in public. And while some of these laws contemplated
prison sentences for their violation, none was nearly as severe as § 922(g)(3). See, e.g., 1899 S.C.
Acts 97, no. 67, § 1 (misdemeanor with maximum sentence of 30 days); Kan. Gen. Stat., Crimes
& Punishments § 282 (1868) (misdemeanor with maximum sentence of three months); 1878 Miss.
Laws 175–76, § 2 (requiring violators to pay a fine and, if they refused, to complete hard labor).
Thus, the Reconstruction-era laws the government cites undermine—rather than bolster—the
validity of § 922(g)(3).
Finally, the United States offers several 20th-century laws that allegedly support
§ 922(g)(3)’s constitutionality. See Resp. Opp’n Mot. Dismiss at 15–16. But the further the
government strays from the founding, the less potent its examples become. The court should give
little—if any—weight to state statutes passed in the 1900s if they conflict with earlier
understandings of the Second Amendment. See Bruen, 142 S. Ct. at 2154 n.28 (“[T]he 20th-
century evidence presented by respondents and their amici does not provide insight into the
meaning of the Second Amendment when it contradicts earlier evidence.”).
32
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 32 of 42
That is the case here. The government cites laws from five states and the District of
Columbia prohibiting the sale of firearms to drug addicts—the earliest of which was passed in
1931. See Resp. Opp’n Mot. Dismiss at 15. It also remarks that, in the present day, at least 27
jurisdictions “have restricted the right of habitual drug abusers or alcoholics to possess or carry
firearms.” Id. (quoting Yancey, 621 F.3d at 684). But present practice does not necessarily inform
historical understanding, and the modern laws the government offers in support of § 922(g)(3)
conflict with this nation’s traditions closer to the founding.
In 1931, Pennsylvania became the first state to criminalize “deliver[ing] a firearm . . . to
one who he has reasonable cause to believe . . . is a drug addict[.]” 1931 Pa. Laws 499, no. 158,
§ 8. Within the next several years, other jurisdictions followed suit. See 47 Stat. 652 § 7 (1932)
(D.C.) (prohibiting sale of firearms to drug addicts); 1936 Ala. Laws 52, no. 82, § 8 (criminalizing
the delivery of pistols to drug addicts and habitual drunkards); 1935 S.D. Sess. Laws 356, ch. 208,
§ 8 (same); 1935 Wash. Sess. Laws 601, ch. 172, § 8 (same).
These laws were the first in the nation’s history to condition an individual’s ability to
receive a firearm on his status as someone who is not addicted to drugs or alcohol. The government
has provided no evidence that, before 1931, citizens could have their ability to bear arms entirely
curtailed because they use intoxicants. While earlier laws might support the proposition that the
actively intoxicated may be disarmed and punished, they did not wholly foreclose those who use
intoxicants from possessing guns when they were sober. This is a significant departure from
historical practice—the 20th-century laws sweep more broadly, and they target an individual’s
status as a drug user generally rather than his specific, irresponsible use of firearms themselves.
33
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 33 of 42
Thus, the 1931 Pennsylvania law and its progeny cannot inform the court’s view on the historical
protections of the Second Amendment. 16
Surveying the government’s historical record in its entirety, the undersigned cannot
conclude that it has identified a tradition of disarming the intoxicated that can serve as a proper
analogue for § 922(g)(3).
c) The Dangerous
Finally, the United States contends that the court should uphold § 923(g)(3) because the
government has long held the power to disarm “individuals deemed to be dangerous or risky[.]”
Resp. Opp’n Mot. Dismiss at 16. This argument—which spans less than a page—does not give the
court much to work with. Despite bearing the burden of identifying a discreet analogue to justify
§ 922(g)(3), the government makes only one passing reference to a historical source on disarming
the dangerous in its discussion of the challenged statute. Instead, its argument hinges on caselaw—
most of which is not binding on this court.
Later in its brief, the government cites some primary sources on regulating the dangerous
to justify § 922(n). Id. at 28–31. It does not, however, offer any argument at all to suggest that
these sources may serve as an analogue to § 922(g)(3). Out of an abundance of caution, the
undersigned will look to the handful of cases the government cites in its discussion of § 922(g)(3)
as well as the sources it provides when justifying § 922(n) to determine whether it has identified a
historical analogue to § 922(g)(3).
