IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ANDREW GREER (REG. #27297-078), §

§

Movant, §

§

VS. § Cv No. 4:23-cv- 

§ Cr No. 4:17-cr-00094-MAC-CAN-l

UNITED STATES OF AMERICA, §

§

Respondent. §

MEMORANDUM OF LAW IN SUPPORT OF MOTION UNDER

28 U.S.C. § 2255(f)(3) TO VACAT , SET ASID , OR CORRECT

SENT NCE BY A PERSON IN FED RAL CUSTODY

COMES Petitioner, ANDREW GREER ( Greer ), appearing pro se, and in

support of this motion would sho as follows:

I. STATEMENT OF JURISDICTION

Jurisdiction is vested in this Court under U.S.C. § 2255(f)(3). Un er 28

U.S. C. § 2255, federal prisoners “clai ing the ri ht to be released u on the ground that

the sentence was imposed in violation of the Constitution or l ws of the United

States” [may move the district] “court which i posed the sentence to vacate, set aside

or correct the sentence.” 28 U.S.C. § 2255(a). Section 2255(f) sets forth the one-year

statute of limitations for a motio under this section to, in relevant part, “run from the

latest of (1) the date on which the judgment of conviction beco es final;. . . [or]

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(3) the date on which the right asserted as initially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f). Section

2255(f)(3), however, provides that the one-year limitations period begins to run from

the date on which the right asserted was initially recognized by the Supreme Court,

if that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral revie .” 28 U.S.C. § 2255(f)(3). See United

States v. Olvera, 775 F.3d 726 (5th Cir. 2015); Doddv. United State , 545 U.S. 353,

357-58 (2005) (holding that the one-year limitations period runs fom the date on

which the right... was initially recognized by th[e] [Supreme] Court”).

II, STATEMENT OF THE GROUND FOR REVIEW

Whether, in light of New Yo k State Rifle & Pistol Association, Inc. v. Bruen,

597 U.S. (2022) and USA v. Rahimi, No. 21-11001 (5th Cir. 2023), Greer s §

922(j) charge on Count 1 must be vacated for resentencing because it is

unconstitutional.

Ill, STATEMENT OF THE CASE

A. Procedural Background

On June 14,2017, a grand jury sitting in the United States District Court for the

Eastern District of Texas, Sherman Division, returned a two (2) count Indictment

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charging Greer. See Doc. 1? Count 1 charged Greer with Possession of a Stolen

Firearm, in violation of 18 U.S.C. § 922(j). Id. Count 2 charged Greer with Possession

of an Unregistered Firearm in the National Firear s Registration an Tr nsfer Record,

in violation of 26 U.S.C. § 5861(d). Id. The Indictment also contained Notice of

Intention to Seek Criminal Forfeiture, pursuant to 21 U.S.C. § 853 and 18 U.S.C. §

924(d). Id.

On October 4, 2017, a Change of Plea Hearing was held and Greer entered a

guilty plea on Count 1 of the Indictment pursuant to a written Plea Agreement. See

Docs. 17, 19.

On March 29,2018, Greer was sentenced to 120 months i prisonment, 3 years

of Supervised Release, no Fine or Restitution, and a Mandatory Special Assessment

Fee of $100. See Docs. 33,35.

On October 19,2020, Greer filed a Letter Motion for Compassionate Release. See

Doc. 37.

Doc. refers to the Docket Report in the United States District Court for the E stern District

of Texas, Sherman Division in Criminal No. 4:17-cr-00094-MAC-C N-1, which is immediately

followe by the Docket Entry Number. PSR refers to the Presentence Report in this case, which

is immediately followed by the paragraph number. CvDoc. refers to the Docket Report in the

United States District Court for the Eastern District of Texas, Sherman Division in Civil No.

4:21-cv-00157-MAC, which is immediately followed by the Docket Entry Number.

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On November 24, 2020, the Court issued a Memorandum and Order denying

Greer s Letter Motion for Compassion te Release. See Doc. 43.

