Ninth Circuit panel rejects claim that Bruen precludes guideline sentence enhancement for gun possession

I already have blogged a bit about various ways the Supreme Court's landmark Second Amendment ruling in Bruen raises all sort of new and challenging questions about the enforcement of various federal criminal statutory provision (and I expect to be blogging more and more on these topics as the issues divide appeals courts).  But yesterday, a Ninth Circuit panel directly considered (and quickly rejected) a claim that Bruen precludes application of a federal sentencing enhancement under the guidelines for possessing a firearm in conjunction with a federal drug offense. Here is how the ruling in US v. Alaniz, No. 22-30141 (9th Cir. June 13, 2023) (available here), gets started:

This case requires us to consider whether United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1), which provides for an enhancement of the Guidelines calculation if a defendant possessed a dangerous weapon at the time of a felony drug offense, is constitutional under the Second Amendment following New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We conclude that, in light of a well-established historical tradition of regulation, Miguel Michael Alaniz did not have the right to “keep and bear arms” during and in close proximity to his criminal activities.

And here is part of the substance of the opinion (with footnoted omittes):

The government offers on appeal a number of founding-era statutes to prove a historical tradition of sentencing enhancements tied to firearm possession.  We conclude that this historical tradition is well-established.  Notably, several States enacted laws throughout the 1800s that increased the severity of punishment for certain felonies when weapons were possessed, but not necessarily used, during the commission of the crime.  See, e.g., Commonwealth v. Hope, 39 Mass. (22 Pick.) 1, 9–10 (1839) (analyzing an 1805 statute that aggravated burglary to the first degree when a defendant possessed a weapon); People v. Fellinger, 24 How. Pr. 341, 342 (N.Y. Gen. Term 1862) (same); State v. Tutt, 63 Mo. 595, 599 (1876) (same); United States v. Bernard, 24 F. Cas. 1131, 1131 (C.C.D.N.J. 1819) (discussing a New Jersey statute that punished the possession and exhibition of a firearm during the robbery of a postal worker). Indeed, Bruen itself confirms that the right to keep and bear arms was understood at the Founding to be limited where there was a likelihood of a breach of peace.  See 142 S. Ct. at 2144–46 (citing Simpson v. State, 13 Tenn. 356, 358–61 (1833); State v. Huntly, 25 N.C. 418, 421–23 (1843) (per curiam); O’Neil v. State, 16 Ala. 65, 67 (1849)).

Alaniz argues that the government cannot satisfy the step two inquiry because its analogues are not sufficiently similar to U.S.S.G. § 2D1.1(b)(1).  He asserts that in the government’s examples, possession was an element of the offense and therefore required proof beyond a reasonable doubt. He also contends that felony drug trafficking presents the same “perceived societal problem,” as did smuggling crimes in the founding era, thus, in his view, requiring the government to present a “distinctly similar” historical analogue. Id. at 2131.

Alaniz’s argument, however, is divorced from both reality and the law. Illegal drug trafficking is a largely modern crime. It is animated by unprecedented contemporary concerns regarding drug abuse and is not closely analogous to founding-era smuggling crimes, which primarily focused on punishing importers who evaded customs duties.  See Gonzales v. Raich, 545 U.S. 1, 10–13 (2005); see also Margarita Mercado Echegaray, Note, Drug Prohibition in America: Federal Drug Policy and Its Consequences, 75 Rev. Jur. U. P.R. 1215, 1219 (2006); Aaron T. Knapp, From Empire to Law: Customs Collection in the American Founding, 43 Law & Soc. Inquiry 554, 56566 (2018) (describing the Collection Act of 1789 that created “a customs collection regime” that aimed to “prevent fraud and evasion” through “punishing wrongdoing”).  And Bruen expressly recognized that “cases implicating unprecedented societal concerns,” like the one here, “may require a more nuanced approach.” 142 S. Ct. at 2132.