Citing two pre-Bruen Seventh Circuit cases and Bruen itself, the United States contends
that historical practice supports disarming of the dangerous. Id. at 16. The government begins by
16
These laws also regulate different conduct than § 922(g)(3). While the challenged statute imposes criminal liability
on drug users who receive, possess, or transfer a firearm, the 1930s laws only targeted individuals who transferred a
firearm to a drug user. Thus, even if the court did find these statutes informative, it is unclear whether they are
sufficiently analogous to support § 922(g)(3)—which targets the drug user himself.
34
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 34 of 42
referencing then-Judge Barrett’s dissent in Kanter, in which she found that “the legislature may
disarm those who have demonstrated a proclivity for violence or whose possession of guns would
otherwise threaten the public safety.” 919 F.3d at 454 (Barrett, J., dissenting). The Supreme Court
allegedly recognized that the dangerous may be disarmed in Bruen because the Court cited a mid-
1880s decree from General Daniel Edgar Sickles claiming that “no disorderly person, vagrant, or
disturber of the peace, shall be allowed to bear arms.” 142 S. Ct. at 2152 (quoting Cong. Globe,
39th Cong., 1st Sess., at 908–09). And to link dangerousness with drug use, the government cites
Yancey, in which the Seventh Circuit found that Congress passed § 922(g) “to keep guns out of
the hands of presumptively risky people” and prevent “armed violence.” 621 F.3d at 683 (citations
omitted).
But in the nation’s infancy, not all sources of danger received equal legislative treatment.
Upon closer inspection, founding-era laws disarming the dangerous centered around a single type
of danger: threats to state security. See Marshall, supra, at 727–28 (“[T]o the extent that one can
distill any guidance from the . . . Revolutionary disarmament, it would seem at most to be that
persons who by their actions . . . betray a likelihood of violence against the state may be
disarmed.”) (emphasis added). As the government points out in its discussion of § 922(n), six of
the former colonies allowed authorities to confiscate weapons owned by those who would not
swear an oath of allegiance to the new nation. Resp. Opp’n Mot. Dismiss at 29 (collecting laws);
see also Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons
from Possessing Arms, 20 Wyo. L. Rev. 249, 265 (2020) (“Most disarmament efforts during the
colonial period targeted disaffected persons.”).
At least two colonies, following English practice, specifically targeted Catholics. See
Kanter, 919 F.3d at 457 (Barrett, J., dissenting) (citing Robert H. Churchill, Gun Regulation, the
35
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 35 of 42
Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second
Amendment, 25 L. & Hist. Rev. 139, 157 (2007); Alexander DeConde, Gun Violence in America
22–23 (2001)). But unlike in England, colonial Catholics who swore an oath of allegiance to the
new nation could keep their weapons. 17 See Churchill, supra, at 157.
As then-Judge Barrett pointed out in Kanter, the oaths of allegiance were meant to “deal
with the potential threat coming from armed citizens who remained loyal to” the crown. 919 F.3d
at 457 (Barrett, J., dissenting) (quoting Saul Cornell & Nathan DeDino, A Well Regulated Right:
The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 506 (2004)). Once colonial
governments were satisfied that their citizens supported rule from this side of the pond, they
allowed disfavored individuals to regain their right to bear arms. 18 See id.; Greenlee, supra, at 268
(“[O]nce the perceived danger abated, the arms disability was often lifted.”).
Other groups were not so lucky. Slaves and Native Americans, for instance, were
“disarmed as a matter of course” because early American governments feared that they might use
firearms to rebel. Kanter, 919 F.3d at 458 (Barrett, J., dissenting) (citations omitted). What’s more,
at the time of the Second Amendment’s ratification, these groups may have fallen outside “the
people” who receive constitutional protections altogether. 19 See McDonald, 561 U.S. at 822
(Thomas, J., concurring in part & concurring in the judgment) (“[The Fourteenth Amendment]
17
And even while under English rule, some colonial governments allowed the potentially politically disloyal to retain
enough weapons to protect themselves and their homes. See, e.g., 7 William Hening, Statutes At Large: Being a
Collection of All the Laws of Virginia from the First Session of the Legislature, in the Year 1619 35–36 (1820).