On January 11,2021, Greer filed a Letter Motion for Reconsideration, which as

denied on January 1 ,2021. See Docs. 45-46.

On February 1, 2021, Greer filed a Second Letter Motion for Reconsideration,

which the Court denied on June 28,2021. See Docs. 47, 58.

OnFebruary24,2021, Greer filedaMotionu der 28 U.S.C. § 2255 to Vacate, Set

Aside or Correct Sentence by a Person in Federal Custody ( § 2255 Motion ). See

Cv.Doc. 1.

On July 12, 2021, Greer filed a Notice of Appeal re: denial of Second Letter

Motion for Reconsideration. See Doc. 59.

On June 21,2021, the District Court denied Greer’s § 2255 Motion. See CvDocs.

11-12.

On July 6,2021, Greer filed a Notice of Appeal re: denial of § 2255 Motion. See

Doc. 13.

On September 24,2021, the United States Court of Appeals for the Fifth Circuit

dis issed Greer’s ppeal for want of prosecution because he failed to timely pay the

docketing fee. See Doc. 61.

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On November 22,2021, the Fifth Circuit denied Greer s appeal as time barred.

SeeCvDoc. 15.

Statement of the Facts

1. Offense Conduct

On March 22,2017, a Denton County, Texas, sheriffs deputy conducted a

traffic stop on a vehicle for making a wide mm. During the traffic stop, the

deputy determined the vehicle occupants appeared nervous, and a

drug-detecting dog alerted to the presence of drugs in rhe car. The deputy

conducted a search of the v ehicle and located cash in the center console. 3

hydrocodone tablets in a purse, and 3 dosage units of LSD in a clear plastic

bag. A search of the driver s person located a plastic bag with 3.4

ethylenedioxymethamphetamine (MDMA). The driver and his passenger,

who lived with Greer, were arrested, and investig tion of their drug-related

activities prompted detectives to suspect Greer and another one of his

roo mates were selling marijuana, MDMA, and LSD out of their home.

Further investigation determined Greer as in possession of two shotguns

and two han guns. A search warrant for Greer’s home was obtained on the

same day.

Later, on March 22, 2017, Little Elm. Texas, police officers and Denton

County Sheriffs deputies traveled to Greer s home in Little Elm to e ecute

the search warrant and were met by Greer’s wife, Jennifer, who advised

Greer that law enforcement officers were at their home and wanted to talk

with him. Greer exited the home, and officers detained both him and his

ife. A search of their residence co menced, and officers located the

following ite s:

• A loadedMossberg, Maverick 88,12-gauge shotgun, serial no.

MV21087V (found in the living roo cabinet);

A loaded Mossberg, Maverick. 12-gauge shotgun, seri l no.

MV42184L (found against a wall near a closet);

• A loaded Taurus, PT 945. .45 caliber handgun, serial no.

NOC54023: 3,4 MDMA; 7 bags containing marijuana;

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marijuana grinders; digital scales: ammunition; handgun

magazines: small; plastic bags: and vacuu sealed bags;

containing suspected marijuana residue (found in the living

room safe);

• A loaded Taurus. PT111. 9 millimeter handgun, serial no.

TJX53359:2 aurus han gun magazines; clear plastic baggies;

and suspected marijuana residue: currency (found in the living

room table);

• A loaded handgun magazine: cocaine; a plastic bag containing

cocaine; a plastic bag containing a green, leafy substance: and

two counterfeit $100 bills (found on the mirrored living room

table);

• A loaded Glock. 43, 9 milli eter handgun, serial no.

BABS864 (found on the Bedroom nightstand);

• Marijuana residue: a vacuum sealer: and a plastic baggie with

a straw and two plastic bottle caps with a white, powdery

substance (found in the closet);

• 9 one-pint bottles of promethazine with codeine (found at the

refrigerator);

• 7 one-pintbottles of promethazine with codeine and wax paper

containing tetrahydrocannabinol (THC) (found in the freezer);

and

• Ammunition; a Zi lock bag box; and U. S. currency (found at

the kitchen countertop).

