IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) No. 2:14-CR-102

)

CARL TAYLOR, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss

Indictment, filed by Defendant, Carl Taylor, on July 7, 2015 (DE

#17). For the reasons set forth below, the motion (DE #17) is

DENIED. 

BACKGROUND

Taylor is charged with one count of possession of a firearm in

violation of 18 U.S.C. § 922(g)(1), which criminalizes possession

of firearms and ammunition by any person “who has been convicted in

any court of a crime punishable by imprisonment for a term

exceeding one year.” According to the indictment and discovery

provided by the Government, Taylor was previously convicted of

being a felon in possession of a firearm in the Northern District

of Indiana (case no. 11 CR 105-RL-PRC). The indictment alleges

Taylor possessed a Ruger .45 caliber P97 pistol with serial number
663-48905, in violation of section 922(g)(1). (DE #1.)

Defendant filed the instant motion to dismiss the indictment

arguing: (1) 18 U.S.C. § 922(g)(1) is unconstitutional; (2) 18

U.S.C. § 922(g)(1) is not a legitimate use of Congress’ authority

under the commerce clause; and (3) 18 U.S.C. § 922(g)(1) violates

the equal protection clause by abridging the right to bear arms

based on various state statutes. These identical arguments were

addressed and rejected by Chief Judge Simon last year, in United

States v. Jawan Hayes, 2:14-cr-0072-PPS-APR, DE #14. 

DISCUSSION

The Constitutionality of 18 U.S.C. § 922(g)(1) 

Taylor first argues that Section 922(g)(1) is

unconstitutional, as applied to him and on its face, because the

statute infringes on his Second Amendment right to keep firearms

for self-defense. (DE #17, pp. 2-5.) He relies on District of

Columbia v. Heller, 554 U.S. 570 (2008), which recognized an

individual right to keep firearms unconnected with militia service. 

But even Heller explicitly foreclosed Taylor’s argument, stating,

“nothing in our opinion should cast doubt on the longstanding

prohibitions on the possession of firearms by felons . . .” 

Heller, 554 U.S. at 626. The Court then reaffirmed this position

in McDonald v. City of Chicago, 140 S. Ct. 3020, 3047 (2010). 

 The Seventh Circuit has explicitly held that § 922(g)(1) is

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constitutional. See U.S. v. Williams, 616 F.3d 685 (7th Cir.

2010). In Williams, the defendant was charged with possessing a

firearm after an Indiana robbery conviction. Id. at 693. Williams

claimed the felon-in-possession statute violated his Second

Amendment rights. The Court held that the statute was

constitutional. The Williams Court applied intermediate scrutiny

and found that the Government’s objective of keeping firearms out

of the hands of violent felons was a proper objective and that

there was a substantial relationship between that objective and the

prohibition on felons possessing firearms. Id. at 692-93. See

also U.S. v. Davis, 406 Fed. App’x 52, 54 (7th Cir. 2010)

(describing a challenge to the constitutionality of § 922 as

“frivolous” and foreclosed by the Supreme Court’s opinion in

McDonald.). The other Circuit Courts have also been unanimous in

upholding the statute’s constitutionality. See Williams, 616 F.3d

at 693 (collecting cases).

Most recently, in United States v. Shields, the Seventh

Circuit recognized that some categorical bans on firearm possession

are constitutional. __ F.3d __, 2015 WL 3654318, at *12 (7th Cir.

June 15, 2015). In Shields, the Court found that “[b]ecause

[defendant] was convicted of three violent felonies, applying § 922

(g)(1) here is substantially related to the Government’s important

interest in keeping firearms away from violent felons.” Similarly,

this Court finds section 922(g)(1) is constitutional as applied to

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Taylor.

The Constitutionality of 18 U.S.C. § 922(g)(1) 

Taylor’s next argument is that § 922(g)(1) exceeds Congress’s

power under the Commerce Clause because the mere possession of a

firearm that once traveled in interstate commerce does not

substantially affect interstate commerce. (DE #17, pp. 8-13.) The

Supreme Court held precisely the opposite in U.S. v. Scarborough,

431 U.S. 563, 566 (1978), stating the Commerce Clause’s interstate

commerce nexus requirement was satisfied by proof that the firearm

the defendant possessed had previously traveled in interstate

commerce. Taylor argues that Scarborough has been implicitly

overruled by more recent decisions, particularly U.S. v. Lopez, 514

U.S. 549 (1995), and Heller.

The Seventh Circuit has repeatedly rejected the argument that

Lopez overruled Scarborough. See U.S. v. Wesela, 223 F.3d 656, 660

(7th Cir. 2000) (“[w]e have determined that nothing in Lopez . .

. casts doubt on the validity of § 922(g).”); see also U.S. v.

Juarez, 454 F.3d 717, 719 (7th Cir. 2006); U.S. v. Wilson, 118 Fed.

App’x 974, 976 (7th Cir. 2004); U.S. v. Vallejo, 373 F.3d 855, 860

(7th Cir. 2004); U.S. v. Keller, 376 F.3d 713, 716-17 (7th Cir.

2004); U.S. v. Gillaum, 372 F.3d 848, 862 (7th Cir. 2004). Section

922(g)(1) does not violate the Commerce Clause because it contains

a jurisdictional element -“possess in or affecting commerce” - and

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the Supreme Court has held that the prior movement of the firearm

in intestate commerce suffices to meet that element. Juarez, 454

F.3d at 719.

