The Second Amendment is not a “second class right.” No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition. The Government does not meet that burden. Although not exhaustive, the Court’s historical survey finds little evidence that § 922(n)—which prohibits those under felony indictment from obtaining a firearm—aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutional
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Until recently, federal courts uniformly applied at least intermediate scrutiny to firearms laws and conducted a means-end analysis to determine whether the state’s interest in the regulation was sufficient to overcome whatever burden the law placed on one’s Second Amendment right. See, e.g., United States v. Carter, 669 F.3d 411 (4th Cir. 2012). In Bruen, however, the Supreme Court of the United States determined that all of the lower courts had been incorrect in applying means-end scrutiny. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). Rather than
balancing any government interest, no matter how important the interest may be in our modern society, the Supreme Court reaffirmed what it said in Heller: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008)) (emphasis in original). Because the Second Amendment was adopted in 1791, only those regulations that would have been considered constitutional then can be constitutional now.
Supreme Court provided the following mandate:
To justify its regulation, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.
Section 922(k) criminalizes the mere possession of a firearm after a serial number is removed, obliterated, or altered in any way, whether or not the firearm is then placed into commerce.
Any modern regulation that does not comport with the historical understanding of the right is to be deemed unconstitutional, regardless of how desirable or important that regulation may be in our modern society.
It is undisputed that serial numbers were not required, or even in common use, in 1791. Rather, serial numbers arose only with the advent of the mass production of firearms. The first legal requirement for serial numbers did not appear until 1934 when Congress passed the National Firearms Act. That requirement only applied to certain firearms, such as machine guns and short-barreled rifles. The first precursor to Section 922(k) appeared in the Federal Firearms Act of 1938 and made it unlawful “for any person to transport, ship, or knowingly receive in interstate or foreign commerce any firearm from which the manufacturer’s serial number has been removed, obliterated, or altered.” Pub. L. No. 75-785, § 2(i), 52 Stat. 1250, 1251 (1938).
Serial numbers were not broadly required for all firearms manufactured and imported in the United States until the passage of the Gun Control Act of 1968.
Notably, these prohibitions were only on transporting, shipping, or receiving firearms—that is to say, when the firearms were in the stream of commerce. Even in 1968 there was no prohibition on mere possession of a firearm that had the serial number altered or removed. In fact, it was not until the Crime Control Act of 1990 that Section 922 was amended to insert “or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” Pub. L. No. 101-647, § 2202(b), 104 Stat. 4789, 4856 (1990)
Conclusion: It is difficult to imagine that this societal problem did
not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791.
Full case here: UNITED STATES OF AMERICA, v. RANDY PRICE, CRIMINAL ACTION NO. 2:22-cr-00097, https://storage.courtlistener.com/recap/gov.uscourts
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Federal law prohibits certain people from possessing firearms. 18 U.S.C.
§ 922(g). Among them are convicted felons, fugitives from justice, and—relevant here—anyone “who is an unlawful user of or addicted to any controlled substance.” Id. As the parties agree, Florida’s medical marijuana users are “unlawful user[s] of . . . [a] controlled substance,” so this law makes it a crime for them to possess firearms. The primary issue in this case is whether the Second Amendment allows this result.
In 2016, Florida stopped criminalizing the medical use of marijuana. Many people refer to this change as Florida’s “legalizing” medical marijuana, but Florida did no such thing. It couldn’t. “Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits,” United States v. McIntosh, 833 F.3d 1163, 1179 n.5 (9th Cir. 2016), and federal law still prohibits possession of marijuana—for medical purposes or otherwise, see 21 U.S.C. §§ 841(a), 844(a); see also 21 U.S.C. § 812, Sch. I(c)(10), § 812(b)(1)(B). Indeed, federal law “designates marijuana as contraband for any purpose” and “prohibit[s] entirely [its] possession.” Gonzales v. Raich, 545 U.S. 1, 24, 27 (2005).
So while Florida (like many states) has decided it will no longer criminalize medical marijuana, the simple fact is that “[a]nyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes . . . is committing a federal crime.” McIntosh, 833 F.3d at 1179.
As anyone driving by Florida’s many marijuana dispensaries can see, though, federal law is not always enforced. Congress has precluded the Department of Justice (for now) from prosecuting crimes that Congress (for now) chooses to maintain on the books.
Three Plaintiffs want to participate in Florida’s medical marijuana system while possessing guns. But as things stand, their use of medical marijuana—their “unlawful use[] . . . of a controlled substance”—makes any gun possession a felony, punishable by up to 15 years in prison. See 18 U.S.C. § 924(a)(8). That is the situation Plaintiffs challenge. They contend that this violates their Second Amendment right to keep and bear arms. And they contend a federal firearms prosecution would violate the Rohrabacher-Farr Amendment.