Greer and his wife were arrested without incident, and a search of Greer s

person located a large amount ofcash in his pants pocket. All totaled,

officers recovered about 38 grams of marijuana; 33 gra s of cocaine; 200

grams of 3.4 MDMA; 46 grams of THC e tract; 11,412 grams of

promethazine with codeine: and $4,027 in currency. Laboratory reports were

not provided to verify the weights of the drugs. Investigation of the Glock

determined that the firearm had been reported stolen in September 2016, and

investigation of the shot un in the cabinet revealed the firearm had a pistol

grip, an overall length of 25.5 inches, and abarrel length of 15.5 inches. All

firear s were manufactured outside the state of Texas and had traveled in

or affected interstate commerce.

See PSRfl4-6.

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2. Plea Proceedin 

On March 18,2013, a Change of Plea Hearing was held before Magistrate Judge

Christine A. Nowak. See Doc. 17, Greer entered a plea of guilty to Count 1 pursuant

to a written Plea Agreement. See Doc, 19. I exchange of Greer s guilty plea, he would

receive a 3-level reduction pursuant to USSG §§ 3El.l(a) a d (b). Id. The case was

referred to the U.S. Probation Office for the preparation of the PSR.

3. Presentence Re ort Calculations and Reco mendations

The U.S. Probation Office prepared Greer’s PSR on December 22, 2017. The

2016 Guidelines Manual, incorporating all guideline amendments, was used to

determine Greer’s offense level pursuant to USSG § 1B1.11. See PSR 10. Count 1:

Possession of a Stolen Firearm calls for a Base Offense Level of 20 because Greer

possessed a shotgun with an overall length of less than 26 inches and a barrel length of

less than 18 inches, pursuant to USSG § 2K2.1 (a)(4)(B). See PSR 11. Greer received

a: 2-level increase since the offense involved three to seven firearms, pursu nt to USSG

§ 2K2.1(b)(1)(A); another 2-level increase because Greer possessed a destructive

device, specific lly a short-barrelled 12-gauge shotgun, pursuant to USSG §

2K2.1(b)(3)(B); 2-level increase because Greer possesse a stolen firearm, pursuant to

USSG § 2K2.1 (b)(4)(A); and 4-level increase because Greer possessed any firearm or

ammunition in connection with another felony offense, pursuant to USSG §

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2K2.1(b)(6)(B). SeePSRfl 12-15. The PSR calculated Greer s Adjusted offense level

to be 30. See PSR 20. Greer received a three (3) level reduction for acceptance of

responsibility, pursuant to USSG §§ 3El.l(a) and (b). See PSR fl 22-23. The PSR

calculated Greer’s Total Offense Level to be level 27. See PSR 24. Greer’s total

criminal history points of 7, placed him in Crimin l History Category IV. Based upon

a Total Offense Level of 27 and a Criminal History Category of IV, the guideline

imprisonment range was 100 months to 125 months. However, the statutorily

authorized maximum sentence of 10 years is less than the maximum of the guideline

range; therefore, the guideline range is 100 months to 120 months. USSG §

5G1.1(c)(1). See PSR [[62.

4. Sentencing Proceeding

On March 29,2018, a Sentencing Hearing was held before District Judge Marcia

A. Crone. See Doc. 33. The Court sentenced Greer to 120 onths’ imprisonment,

followed b 3 years’ Supervised Release. See Doc. 35. The Court also ordered a

pa ment of a Mandatory Special Assessment Fee of $100. Id. No direct appeal was

filed in this case.

5. Postconviction Proceedin 

On February 24,2021, Greer filed a § 2255 Motion. See Cv.Doc. 1. He claims he

is entitled to relief based on ineffective assistance of counsel. The Government was not

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ordered to file a response. In response to the Court s Order as to the timeliness of his

otion, Greer does not present evidence of how he was prevented from filing in a

timely manner or that he is entitled to equitable tolling. Greer fails to show that rare

and extraordinary circumstances prevented him from timely filing, Davis, 158 F.3d at

810-11, or that he exercised due diligence, Palacios, 723 F. d at 604. For the said

reasons, Greer s § 2255 otion was denied. See CvDoc. 15.

