Bezet v. United States, CIVIL ACTION CASE NO. 16–2545

• Citation: 276 F.Supp.3d 576
• Decision Date: 17 March 2017
• Docket Number: CIVIL ACTION CASE NO. 16–2545
• Parties: Malcolm J. BEZET v. UNITED STATES
• Court: U.S. District Court — Eastern District of Louisiana

276 F.Supp.3d 576

Malcolm J. BEZET

v.UNITED STATES

CIVIL ACTION CASE NO. 16–2545

United States District Court, E.D. Louisiana.

Signed March 17, 2017

Malcolm J. Bezet, New Orleans, LA, pro se.

Gary Daniel Feldon, U.S. Department of Justice, Washington, DC, Peter M. Mansfield, U.S. Attorney's Office, New Orleans, LA, for United States.

SECTION: "G"(1)

ORDER

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

In this litigation, Plaintiff Malcolm Bezet ("Plaintiff"), proceeding pro se , alleges that certain provisions of the Gun Control Act of 1968 ("GCA") and the National Firearms Act ("NFA") are unconstitutional under the Second Amendment, the Necessary and Proper Clause, and the Tenth Amendment.¹ Pending before the Court is Defendant United States of America's ("the Government") "Motion to Dismiss."² Having considered the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant the Government's "Motion to Dismiss."³ Also pending before the Court is Plaintiff's "Motion for Partial Preliminary Injunction."⁴ Because the Court finds that the Government's motion to dismiss should be granted, the Court will deny as moot Plaintiff's motion for a partial preliminary injunction.⁵

I. Background

A. Plaintiff's Complaint

In this litigation, Plaintiff, proceeding pro se , contends that he wants to perform a series of modifications to a semiautomatic pistol he lawfully possesses in order to convert the weapon into a fully automatic, silenced rifle.⁶ However, Plaintiff avers that he is prevented from doing so by certain provisions of the Gun Control Act of 1968 and the National Firearms Act.⁷ With regard to the GCA, Plaintiff argues the following provisions are unconstitutional: (1) 18 U.S.C. § 922(l ), which bans the importation of firearms and ammunition regulated under the GCA unless authorized by the Attorney General; (2) 18 U.S.C. § 922(r), which forbids assembling such weapons from imported parts; and (3) 18 U.S.C. § 922(o ), which makes it unlawful to transfer or possess any machine gun manufactured after May 19, 1986.⁸ With regard to the NFA, Plaintiff contends the following provisions are also unconstitutional: (1) 26 U.S.C. § 5811, which taxes the transfer of such weapons as machine guns, silencers, short barreled rifles, and short barreled shotguns; (2) 26 U.S.C. § 5821, which taxes the making of such weapons; and (3) 26 U.S.C. § 5812, which establishes the registration and application requirements for transfers of such weapons.⁹ Additionally, the Court notes that in his final "prayer for relief" section of his complaint, Plaintiff requests for the first time the additional relief of an injunction against 26 U.S.C. § 5822, which establishes registration and application requirements for the making of such weapons.¹⁰

In sum, Plaintiff argues that these provisions of the GCA and NFA are unconstitutional under the Second Amendment, the Necessary and Proper Clause, and the Tenth Amendment, as they deny him access to weapons that are "part of the ordinary military equipment and whose use could contribute to the common defense of the State of Louisiana or his own personal defense" and because they exceed the scope of Congress's enumerated powers.¹¹ In particular, Plaintiff avers that he is currently in lawful possession of a 5.56x45 caliber semiautomatic pistol (commonly referred to as a "Draco"), which is a derivative of a Romanian AIMR, a "short-barreled rifle" capable of both semiautomatic and automatic fire that is banned from importation by the GCA ( 18 U.S.C. § 922(l ) ).¹² Plaintiff contends that he wishes to restore his semiautomatic pistol to its rifle configuration.¹³ Plaintiff also seeks to add a firearm muffler (referred to under the law as a "silencer") to protect his hearing and a shoulder stock to increase his firearm's long range accuracy.¹⁴

However, Plaintiff argues that to legally add a stock and silencer to his weapon, he must: (1) register both the short-barreled rifle and silencer with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"); (2) pay a $200 tax on each pursuant to NFA ( 26 U.S.C. § 5811 ); and (3) replace key parts of the Draco pistol with American-made parts to comply with the GCA ( 18 U.S.C. § 922(r) ).¹⁵ Additionally, Plaintiff seeks to restore his Draco pistol to a fully automatic AIMR configuration, but avers that, because it was manufactured after May 19, 1986, the GCA prohibits him from doing so ( 18 U.S.C. § 922(o ) ).¹⁶ Plaintiff further avers that the GCA also prohibits him from importing certain types of weapons, e.g. , machine guns and selective fire military assault rifles, or assembling them from imported parts unless authorized by the Attorney General.¹⁷ Plaintiff represents that failing to comply with these provisions in the GCA or NFA would subject him, upon conviction, to imprisonment for up to ten years and/or fines of up to $10,000.¹⁸