…
The Second Amendment guarantees the individual right to possess firearms. District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Judges, scholars, and others have long debated the extent of this right, and many questions remain unresolved. But the Supreme Court recently clarified that the government cannot restrict the Second Amendment right unless “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is not enough to “simply posit that the regulation promotes an important interest.” Id
Put differently, if there is a tradition of regulation that is relevantly similar to the challenged laws, Plaintiffs have not stated a plausible Second Amendment claim.
The government offers two historical analogues. ECF No. 14 at 31-32. It contends that laws have traditionally kept guns from those engaged in criminal activity and from “those whose status or behavior would make it dangerous for them to possess firearms.” Id. The government offers a second historical analogue: the tradition of keeping firearms from “those whose possession of firearms the government deems dangerous.”
At bottom, the historical tradition of keeping guns from those the government fairly views as dangerous—like alcoholics and the mentally ill—is sufficiently analogous to modern laws keeping guns from habitual users of controlled substances.
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The “single-purpose container” exception to the warrant requirement originated in the United States Supreme Court’s decision in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The central question in Sanders was “whether, in the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband.” Id. at 754, 99 S.Ct. 2586. The Court answered this question in the affirmative, but declared:
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.
Id. at 764 n. 13, 99 S.Ct. 2586.
In Robbins v. California, a plurality of four justices elaborated on the “single-purpose container” exception, explaining that the exception is:
little more than another variation of the “plain view” exception,[7] since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer’s view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents. In short, the negative implication of footnote 13 of the Sanders opinion is that, unless the container is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment.
453 U.S. 420, 427, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (plurality opinion), overruled on other grounds by United States v. Ross, 456 U.S. 798, 102 S.Ct. 801*801 2157, 72 L.Ed.2d 572 (1982).
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Although parents may choose to grant their minor children joint access and mutual use of the home, parents normally retain control of the home as well as the power to rescind the authority they have given. “It does not startle us that a parent’s consent to a search of the living room in the absence of his minor child is given effect; but we should not allow the police to rely on the consent of the child to bind the parent. The common sense of the matter is that the … parent has not surrendered his privacy of place in the living room to the discretion of the … child; rather, the latter [has] privacy of place there in the discretion of the former.” (Weinreb, supra, 42 U.Chi.L.Rev. at p. 60; see People v. Jennings, supra, 142 Cal.App.2d at p. 168.)
Other courts that have considered the authority, or capacity, of a minor child to consent to a police entry of the family home generally have refused to uphold the admissibility of evidence found therein in a criminal action against the parent. The reasoning of these cases is sound: a child cannot waive the privacy rights of her parents.
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Yuen contends, inter alia, that Officer Kline’s opening the rear cargo door without his permission violated the Fourth Amendment to the United States Constitution, and, therefore, all evidence the government obtained through exploitation of that illegality must be suppressed as “ ‘fruit of the poisonous tree.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We assume, without deciding, that the officers’ conduct up until the time that Officer Kline opened the rear cargo door without permission did not violate the Fourth Amendment. However, Officer Kline’s opening of the rear cargo door constituted a search for purposes of Fourth Amendment jurisprudence. See United States v. Winsor, 846 F.2d 1569, 1572-73 (9th Cir.1988) (en banc ) (police conducted “search” of hotel room for Fourth Amendment purposes when they gained visual entry into room through door that was opened at their command and while they stood in hotel corridor). Accordingly, in order for the search to be justified under the Fourth Amendment, at least one of the following two circumstances must have existed: (1) probable cause to believe the rear cargo area contained contraband or evidence of a crime, United States v. Bagley, 772 F.2d 482, 491 (9th Cir.1985) (“[P]robable cause alone suffices to justify a warrantless search of a vehicle lawfully parked in a public place, as long as the scope of the search is reasonable.”), or (2) the officers had an objectively reasonable fear of an immediate threat for their safety, see Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (during investigatory stop of automobile pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officer may search for weapons in passenger compartment, “limited to those areas in which a weapon may be placed or hidden, … if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons”) (internal quotation marks omitted). Neither of these circumstances existed in the present case. There was absolutely nothing specific about the tip the officers received, nor about the circumstances in which they came upon the truck, that provided any grounds for a reasonable fear that they were in danger. Also, the officers identified the sound they heard coming from the cargo area as “drilling.” Coming, as it did, from an individual in the parking lot of a home improvement store, such activity would not render a “reasonably prudent man in such circumstances [to] be warranted in the belief that his safety or that of others was in danger.” Id. at 1050, 103 S.Ct. 3469. Accordingly, we reverse the district court’s partial denial of Yuen’s motion to suppress, vacate the judgment, and remand to permit Yuen to withdraw his guilty plea. See *745 United States v. Bautista, 362 F.3d 584, 593 (9th Cir.2004) (similar disposition).
