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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 12, 2017

v No. 329037 Wayne Circuit Court MARQUIS DAMONE BRADY, LC No. 11-012088-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury convictions of felon in possession of a firearm (felon-in-possession), MCL 750.224f, carrying a concealed weapo n (CCW), MCL 750.227, and possession of a firearm during th e commission of a felony (felo ny-firearm), second offense, MCL 750.227b. We affirm.

This case arises from defendant’s possession of a firearm alth ough he was ineligible to possess one as a felon.

On appeal, defendant argues that Michigan’s felon-in-possessio n statute, MCL 750.224f, is unconstitutional on its face under both the federal and stat e constitutions because it deprives an individual of his right to posse ss firearms for any purpose, in cluding self-defense. We disagree.

Defendant challenges the cons titutionality of MCL 750.224f for the first time on appeal; therefore, we review this issue for plain error affecting subst antial rights. See People v Carines
, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

A statute is presumed to be constitutional, and the party chal lenging the constitutionality of a statute has the burden of proving its invalidity. People v Sadows , 283 Mich App 65, 67; 768 NW2d 93 (2009). Furthermore, defe ndant’s challenge to the felo n-in-possession statute “involves a claim that a legisla tive enactment is unconstitutio nal on its face, in that there is no set of circumstances under which th e enactment is constitutionally valid.” People v Wilder , 307 Mich App 546, 556; 861 NW2d 645 (2014).

The United States Constitution and the Michigan Constitution “ grant individuals a right to keep and bear arms for self-defense.” People v Yanna , 297 Mich App 137, 142; 824 NW2d 241 (2012). The Second Amendment states, “A well regulated Mil itia, being necessary to the-2- security of a free State, the right of the people to keep and b ear Arms, shall not be infringed.” US Const, Am II. The Second Amendment is made fully applicable to the states through the Fourteenth Amendment. McDonald v City of Chicago , 561 US 742, 750; 130 S Ct 3020; 177 L Ed 2d 894 (2010); see also Yanna , 297 Mich App at 142. The Mich igan Constitution provides an equivalent to the Second Amendment, which states, “Every per son has a right to keep and bear arms for the defense of hi mself and the state.” Const 196 3, art 1, § 6.

We first turn to defendant’s claim that his felon-in-possessio n conviction under MCL 750.224f violated the Second Amendment, US Const, Am II. The U nited States Supreme Court confirmed in District of Columbia v Heller , 554 US 570, 595; 128 S Ct 2783; 171 L Ed 2d 637 (2008), that the “Second Amendme nt conferred an individual righ t to keep and bear arms.” However, the Supreme Court al so acknowledged that limits could be placed on that right:

Although we do not undertake an e xhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearm s by felons and the mentally ill, or laws forbidding the carrying of firearms i n sensitive places such as schools and government buildings, or laws imposing cond itions and qualifications on the commercial sale of arms. [ Id . at 626-627.]

Defendant argues that this language in Heller is dictum that this Court should not follow. However, defendant does not provide a single federal or Michiga n case that found this language in Heller to be unpersuasive or that concl uded a firearm dispossession st atute was unconstitutional. In fact, defendant admits that many federal courts have upheld such statutes based on this language in Heller . At the federal level, a vast majority of the circuit courts have rejected constitutional challenges to federal firearm disposses sion statutes that are similar to Michigan’s felon-in-possession statute. See United States v Smoot , 690 F3d 215, 220-221 n 6 (CA 4, 2012). In United States v Khami , 362 Fed Appx 501, 507-508 (CA 6, 2010), the Sixth Circuit explained that it was ob ligated to follow the dicta in Heller because there was no substantial reason for disregardi ng it, and then it held the fe deral felon-in-posse ssion statute, 18 USC 922(g)(1), was constitutional under the Second Amendment.

At the state level, this Court has acknowledged that the right to bear arms under the Second Amendment “is not unlimited.” People v Powell , 303 Mich App 271, 273; 842 NW2d 538 (2013). In Powell , this Court stated that “[e]xceptions to the right to bear arms include regulation of gun possession by felons.” Id ., citing People v Deroche , 299 Mich App 301, 307; 829 NW2d 891 (2013). Relying on the dicta in Heller , this Court has noted that the Second Amendment does not bar categori cal firearm restrictions, such a s those that prevent felons and the mentally ill from possessing firearms. Wilder , 307 Mich App at 555-556; Deroche , 299 Mich App at 307-308. Moreover, t his Court has long upheld the constitutionality of the felon-inpossession statute under the Michigan Constitution on the groun ds that, even if it infringed on one’s right to bear arms, the statute is “a reasonable regulati on by the state in the exercise of its police power to protect the health, safety, and welfare of Mich igan citizens.” People v Swint
, 225 Mich App 353, 363; 572 NW2d 666 (1997). At the time Swint was decided, the Second Amendment was not applicable to the states. Id . at 359-360. That later changed when the Supreme Court held that the Sec ond Amendment was applicable to the states through the Fourteenth Amendment. McDonald , 561 US at 750. In light of the rationale stated in Swint and-3- the decision in Heller , there are clearly circumstances in which MCL 750.224f is cons titutionally valid under the Second Amendment. Therefore, this Court follow s the dicta in Heller and concludes, in conformity with our decision in Swint , that Michigan’s felon- in-possession statute, MCL 750.224f, does not violate the Second Amendment.

We next consider defendant’s claim that the felon-in-possessio n statute violates Michigan’s constitution because it “deprives felons of the fund amental right of self-defense by firearm.” For support, defendant relies on People v Dupree , 486 Mich 693, 712; 788 NW2d 399 (2010), where our Supreme Court held that common law self-defen se was a valid defense to a charge of felon in possession of a firearm. In Dupree , the defendant was a convicted felon who successfully wrestled a handgun free from an attacker before sh ooting the attacker three times. Id . at 709. The defendant was allowed to present evidence of sel f-defense which, if proven, could act as a defense to his felon-in-possession charge. Id . at 708-709. According to defendant, Dupree established that felons have a right to defend themselves with a firearm and that “[t]here is nothing in the federal or state constitutions that indicate this is a temporary right that a select subset of the citizenry can only exercise if they have the good fortune to be in the presence of someone else’s firearm when they need to defend themselves.”

Defendant’s argument is unavailing. The decision in Dupree did not address the constitutionality of the felon-in-possession statute. Addition ally, Dupree is factually distinguishable because, here, d efendant was not actively defen ding himself from an attacker but was merely carrying the firearm for some hypothetical future ne ed of self-defense. This Court has held that a “defendant’s right to bear arms under [the Mich igan Constitution] is not absolute and is subject to the reasonable limitations set forth in MCL 7 50.224f; MSA 28.421(6) as part of the state’s police power.” Swint , 225 Mich App at 375. And, this Court held, the limitations s et forth in the felon-in-possession statute represented “a reasona ble exercise of the state’s police power to protect the health, safety, and welfare of its citizen s.” Id . at 374. Therefore, defendant’s constitutional challenge fails. See People v Green , 228 Mich App 684, 692; 580 NW2d 444 (1998) (holding that the defendant’s felon-in-possessi on charge did not violate his right to bear arms under the Michigan Constitution); People v Parker , 230 Mich App 677, 687; 584 NW2d 753 (1998) (acknowledging that MCL 750.224f does not v iolate the Michigan Constitution). Accordingly, defendant has not shown a plain er ror. The felon-in-possession statute is constitutional on its face under both the federal an d state constitutions. And, considering our resolution of thi s issue, defendant’s related c hallenge to his felony-firearm conviction also fails.

Affirmed.

/s/ Mark T. Boonstra /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly