U.S. & People v. Lewis
| Decision Date | 24 December 2008 |
| Docket Number | Criminal No. 2008–45. |
| Parties | UNITED STATES of America and the People of the Virgin Islands, Plaintiffs, v. Glen LEWIS a/k/a Glenndon Lewis, Defendant. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
Everard E. Potter, AUSA, St. Thomas, U.S.V.I., for the plaintiffs.
Jesse A. Gessin, AFPD, St. Thomas, U.S.V.I., for the defendant.
Before the Court is the motion of the defendant, Glen Lewis a/k/a Glenndon Lewis (“Lewis”), to dismiss the indictment.
Lewis was charged in September, 2008 in a two-count indictment. Count One charges Lewis with possession of a firearm that has moved in interstate commerce, within 1,000 feet of a place Lewis knew and had reasonable cause to believe was a school zone, in violation of 18 U.S.C. § 922(q)(2)(A) ( “Section 922(q)(2)(A)”) 1. Count Two charges Lewis with unauthorized possession of a firearm, in violation of V.I. Code Ann. tit. 14 § 2253(a) ( “ Section 2253(a)”) 2.
Lewis seeks dismissal of both counts in the indictment on the basis of the Second Amendment and the Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Lewis's argument is limited to his claim that Section 922(q)(2)(A) and Section 2253(a) are unconstitutional because they place “unreasonable restrictions upon possession of a firearm.” (Def.'s Mot. to Dismiss 2.)
The Second Amendment of the Constitution 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.
The import of the Second Amendment has long been a subject of fierce debate. That debate has been largely between advocates of the individual rights theory and the collective rights theory. According to the former, the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia. According to the latter, the Second Amendment protects only a right of the various state governments to preserve and arm their militias. In District of Columbia v. Heller, the United States Supreme Court settled that debate in favor of the individual rights theory.
The plaintiff in District of Columbia v. Heller was a District of Columbia special police officer who was authorized to carry a firearm while on duty. The plaintiff applied to the District of Columbia for a license to keep his firearm in his home. The District of Columbia rejected the plaintiff's application on the basis of local statutes that provided as follows:
It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1–year periods. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, unloaded and dissembled or bound by a trigger lock or similar device unless they are located in a place of business or are being used for lawful recreational activities.
Heller, 128 S.Ct. at 2817 (internal quotation marks and citations omitted). The plaintiff challenged the constitutionality of these statutes.
The Supreme Court agreed that those statutes violated the plaintiff's constitutional rights, holding that the District of Columbia's
ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that [the plaintiff] is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
Heller, 128 S.Ct. at 2821–22. The Court concluded that the Second Amendment confers an “individual right to possess and carry weapons in case of confrontation,” id. at 2797, but made clear that this right “is not unlimited.” Id. at 2816. Specifically, the Court observed:
From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our 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 2816–17 (internal citations omitted). In a footnote, the Court noted that it “identif[ied] these presumptively lawful regulatory measures only as examples” and that its “list does not purport to be exhaustive.” Id. at 2817 n. 26.
In Heller, the Court did not direct the lower courts to apply any one of the “traditionally expressed levels” of scrutiny in determining whether a regulation runs afoul of the Second Amendment. Id. at 2821. Such an undertaking was unnecessary in Heller because the law under consideration in that case would have been unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights[.]” Id. at 2817. The Court was not entirely silent on this point, however. The Court listed the traditional levels of scrutiny it has applied in other cases involving constitutional challenges to statutory regulations: “strict scrutiny, intermediate scrutiny, rational basis.” Id. at 2821. The Court also noted that the District of Columbia law, at the very least, “would pass rational-basis scrutiny.” Id. at 2817 n. 27.3
With respect to Count One of the indictment, this Court need not decide today what level of scrutiny should apply to post- Heller challenges to Section 922(q)(2)(A). As noted in the passage from Heller quoted above, the Supreme Court expressly held up prohibitions on firearms “in sensitive places such as schools” as an example of a lawful regulation. Id. at 2816–17. It is beyond peradventure that a school zone, where Lewis is alleged to have possessed a firearm, is precisely the type of location of which Heller spoke. Indeed, Heller unambiguously forecloses a Second Amendment challenge to that offense under any level of scrutiny. Lewis's motion will therefore be denied with respect to Count One.
The Court must assess Count Two's Section 2253(a) charge against a different backdrop because Heller declined to address the District of Columbia's licensing requirement. 128 S.Ct. at 2819. To properly consider the effect, if any, of the Second Amendment on Section 2253(a), the Court will first address the reach of the Second Amendment.
In various pre- Heller cases, the Supreme Court held that the Second Amendment constrains only the federal government and therefore does not apply to the states. See, e.g., Twining v. New Jersey, 211 U.S. 78, 98, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Maxwell v. Dow, 176 U.S. 581, 597, 20 S.Ct. 448, 44 L.Ed. 597 (1900); Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894); Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615 (1886) (); United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876) ().
Although the Supreme Court's holdings on this issue are more than one century old, they have been cited by several federal courts of appeal for the proposition that the Second Amendment has not been incorporated through the Fourteenth Amendment and therefore does not apply to the states. See, e.g., Bach v. Pataki, 408 F.3d 75, 84 (2d Cir.2005) () (footnote omitted); Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 538 n. 18 (6th Cir.1998); Love v. Pepersack, 47 F.3d 120, 123 (4th Cir.1995); Fresno Rifle and Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723, 731 (9th Cir.1992); Thomas v. Members of the City Council of Portland, 730 F.2d 41, 42 (1st Cir.1984) (per curiam); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir.1982).
State courts have likewise found that state legislative action is not restricted by the Second Amendment. See, e.g., State v. Mendoza, 82 Hawai‘i 143, 920 P.2d 357, 360 (Haw.1996) () (citation omitted); People v. Swint, 225 Mich.App. 353, 572 N.W.2d 666, 669 (Mich.Ct.App.1997) (); State v. Friel, 508 A.2d 123, 125 (Me.1986) (citations omitted); Demyan v. Monroe, 108 A.D.2d 1004, 1005, 485 N.Y.S.2d 152 (N.Y.App.Div.1985); Burton v. Sills, 99 N.J.Super. 516, 240 A.2d 462, 468 (N.J.Super. Ct. Law Div.1967) ().
In Heller, the Supreme Court noted its previous holdings that the Second Amendment has not been incorporated through the Fourteenth Amendment and thus is inapplicable to the states. 128 S.Ct. at 2813 n. 23 (...
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