Full case here: United States v. Yuen, 113 F. App’x 742 (9th Cir. 2004)
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Defendant Hall was arrested at approximately 2:30 p.m. on May 14, 2008 after he exited a house trailer at 2233 East 8th Street, Lot 340, Pueblo, Colorado. Agents had an active arrest warrant and there is no dispute the arrest itself was legal. Immediately before the arrest, agents had observed Hall and a female companion leave another residence and travel on Hall’s motorcycle to the house trailer. One officer, situated approximately 75 yards away, saw Hall near the saddle bag hanging over the rear tire of the motorcycle. At that distance he could not discern whether Hall opened the saddlebag, put something in or took something out. No officer in closer proximity testified to this saddlebag event. The officers watched the couple enter the house trailer. The couple remained inside for a period of time that has been estimated by various witnesses to range from five minutes to half an hour. The time spent inside is not critical to the issue presented on this Motion to Suppress.
Officers saw the couple leave the house trailer and as Hall was approaching the motorcycle he was placed under arrest. From a conflict in the testimony, I find that Hall was much more than an arm’s length distance from the motorcycle. Following the arrest and placing Hall in custody, the officers conducted a search of the motorcycle. The saddlebag was closed and fastened with a strap. The saddlebag was opened and in it was found approximately 100 grams of methamphetamine in three baggies, a 22 caliber Lorcin handgun and $6,000 cash. The question presented is whether the search of the motorcycle and saddlebag was incident to the arrest and thus did not require a warrant. I find it was not, and therefore the search was unreasonable as a matter of law.
In Chimel v. California, 395 U.S. 752, 763-64, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), for example, the Court established an exception to allow the contemporaneous search of a lawfully arrested person and the immediately surrounding area without a warrant in order to promote safety and prevent the concealment or destruction of evidence.
Supreme Court in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), established a bright-line rule specific to automobile searches incident to arrest. “When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” and “examine the contents of any containers found within the passenger compartment.” Id. at 460, 101 S.Ct. 2860. See also United States v. Franco, 981 F.2d 470, 472 (10th Cir.1992). The rule from Belton is based on the “generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach in order to grab a weapon or [evidence].” Belton at 460, 101 S.Ct. 2860. Under this same rationale, the Court expressly noted the passenger compartment did not encompass the trunk of the automobile, leaving it beyond the scope of a permissible search incident to arrest. Id. at 460 n. 4, 101 S.Ct. 2860.
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Police search backpack. As mentioned at the outset, the dialogue between Ruffin and Howard on the side of the road had a certain unreality to it. A number of times, Ruffin seemed to go out of his way to tell Howard that he was not under arrest—even when Howard was in handcuffs and would not likely have believed he was free to terminate the encounter. Why did Ruffin go to such great lengths to communicate this message to Howard, notwithstanding the reality of the situation?
Although we don’t know for sure what was going through Ruffin’s mind, the answer is likely that he was following his training. California law enforcement agencies apparently train their officers to tell suspects that they are not under arrest, on the theory that these magic words allow officers to keep questioning suspects without advising them of their Miranda rights, even if it is otherwise obvious that the suspects are in custody and therefore entitled to Miranda ‘s protective admonitions. See, e.g. , Smith v. Clark , 612 Fed.Appx. 418, 424 (9th Cir.2015) (unpublished) (Watford, J., concurring).
Why, in turn, do law enforcement agencies train their officers to circumvent Miranda in this way? Apparently it is based on a series of court decisions that give “essentially dispositive weight” to these magic words, immunizing the government from adverse Miranda rulings in cases where the suspect cannot possibly have felt free to leave. Id. at 423 ; see also Smith v. Clark , 804 F.3d 983, 986–87 (9th Cir.2015) (W. Fletcher, J., dissenting from denial of rehearing en banc). In other words, law enforcement agencies train officers to work their way around Miranda because courts have signed off on the workaround.
In some cases, perhaps this practice helps officers obtain evidence when a suspect would otherwise clam up. But if Ruffin was following this practice here, it backfired. Because Ruffin made clear he was not in the process of arresting Howard when he announced he was going to search the backpack, Howard’s statements following that announcement, and the gun found in the backpack, must be suppressed.
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In this case, a highway patrol officer announced he was going to search a suspect’s backpack. That search would have violated the Fourth Amendment, because the officer did not have a warrant to search the backpack, and no exception to the warrant requirement applied at the time the officer made his announcement. In response to the officer’s threat, the suspect confessed to being a felon and having a gun in the backpack. The government has now charged him with being a felon in possession of a firearm. But the government may not use in court evidence that an officer obtains through a threat to violate the Fourth Amendment. Kentucky v. King , 563 U.S. 452, 462–63, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ; United States v. Saafir , 754 F.3d 262, 266 (4th Cir.2014). Therefore, the evidence the officer obtained as a result of his threat (specifically, the confession and the gun) must be suppressed.
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