USA v. Baxtron

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
v.
ANTHONEY C. BAXTRON,
Defendant.
Case No. 3:22-CR-30080-NJR-1
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is a Motion to Dismiss Indictment filed by Defendant
Anthoney C. Baxtron. (Doc. 48). On July 28, 2022, a grand jury charged Baxtron with
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). (Doc. 1). Baxtron now
moves to dismiss the indictment, arguing that 18 U.S.C. § 922(g)(1), as applied to him,
violates the Second Amendment in light of the United States Supreme Court’s holding in
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). The Government opposes
the motion. (Doc. 52). For the reasons set forth below, the motion is denied.
LEGAL STANDARD
Federal Rule of Criminal Procedure 12(b)(1) provides that “[a] party may raise by
pretrial motion any defense, objection, or request that the court can determine without a
trial on the merits.” Rule 12 authorizes defendants to challenge the lawfulness of a
prosecution on purely legal, as opposed to factual, grounds. See United States v. Coscia,
866 F.3d 782, 790 (7th Cir. 2017) (considering defendant’s contention that the indictment
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must be dismissed because the statute under which it is brought is unconstitutionally
vague). A court may decide all questions of law raised in a motion to dismiss, including
the constitutionality and interpretation of a federal statute. See United States v. Sorich,
523 F.3d 702, 706 (7th Cir. 2008).
A constitutional challenge to a statute can be brought as either a facial challenge
or an as-applied challenge. United States v. Stork, No. 2:21-CR-7 JD, 2024 WL 2955735, at
*2 (N.D. Ind. June 12, 2024). To succeed on an as-applied challenge, as Baxtron raises here,
the moving party must show the statute is unconstitutional because of the way it was
applied to the particular facts of his case. See United States v. Phillips, 645 F.3d 859, 863 (7th
Cir. 2011).
DISCUSSION
The Second Amendment to the U.S. Constitution guarantees the right of the people
to keep and bear arms. District of Columbia v. Heller, 554 U.S. 570, 635 (2008). At the same
time, 18 U.S.C. § 922(g)(1) criminalizes the possession of a firearm by any person who has
been convicted of a crime punishable by imprisonment for a term exceeding one year.
Baxtron admits he had previous state felony convictions at the time of the instant
offense, including unlawful possession of a stolen motor vehicle, unlawful delivery of
cannabis, and unlawful possession of a weapon by a felon. Nevertheless, Baxtron argues
that the plain text of the Second Amendment protects the right to bear arms as to all
Americans, including felons. Thus, under Bruen, the government must show § 922(g)(1)
is consistent with the nation’s historical tradition of firearm regulation. Second, he argues,
§ 922(g)(1) is unconstitutional as applied to him.
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The Supreme Court has held that the right to keep and bear arms is among the
“fundamental rights necessary to our system of ordered liberty.” United States v. Rahimi,
144 S. Ct. 1889, 1897 (2024) (quoting McDonald v. Chicago, 561 U.S. 742, 778 (2010)). “Like
most rights,” though, “the right secured by the Second Amendment is not unlimited.” Id.
(quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)).
The test for analyzing the constitutionality of firearm restrictions is provided by
Bruen. 597 U.S. at 24. Under Bruen, a court must first determine whether the “Second
Amendment’s plain text covers an individual’s conduct.” 597 U.S. at 24. If so, the
Constitution 	presumptively 	protects 	that 	conduct 	and 	the 	burden 	shifts 	to 	the
government to demonstrate that the regulation “is consistent with this Nation’s historical
tradition of firearm regulation.” Id. To determine whether a challenged law is consistent
with the country’s “regulatory tradition,” courts “must ascertain whether the new law is
‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing]
faithfully the balance struck by the founding generation to modern circumstances.’”
Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 29).
Courts also must examine “[w]hy and how the regulation burdens the right.” Id.
“[I]f laws at the founding regulated firearm use to address particular problems, that will
be a strong indicator that contemporary laws imposing similar restrictions for similar
reasons fall within a permissible category of regulations.” Id. But even if the reason for
the regulation is permissible, the law “may not be compatible with the right if it does so
to an extent beyond what was done at the founding.” Id. “And when a challenged
regulation does not precisely match its historical precursors, ‘it still may be analogous
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enough to pass constitutional muster.’” Id. (quoting Bruen, 597 U.S. at 30). Although
Rahimi addressed § 922(g)(8), which bars individuals subject to restraining orders from
possessing guns in the home, the Supreme Court reiterated its holding in Heller that many
such prohibitions, like those on the possession of firearms by “felons and the mentally
ill,” are “presumptively lawful.” Id. at 1891 (quoting Heller, 554 U.S. at 626, 627, n. 26).
