U.S. v. Luedtke

• Decision Date: 18 November 2008
• Docket Number: No. 08-CR-189.,08-CR-189.
• Citation: 589 F.Supp.2d 1018
• Parties: UNITED STATES of America, Plaintiff, v. Kenneth LUEDTKE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

589 F.Supp.2d 1018

UNITED STATES of America, Plaintiff, v. Kenneth LUEDTKE, Defendant.

No. 08-CR-189.

United States District Court, E.D. Wisconsin.

November 18, 2008.

Bridget J. Domaszek, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

The government charged defendant Kenneth Luedtke with possessing firearms and ammunition while subject to a domestic violence injunction issued by a Wisconsin court, contrary to 18 U.S.C. § 922(g)(8). Defendant moved to dismiss the indictment, arguing that § 922(g)(8) violates the Second Amendment. The magistrate judge handling pre-trial matters in this case recommended that the motion be denied. Defendant objects, requiring me to consider the motion de novo. Fed.R.Crim.P. 59(b)(3).¹

I.

The Second Amendment to the United States 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." U.S. Const. amend. II. In District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court rejected the proposition that the Amendment protects only the right to possess firearms in connection with militia service. Instead, the Court endorsed an individual right to possess certain weapons for self-defense in the home. Id. at 2797. Based on this interpretation of the Amendment, the Court struck down the District of Columbia's virtual ban on the possession of handguns. Id. at 2817-22.

Not surprisingly, defendants have seized upon Heller to mount various challenges to federal prosecutions for firearm possession, thus far without success. See, e.g., United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir.2008) (rejecting Heller challenge to ban on machine gun possession); United States v. Borgo, No. 1:08CR81, 2008 WL 4631422, at *2 (W.D.N.C. Oct.17, 2008) (rejecting Heller challenge to § 922(g)(1)); United States v. White, No. 07-00361, 2008 WL 3211298, at *1 (S.D.Ala. Aug.6, 2008) (collecting cases rejecting various challenges to § 922(g)); United States v. Yancey, No. 08-CR-103, 2008 WL 4534201, at *1 (W.D.Wis. Oct.3, 2008) (collecting cases); United States v. Whisnant, No. 3:07-CR-32, 2008 WL 4500118, at *1 (E.D.Tenn. Sept.30, 2008) (collecting cases); United States v. Robinson, No. 07-CR-202, 2008 WL 2937742, at *2 (E.D.Wis. July 23, 2008) (collecting cases). Courts have generally relied upon the following language in Heller suggesting that many federal firearm regulations remain constitutional:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

...

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 2799 & 2816-17 (internal citations omitted).

In the present case, defendant is charged with a violation of § 922(g)(8), which makes unlawful the possession of a firearm or ammunition by one:

who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]

18 U.S.C. § 922(g)(8). Congress enacted § 922(g)(8)—and a companion provision prohibiting possession of firearms by those convicted of misdemeanor crimes of domestic violence, § 922(g)(9)—in 1996 as part of the so-called Lautenberg Amendment to the Gun Control Act. United States v. Carr, 513 F.3d 1164, 1168 (9th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 54, 172 L.Ed.2d 56 (2008); United States v. Barnes, 295 F.3d 1354, 1364 (D.C.Cir. 2002); Gillespie v. City of Indianapolis, 185 F.3d 693, 697-98 (7th Cir.1999). The issue before me is whether § 922(g)(8) constitutes one of those permissible limitations on individual rights under the Second Amendment.

II.

It is true that the Lautenberg Amendment does not represent a "longstanding prohibition[] on the possession of firearms," but nothing in Heller suggests that the Court intended to permit only those precise regulations accepted at the founding.² Rather, the Court's examples are best understood as representing the types of regulations that pass constitutional muster. See United States v. Booker, 570 F.Supp.2d 161, 163 (D.Me.2008) ("A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of `longstanding prohibitions' that survive Second Amendment scrutiny."). Sections 922(g)(8) and (9) are regulations of a type traditionally permitted in this nation.

Laws barring felons and the mentally ill from access to weapons have historically been based on the societal determination that such individuals pose a particular danger. See, e.g., United States v. Lewis, 249 F.3d 793, 796 (8th Cir.2001) (citing Barrett v. United States, 423 U.S. 212, 218-21, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); Huddleston v. United States, 415 U.S. 814, 824-25, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974)). Such prohibitions on firearm possession by the potentially dangerous or unstable have deep roots in our history. In the classical republican political philosophy ascendant at the founding, the concept of a right to arms was tied to that of the "virtuous citizen." Consistent with this emphasis on the virtuous citizen was that the right to arms did not preclude laws disarming the "unvirtuous" (i.e., criminals) or those who, like children or the mentally unbalanced, were deemed "incapable of virtue." Thus, felons, children and the insane were excluded from the right to arms. Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L.Rev. 461, 480 (1995) (citing Don B. Kates Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986)).

The Gun Control Act of 1968 carried on this tradition. As Congressman Celler, the House Manager of the Act, stated:

[W]e are convinced that a strengthened system can significantly contribute to reducing the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons.

Lewis, 249 F.3d at 796 (quoting 114 Cong. Rec. 21784 (daily ed. July 17, 1968)); see also Barrett, 423 U.S. at 220, 96 S.Ct. 498 ("The history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons."); Huddleston, 415 U.S. at 824, 94 S.Ct. 1262 ("The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping `firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.'") (quoting S.Rep. No. 1501, at 22 (1968), as reprinted in 1968 U.S.C.C.A.N. 4410).

Sections 922(g)(8) and (9) serve the same purpose. As Senator Lautenberg explained:

Under current Federal law, it is illegal for persons convicted of felonies to possess firearms, yet, many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies. At the end of the day, due to outdated laws or thinking, perhaps after a plea bargain, they are, at most, convicted of a misdemeanor. In fact, most of those who commit family violence are never even prosecuted. But when they are, one-third of the cases that would be considered felonies, if committed by strangers, are instead filed as misdemeanors. The fact is that in many places domestic violence is not taken as seriously as other forms of brutal behavior. Often acts of serious spouse abuse are not even considered felonies.

...

There is no reason for [people] who beat[ ] their wives or abuse[ ] their children to own a gun ... This amendment would close this dangerous loophole and keep guns away from violent individuals who threaten their own families, people who have shown that they cannot control themselves and are prone to fits of violent rage directed, unbelievable enough, against their own loved ones. The amendment says: Abuse your wife, lose your gun; beat your child, lose your gun; assault your ex-wife, lose your gun; no ifs, ands, or buts.

United States v. Smith, 964 F.Supp. 286, 292-93 (N.D.Iowa 1997) (quoting 142 Cong. Rec. S10377-01 (daily ed. May...