18
In theory, 18 U.S.C. § 925(c) allows an American stripped of his Second Amendment rights under § 922 to petition
for their reinstatement. That statute provides that “[a] person who is prohibited from possessing, shipping,
transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the
disabilities imposed by Federal [firearms] laws[.]” Id. And if the Attorney General denies someone’s application, he
may seek relief in the courts. Id. But Congress has prohibited the Executive Branch from using appropriated funds “to
investigate or act upon applications for relief from [f]ederal firearms disabilities under” § 925(c) for more than 30
years. Consolidated Appropriations Act, 2022, Pub. L. No. 117–103, 136 Stat. 49; United States v. Bean, 537 U.S. 71,
74–76 (2002). And without the Attorney General’s denial of a petition, federal courts lack jurisdiction to grant the
relief § 925(c) allows. Bean, 537 U.S. at 75–78. Thus, while this rights-restoration provision exists in theory, it is
illusory in practice.
19
Such race- and faith-based constitutional deprivations would not pass muster today.
36
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 36 of 42
overruled Dred Scott’s holding that blacks were not citizens of either the United States or their
own State and, thus, did not enjoy the privileges and immunities of citizens embodied in the
Constitution.”) (citation and internal quotation marks omitted); Indian Citizenship Act of 1924,
Pub. L. No. 68–175, 43 Stat. 253 (1924) (granting citizenship to non-citizen Indians born within
the United States).
The United States identifies no founding-era gun law that supports disarming a member of
“the people” based on general public safety concerns rather than the threat of armed rebellion.20
Cf. Kanter, 919 F.3d at 454 (Barrett, J., dissenting) (“The best historical support for a legislative
power to permanently dispossess all felons would be founding-era laws explicitly imposing—or
explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have
not been able to identify any such laws.”). It does, however, contend that two ratification debates
before the Second Amendment’s adoption “confirm the founders’ belief that disarming select
groups for the sake of public safety was compatible with the right to arms[.]” Resp. Opp’n Mot.
Dismiss at 29 (quotation omitted).
First is the Pennsylvania ratification convention minority’s dissent, 21 which argued “[t]hat
the people have a right to bear arms for the defence of themselves . . . unless for crimes committed,
or real danger of public injury from individuals[.]” 2 Bernard Schwarz, The Bill of Rights: A
Documentary History 665 (1971). Second, the government points to a proposed amendment
20
While the United States does maintain that “gun safety regulation was commonplace in the colonies,” Resp. Opp’n
Mot. Dismiss at 28 (quotation omitted), it does not identify any colonial laws that step beyond the fledgling nation’s
interest in protecting itself from armed rebellion. To be sure, some public safety firearm regulations did exist near the
founding—scholarship has identified Revolution-era laws governing the militia, firearms registries, and the storage
of gun powder. See, e.g., Cornell & DeDino, supra, at 505–512 (cataloguing various early American laws). And in
the antebellum era, some states limited the right to concealed carry and imposed time, place, and manner restrictions
on gun use. See id. at 512–16 (same). But these laws have no apparent nexus to § 922(g)(3), which may explain the
government’s decision to argue in generalities rather than cite specific regulations.
21
In Heller, the Supreme Court called this proposal “highly influential[,]” but this was in the context of the Court’s
conclusion that the Second Amendment protects an individual right rather than one tied to militia membership. 554
U.S. at 604.
37
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 37 of 42
suggested by Samuel Adams at the Massachusetts ratification convention urging “that the said
Constitution be never construed to authorize Congress . . . to prevent the people of the United
States, who are peaceable citizens, from keeping their own arms[.]” Id. at 681.
Although these two proposals advocated for a more constrained reading of the Second
Amendment, their historical value is murky. As then-Judge Barrett explained in Kanter, neither
proposal made its way into the Second Amendment—they didn’t even carry a majority of their
conventions. See 919 F.3d at 455 (Barrett, J., dissenting).
