United States v. Hosford
| Decision Date | 05 January 2015 |
| Docket Number | Criminal No. DKC 13–0550. |
| Citation | 82 F.Supp.3d 660 |
| Parties | UNITED STATES of America v. Samuel Robert HOSFORD. |
| Court | U.S. District Court — District of Maryland |
Leah Jo Bressack, Office of the United States Attorney, Greenbelt, MD, Rod J. Rosenstein, Office of the United States Attorney, Baltimore, MD, for United States of America.
Samuel Robert Hosford (“Defendant” or “Mr. Hosford”) and an alleged co-conspirator are charged in a six-count indictment with conspiracy in violation of 18 U.S.C. § 371 (count one) and unlicensed dealing in firearms in violation of 18 U.S.C. § 922(a)(1)(A) (). (ECF No. 1). As alleged in the indictment, between June 2013 and August 2013, Mr. Hosford conspired knowingly and willfully with Henry Lee Parrott and others to engage in the business of dealing in firearms without being a licensed dealer in violation of 18 U.S.C. § 922(a)(1)(A). The indictment alleges that as part of the conspiracy, Mr. Hosford arranged for the sale of firearms that his alleged co-conspirator provided to him. (Count One ¶ 4). Defendant allegedly contacted “Person A” by telephone or text message to select a time and location where Mr. Hosford would deliver firearms to “Person A” in exchange for U.S. currency. (Id. ¶ 6). Prior to each meeting with “Person A,” Mr. Hosford met with his alleged co-conspirator at which time the coconspirator delivered to Defendant the firearms to be sold. (Id. ¶ 7). In addition, according to the indictment, on five occasions from June 5 through August 30, 2013, Defendant knowingly and willfully engaged in the business of dealing in firearms without having a license as an importer, manufacturer, and dealer in firearms. (Counts Two through Six).
Defendant now moves to dismiss the indictment on three grounds: (1) 18 U.S.C. § 922(a)(1)(A) and 18 U.S.C. § 921(a)(21)(C) are unconstitutional because they infringe on his Second Amendment right; (2) Sections 922(a)(1)(A) and 921(a)(21)(C) are unconstitutionally vague on their face and as applied to him; and (3) Section 922(a)(1)(A) exceeds the scope of Congress's authority under the Commerce Clause by regulating intrastate activity without a substantial connection to interstate commerce. A hearing was held on November 19, 2014. For the following reasons, the motion will be denied.
Section 922(a)(1)(A) states that it shall be unlawful for any person:
except a licensed importer, licensed manufacturer, or licensed dealer to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.
Section 921 defines the terms “licensed dealer,” “importer,” and “manufacturer.” Section 921(a)(21)(C) defines “engaged in the business”:
as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.
The Second Amendment states: “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, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the United States Supreme Court held that the right to keep and bear arms, as provided in the Second Amendment, is an individual right without regard to militia service.1 According to the Supreme Court, the core right of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635, 128 S.Ct. 2783 ; United States v. Staten, 666 F.3d 154, 158 (4th Cir.2011). The Supreme Court noted in Heller that its holding did not invalidate “presumptively lawful regulatory measures”:
Defendant argues, based on Heller, that the right to “keep and bear arms” is not limited to keeping arms within the home for self-defense. He contends that “[w]ithout the ability to acquire firearms, or to dispose of them through sale (as one would any other lawfully-owned property), the right to keep and bear arms would be hollow indeed.” (ECF No. 39, at 13).3 He then argues that the restrictions in the statute under which he is charged violate those rights. The Government counters that Defendant's Second Amendment challenge fails for two reasons: (1) the challenged statutes are “presumptively lawful regulatory measures” that impose conditions and qualifications on the commercial sale of arms, but do not prohibit sales outright; and (2) even applying intermediate scrutiny to the challenged statutes, they are constitutional because they are substantially related to an important government objective. (ECF No. 45, at 9–10).
In United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010), the Fourth Circuit set forth a two-part approach to reviewing Second Amendment challenges:
The first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee.” [ ] This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.See Heller, 128 S.Ct. at 2816. If it was not, then the challenged law is valid. [ ] If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. [ ] Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law.
Defendant argues that the conduct implicated in this case falls within the scope of the Second Amendment because there must be some method for purchasing and selling firearms in order to preserve the right to possess them for self-defense within the home. The Government, for its part, argues that the conduct is outside the scope of the Second Amendment based on the plain text that does not refer to the sale of arms and the Fourth Circuit's unpublished decision in United States v. Chafin, 423 Fed.Appx. 342, 344 (4th Cir.2011), in which it stated that it is aware of no authority “that remotely suggests that, at the time of its ratification, the Second Amendment was understood to protect an individual's right to sell a firearm.” (emphasis in original). Defendant criticizes the statement in Chafin as incorrect and cites to a law review article, David B. Kopel, Does the Second Amendment Protect Firearms Commerce?, 127 Harv. L.Rev. F. 230 (Apr. 11, 2014). Neither party has attempted to provide comprehensive evidence of the state of the law at the time of ratification concerning the commercial sale of firearms. Nor has any party explicitly articulated which side bears the burden of persuasion at the first step.
The Sixth Circuit explicitly places the burden on the government to prove that conduct falls outside the protection of the Second Amendment. Tyler v. Hillsdale Cnty. Sheriff's Dep't, 775 F.3d 308 (6th Cir.2014) (referring to United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012) ).
The Fourth Circuit does not appear to have expressly stated whose burden it is at the first step. Moreover, the Fourth Circuit (along with many courts) has repeatedly assumed Second Amendment application and proceeded to the second step. That approach makes sense here, where it is difficult to discern exactly how to define the right under consideration, or the right included within the Second Amendment. Here, of course, the statutes only regulate the commercial sale of firearms by requiring a license, and do not prohibit such sales. As will be seen, ultimately in this case, the dividing line need not be precisely delineated. Either the Second Amendment does not encompass the unregulated commercial sale of firearms, or even if the right should be defined as the sale or exchange of firearms and is protected, then, the regulation here withstands the appropriate level of scrutiny.
Even assuming that some form of commercial sale of firearms is encompassed within the Second Amendment and, thus, that Sections 922(a)(1)(A) and 921(a)(21)(C) regulate conduct within the scope of the Second Amendment, traditional means-end scrutiny confirms that the statutes are constitutional.
The first issue is which level of scrutiny to apply to Sections 922(a)(1)(A) and 922(a)(21)(C). In Heller, the Supreme Court acknowledged that rational-basis scrutiny would be inappropriate, but it declined to choose the proper level of review for Second Amendment challenges. Defendant urges the court to apply strict scrutiny because it characterizes the conduct at issue as a core Second Amendment value. Specifically, Defendant contends that “[i]n this type of case, with the imposition of substantial criminal penalties for the exercise of core protected conduct, strict scrutiny is required.” (ECF No. 39, at 14). The Government argues that intermediate scrutiny should be applied.
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