United States v. Chisholm
| Docket Number | 23-CR-200 (NSR) |
| Decision Date | 18 January 2024 |
| Parties | UNITED STATES OF AMERICA, v. MATTHEW CHISHOLM, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Defendant Matthew Chisholm (“Defendant”) was charged by Complaint on December 16, 2022, with unlawful possession of ammunition after a felony conviction in violation of 18 U.S.C. § 922(g)(1) and arrested on December 20, 2022. (See ECF Nos. 1, 3.) On April 17, 2023, a grand jury in this District returned a one-count Indictment with the same charge. (ECF No. 13.) On November 8, 2023, Defendant filed a motion to dismiss (the “Motion”) the Indictment pursuant to Federal Rules of Criminal Procedure 12 challenging the constitutionality of 18 U.S.C. § 922(g)(1). (ECF No. 23.) For the following reasons Defendant's motion to dismiss is DENIED.
On or about December 7, 2022, at approximately 9:05 a.m., the Defendant went to visit his mother at a hospital in New Rochelle, New York, with a black suitcase (the “Suitcase”) and a brown backpack (the “Backpack”) attached to the handle of the Suitcase. (ECF No. 1, Complaint (“Compl.”) ¶ 3a.) After signing in at the front desk, the Defendant proceeded to his mother's hospital room. (Id.) Approximately two and a half hours later, he left the hospital, but did not bring the Suitcase or Backpack with him. (Id. ¶ 3b.)
Around the same time that the Defendant was leaving the hospital nurses on the third floor told a security guard (“Security Guard-1”) that, while the Defendant was on the third floor, he was yelling and cursing. (Id. ¶ 3c.) The nurses also told Security Guard-1 that two other individuals overheard heard him say he would shoot up the hospital. (Id.) One of the nurses saw the Suitcase and Backpack had been left in the room Defendant had visited. (Id. ¶ 3d.) Security Guard-1 opened the Suitcase and identified a red bag that contained a dismantled handgun and live rounds of ammunition. (Id.)
On November 8, 2023, Defendant filed the instant Motion on grounds that the Second Amendment of the United States Constitution renders 18 U.S.C. § 922(g)(1) facially unconstitutional. (See “Defendant's Memorandum of Law” or “MOL”, ECF No. 24.) The Government filed an opposition brief (“Opposition” or “Opp.”) on December 2, 2023 (ECF No. 25), and the Defendant replied (“Reply”) on December 21, 2023 (ECF No. 26).
The Second Amendment to the Constitution of the United States 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. Throughout its modern Second Amendment jurisprudence, the Supreme Court has consistently limited its recognition of Second Amendment rights to “law-abiding citizens” and has noted its approval for felon-in-possession laws. In District of Columbia v. Heller, for example, the Supreme Court struck down the District of Columbia's “ban on handgun possession in the home” and “its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” 554 U.S. 570, 635 (2008). In doing so, the Supreme Court recognized the core of the Second Amendment as “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. (emphasis added). The Heller Court made clear “the right secured by the Second Amendment is not unlimited” and that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626; see also id. at 626-27 n.26 (characterizing the felon-in-possession law as a “presumptively lawful regulatory measure[ ]”).
Two years later, in McDonald v. City of Chicago, the Supreme Court held that the Second Amendment right to possess handguns in the home for the purpose of self-defense is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation's history and tradition.” 561 U.S. 742, 757 (2010) (internal quotation marks and emphasis omitted). In so holding, a plurality of the Supreme Court “repeat[ed Heller's] assurances' that “our holding d[oes] not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons.” Id. at 786 (internal quotation marks omitted).
In 2022, the Supreme Court rejected the “means-end scrutiny” framework that many courts of appeal had previously utilized in adjudicating Second Amendment challenges. N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen. 142 S.Ct. 2111, 2128-29. Once again, the Supreme Court clarified that its latest decision did not undermine Heller or McDonald because neither “support[ed] applying means-end scrutiny in the Second Amendment context.” Id. at 2127; see also id. at 2122 (); United States, v. Gonzalez, No. 1:23-CR-18-MKV, 2024 WL 96517, at *4 (S.D.N.Y. Jan. 9, 2024) () (quoting United States v. King, 634 F.Supp.3d 76, 83 (S.D.N.Y. 2022)).
Unlike Heller and McDonald, Bruen did not include an explicit endorsement of felon-inpossession laws, but it did acknowledge that the right to keep and bear arms is “subject to certain reasonable, well-defined restrictions.” Id. at 2156. In particular, while the Court in Bruen recognized “an individual's right to carry a handgun for self-defense outside the home,” id. at 2122, it consistently characterized the holders of the right as “law-abiding” citizens. See id. (“recogniz[ing] that the Second and Fourteenth Amendments protect the right of an ordinary, lawabiding citizen to possess a handgun in the home for self-defense” and “agree[ing]” with both parties that “ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense”); id. at 2124-25 (); id. at 2131 (); id. at 2133 (); id. at 2134 (); id. at 2138 (); id. at 2156 (). Accordingly, Bruen preserved the constitutionality of felon-in-possession prohibitions as articulated in Heller and McDonald.
In the instant Motion, the Defendant argues that, in light of Bruen, 18 U.S.C. Section 922(g)(1), which makes it unlawful for any person convicted of a felony to possess a firearm or ammunition, is facially unconstitutional. To make this argument, Defendant urges the Court to set aside Heller and McDonald's guidance regarding felon-in-possession laws on the grounds that such statements are mere “dicta”. (See MOL at 16-17; Reply at 3-5.) But even if such authority were dicta “it does not at all follow that this Court can cavalierly disregard it.” United States v. Hampton, No. S2 21 CR. 766 (JPC), 2023 WL 3934546, at *12 (S.D.N.Y. June 9, 2023) (quoting Cornwell v. Credit Suisse Grp., 729 F.Supp.2d 620, 625 (S.D.N.Y. 2010)); see also United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975) (“While...dictum is not binding upon us, it must be given considerable weight and can not [sic] be ignored in the resolution of the close question we have to decide.”). Moreover, six of the nine Justices on the Bruen Court authored or joined separate opinions which, among other things, noted that Bruen does not disrupt or abrogate Heller and McDonald's endorsements of felon-in-possession laws. Justice Alito, for example, “reiterate[d]” that “[a]ll that we decide in this case is that the Second Amendment protects the right of lawabiding people to carry a gun outside the home for self-defense and that the Sullivan Law ... is unconstitutional,” but that the Court's holding does not “disturb[ ] anything that we said in Heller or McDonald ... about restrictions that may be imposed on the possession or carrying of guns.” Id. at 2157, 2159 (Alito, J., concurring). Similarly, in a concurring opinion joined by Chief Justice Roberts, Justice Kavanaugh noted that when “[p]roperly interpreted, the Second Amendment allows a ‘variety' of gun regulations,” including limitations on the possession of firearms by felons. Id. at 2162 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 636, 128 S.Ct. 2783). The three dissenting Justices also noted that they “understood] the Court's opinion today to cast no doubt on th[e] aspect of Heller's holding” that felon-in-possession laws are “presumptively lawful.” Id. at 2189 (Breyer, J., joined by Sotomayor and Kagan, JJ., dissenting).
Furthermore even if the statements from Heller and McDonald might be considered dicta, “the Second Circuit has turned what [the Defendant] characterizes as ‘dicta' in Heller and McDonald into binding precedent.” United States v. Hampton, No. S2 21 CR. 766 (JPC), 2023 WL 3934546, at *12 (S.D.N.Y. June 9, 2023). In United States v. Bogle, decided nine years before Bruen,...
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