F.3d 693, 704 (7th Cir. 1999). Consequently, when Congress enacts a law which falls within its
power under the Commerce Clause, such a law does not violate the Tenth Amendment. Id.
(holding that section 922(g)(9) did not violate the Tenth Amendment because it was a valid
exercise of congressional authority to regulate interstate commerce).

In addition, congressional action violates the Tenth Amendment when it “compel[s] the
States to enact or administer a federal regulatory program,” or when “it conscript[s] the State’s
officers directly” by assigning to them responsibility for enforcing federal laws. Printz v. United

States, 521 U.S. 898, 935 (1997). See also Gillespie, 185 F.3d at 707-08.

Here, because this Court has already ruled that Congress did not exceed its power under
the Commerce Clause when it enacted sections 922(g)(1) and (Ik), the Court likewise holds that
these sections do not violate the Tenth Amendment. The Court also finds that these sections do
not commandeer state governments or their officials or compel the states to administer a federal
program. Sections 922(g)(1) and (k) are not directed at states or state officials. They are
criminal laws of general application that regulate the behavior of individuals. Consequently, this
Court holds that sections 922(g)(1) and (k) do not violate the Tenth Amendment.

TI. Section 922(g)(1) Does Not Violate the Equal Protection Clause

Wilson additionally contends that section 922(g)(1) violates the Equal Protection Clause
under the Fifth Amendment because it restricts the right to bear arms based on state laws which
are not uniform. Under the Equal Protection Clause, if a Congressional enactment implicates a
fundamental right, the law “‘can only be sustained if it is narrowly tailored to serve a compelling

government interest, or, at the least, is substantially related to the service of an important


as personal, individual weapons.” United States vy. Emerson, 270 F.3d 203, 260 (Sth Cir. 2001).
However, the Fifth Circuit admitted that its general rule was limited by exceptions and
specifically stated that “it is clear that felons, infants and those of unsound mind may be
prohibited from possessing firearms.” Id. at 261. Thus, even under the Fifth Circuit’s expansive
interpretation of the Second Amendment, Wilson could be precluded from possessing a firearm
pursuant to § 922(g)(1). Accordingly, this Court holds that section 922(g)(1) does not violate the

Second Amendment.


F.3d 55, 58-59 (7th Cir. 1995) (same).

Here, section 922(g)(1) provides, in relevant part, that “[i]t shall be unlawful for any
person—(1) who has been convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year . . . to receive any firearm or ammunition that has been shipped or
transported in interstate or foreign commerce.” Section 922(k) similarly contains a jurisdictional
element, providing that the possession of a firearm which has had its manufacturer’s serial
number obliterated is only prohibited if the firearm “has, at any time, been shipped or transported
in interstate or foreign commerce.”

Therefore, this Court finds that sections 922(g)(1) and (k) are permissible exercises of
congressional authority under the Commerce Clause because they contain a jurisdictional
element which provide the required nexus with interstate commerce. Moreover, it is undisputed
that “[bloth weapons were manufactured outside of the State of Illinois.” Consequently, this
Court holds that sections 922(g)(1) and (k) do not violate the Commerce Clause.

IL Sections 922(g)(1) and (k) Do Not Violate the Tenth Amendment

Wilson further contends that sections 922(g)(1) and (k) violate the Tenth Amendment,
which provides that “[t]he powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.” This
amendment “confirms that the power of the Federal Government is subject to limits that may, in
a given instance, reserve power to the States.” New York v. United States, 505 U.S. 144, 157
(1992). A congressional act violates the Tenth Amendment when Congress exceeds the limits of

authority bestowed upon it by Article I of the Constitution. Gillespie v. City of Indianapolis 185



government objective.” Gillespie, 185 F.3d at 708. If, however, the law in question does not
implicate a fundamental right, it “need only have a rational basis.” Id. See also United States v.
Jester, 139 F.3d 1168, 1171 (7th Cir. 1998).

Here, Wilson contends that the right of individuals to possess firearms is a fundamental
right under the Second Amendment. The Seventh Circuit, however, on numerous occasions, has
rejected the contention that the right to possess a firearm is a fundamental one. Gillespie, 185
F.3d at 709; Jester, 139 F.3d at 1171.

Thus, section 922(g)(1) need only have a “rational basis” to satisfy the Equal Protection
Clause. Wilson can only satisfy this standard by showing that no “state of facts reasonably may
be conceived to justify” the disputed statutory provision. Dandridge v. Williams, 397 U.S. 471,
485 (1970); Jester, 139 F.3d at 1171. Under the rational basis review, this Court will not
invalidate a challenged law “simply because the classification is not made with mathematical
nicety or because in practice it results in some inequality... . The problems of government are
practical ones and may justify, if they do not require, rough accommodations ....” Dandridge,
397 USS. at 485; Jester, 139 F.3d at 1171.

Congress enacted section 922(g) “to keep firearms out of the hands of those persons
whose prior conduct indicated a heightened proclivity for using firearms to threaten community
peace and the continued and effective operation of the Government of the United States.” Jester,
139 F.3d at 1171. The United States Supreme Court has already ruled that such a provision has a
rational basis: “Congress could rationally conclude that any felony conviction . . . is a sufficient

basis on which to prohibit the possession of a firearm.” Lewis v. United States, 445 U.S. 55, 66


CONCLUSION
For the foregoing reasons, the Court DENIES Defendant Wilson’s Motion to Dismiss
Indictment for Lack of Federal Jurisdiction, or in the Alternative Based on Insufficiency of

Evidence [46-1].

