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November 12, 2022

New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges (see posts here are here).  I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 USC § 922(g)(1) and the federal drug-user-in-possession statute, 18 USC § 922(g)(3).  Interestingly, as detailed in prior posts here and here, a few district courts have already declared other parts of § 922 unconstitutional.  And this past week a new opinion adds § 922(g)(8) to the post-Bruen carnage.

Title 18 USC § 922(g)(8) makes it a federal crime for any person to possess a firearm while subject to a domstic violence restraining order.  In his opinion in US v. Perez-Gallan, No. PE:22-CR-00427-DC (SD Texas Nov. 10, 2022) (available here), US District Judge David Counts works through Bruen analysis to conclude "that § 922(g)(8) is unconstitutional under Bruen's framework." The opinion is 30+ pages long, and it starts and ends this way:

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods.  A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth.  Firearm regulations are that overgrowth.  Starting with the Federal Firearms Act in 1938, laws were passed with little — if any — consideration given to their constitutionality.  That is, until the Supreme Court intervened in Bruen.

No longer can lower courts account for public policy interests, historical analysis being the only tool.  But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot.  And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw....

How strictly or flexibly a court reads Bruen impacts its conclusion.  Bruen’s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry.  According to Bruen, that can be this Court’s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.

That said, this Court embraces Bruen’s charge.  Thus, after sifting through the history above, this Court finds that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen.  As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen’s framework.

Some prior recent related posts:

November 12, 2022 at 11:55 AM | Permalink


It's good to see these federal judges following Bruen. In New York, the state judges have totally rebelled against Bruen and refuse to even apply its historical-analogue test. Nothing has changed there, all firearm prosecutions have proceeded as though Bruen was never decided.

Posted by: Avi | Nov 12, 2022 8:04:26 PM

If these kind of opinions continue, the Feds will have to release a bunch of people from prison and may even have to financially compensate some of them. Depending on view of the retroactive effect, some defendants who have already served their entire sentences may now have a basis for filing for Writs of Error Coram Nobis, since it is now clear that they were convicted and sentenced under an unConstitutional statute.
I think 18 U.S.C. section 922(g)(9), possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, is also Constitutionally vulnerable after Bruen. A pet peeve that I have long had about this statute is that the DOJ has refused to promulgate state-by-state lists of which state crimes actually constitute "crimes of domestic violence". Here in Kentucky, criminal defense lawyers had long taken the possession that "harassment with contact" is not a crime of domestic violence, and attorneys would frequently try to plea bargain down to that crime from misdemeanor 4th degree assault, which plainly is a crime of domestic violence. Then, our local Sheriff, Kathy Witt (longest serving female Sheriff in America) refused to return a man's 11 guns (confiscated when he became subject to a DVO) after his domestic violence case was dismissed by the man's former girl friend. The Sheriff took the position that "harassment with contact" is a crime of domestic violence. The defendant sued Sheriff Witt in Federal Court under section 1983, seeking return of his guns, but a District Judge dismissed his lawsuit, holding that section 1983 is not aa proper vehicle for seeking return of guns allegedly illegally retained by the Sheriff under section 922(g). And who knows the correct answer, since DOJ refuses to promulgate state-by-state lists of which state crimes are crimes of domestic violence that disqualify a man from buying a gun under the Federal statute. That failure has never seemed fair to me. People are not properly put on notice about what conduct might violate the statute.

Posted by: Jim Gormley | Nov 14, 2022 10:59:41 AM

Jim Gormley --

I'll bet you $250 that SCOTUS will not strike down the present federal FIP ban. Are we on?

Posted by: Bill Otis | Nov 14, 2022 6:55:52 PM

Jim, it would appear Bill wants to bet that the current SCOTUS Justices are more likely to vote their gun control policy preferences rather adhere to their claimed commitment to textualism and originalism in application of the Second Amendment. I think you would be wise not to bet that the Justices will not just vote their gun control policy preferences (and their other policy preferences, for that matter).

Posted by: Doug B | Nov 15, 2022 4:55:36 PM

Doug --

Well golly. When the Court votes for the defense, it's following textualism and originalism (GOOOOOOOOOOOOOOD)!! When it votes for the prosecution, it's following mere policy preferences (BAAAAAAAAAAAAAAAAAAD)!!