Plaintiff seeks a permanent injunction against these provisions of the GCA and NFA.¹⁹ Plaintiff asserts that, pursuant to District of Columbia v. Heller ,²⁰ the Second Amendment confers an individual right to keep and bear arms capable of contributing to the common defense of the states and an individual's self-defense.²¹ Plaintiff argues that this right, "[a]t a minimum," encompasses the small arms that "compose ordinary military equipment, including machine guns, fully automatic assault rifles, semi-automatic assault rifles, short-barreled rifles, short-barreled shotguns, pistols, and firearm silencers."²² Additionally, Plaintiff alleges that the GCA and NFA violate the Tenth Amendment²³ and exceed the United States' powers under the Necessary and Proper Clause, as the sale, transfer, and possession of firearms are wholly intrastate commerce, and thus may only be regulated by the states.²⁴ Accordingly, Plaintiff asserts six causes of action seeking permanent injunctive relief against provisions of the GCA and NFA.²⁵

B. Procedural History

On March 29, 2016, Plaintiff filed a complaint in this matter.²⁶ On June 24, 2016, the Government filed the instant motion to dismiss.²⁷ On July 5, 2016, Plaintiff filed an opposition.²⁸ With leave of Court, the Government filed a reply on July 22, 2016.²⁹ On July 28, 2016, with leave of Court, Plaintiff filed a sur-reply.³⁰ On July 26, 2016, Plaintiff filed a motion for a partial preliminary injunction.³¹ On August 9, 2016, the Government filed an opposition.³²

II. Parties' Arguments

A. Defendant's Arguments in Support of the Motion to Dismiss

In this motion, the Government asserts that Plaintiff's claims should be dismissed because: (1) Plaintiff lacks standing to assert three of his six claims pursuant to Federal Rule of Civil Procedure 12(b)(1) ; and (2) Plaintiff has failed to state any claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).³³

1. Whether Plaintiff Lacks Standing to Assert Three of His Six Claims

The Government asserts that Plaintiff lacks standing to assert three of his six claims.³⁴ First, the Government argues that Plaintiff cannot show injury-in-fact for his challenge to the NFA under 26 U.S.C. §§ 5811, 5812.³⁵ The Government avers that Plaintiff is challenging portions of the NFA that require individuals who wish to transfer a firearm to register the transfer and pay a tax.³⁶ The Government argues, however, that Plaintiff does not allege he wishes to transfer a firearm, but instead wants to have a firearm transferred to him.³⁷ According to the Government, the NFA does not require the transferee to register the firearm transfer or pay the tax, and Plaintiff has not alleged otherwise.³⁸ Moreover, the Government points out that Plaintiff has not alleged that the requirements on transferors would affect him as a potential transferee.³⁹ Thus, the Government contends that because Plaintiff has not alleged injury-in-fact with regard to the registration and tax requirements of the NFA (28 U.S.C. §§ 5811, 5812), his claims should be dismissed for lack of standing.⁴⁰

Second, the Government avers that Plaintiff cannot show redressability or traceability on his claims seeking to invalidate provisions of the Gun Control Act of 1968 ("GCA") banning possession of a fully automatic weapon (commonly referred to as a "machine gun") because Louisiana law also bars him from having one.⁴¹ The Government asserts that traceability is present when a plaintiff's injury-in-fact is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court."⁴² The Government also contends that redressability requires that it "be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."⁴³ The Government argues that neither standing requirements of traceability or redressability are met because Louisiana law also bans machine guns.⁴⁴ The Government points to Hollis v. Lynch , a Northern District of Texas case that held that a plaintiff lacked standing to challenge the NFA and GCA when Texas state law independently prohibited the plaintiff from manufacturing a machine gun as well.⁴⁵ Likewise, the Government asserts that the Supreme Court has also held that a plaintiff lacks standing when similar limitations imposed by state law would remain unchanged even if the plaintiff were to receive a favorable ruling.⁴⁶

2. Whether All Six of Plaintiff's Claims Should be Dismissed Under Rule 12(b)(6)

Next, the Government alleges that all six of Plaintiff's claims under the Second Amendment, Necessary and Proper Clause, and Tenth Amendment fail because the NFA and GCA do not infringe on the Second Amendment, and because Congress acted within its proper authority when it passed the two statutes.⁴⁷

a. Plaintiff's Claims under the Second Amendment

According to the Government, the Fifth Circuit applies a two-step analysis developed in NRA v. Bureau of Alcohol, Tobacco, Firearms & Explosives to determine whether a law...