BLANCHE M. MANNING
U.S. DISTRICT COURT G ick

DATE: /@ -/7-02-


vm (06/97)

United States District Court, Northern District of Iinois

Name Maguate sate Blanche M. Manning Sitting ene ouie
| CASE INUMBER 01 CR 847 DATE October 17, 2002
CASE United States of America v. Earnest Wilson
[In the following box (a), indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.)
DOCKET ENTRY:
qa) d Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
@) a Answer brief fo motion due___._Reply to answer brief due
@) oa Ruling/Hearing on setfor at
6) Oo Status hearing[held/continued to] {set for/re-set for] on setfor at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on setfor at.
) Oo Trial[set for/re-set for] on _____—at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to att
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

COFRCP4(m) OGeneral’Rule 21 C1 FRCP41(a)(1) © FRCP41(a)(2).

Alternative Based on Insufficiency of Evidence [46-1].

(11) oO

No notices required, advised in open court.

[For further detail see order on the reverse side of the original minute order.]

No notices required.

/ | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.
yeaa cae
Mail AO 450 form. | eT
Copy to judge/magistrate judge.
courtroom
RTS deputy’s
initials
Date/time received in
central Clerk's ‘Office mailing deputy initials

(10) ‘Mf [Other docket entry] For the reasons set forth in the attached Memorandum and Order, the Court
DENIES Defendant Wilson’s Motion to Dismiss Indictment for Lack of Federal Jurisdiction, or in the



(1980) (rejecting Fifth Amendment challenge to predecessor of § 922(g)(1)). Therefore, this
Court finds that the restriction in section 922(g)(1) has a “rational basis,” and therefore does not
violate the Fifth Amendment.
IV. Section 922(g)(1) Does Not Violate the Second Amendment

Wilson also contends that section 922(g)(1) violates his rights under the Second
Amendment, which provides that “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.” The Second
Amendment, however, “establishes no right to possess a firearm apart from the role possession of
the gun might play in maintaining a state militia.” Gillespie, 185 F.3d at 710. In Gillespie, the
Seventh Circuit upheld §922(g)(9), which prohibits persons convicted of misdemeanor domestic
violence from possessing firearms, against a Second Amendment challenge because the
defendant did not “demonstrate a ‘reasonable relationship’ between his own inability to carry a
firearm and the preservation or efficiency of a well regulated militia.” Id. at 711.

Here, similar to Gillespie, Wilson has made no showing whatsoever that his inability to
carry a firearm has any relationship to the preservation or efficiency of a well regulated militia.

Instead, he relies on the Government’s Brief in Opposition to Petition for Writ of Certiorari in

Emerson v. United States, 122 S. Ct. 2362 (2002) (writ of cert. denied), for the proposition that
the Second Amendment “broadly protects the rights of individuals . . . to possess and bear their
own firearms.” In Emerson, the Fifth Circuit held that the Second Amendment “protects the right
of individuals, including those not then actually a member of any militia or engaged in active

military service or training, to privately possess and bear their own firearms . . . that are suitable


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, } Hon. Blanche M. Manning
vy. } 01 CR 847
EARNEST WILSON, }
Defendant. }

MEMORANDUM AND ORDER

Afier initially being charged with state law violations, Defendant Earnest Wilson was
indicted by a federal grand jury with two counts of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm with an obliterated
serial number in violation of 18 U.S.C. § 922(k).’ The present matter comes before this Court on
Wilson’s Motion to Dismiss the Indictment, pursuant to Federal Rule of Criminal Procedure
12(b)(2), or in the alternative, for a Judgment of Acquittal, pursuant to Federal Rule of Criminal

Procedure 29. For the reasons that follow, the motion is DENIED.

1 A complete summary of the facts in this case can be found in this Court’s February 8,

2002 Memorandum and Order denying Wilson’s motion to quash his arrest. Se


ANALYSIS

Wilson contends that the Indictment should be dismissed because sections 922(g)(1) and
(k) violate the following constitutional provisions: (1) the Commerce Clause; (2) the Tenth
Amendment; (3) the Fifth Amendment; and (4) the Second Amendment. The Court will address
each of these contentions in turn.
L Sections 922(g)(1) and (k) Do Not Violate the Commerce Clause

The Commerce Clause provides Congress with the authority to “regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I,
§ 8. The test for determining whether an activity is within Congress’ power to regulate under the
Commerce Clause is whether the regulated activity “substantially affect[s] interstate commerce”
(the interstate nexus requirement). United States v, Lopez, 514 U.S. 549, 559 (1995). The
Seventh Circuit has ruled on several occasions that § 922(g)(1) satisfies the Commerce Clause’s
interstate nexus requirement if the firearm traveled in interstate commerce at any point prior to
coming into possession of the defendant. United States v. Lemons, 302 F.3d 769, 772 (7th Cir.
2002); United States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (“This circuit has rejected
claims that § 922(g)(1) . . . violate[s] the Commerce Clause” because the jurisdictional element
of § 922(g) provides the required nexus with interstate commerce); United States v. Williams,
128 F.3d 1128, 1133 (7th Cir. 1997) (“Congress has authority under the Commerce Clause to
pass § 922(g)(1) because subsection (g) contains its own provision that the possession must be in
or affecting interstate commerce”); United States v. Lewis, 100 F.3d 49, 52-53 (7th Cir. 1996)

(same); United States v. Bell, 70 F.3d 495, 498 (7th Cir. 1995) (same); United States v. Lee, 72