This has become your regular line. But perhaps I should ask: Did the Third Circuit in the opinion you posted today also do the BAAAAAAAAAAAAAAAAD thing by following merely its policy preferences rather than the law? Is what we have here a vast right-wing conspiracy??

P.S. Unrelated but I'm curious: Is the Moritz College of Law going to follow its policy preferences against white and Asian applicants a la' your law alma mater by withdrawing from the USN&WR rankings because they're based in part on the LSAT rather than racial rigging?

Posted by: Bill Otis | Nov 17, 2022 11:02:42 AM

Bill, when the Supreme Court says lower courts should to apply textualism and originalism to a provision, the rule of law calls for lower courts to do that even if they do not like the outcome. And because the text and history of our Constitution are quite defendant-friendly, faithfully applying textualism and originalism ought to often lead to limits on state power. The Apprendi/Blakely Sixth Amendment line of cases is one good example from the last few decades (both of state-power-limiting outcomes and lower courts seemingly not eager to reach those outcomes). I recall you disagree with the Sixth Amendment jurisprudence of Justices Scalia and Thomas, but I do not recall you ever providing an originalist critique. I just surmise that their originalist reading of the Sixth Amendment is contrary to your policy preferences. Am I wrong in that assessment? (Note, I have written repeatedly -- and still strongly believe -- that the actual text of the Constitution suggests the jury trial right only extends to offense facts, not offender facts, but that's a different quibble and based on textualism.)

Second Amendment jurisprudence would seem to be another area in which textualism and originalism ought to often lead to limits on state power. But, likely in part because you and many other elites have a very strong policy preference for various forms of gun control, Second Amendment jurisprudence after Heller evolved to impact very few existing gun control laws because lower courts focused on concerns other than textualism and originalism. But Bruen now says courts have to focus on textualism and originalism, and I am not at all surprised that this has already led to a series of new rulings that strike down some very broad federal gun control prohibitions.

That said, I do think there can be fair debates over the history concerning a variety of modern gun control measures, and the Third Circuit panel in Range makes an interesting case for upholding FIP laws after Bruen. But the panel reads history to give "legislatures ... both authority and broad discretion to determine when individuals’ status or conduct evinced such a threat sufficient to warrant disarmament." Slip op. at 41-42. Reading the history so broadly would seem to allow a state legislature now to disarm all men under 35 (since men under 35 commit roughly 90% of all serious crimes) AND/OR to disarm anyone who ever got a speeding ticket for not being entirely law-abiding.

Perhaps that is a fair reading of history, but it seems to me more in keeping with a policy preference for deference to legislative gun control efforts than a sound accounting of how the Framing era understood the command that "the right of the people to keep and bear Arms shall not be infringed." (Interestingly, the Range panel never actually quotes the Second Amendment's "shall not be infringed" language. That seems a telling indication that a particular goal, not an interpretation of text, was driving this panel.)

PS: Decisions about OSU Moritz College of Law sharing of data with US News are above my pay grade.

Posted by: Doug B. | Nov 17, 2022 12:40:44 PM

Great to see Bruen is hard at work reshaping the standards in which the Second Amendment is discarded. Most recently, in United States v. Daniels, 610 F. Supp. 3d 892 (S.D. Miss. 2022) which was also guided by Bruen invalidated a conviction. Best to everyone here, Darren Chaker

Posted by: Darren Chaker | Aug 18, 2023 9:06:15 AM

In this case https://oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2014-2485&cmid=2734460
municipal police without subject matter jurisdiction fabricated a violation of 18 USC 922g8 in a search warrant affidavit. The state magistrate, also without subject matter jurisdiction authorized an illegal search and seizure. Municipal police executed the illegal search and seizure and the district attorney without subject matter jurisdiction prosecuted the fabricated violation of 18 USC 922g8 or in the alternative prosecuted a fabricated violation of state law that doesn't exist.
A wrongful conviction of a felony, federal or state, is a nullity. If through procedural means one is barred from appeal the federal courts may revisit the procedural bar for the indictment of federal firearm firearm prohibition or through the malicious prosecution by the state of firearm prohibition based on a previous wrongful conviction. A wrongful conviction is essentially fraud upon the court and a conviction gained through fraud is a nullity.

Posted by: Clint Patrick | Aug 28, 2023 12:10:05 PM

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