V. DISCUSSION

As a preliminary matter, Greer respectfully requests that this Court be mindful that

pro se pleadings are to be construed liberally. See United States v. Kayode, 777 F.3d

719 (5th Cir. 2014) (Pro e pleadings are to be held to less strin ent standards than

formal pleadings drafted by lawyers, and should therefore be liberally construed);

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (same); Haines v. Kerner, 404 U.S.

519, 520 (1972) (same).

In Light of Vgw York State Rifle & Pistol Association, Inav. Bruen 597

U.S, (2022) and USA v. Rahimi, No. 21-11001 (5th Cir. 2023), Greer s

§ 22(j) Charge on Count 1 Must Be Vacated for Resentencing Because

It is Unconsti utional.

In New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. (2022),

abbreviated NYSRPA v. Bru n and also known as NYSRPAII or Bruen to distinguish

it from the 2020 case, is a landmark decision of the United States Supreme Court

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related to the Second Amendment to the United States Constitution. The case

concerned the constitutionality of the 1911 Sullivan Act, a New York State law

requiring applicants for a license to carry a concealed pistol on their person to show

proper cause , or a special need distinguishable from that of the general public, in

their application.

In a 6-3 decision, the m jority ruled that New York s law was unconstitutional,

and ruled that the ability to carry a pistol in public was a constitutional right under the

Second Amendment. The majority ruled that states are allowed to enforce shall-issue 

per itting, where applicants for concealed carry permits must satisfy certain objective

criteria, such as passing a background check, but that may-issue” syste s that use

“arbitrary” ev luations of need made by local authorities are unconstitutional.

In wake of Bruen. several lawsuits involving federal and states ’ gun regulations

have been filed, stressing on the judiciary need to evaluate the regulation not in

consideration of the public good, but in light of the “historical tradition of firearm

regulation”, a phrase penned by ajority opinion author Justice Clarence Thomas.

Several of these cases had successfully overturned long-standing regulations due to the

regulations being not of historic tradition.

The petitioners had asked the Supreme Court to review their case, specifically

pressing the question of “whether the Second Amendment allows the government to

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prohibit ordinary law-abiding citizens from carrying handguns outside the ho e for

self-defense . The Supreme Court ranted certiorari on April 26, 2021, though it

limited the case to the question of whether the State s denial of petitioners’

applications for concealed-carry licenses for self-defense violated the Second

A endment . The case was heard on November 3, 2021. The petitioners were

represented by Paul Clement, who served as solicitor general during the ad inistration

of George W. Bush and ar ued as amicus curiae on behalf of the United States in

Heller, and on behalf of the National Rifle Association in support of the petitioners in

McDonald. The respondents were represented by New York State Solicitor General

Barbara Underwood, who served in the Solicitor General’s Office during the

administration of Bill Clinton and temporarily served as acting Solicitor General of the

United States between the transition fro Clinton to Bush.

The case as the first ajor gun-rights case that the Supre e Court had heard

in more than a decade, outside of the moot New York State Rifle & Pistol A sociation

Inc. v. City of New York. It was also the first gun-rights case to be heard by the

six-me ber conservative majority, which included Justices Clarence Tho as, Neil

Gorsuch and Brett Kavanaugh, who in prior opinions had emphasized the need for the

Supreme Court to review the current stance on Second Amendment cases. Justice Amy

Coney Barrett had also expressed support for a Second Amendment review prior to her

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appointment to the Supreme Court. Because of the shift toward a more-conservative

membership, some court analysts believed that the Court ight interpret the Second

Amendment more liberally in f vor of individual rights over states powers, which

could render many existing public-possession regulations unconstitutional. However,

as discussed by Vox’s Ian Millhiser, the limited question th t the Court ranted may

restrict the issue to concealed-carry licenses a d not the atter of any and all ublic

possession.

