United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, UNITED STATES DISTRICT COURT JUDGE
Milton Leroy Harvey, Jr. is charged with being a felon
unlawfully in possession of a firearm, in violation of 18
U.S.C. §922(g)(1). His prior felony is a 2001 conviction
of possession with intent to distribute cocaine base, for
which he was sentenced to a prison term of 57 months. Harvey
moves to dismiss his indictment here, arguing that
§922(g)(1) is unconstitutional as applied to him. The
theory is that his right under the Second Amendment to bear
arms is infringed by the criminalization of his possession of
a weapon when his prior felony was a non-violent offense, and
he has had no criminal offenses since other than a 2017
misdemeanor conviction for visiting a common nuisance. [DE 32
Second Amendment guarantees “the individual right to
possess and carry weapons in case of confrontation.”
District of Columbia v. Heller, 554 U.S. 570, 592
(2008). Even so, the Supreme Court in Heller
recognized that the right is “not unlimited.”
Id. at 595. Among exceptions the Heller
majority noted that “nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally
ill....” Id. at 626. That interpretation of
Heller's impact was reiterated two years later
in McDonald v. City of Chicago, Ill., 561 U.S. 742,
786 (2010): “We made it clear in Heller that
our ruling did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms
by felons and the mentally ill, '....We repeat those
reassurances here.” (quoting Heller, 554 U.S.
argument similar to Harvey's has been rejected by the
Seventh Circuit Court of Appeals. In United States v.
Williams, 616 F.3d 685 (7th Cir. 2010),
citing United States v. Skoien, 614 F.3d 638, 641
(7th Cir. 2010) (en banc), the court
“follow[ed] the en banc majority's holding that
some categorical bans on firearm possession are
constitutional.” Williams, 616 F.3d at 692.
Nonetheless, the Court of Appeals held that establishing the
constitutionality of the ban for convicted felons required
the government to “demonstrat[e] that its objective is
an important one and that its objective is advanced by means
substantially related to that objective.” Id.
In Williams, the court found that the
government's burden was satisfied. The objective of
“keep[ing] firearms out of the hands of violent
felons” was sufficiently important, and was
substantially related to defendant Williams' “own
violent past.” Id. at 693.
Harvey seizes upon the Williams decision's
suggestion that “§922(g)(1) may be subject to an
overbreadth challenge at some point because of its
disqualification of all felons, including those who are
non-violent.” Id. at 693. That may be so, but
this is not a case in which I am receptive to an “as
applied” challenge. The Seventh Circuit has
characterized its Williams decision broadly:
“We have already concluded that barring felons from
firearm possession is constitutional.” United
States v. Yancey, 621 F.3d 681, 684 (7th Cir.
2010)(citing Williams, 616 F.3d at 693-94.) In
Yancey, a challenge to §922(g)(3)'s
categorical ban for unlawful drug users, the Seventh Circuit
had this to say about prohibitions on gun possession by
As we've explained in a different context, most felons
are nonviolent, but someone with a felony conviction in his
record is more likely than a nonfelon to engage in illegal
and violent gun use. United States v. Lane, 252 F.3d
905, 906 (7th Cir. 2001). Thus while
felon-in-possession laws could be criticized as “wildly
overinclusive” for encompassing nonviolent offenders,
every state court in the modern era to consider the propriety
of disarming felons under analogous state constitutional
provisions has concluded that step to pe permissible. Adam
Winkler, Scrutinizing the Second Amendment, 105
MICH. L.REV. 683, 721 (2007).
Yancey, 621 F.3d at 685.
cites a single Court of Appeals decision (by a fractured
Third Circuit sitting en banc) holding that the
Second Amendment precluded application of §922(g)(1) to
two individuals whose prior felonies were not serious enough
to support stripping their Second Amendment rights.
