USA v. Smith

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BRANDON J. SMITH,
Defendant.
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Case No. 24-cr-30145-SMY
MEMORANDUM AND ORDER
YANDLE, Chief District Judge:
Defendant Brandon J. Smith is charged by indictment with one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Doc. 1). He has pleaded not guilty
(Doc. 6). 1 Now pending before the Court is Smith’s motion to the Indictment, in which he argues
that 18 U.S.C. § 922(g)(1) violates his Second Amendment rights (Doc. 16). 	The Government
opposes the motion (Doc. 18). For the following reasons, Smith’s motion is GRANTED.
Background
Smith asserts that 18 U.S.C. § 922(g)(1) violates the Second Amendment as applied to him
and moves to dismiss the Indictment under Federal Rule of Criminal Procedure 12(b). Pursuant
to Federal Rule of Criminal Procedure 12(b)(1), “[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
1 Although the Indictment does not identify a qualifying felony conviction, Smith’s criminal record reflects
felony convictions for delivery of cannabis, aggravated unlawful use of a weapon, and receipt of a firearm
while under Indictment.
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defendant’s contention that the indictment 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). The Court therefore analyzes Smith’s motion under
Rule 12(b)(1).
Section 922(g)(1) makes it unlawful for any person “who has been convicted of . . . a crime
punishable by imprisonment for a term exceeding one year” to “possess . . . any firearm or
ammunition . . . which has been shipped or transported in interstate or foreign commerce.” 	18
U.S.C. § 922(g)(1). The Second Amendment to the U.S. Constitution directs: “A well-regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const. amend. II.
Recently, in New York States Rifle & Pistol Assoc., Inc. v. Bruen, 142 S. Ct. 2111 (2022),
the Supreme Court struck down a New York law which required residents to demonstrate cause to
obtain a license to carry a handgun outside the home. 	Noting that certain firearm regulations
remain constitutional, the Court provided an analytical framework for determining whether a
particular firearm regulation violates the Second Amendment: Courts must first determine whether
the “Second Amendment’s plain text covers an individual’s conduct.” Id. at 2129–30. If so, the
Constitution presumptively protects that conduct, and the government must “affirmatively prove
that its firearms regulation is part of the historical tradition that delimits the outer bounds of the
right to keep and bear arms.” Id. at 2126. If the government cannot meet this burden, then the
individual’s 	firearm-related 	conduct 	falls 	within 	the 	Second 	Amendment’s 	“unqualified
command” and is protected. Bruen, 142 S. Ct. at 2126.
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The Seventh Circuit has not decided the constitutionality of § 922(g)(1) since Bruen but
has instructed district courts to conduct a “proper, fulsome analysis of the historical tradition
supporting § 922(g)(1).” Atkinson v. Garland, 70 F.4th 1018, 1022-24 (7th Cir. 2023). The Court
articulated a series of “interrelated and non-exhaustive questions” to “help focus the proper
analysis…”:
1. Does § 922(g)(1) address a ‘general societal problem that has persisted since the 18th
century?’ ... If this problem existed during a relevant historical period, did earlier
generations address it with similar or ‘materially different means?’;
2. What does history tell us about disarming those convicted of crimes generally and of
felonies in particular? Among other sources, the parties could look to commentary from
the Founders, proposals emerging from the states’ constitutional ratifying conventions, any
actual practices of disarming felons or criminals more generally around the time of the
Founding, and treatment of felons outside of the gun context (to the extent this treatment
is probative of the Founders’ views of the Second Amendment). 	When considering
historical regulations and practices, the key question is whether those regulations and
practices are comparable in substance to the restriction imposed by § 922(g) (1). To answer
the question, the district court and the parties should consider how the breadth, severity,
and the underlying rationale of the historical examples stack up against § 922(g)(1);
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? The parties should not stop at compiling lists of historical firearms regulations and
practices. The proper inquiry, as we have explained, should focus on how the substance
of the historical examples compares to § 922(g)(1);
4. If the district court’s historical inquiry identifies analogous laws, do those laws supply
enough of a historical tradition (as opposed to isolated instances of regulation) to support
§ 922(g)(1)? 	On this front, the parties should provide details about the enforcement,
impact, or judicial scrutiny of these laws, to the extent possible;
5. If history supports Atkinson’s call for individualized assessments or for a distinction
between violent and non-violent felonies, how do we 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? 	For instance, can a court consider the felony
conviction itself, the facts of the underlying crime, or sentencing enhancements? 	Bruen
shows that these distinctions should also have firm historical support. 	See 142 S. Ct. at
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2132–33 (explaining that the court must assess whether modern and historical regulations
are ‘relevantly similar,’ including in terms of how and why the regulations burden gun
rights).”