With regard to Heller, it is not apparent how the Supreme

Court’s ruling on the Second Amendment affects Congress’s power

under the Commerce Clause. Heller itself certainly doesn’t say

anything about the Commerce Clause. Though the Seventh Circuit

has not explicitly addressed this question, other Circuit Courts

have. And all that have considered the question have held that the

Court’s decision in Heller had no effect on the constitutionality

of § 922(g) under Congress’s Commerce Clause power. See U.S. v.

Rene E., 583 F.3d 8, 18 (1st Cir. 2009); U.S. v. Kline, 494 F.

App’x 323, 325-26 (4th Cir. 2012) cert. denied, 133 S. Ct. 963

(2013); U.S. v. Irish, 285 F. App’x 326, 327 (8th Cir. 2008); U.S.

v. Parker, 371 F. App’x 749, 750 (9th Cir. 2010); U.S. v. Gieswein,

346 F. App’x 293, 296 (10th Cir. 2009); U.S. v. Nicoll, 400 F.

App’x 468, 471 (11th Cir. 2010). This Court agrees with these

other courts; in the absence of language in Heller or any other

controlling case indicating that the right to bear arms reduces

Commerce Clause federal jurisdiction, there is no basis for this

Court to so rule. See U.S. v. Schultz, No. 1:08-CR-75-TS, 2009 WL

35225, at *4 (N.D. Ind. Jan. 5, 2009); U.S. v. Radencich, 3:08-CR48(01)RM, 2009 WL 127648, at *3 (N.D. Ind. Jan. 20, 2009).

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Taylor next claims that absent a constitutional basis for

criminalizing intrastate firearm possession, Congress exceeded the

limits of its authority in violation of the Tenth Amendment. (DE

#17, p. 13.) This argument is simply incorrect. See Wilson, 118

Fed. App’x at 976 (holding § 922(g) does not violate the Tenth

Amendment because it reflects a valid of exercise of federal power

to regulate commerce and does not commandeer States or their

officials); see also U.S. v. Jackubowski, 63 Fed. App’x 959, 961

(7th Cir. 2003); U.S. v. Hemmings, 258 F.3d 587, 594 (7th Cir.

2001); Gillespie v. City of Indianapolis, 185 F.3d 693, 706 (7th

Cir. 1999).

Whether 18 U.S.C. § 922(g)(1) Violates the Equal Protection Clause

Finally, Taylor argues that § 922(g)(1) violates the Equal

Protection Clause. (DE #17, p. 14.) He argues the law is

“facially unequal” (id., p. 15) because it relies on diverse state

definitions of felony crimes to define the conduct that leads to

the loss of the right to possess firearms. The statute also

incorporates state restoration schemes which means it

inconsistently restores the right to possess firearms, in addition

to inconsistently taking away the right. Taylor next argues that

the Heller decision established a fundamental right to bear arms,

meaning statutes restricting or limiting this fundamental right,

like § 922(g)(1) must be reviewed under strict scrutiny.

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This argument, too, has been foreclosed by the Seventh

Circuit. See U.S. v. Williams, 616 F.3d 685, 694 (7th 2010)

(rejecting defendant’s equal protection challenge to § 922(g)(1)

based on the incorporation of different state felony definitions);

U.S. v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc)

(“[t]rue [§ 922] tolerates different outcomes for persons convicted

in different states, but this is true of all situations in which

a firearms disability (or any other adverse consequence) depends

on state law.”). 

Here’s why. The Supreme Court in Heller did not establish a

fundament right to bear arms, nor did the Court explicitly adopt

a level of scrutiny for Second Amendment challenges. Some courts

have stuck with rational basis review. See, e.g., U.S. v. Vongxay,

594 F.3d 1111, 1119 (9th Cir. 2010). The Seventh Circuit has used

intermediate scrutiny to review Second Amendment and Equal

Protection challenges to the felon-in-possession statute and

similar restrictions on gun ownership. See Williams, 616 F.3d at

693 (felon-in-possession statute withstands intermediate scrutiny;

Skoien, 614 F.3d at 641 (same level of scrutiny for those

previously convicted of possessing a gun after being convicted of

a violent misdemeanors); U.S. v. Yancey, 621 F.3d 681, 683 (7th

Cir. 2010) (habitual-drug-user-in-possession statute withstands

intermediate scrutiny); Schultz, 2009 WL 35225, at *5 (felon-inpossession statute withstands intermediate scrutiny); Radencich,

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2009 WL 127648, at *4-5 (same). As noted above, the felon-inpossession statutes pass muster under this level of scrutiny

because the government’s objective, public safety, is an important

one. See Williams, 616 F.3d at 693; Skoien, 614 F.3d at 642 (“no

one doubts that . . . preventing armed mayhem is an important

governmental objective”). And the means the government uses -

keeping firearms out of the hands of those most likely to commit

crimes - is substantially related to the objective. Williams, 616

F.3d at 693; Skoien, 614 F.3d at 644. Therefore, Taylor’s Equal

Protection challenge is without merit.

CONCLUSION

For the reasons set forth below, the motion to dismiss the

indictment (DE #17) is DENIED. 

DATED: July 15, 2015 /s/ RUDY LOZANO, Judge

United States District Court

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