Binderup v. Attorney General, 836 F.3d 336
(3rd Cir. 2016). The Binderup decision
notes that the Third Circuit “stand[s] entirely
alone” in upholding an as-applied challenge to
§922(g)(1). Binderup, 836 F.3d at 387. But even
Binderup cited with approval that court's
previous rejection of a similar constitutional challenge by a
man with “prior convictions for possession of cocaine
with intent to distribute and for receipt of a stolen
firearm” which the court found were
“‘closely related to violent crime.'”
Id. at 346 (quoting United States v.
Barton, 633 F.3d 168, 174 (3rd Cir. 2011)).
the pedigree of the rule against even nonviolent felons
possessing weapons (which was codified in federal law in
1938), most scholars of the Second Amendment agree that the
right to bear arms was tied to the concept of a virtuous
citizenry and that, accordingly, the government could disarm
‘unvirtuous citizens.'” Yancey, 621
F.3d at 684-85. The prevalence of gun-related violence in the
drug trade is a well established reality that provides a
substantial and supportive connection between
§922(g)(1)'s categorical application to those
convicted of drug felonies and the congressional objective of
reducing gun violence. Smith v. United States, 508
U.S. 223, 240 (1993) (noting congressional awareness
“that drugs and guns are a dangerous
combination”); United States v. Dickerson, 705
F.3d 683, 689 (7th Cir. 2013) (noting
congressional concern “that the combined presence of
firearms and drugs increases the likelihood of
case is hardly analogous to the plaintiff in Hatfield v.
Sessions, a case on which he relies. Earlier this year,
Hatfield persuaded Judge Gilbert of the Southern District of
Illinois that §922(g)(1) could not be constitutionally
applied to him, “a nonviolent felon who received no
prison time for his offense.” Hatfield v.
Sessions, No. 3:16-cv-00383-JPG-RJD, 2018 U.S. Dist.
LEXIS 70431, at *25 (S.D. Ill. Apr. 26, 2018).Hatfield's
felony was a violation of 18 U.S.C. §1001(a) by making a
false statement to the Railroad Retirement Board about being
unemployed (by which he wrongfully obtained $1, 627.73).
Id. at *2. Although the statute carried a five-year
statutory maximum term of imprisonment, Hatfield was
sentenced to three years of probation and restitution, based
on the government's recommendation pursuant to a plea
agreement. Id. at *3. In the 30 years since,
Hatfield was squeaky clean. Harvey, by contrast, has a
serious prior drug felony for which he received a substantial
prison sentence. Since serving that sentence, Harvey was
convicted in 2017 of a misdemeanor for visiting a common
nuisance. Harvey's and Hatfield's criminal histories
are not analogous.
district judge within our circuit has ruled against the
plaintiff in a Bivens action similar to
Hatfield. In Kanter v. Sessions, No.
16-C-1121, 2017 U.S. Dist. LEXIS 213181 (E.D. Wisc. Dec. 29,
2017), Judge Griesbach sided with the government and found
that the gun ban of §922(g)(1) did not violate the
Second Amendment rights of Mr. Kanter, “a non-violent
person with no violent criminal history, ” who had pled
guilty to one count of mail fraud, been sentenced to twelve
months and a day, and ordered to pay a $50, 000 fine. Beyond
our circuit, with the exception of the Third Circuit, the
Courts of Appeals have rejected challenges to the application
of §922(g)(1) on Second Amendment grounds. See,
e.g., United States v. Pruess, 703 F.3d
242, 245 (5thCir. 2012); United States v.
Torres-Rosario, 658 F.3d 110, 113 (1st Cir.
2011); United States v. Vongxay, 594 F.3d 1111,
1114-18 (9th Cir. 2010); United States v.
Rozier, 598 F.3d 768, 770-71 (11th Cir. 2010)
not persuaded that the application of §922(g)(1) to
Milton Leroy Harvey, Jr., a convicted felon with a serious
drug trafficking conviction for which he received 57 months
in prison, violates the ...