Atkinson, 70 F.4th at 1022-24.
The Atkinson Court recognized that “the historical analysis required by Bruen will be
difficult and no doubt yield some measure of indeterminacy.” 	Id. at 1024. 	And predictably, a
circuit split has developed on the issue. See United States v. Jackson, 69 F.4th 495, 505 (8th Cir.
2023) (upholding the statute’s constitutionality, as applied to a defendant convicted of state law
felonies for selling controlled substances); see also United States v. Dunn, 76 F.4th 1062, 1068
(8th Cir. 2023) (“[f]ollowing [Bruen], this court concluded that the felon-in-possession statute is
constitutional, and there is ‘no need for felony-by-felony litigation regarding the constitutionality
of § 922(g)(1)’ ”) (quoting Jackson, 69 F.4th at 502); but see Range v. Att’y Gen. United States
of Am., No. 21-2835, 2024 WL 5199447, at *8 (3d Cir. Dec. 23, 2024) (en banc) (reaffirming that
the government did not carry its burden of showing that our Nation’s history and tradition of
firearm regulation support disarming a defendant convicted of the felony-equivalent state offense
of making a false statement to obtain food stamps).
Courts in this district and throughout the circuit have also grappled with, and decided on
various grounds, the constitutionality of § 922(g)(1) under Bruen – most, but not all upholding the
statute as constitutional. See United States v. Ware, No. 22-CR-30096, 2023 WL 3568606 (S.D.
Ill. May 19, 2023) (McGlynn, S.) (finding felons are protected under plain text of the Second
Amendment and that Section 922(g)(1) is consistent with this Nation’s regulation of firearms);
United States v. Sloat, No. 22-CR-30017, 2023 WL 8455112 (S.D. Ill. Dec. 6, 2023) (Dugan, D.)
(finding the Nation's historical tradition of firearm regulation, and even outright prohibition,
against the use or possession of firearms by individuals perceived or deemed to be dangerous,
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untrustworthy, or criminal.); United States v. Agee, No. 1:21-CR-00350-1, 2023 WL 6443924
(N.D. Ill. Oct. 3, 2023) (Chang, J.) (finding felons are protected under plain text of the Second
Amendment, that § 922(g)(1) is consistent with this Nation’s regulation of firearms, and no
historical evidence for as-applied challenge); United States v. Johnson, No. 23 CR 156, 2023 WL
6276562 (N.D. Ill. Sept. 26, 2023) (Kendall, J.) (finding felons are not protected under plain text
of the Second Amendment); United States v. Anderson, No. 1:22-CR-0594, 2023 WL 7531169
(N.D. Ill., Nov. 13, 2023) (Gettleman, J.) (finding that Section 922(g)(1) is unconstitutional
facially and as-applied to felons covered under Second Amendment’s plain text and government
could not establish historical tradition of firearm regulation); United States v. Griffin, No. 21-CR-
00693, 2023 WL 8281564 (N.D. Ill., November 30, 2023) (Johnson Coleman, S.) (conducting an
individualized assessment and finding the defendant’s criminal record did not support a finding
that he poses a risk to public safety such that he cannot be trusted to use a weapon responsibly,
and that Section 922(g)(1) is unconstitutional as applied to him).
Discussion
The Bruen analysis is aptly summarized as follows:
The Bruen Court provides two avenues of historical inquiry. The first avenue of
inquiry is a ‘straightforward historical inquiry,’ which applies when ‘a challenged
regulation addresses a general societal problem that has persisted since the 18th
century.’ Id. at 2131. Under this inquiry, courts must identify a ‘distinctly similar
historical regulation addressing that problem.’ Id. The second avenue of inquiry
is by ‘analogy.’ Id. at 2132. Because ‘[t]he regulatory challenges posed by firearms
today are not always the same as those that preoccupied the Founders in 1791 or
the Reconstruction generation in 1868,’ there is not always straightforward
correspondence, and unprecedented societal concerns or dramatic technological
changes may require a ‘more nuanced approach.’ Id. Under these circumstances,
the Bruen Court directed courts to consider ‘historical analogies’ to the challenged
regulation to determine whether the regulation sufficiently resembles historically
acceptable restrictions. Id.