The case’s decision was released on June 23,2022. In a 6-3 opinion authored

by Justice Clarence Thomas, the Court held that the state law was unconstitutional as

it infringed on the right to keep and bear arms, reversing the Second Circuit’s decision

and remanding the case for further review.

Thomas’ ajority opinion, joined by Chief Justice John Roberts and Justices

Samuel Alito, Neil Gorsuch, Brett Kavan ugh, and Amy Coney Barrett, effectively

rendered public can a constitutional right under the Second A endment. Thomas

wrote, The constitutional right to bear ar s in public for self- efense is not a

second-class right, subject to an entirely different body of rules than the other Bill of

Rights guarantees? We know of no other constitutional right that an individual may

exercise only after demonstrating to government officers some special need. 

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Because public carry is a constitutional right, Thomas ruled out use of the

two-part test to evaluate state gun laws, which generally involved application of

intermediate scrutiny, that many lower courts had used, and instead evaluated Ne 

York s law under a more-stringent test of whether the proper-cause requirement is

consistent ith the nation’s historical tradition of firearm regulation. Thomas wrote that

gun control laws that identify restricted sensitive places, such as courthouses and

pollin places, would still likely pass constitutional muster, though urban areas would

not qualify as such sensitive places.

After striking do n the two-step test (formerly used by Courts of Appeals

addressing Second Amendment issues), Bruen identified the new test courts must use

on Second Amendment cases. The Court hel : “When the Second A en ment’s plain

text covers an individual’s conduct [here the right to bear ar s], the Constitution

resu ptively protects that conduct. The govern ent ust then justify its regulation

by de onstrating h t it is consistent with the Nation’s historical tradition of firearm

regulation. Only then may a court conclude that the individual’s conduct falls outside

the Second A endment’s “ unqualified command.’ 

The question here is, whether the New York’s law require that applicants for

unrestricted concealed-carry licenses demonstrate a special need for self-defense

violate the Second Amendment?

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In conclusion, New York s proper-cause requirement violates the Fo rteenth

Amendment by preventing law-abiding citizens with ordinary self-defense needs from

exercising their Second Amendment right to keep and bear ar s in ublic for

self-defense.

The right to carry a firearm in public for self-defense is deeply rooted in history,

and no other constitutional right requires a showing of special need to exercise it.

While some “sensitive places restrictions might be appropriate, Manhattan is not a

“sensitive place ” Gun restrictions are constitutional only if there is a tradition of such

regulation in U.S. history.

Justice Samuel Alito authored a concurring opinion arguing that the effect of

guns on American society is irrelevant to the issue.

Justice Brett Kavanaugh authored a concurring o inion, in which Chief Justice

John Roberts joined, noti that any state restrictions requiring bac ground checks,

firear s training, a check of mental health records, and fingerprinting, are still

permissible because they are objective, in contrast to the discretionary nature of ew

York s law.

Justice Amy Coney Barrett authored a concurring opinion noting two

methodological points the Court did not resolve.

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Justice Stephen Breyer authored a dissenting opinion, in which Justices Sonia

Sotoma or and Elena Kagan joi ed. Justice Breyer argued that states should be able to

pass restrictions in n effort to curb the number of deaths caused by gun violence, and

the Court s decision severely burdens the States’ efforts to do so. 

See United States v. Rahimi, (No. 21-11001) (5th Cir. 2023), the question

presente in this case is not whether rohibiting the ossession of firearms by so eone

subject to a domestic violence rest aining order is a laudable policy goal. The question

is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under

the Second Amendment of the United States Constitution. In the light of N.Y. State

Rifle & Pistol Ass n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a

prior panel upheld the statute, applying this court’s pre-5rwen precedent. See United

States v. Rahimi, No. 21-11011, 2022 WL 2070392 at 1 .l (5th Cir. June 8, 2022).

