United States v. Rush

• Decision Date: 25 January 2023
• Docket Number: 22-cr-40008-JPG
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JAMOND M. RUSH, Defendant.
• Court: U.S. District Court — Southern District of Illinois

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMOND M. RUSH, Defendant.

No. 22-cr-40008-JPG

United States District Court, S.D. Illinois

January 25, 2023

MEMORANDUM AND ORDER

J. PHIL GILBERT DISTRICT JUDGE

This matter comes before the Court on defendant Jamond M. Rush's motion to dismiss the First Superseding Indictment in light of the Supreme Court's recent decision in New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 211 (2022) (Doc. 28). The Government has responded to the motion (Doc. 38), and Rush has replied to that response (Doc. 43).

I. Background

On April 5, 2022, the grand jury returned an indictment charging Rush with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and seeking forfeiture of the firearm (an AR-15 rifle) and ammunition involved in his alleged offense (Doc. 1). On August 16, 2022, the grand jury returned the First Superseding Indictment changing the charge to receiving or possessing an unregistered short-barreled rifle in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871, and seeking forfeiture of the same firearm and ammunition sought in the original indictment (Doc. 18). The relevant part of the National Firearms Act (“NFA”) states, “It shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d).

On September 26, 2022, Rush asked the Court to dismiss the First Superseding Indictment on the grounds that the statute requiring him to register his short-barreled rifle in the National Firearms Registration and Transfer Records, 26 U.S.C. § 5861(d), unduly burdens his core Second Amendment

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right to keep and bear arms for self-defense. In support, he points to the Supreme Court's recent decision in Bruen.

In response, the Government contends that the possession of short-barreled rifles is not protected by the Second Amendment because such a weapon is a “dangerous and unusual weapon” not commonly possessed for self-defense. Furthermore, it argues there is a historical tradition regulating the concealed carrying of dangerous and unusual weapons, including weapons like short-barreled rifles.

II. Analysis

The Second Amendment 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 the past fifteen years, the Supreme Court has made landmark rulings about the Second Amendment's meaning and application.

The first of these cases, District of Columbia v. Heller, 554 U.S. 570 (2008), was decided after decades without any major Supreme Court decisions considering the Second Amendment. It rejected the understanding that the amendment applied only to arms for militia service.

In Heller, the Supreme Court considered a District of Columbia prohibition on, among other things, possessing a handgun in the home. Id. at 574-75. It concluded that the Second Amendment right to keep and bear arms is not confined to the context of militia service but instead extends to an individual's right to possess and carry weapons for self-defense in case of confrontation. Id. at 595. Nevertheless, it acknowledged that the right is not limitless; the Second Amendment does not “protect the right of citizens to carry arms for any sort of confrontation.” Id. (emphasis in original). Indeed, historically “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626 (citing prohibitions on carrying concealed weapons, possession by felons and the mentally ill, carrying in sensitive places, or conditions and qualifications for commercial sales); accord New York State Rifle & Pistol Ass'n, Inc. v. Bruen,

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142 S.Ct. 2111, 2128 (2022); McDonald v. City of Chi., 561 U.S. 742, 786 (2010).

For example, Heller cites United States v. Miller, 307 U.S. 174 (1939), for the proposition that certain types of weapons are, because of their nature, not covered by the Second Amendment. Heller, 554 U.S. at 622. In Miller, the weapon at issue was a short-barreled shotgun, which the Miller Court observed was not, at the time the Bill of Rights was adopted, “part of the ordinary military equipment” and could not “contribute the to the common defense.” Miller, 307 U.S. at 178.

Heller...