Evaluating whether a historical regulation is a proper analogue for a for a ‘distinctly
modern’ firearm regulation requires a determination of whether the two regulations
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are ‘relevantly similar.’ 	Id. 	The Bruen Court directed lower courts to centrally
consider ‘whether modern and historical regulations impose a comparable burden
on the right of armed self-defense and whether that burden is comparably justified.’
Id. at 2133. 	The Court emphasized that ‘analogical reasoning under the Second
Amendment is neither a regulatory straitjacket nor a regulatory blank check.’ Id.
It requires a ‘well-established and representative historical analogue, not a
historical twin.’ Id. (Emphasis in original).
U.S. v. Anderson, 2023 WL 7531169, at *2 (N.D. Ill. Nov. 13, 2023).
Noting that committing a felony results in the forfeiture of certain constitutional rights,
including the right to vote, the right to hold office, and the right to serve on a federal jury, the
Government maintains that § 922(g)(1) accords with the historical meaning of the Second
Amendment (Doc. 18 at p. 23). There is no dispute in this case that the straightforward historical
inquiry does not apply as there were no laws categorically restricting individuals with felony
convictions from possessing firearms at the time of the Founding or ratification of the Second or
Fourteenth Amendments. 	The Government argues however that Defendant’s motion should be
denied under the analogy inquiry because the Second Amendment’s plain text does not
presumptively protect the right of felons to possess firearms, and even if it did, § 922(g)(1) remains
constitutional as applied to all felons because it is consistent with the Nation’s historical tradition
of firearm regulation.
Referencing the Heller and Bruen Courts’ repeated references to “law abiding” and
“responsible citizens,” the Government first argues that Smith, as a convicted felon, is excluded
from “the people” as contemplated by the Second Amendment. Judicial opinions are not to be
read like statutes and must be read holistically in “light of the subject under consideration.”
United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010). Prior to Bruen, the Seventh Circuit
noted that “[w]hile some of Heller’s language does link Second Amendment rights with the
notions of ‘law-abiding citizens’ and ‘members of the political community,’ those passages did
not reflect an attempt to define the term ‘people.’” (Internal citations omitted). United States v.
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Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2015). 	Moreover, is his concurrence in Bruen,
Justice Alito specifically states that the decision “decides nothing about who may lawfully
possess a firearm or the requirements that must be met to buy a gun.” Bruen, 142 S. Ct. at 2157.
This Court finds that the references cited by the Government are clearly dicta, which the
Court is not bound to follow. See Cole Energy Dev. Co. v. Ingersoll-Rand Co., 8 F.3d 607, 609
(7th Cir. 1993). 	It is evident that Smith is included in “the people” covered by the Second
Amendment, and that his conduct is presumptively protected. 	As such, the Court turns to
consider whether § 922(g)(1) is consistent with the Nation’s historical tradition of firearm
regulation.
Under Bruen, when a “distinctly modern” regulation such as § 922(g)(1) is at issue, the
government must offer historical regulation that is “relevantly similar.” Bruen, 142 S. Ct. at 2132.
The Court must then determine whether the proffered historical analogues “impose a comparable
burden on the right of armed self-defense and whether that burden is comparably justified” as the
burden imposed by § 922(g)(1). Id. at 2133 (emphasis added). As the Bruen Court clarified:
… analogical reasoning under the Second Amendment is neither a regulatory
straightjacket nor a regulatory blank check. 	On the one hand, courts should not
uphold every modern law that remotely resembles a historical analogue, because
doing so risks endorsing outliers that our ancestors would never have accepted. On
the other hand, analogical reasoning requires only that the government identify a
well-established and representative historical analogue, not a historical twin. 	So
even if a modern-day regulation is not a dead ringer for historical precursors, it still
may be analogous enough to pass constitutional muster.
Bruen, 142 S. Ct. at 2133 (emphases in original).
Here, the Government asserts that two types of laws are proper historical analogues for §
922(g)(1): “(a) laws categorically disqualifying groups who were untrustworthy adherents to the
law from possessing firearms; and (b) laws authorizing capital punishment and estate forfeiture
for felonies” (Doc. 18, p. 32). 	The first category of laws cited by the Government involves
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Catholics in England who were disarmed for refusing to renounce their faith, Native Americans
and enslaved Black people in Colonial America who were disarmed for not being “dependable
adherents to the rule of law,” and individuals who were disarmed for failing to take oaths of loyalty
to the government during the Revolutionary War. For the second category, the Government points
to crimes that were punishable by death and forfeiture of estate in Colonial America.