What’s more, “proposals from other states that advocated a constitutional right to arms did
not contain similar language of limitation or exclusion.” Id. (citing Don B. Kates, Jr., Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 222
(1983)). And none of the four state constitutions enacted before the Second Amendment’s
ratification that included a provision analogous to the Amendment contained exclusions based on
dangerousness or criminal history. Id. (citing Eugene Volokh, State Constitutional Rights to Keep
and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 208 (2006)). Thus, while these two minority proposals
indicate that some Americans viewed the Second Amendment as implicitly recognizing exceptions
for the violent or the criminal, they do not suggest that this was the prevailing interpretation of the
Amendment’s text.
Taken together, the founding- and antebellum-era sources that the government points to
can be summarized as follows: Laws that disarmed loyalists, Catholics, slaves, and Native
Americans did so largely to prevent armed rebellion. Both slaves and Native Americans arguably
fell outside of “the people,” rendering them unable to restore their right to possess weapons. But
other Americans who were divested of the right to keep and bear arms could regain that right—
usually by swearing a loyalty oath. And finally, while some citizens believed that the Second
38
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 38 of 42
Amendment contains within it a tacit carve-out for criminals and those who pose a threat of
violence, their proposals did not win the day.
This historical tradition bears little resemblance to § 922(g)(3). First, the colonial
regulations serve a different purpose than the challenged statute. Revolution-era jurisdictions
prohibited certain people from owning guns because they feared that those individuals might use
firearms to overthrow the nascent government. Section 922(g)(3), by contrast, seeks to promote
everyday public safety by preventing individuals who might have decreased self-control from
possessing a firearm. Nowhere does the government contend that unlawful users of controlled
substances pose a grave danger to the independence and security of the nation itself. 22
And even if the court finds that the Pennsylvania and Massachusetts minority proposals
meaningfully inform the scope of the Amendment, it is unclear how they support § 922(g)(3)’s
constitutionality. Samuel Adams’s proposed language, which would have limited the Second
Amendment right to “peaceable citizens,” does not suggest that all unlawful drug users should be
disarmed. When the ratification debates took place, “peaceable” meant “[f]ree from war; free from
tumult”; “[q]uiet; undisturbed”; “[n]ot violent; not bloody”; “[n]ot quarrelsome; not turbulent.”
Kanter, 919 F.3d at 455 (Barrett, J., dissenting) (quoting 1 Samuel Johnson, A Dictionary of the
English Language (5th ed. 1773)). And although the Pennsylvania minority’s provision would
divest citizens of Second Amendment protection “for crimes committed, or real danger of public
injury,” Schwartz, supra, at 681, no evidence suggests that the proposal supported the disarmament
22
Although both armed insurrectionists and individuals addicted to drugs may impose a greater threat to public safety
than the average citizen, the former group poses a more existential threat than the latter. This difference matters—if
“dangerousness” is the sole metric, the government would have an arbitrary, near-limitless power to identify a
disfavored group, declare it “dangerous,” and revoke its constitutionally protected rights. Such an exception to the
Second Amendment would swallow the rule. Cf. Range v. Attorney General United States, 69 F.4th 96, 102 (3rd Cir.
2023) (“At root, the Government's claim that only ‘law-abiding, responsible citizens’ are protected by the Second
Amendment devolves authority to legislators to decide whom to exclude from ‘the people.’”).
39
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 39 of 42
of all criminals regardless of proclivity for violence, Kanter, 919 F.3d at 456 (Barrett, J.,
dissenting).
Thus—at best—the historical record suggests that early American history supports a carve-
out for violent individuals. But § 922(g)(3) sweeps much more broadly. Rather than conditioning
an individual’s right to possess firearms on his peacefulness, it allows the government to disarm,
fine, and incarcerate a nonviolent individual based solely on his status as an unlawful drug user.
In both purpose and operation, § 922(g)(3) finds only extremely attenuated support in the
founding-era record. 23 The historical tradition of disarming dangerous individuals, in other words,
is not sufficiently analogous to § 922(g)(3).