Baxtron first argues that the plain text of the Second Amendment covers the
possession of firearms by all Americans and that there is no historical tradition of
permanently disarming felons like him. Citing Bruen, Heller, McDonald, and Rahimi,
among other cases, the Government disagrees and asserts that the Supreme Court’s
interpretation of the Second Amendment’s text confirms that legislatures are permitted
to disarm convicted felons.
While the Supreme Court has not expressly held that the Second Amendment right
to bear arms does not extend to felons, the Government argues that its “considered dicta”
confirms felons do not retain their Second Amendment rights. The Government contends
that, in the Seventh Circuit, the Supreme Court’s “considered dicta” is generally binding
on the appellate and lower courts. See Reich v. Cont’l Cas. Co., 33 F.3d 754 (7th Cir. 1994) 1 .
Therefore, it argues, the undersigned should deny Baxtron’s motion on this basis alone.
True, in Heller, the Supreme Court associated the right to bear arms with “law-
abiding” citizens. Heller, 554 U.S. at 625. And, when describing people who possess rights
1 But see Andrew v. White, 604 U.S. 86, 97 (2025) (Thomas & Gorsuch, JJ., dissenting) (“We have instructed
lower courts to avoid framing our precedents at too high a level of generality; to carefully distinguish
holdings from dicta; and to refrain from treating reserved questions as though they have already been
answered.”).
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under the Second Amendment, the Bruen court repeatedly used the phrase “law-abiding,
responsible citizens.” Bruen, 597 U.S. at 26. Yet, neither case expressly held that the plain
text of the Second Amendment does not apply to felons. See United States v. Bennett, No.
3:24-CR-30004-DWD, 2025 WL 894979, at *5 (S.D. Ill. Mar. 24, 2025) (“The facts of the
referenced cases did not give the Supreme Court the opportunity to consider whether
convicted felons were part of ‘the people,’ as contemplated in the Second Amendment.”);
see also Atkinson v. Garland, 70 F.4th 1018, 1022 (7th Cir. 2023) (declining an invitation to
forego the Bruen analysis “based on oft-quoted dicta describing felon-in-possession laws
as ‘presumptively lawful’ ”).
Due to the lack of clear guidance or controlling authority, this Court will assume,
without 	deciding, 	that 	felons 	are 	among 	“the 	people” 	protected 	by 	the 	Second
Amendment and will proceed to the second step required by Bruen: deciding whether
§ 922(g)(1)’s disarmament of felons “is consistent with this Nation’s historical tradition
of firearm regulation.” Bruen, 597 U.S. at 24.
In Atkinson v. Garland, the Seventh Circuit Court of Appeals directed district courts
to consider five questions when analyzing whether a statute is part of this country’s
historical tradition of firearm regulation. Atkinson v. Garland, 70 F.4th 1018, 1023-24 (7th
Cir. 2023). In summary, this Court is to ask: (1) Does § 922(g)(1) address a “general societal
problem that has persisted since the 18th century?” (2) What does history tell us about
disarming those convicted of crimes generally and of felonies in particular? (3) Are there
broader historical analogues to § 922(g)(1) during the periods that Bruen emphasized,
including, but not limited to, laws disarming “dangerous” groups other than felons? (4) If
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there are analogous laws, do those laws supply enough of a historical tradition (as
opposed 	to 	isolated 	instances 	of 	regulation) 	to 	support 	§ 	922(g)(1)? 	and 	(5) If
individualized assessments for a distinction between violent and non-violent felonies are
appropriate, how should a court define a non-violent or a non-dangerous felony—and
what evidence can a court consider in assessing whether a particular felony conviction
was violent? Id.
The Government has answered those questions, but Baxtron has not. Nor has he
disputed the Government’s assessment. The Court thus adopts the Government’s well-
reasoned and well-researched historical analysis. (See Doc. 52).
First, Section 922(g)(1) addresses a “general societal problem that has persisted
since the 18th century” in that it disarms people who, like felons, are untrustworthy
adherents to the rule of law. The historical record discussed by the Government
demonstrates that legislatures historically have had wide latitude to exclude felons from
exercising certain rights, including the right to bear arms, as a consequence of their
convictions. See Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest
Upon the Legislative Power of the States of the American Union 28-29 (1868); see also United
States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (per curiam) (“[M]ost 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.’”).