Rahimi filed a petition for rehearing en banc; while the petition w s pending, the

Supreme Court decided Bruen. The prior panel withdrew its opinion and requested

supplemental briefing on the impact of that case on this one. Considering the issue

afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment

jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster.

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Between December 2020 and January 2021, Rahimi was involved in five

shootings in and around Arlington, Texas. On Dece ber 1, after selling narcotics to an

individual, he fired multiple shots into that individual s residence. The following day,

Rahi i was involved in a car accident. He exited his vehicle, shot at the other driver,

and fled the scene. He returned to the scene in a different vehicle and shot at the other

driver s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7,

Rahimi fired multiple shots in the air after his friend’s credit card was declined at a

Whataburger restaurant.

Officers in the Arlington Police Depart ent identified Rahi i as a suspect in

the shootings and obtained a warrant to search his home. Officers executed the warrant

and found a rifle and a pistol. R hi i ad itted that he possessed the firear s. He also

admitted that he was subject to an agreed civil protective order entered February 5,

2020, by a Texas state court after Rahimi’s alleged assault of his ex-girlfriend. The

protective order restrained him fro harassing, stalking, or threatening his ex-girlfriend

and their child. The order also expressly prohibited Rahi i from possessing a firearm.2

A federal grand jury indicted Rahimi for possessing a firearm while under a

domestic violence restraining order in violation of 18 U.S.C. § 922(g)(8), which

provides:

2

The validity of the underlying protective order, and Rahimi s breach of it, are not before us.

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It shall be unlawful for any person[] who is subject to a court order that[:]

(A) was issued after a hearing of which such person received actual

notice, and at which such person had an opportunity to participate; (B)

restrains such person from harassing, stalking, or thre tening an intimate

par ner of such person or child of such intimate partner or person, or

engaging in other conduct that would place an inti ate partner in

reasonable fear of bodily injury to the partner or child; and (C)(i) includes

a finding that such person represents a credible

threat to the physical safety of such intimate partner or child; or (ii) by its

terms explicitly prohibits the use, attempted use, or threatened use of

physical force against such intimate partner or child that would

reasonably be expected to cause bodily injury . . . to . . . possess in or

affecting commerce, any firearm or ammunition ....

Rahimi moved to dismiss the indictment on the ground that § 922(g)(8) is

unconstitutional, but he acknowledged that United States v. McGinnis 956 F.3d 747

(5th Cir. 2020), foreclosed his argument.3 The district court denied Rahi i s motion,

and he led guilty.

On appeal, Rahimi renewed his constitutional challenge to § 922(g)(8).4 Rahimi

again acknowledged that his argument was foreclosed, and a prior panel of this court

agreed. See Rahimi, 2022 WL 2070392 at 1 n.l. But after Bruen, the prior panel

withdrew its opinion, ordered supplemental briefing, and ordered the clerk to expedite

3

The Government urged Rahimi s argument was also foreclosed by United States v. Emerson,

270F.3d203 (S1 Cir. 2001).

Rahi i also asserted that the istrict court erred when it ordered his federal sentence to run

consecutively to sentences for his state crimes because the underlying conduct of the state sentences

was relevant conduct for the purposes of U.S.S.G. § 1B1.3. The prior panel affirmed the district

court. Because we find § 922(g)(8) unconstitutional and acate Rahimi s sentence, we donotfurther

address the sentencing issue here.

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this case for oral argument before another panel of the court. Rahimi now contends that

Bruen overrules our precedent and that under Bruen § 922(g)(8) is unconstitutional.

The Fifth Circuit agreed on both points.

In Emerson, Fifth Circuit held that the Second Amendment guarantees an

individual right to keep and bear rms the First Circuit expressly to do so. 270 F.3d

at 260. But we also concluded that § 922(g)(8) was constitutional as applied to the

defendant there. Id. at 263. Emerson first considered the scope of the Second

mendment right as historically understood, and then deter ined presumably by

applying some form of means-end scrutiny sub silentio that § 922(g)(8) [wa]s

‘narrowly tailored to the goal of minimizing ‘the threat of lawless violence.’ 

