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Defendant fails to dismiss felon-in-possession counts

Where a man charged with being a felon in possession of a firearm argued the counts should be dismissed because of the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), but this court, other courts in this district and courts across the country have rejected this argument, it was rejected here.


Pending before the court is a motion to dismiss two counts of the superseding indictment by Bryant Marcus Wilkerson. The question before the court is whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms is constitutional after the Supreme Court’s recent decision in Bruen.


Defendant reads Bruen to have transformed how a court addresses modern day firearm-regulating statutes by focusing entirely on the historical foundations of each challenged statute. He argues that § 922(g)(1) must be held unconstitutional because it does not comport with the framers’ understanding of the Second Amendment and that therefore Counts Ten and Eleven of the superseding indictment must be dismissed.

Defendant stressed that Bruen supplanted the previous means-end balancing test for gun control statutes, with a new “text-and-history standard” which requires the government to show that the statute is “consistent with this Nation’s historical tradition of firearm regulation.” Defendant then argues that because there was no explicit historical tradition of barring felons from possessing firearms in 1791 — the year Congress ratified the Second Amendment — § 922(g)(1) does not pass Bruen muster and therefore is unconstitutional.

Defendant also argues that this court is not bound to Heller’s assertion that certain statutes, including felon-in-possession laws, are “presumptively lawful,” because those comments remain dicta and, in any case, stand discredited in the wake of Bruen. Lastly, defendant argues that even if felon disarmament were constitutional as to only persons with violent felony convictions, such a solution is impossible because § 922(g) cannot be severed or reinterpreted to transform the wholesale felon ban into a more targeted law.

Defendant acknowledges that “this Court denied a similar motion in United States v. Spencer, No. 2:22cr106, ECF No. 141, 2022 WL 17585782 (E.D. Va., Dec. 12, 2022), and at least one other court in this District considered and denied the arguments set forth in this Motion.” Other federal district courts have also rejected constitutional challenges to § 922(g)(1). In fact, “[e]very prior attempt to challenge § 922(g)(1)’s constitutionality facially had failed at the time the defendant was caught with a firearm on November 9, 2020, and to this day, ‘no circuit has held the law unconstitutional as applied to a convicted felon.’” But Mr. Wilkerson urges this court to arrive at a different conclusion.

As recognized by defendant, this court has already carefully considered and denied each of the arguments set forth in the motion, as have other judges of the court. This court declines to discuss the issue further in this order and instead adopts in full the reasoning previously set forth in its order in United States v. Spencer.

Defendant’s motion to dismiss two counts of the superseding indictment denied.

United States v. Wilkerson, Case No. 2:22-cv-152, May 2, 2023. EDVA at Norfolk (Allen). VLW 023-3-237. 6 pp.

VLW 023-3-237