***
The government has failed to establish that historical laws regulating the mentally ill, the
intoxicated, or the dangerous are sufficiently analogous to § 922(g)(3). The founding-era laws the
government offers sought to remedy different problems than § 922(g)(3) does, and they did so
through less-restrictive means. Taken together, the historical examples discussed above are not
analogous enough to § 922(g)(3) to establish the statute’s constitutionality. 24 The district court
should therefore grant Alston’s motion to dismiss count two of his indictment.
23
Firearms regulations that bear even a passing resemblance to § 922(g)(3) did not begin to crop up until decades after
the Civil War. Aside from state laws that attempted to disarm newly freed black Americans, many Reconstruction-era
regulations sought to prevent men “begging for charity outside of their home county” (otherwise known as “tramps”)
from carrying firearms in public. Greenlee, supra, at 270 (collecting laws). These laws did not completely disarm their
targets—they still allowed tramps to possess weapons inside their homes (or their home counties). See id. at 270–71.
24
The United States’ argument focused on finding a historical analogue to § 922(g)(3) in pre- and post-enactment
history. But as noted in Bruen, there is another avenue to establishing a law’s constitutionality under the Second
Amendment. The Court explained that it is possible “that a regular course of practice can liquidate and settle the
meaning of disputed or indeterminate terms and phrases in the Constitution.” Bruen, 142 S. Ct. at 2136 (cleaned up).
The theory of constitutional liquidation finds it genesis in James Madison’s observation that “[a]ll new laws, though
penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more
or less obscure and equivocal, until their meaning be liquidated by a series of particular discussions and adjudications.”
The Federalist No. 37, at 236 (James Madison) (Jacob E. Cooke ed., 1961).
40
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 40 of 42
III. Conclusion
While the right to keep and bear arms extends to all members of the political community,
it is not plenary. The government may burden this right, but to do so it must “identify a well-
established and representative historical analogue” that justifies a modern regulation. Bruen, 142
S. Ct. at 2133. The United States has only partially carried its burden—for the reasons discussed
above, the district court should find that § 922(n) passes constitutional muster while § 922(g)(3)
does not. Thus, it should grant Alston’s motion to dismiss (D.E. 17) in part.
The Clerk of Court must serve a copy of this Memorandum and Recommendation
(“M&R”) on each party who has appeared here. Any party may file a written objection to the M&R
within 14 days from the date the Clerk serves it on them. The objection must specifically note the
portion of the M&R that the party objects to and the reasons for their objection. Any other party
may respond to the objection within 14 days from the date the objecting party serves it on them.
The district judge will review the objection and make their own determination about the matter
that is the subject of the objection. If a party does not file a timely written objection, the party will
have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by
the Court of Appeals.
This theory “centered around three things: an indeterminacy, a course of deliberate practice, and settlement.” William
Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 13 (2019). Thus, when the Constitution contains a vague or
ambiguous provision, subsequent congressional practice may help fill the gaps in the provision’s interpretation. See
id. at 13–16. But not all practices can liquidate the meaning of the Constitution. For the doctrine to apply, Congress
must repeatedly and deliberately act in accordance with its interpretation of the provision. Id. at 16–18. And
Congress’s interpretation must be more than just a leading theory—“[s]o long as [congressional] practice was an
ongoing battle between two competing interpretations, even if one had the upper hand in reality, that did not mean
that the course of practice had become binding.” Id. at 18. Instead, Congress’s interpretation must receive so little
pushback (or attain sufficient popular support) that it can be considered settled. See id. at 18–21.
But the United States has neither argued nor shown that it is appropriate to apply that theory here. Nor has it proven
that post-enactment practice was uniform enough to liquidate the meaning of the Second Amendment in its favor.
41
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 41 of 42
Dated:
Dated: July 18, 2023
R OBERT T. NUMBERS, II
______________________________________
U STATES
NITEDT.
Robert M II
AGISTRATE JUDGE
Numbers,
United States Magistrate Judge
42
Case 5:23-cr-00021-FL-RN Document 27 Filed 07/18/23 Page 42 of 42