McGinnis, 956 F.3d at 755 (quoting Emer on, 270 F.3d at 264).

After D.C. v. Heller, 554 U.S. 570 (2008), courts co lesced around a si ilar

two-step inquir for analyzing laws that ight impact the Second Amendment. 

McGinnis, 956 F.3d at 753 (internal quotation marks omitted). First, we ask[ed]

whether the conduct at issue [fell] within the scope of the Second Amendment right.”

Id. at 754 (internal quotation marks omitted). If the conduct fell outside the scope of the

Second Amendment right, then the challenged law was constitutional. Id. But if the

conduct fell within the scope of the right, then we proceeded to the second step of the

analysis, which applied either intermediate or strict scrutiny. Id. at 754,757 (expressly

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applying means-end scrutiny). In McGinnis this court u held § 922(g)(8) using t is

two-step framework. The initial panel in this case did likewise, citing McGinnis.

Rahimi 2022 WL 2070392 t 1 n. 1. Enter Bruen expounding on Heller the Supreme

Court held that [wjhen the Second Amendment s plain text covers an individual’s

conduct, the Constitution presu ptively rotects that conduct. Bruen 142 S. Ct. at

2129-30. In that context, the Government bears the burden of justify[ing] its

regulation by demonstrating that it is consistent with the Nation s historical tradition

of firearm regulation.” Id. at 21 0. Put another w y, the [GJovemment ust

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 2127. In the course

of its explication, the Court expressly repudiated the circuit courts’ means-end

scrutiny the second step embodied in Emerson and applied in McGinni . Id. at

2128-30. To the extent that the Court did not overtly overrule Emerson and

McGinnis it did not cite those cases but discussed other circuits similar

precedent Bruen clearly “fundamentally changefd] our analysis of laws that

implicate the Second Amendment, onvillian Marine 19 F.4th at 792, rendering their

prior precedent obsolete.

Our review of Rahi i s facial challenge to § 922(g)(8) is de n vo. See United

States v. ailey, 115 F.3d 1222, 1225 (5th Cir. 1997). First, the court addresses the

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Government s argument that Rahimi is not among those citizens entitled to the Second

Amendment’s protections. Concluding he is, we then turn to whether § 922(g)(8)

passes muster under Bruen s standard.5

According to the Government, Heller and Bruen add a gloss on the Second

Amendment that restricts its applicability to only law-abiding, responsible citizens, 

Heller, 554 U.S. at 635, and “ordinary, law-abiding citizens, Bruen 142 S. Ct. at 2122.

Because Rahimi is neither responsible nor law-abiding, as evidenced by his conduct

and by the domestic violence restraining order issued against hi , he falls outside the

ambit of the Second Amendment. Therefore, argues the Government, § 922(g)(8) is

constitutional as applied to Rahimi.

There is some debate on this issue. Compare Kanter v. Barr, 919 F.3d 437,

451-53 (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S. Ct. 2111,

with Binderup v. Att y Gen. U.S., 836 F.3d 336, 357 (3d Cir. 2016) (en banc)

(Hardiman, J., concurring in part and concurring in the judgments). As summarized by

5

The Government also argues th t because Bruen endorsed shall-issue licensing schemes,

and Texas s shall-issue licensing scheme (since modified to allow constitutional carry, see 2021

ex. Sess. La Serv. Ch. 809 (West)) included the requirement that an applicant not be u der a

domestic violence restraining order, it follows that § 922( )(8) is co stitutional. Of course, the Bruen

Court did not rule on the constitutionality of 43 specific state licensing regimes because that was not

the issue before the Court. See Bruen, 142 S. Ct. at 2138 n.9. Rather, the Court merely blessed the

general concept of shall-issue regimes. Id.