Citing Atkinson, Jackson and Range, the Government contends although some of these
categorical prohibitions would be impermissible today under 	other 	constitutional 	provisions,
they 	are 	relevant 	here 	in 	determining 	the 	historical understanding of the right to keep and
bear arms. Jackson, 69 F.4th 503; see also Range, 69 F.4th at 122, n.50 (Krause, J., dissenting)
(rejecting these “bigoted and unconstitutional laws” but citing them to demonstrate the “tradition
of categorical, status-based disarmaments”). This Court disagrees. Laws reflecting the English
tradition of categorically disarming religious, ethnic, and racial minorities are not relevantly
similar and historically analogous to § 922(g)(1). These laws, justified solely on discriminatory
bases, would thankfully be prohibited today. As such, this Court finds that they cannot impose a
“comparably justified” burden on the right of armed self-defense.
Conversely, the text, history, and tradition of laws disarming British loyalists, based upon
conduct demonstrating that they could not be trusted to obey the law or posed a danger to the
political community if armed – not upon their religion, race, or ethnicity – are arguably historically
analogous. They are relevant to modern day justifications for the felon in possession statute. But
this does not end the inquiry. 	“The inquiry required by Bruen… is not merely whether a
dispossession statute’s burden is “comparably justified,” but also whether the statute imposes a
“comparable burden” on the right itself. Bruen, 142 S. Ct. at 2133.
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The Government has not met its burden to provide evidence of a dispossession law or
regulation that imposes a burden comparable to § 922(g)(1). The loyalty oath laws, under which
“untrustworthy” individuals were permitted to regain their right to possess firearms by swearing
an oath of allegiance to the state or United States are not a “distinctly similar,” or even “relevantly
similar,” historical analogue to § 922(g)(1)’s permanent prohibition on firearm possession by
felons. 18 U.S.C. § 921(a)(20); see also Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009)
(examining certain “method[s] of restoring civil rights” under Illinois law after an individual’s
state sentence expired). 	Rather, by imposing lifetime dispossession and criminalization, §
922(g)(1) clearly imposes a significantly greater burden on a convicted felon’s right to keep and
bear arms.
The second category of laws referenced by the Government, laws that authorize capital
punishment and estate forfeiture for certain felonies, fare no better. 	While the penalties were
severe, they were imposed for criminal conduct; not for status crimes that arose from otherwise
lawful conduct by felons who had completed their sentences. As the Third Circuit recognized in
Range:
The greater does not necessarily include the lesser: founding-era governments’
execution of some individuals convicted of certain offenses does not mean the
State, then or now, could constitutionally strip a felon of his right to possess arms
if he was not executed. As one of our dissenting colleagues notes, a felon could
“repurchase arms” after successfully completing his sentence and reintegrating into
society. Krause Dissent at 127-28. That aptly describes Range’s situation. So the
Government’s attempt to disarm Range is not “relevantly similar” to earlier statutes
allowing for execution and forfeiture. See Bruen, 142 S. Ct. at 2132.
Range, 69 F.4th at 105.
This Court agrees with the Third Circuit. The consequences imposed by these laws, though severe,
“do[ ] not suggest that the particular (and distinct) punishment at issue – lifetime disarmament –is
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rooted in our Nation’s history and tradition.” Range, 69 F.4th at 105; Range, 2024 WL 5199447,
at *7 (3d Cir. Dec. 23, 2024).
In sum, Defendant Smith is included in “the people” protected by the Second Amendment.
Because none of the historical laws offered by the Government impose a “comparable burden” on
the Second Amendment right of convicted felons to keep and bear arms, the Court finds §
922(g)(1) unconstitutional, facially and as applied.
This Court is well aware of the gun violence epidemic in our community, district, and
country at large, and the risks posed by allowing potentially dangerous individuals to be armed.
That said, it is persuaded that adherence to the Bruen directive, that a proper historical analogue
must be both comparably justified and impose a comparative burden, compels its conclusion.
Conclusion
For the foregoing reasons, Defendant Brandon J. Smith’s Motion to Dismiss the Indictment
(Doc. 16) is GRANTED.
IT IS SO ORDERED.
DATED: January 30, 2026
STACI M. YANDLE
Chief United States District Judge
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