Second, by the time the Second Amendment was ratified in 1791, there was an
established tradition of legislatures categorically disarming groups who they feared
would disregard the law. These regulations prioritized social order and respect for the
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law over a preexisting right to self-defense. See Atkinson, 70 F.4th at 1034 (Wood, J.,
dissenting) (“During the American Revolution, several states passed laws providing for
the confiscation of weapons owned by persons who refused to swear an oath of allegiance
to the state or to the United States.”). Furthermore, there were no meaningful founding-
era disputes regarding the lawfulness of disarming criminals, and throughout early
American history, convicted felons were subject to estate forfeiture and even capital
punishment for non-violent felonies. If a felon could potentially be subject to the death
penalty or forfeiture of their entire estate as punishment for even a non-violent offense,
then certainly disarmament would have been an accepted punishment.
Third, this country has a tradition of disarming dangerous persons other than
felons. For example, in Rahimi, the Supreme Court held that an individual subject to a
restraining order, e.g., one who poses a credible threat to the physical safety of another,
may be temporarily disarmed consistent with the Second Amendment. 144 S. Ct. at 1902.
Fourth, these historical analogues are sufficiently similar to § 922(g)(1) and are not
“isolated instances of regulation.” Section 922(g)(1)’s prohibition on firearm possession
is comparable to, and is certainly not greater than, the punishment inflicted on criminals
at the founding, which included deprivation of their entire estate or even death.
See Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019) (explaining that “it is difficult to
conclude that the public, in 1791, would have understood someone facing death … to be
within the scope of those entitled to possess arms”).
Having examined the first four factors provided by Atkinson, the Court concludes
that § 922(g)(1) is consistent with this Nation’s historical tradition of firearm regulation
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and is constitutional. Baxtron also argues, however, that the statute is unconstitutional as
applied to him. Thus, the Court addresses the fifth Atkinson factor in considering whether
§ 922(g)(1) is unconstitutional as applied to Baxtron.
In United States v. Gay, the Seventh Circuit assumed without deciding “for the sake
of argument that there is some room for as-applied challenges” by non-violent offenders
to § 922(g)(1). United States v. Gay, 98 F.4th 843, 846 (7th Cir. 2024), reh’g denied, No. 23-
2097, 2024 WL 3816648 (7th Cir. Aug. 14, 2024) (quoting Heller, 554 U.S. at 626, 635). 2
Citing Bruen, the Seventh Circuit noted that the Supreme Court repeatedly used the
phrase “law-abiding, responsible citizens” when describing people who possess rights
under the Second Amendment. Id. (quoting Bruen, 597 U.S. at 26). The defendant in Gay
did not fit that description, having been convicted of 22 felonies including aggravated
battery of a peace officer and possession of a weapon while in prison. Id. at 846-47. Gay
also possessed the weapon while on parole for his prior felony. Id. at 847. The Seventh
Circuit emphasized that parole is a form of custody before holding that “parolees lack
the same armament rights as free persons.” Id. The court then concluded that Gay was
not a “’law-abiding, responsible’ person who has a constitutional right to possess
firearms” and rejected his as-applied challenge to the constitutionality § 922(g)(1). Id.
Here, Baxtron has proffered no historical evidence to support his position that he
2 In Gay, the Seventh Circuit sidestepped the question of whether § 922(g)(1) is constitutional, while at the
same time finding the defendant’s argument that the Second Amendment permits felons to possess
firearms notwithstanding § 922(g)(1) “hard to square” with the Supreme Court’s statement in Heller that
“longstanding prohibitions on the possession of firearms by felons” are valid. Id. (quoting Heller, 554 U.S.
at 626, 635). Some courts in this circuit have since interpreted Gay as foreclosing facial challenges to
§ 922(g)(1). See, e.g., United States v. Montgomery, No. 23-CR-00623, 2024 WL 4240759, at *1 (N.D. Ill. Sept.
19, 2024); United States v. Barenas-Reynoso, No. 19-CR-00351-8, 2024 WL 3509757, at *2 (N.D. Ill. July 23,
2024).
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is a non-violent felon and only individuals more dangerous than himself should be
subject to permanent disarmament. And, at the time of his arrest in this case, like Gay,
Baxtron was on parole for two felonies. Because the Seventh Circuit held in Gay that
“parolees lack the same armament rights as free persons,” the Court finds that Baxtron is
not a “law-abiding, responsible” person who enjoys the constitutional right to possess
firearms. See id. Section 922(g)(1) is constitutional as applied to Baxtron.
CONCLUSION
For these reasons, the Court finds that § 922(g)(1) does not violate the Second
Amendment as applied to Defendant Anthoney Baxtron. The Motion to Dismiss the
Indictment (Doc. 52) is DENIED.
IT IS SO ORDERED.
DATED: 	January 12, 2026
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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