Court won’t dismiss felon in possession indictment

Where a defendant indicted for being a felon in possession of a firearm argued the statute upon which the indictment was based was unconstitutional following New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), his motion to dismiss the indictment was denied. This court and dozens of courts around the nation have considered the constitutionality of 18 U.S.C. § 922(g)(1) in the wake of Bruen, and none have found the statute facially unconstitutional.

Background

Before the court is a motion to dismiss the indictment against the defendant, Donovan Henry Kearney. The motion avers that the statute upon which the indictment is based, 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms, is unconstitutional under the Second Amendment and the Supreme Court’s Bruen decision.

Analysis

The defendant argues that the Supreme Court’s decision in Bruen “marked a dramatic shift in Second Amendment law.” He argues that his “possession of a firearm comes within the Second Amendment’s plain text,” meaning that “his conduct is presumptively protected” unless the government can show that 922(g)(1) is “consistent with American tradition.”

The defendant acknowledges that “this Court denied a similar motion in United States v. Finney, No. 2:23-cr-13, 2023 WL 2696203 (E.D. Va. Mar. 29, 2023),” and that two other courts in this district “have considered and denied similar arguments.” Dozens of courts around this nation have considered the constitutionality of section 922(g)(1) in the wake of Bruen, and none have found the statute facially unconstitutional. But the defendant urges this court to arrive at a different conclusion.

As the defendant recognizes, this court has already carefully considered and denied each of the arguments set forth in the motion, as have other judges in this district. Today, this court declines to change course.

United States v. Kearney, Case No. 4:23-cr-29, June 9, 2023. EDVA at Newport News (Walker). VLW 023-3-329. 5 pp.