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now-Justice Barrett, one [ pproach] uses history and tradition to identify he scope of

the right, and the other uses that same body of evidence to identify the scope of the

legislature s power to take it away. Kanter, 919 F.3d at 452 (Barrett, J., dissenting).

The Government s argument that Rahimi falls outside the community covered by the

Second Amendment rests on the first approach. But it runs headlong into Heller and

Bruen, which we read to espouse the second one.

Unpacking the issue, the Government’s argument fails because (1) it is

inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it

inexplicably treats Second Amendment rights differently than other individually held

rights, and (3) it has no limiting principles. We briefly examine each deficiency.

The Second Amendment provides, simply enough:

A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Anns, shall not be infringed.

U.S. Const, amend. II. Heller explained that the words “the people in the Second

Amendment have been interpreted throughout the Constitution to “unambiguously

refer[] to all me bers of the political co mu ity, not an unspecified subset. 554 U.S.

at 580. Further, “the people” “refer[] to a class of persons who are part of a national

co munity or who have otherwise developed sufficient connection with this country

to be considered part of that community.” Id. (citing United States v.

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Verdugo-Urquidez 494 U.S. 259, 265 (1990)). For those reasons, the Heller Court

began its analysis with the strong presumption that the Second Amendment right is

exercised individually and belongs to all Americans, id. at 581, an then confirme 

that presumption, id. at 595. Heller's exposition of the people” strongly indicates that

Rahi i is included in “the people” and thus ithin the Second A endment s scope.

To be sure, as the Government argues, Heller and Bruen also refer to

“law-abiding, responsible citizens” in discussing the amendment’s reach (Bruen adds

“ordinary, law-abiding citizens”). But read in context, the Court’s phrasing does not

add an implied gloss that constricts the Second Amendment s re ch. Heller simply uses

the phrase “law-abi ing, res onsible citizens” as shorthand in ex laining that its

holding (that the amendment codifies an individual right to keep and bear ar s) should

not “be taken to cast doubt on longstanding prohibitions on the possession of firearms

by felons and the mentally ill, or laws forbidding the carrying of firear s in sensitive

places such as schools and govern ent buildings . . .Id. at 626-27; see also id. at

627 n.26 (“We identify these presumptively lawful regul tory easures only as

examples; our list does not purport to be e haustive.”). In other words, Heller's

reference to “law-abiding, responsible” citizens eant to e clude from the Court’s

discussion groups that have historically been stripped of their Second Amendment

rights. Bruen' reference to “ordinary, law-abiding” citizens is no different. See 142 S.

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Ct. at 2134.

The Government s re ding of Heller and Bruen also turns the typical way of

conceptualizing constitutional rights on its head. U[A] person could be in one day and

out the next: the moment he was convicted of a violent cri e or suffered the onset of

mental illness, his rights would be stripped as a self-e ecuting consequence of his new

status. Kanter, 919 F.3d at 452 (Barrett, J., dissenting). This is an unusual way of

thinking about rights [because i]n other contexts that involve the loss of a right, the

deprivation occurs because of state action, and state action determines the scope of the

loss (subject, of course, to any applicable constitutional constraints). / . “Felon voting

rights are a good example: a state can disenftanchise felons, but if it refrains from doing

so, their voting rights re ain constitutionally protected.” Id. at 453. The Government

fails to justify this disparate treatment of the Second Amend ent.

Perhaps most i portantly, the Government’s roffered interpretation lacks any

true limiting principle. Under the Government s reading, Congress could remove

“unordinary or “irresponsible” or “nonlaw abiding” people however expediently

defined—from the scope of the Second Amendment. Could speeders be stripped of

their right to ee and bear arms? Political nonconformists? Peo le who do not recycle

or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen

countenances such a malleable scope of the Second Amendment’s protections; to the

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contrary, the Supreme Court has made clear that the Second Amendment right is

exercised indivi ually and belongs to all Americans, Heller, 554 U.S. at 581. Rahimi,

while hardly a model citizen, is nonetheless part of the political co munity entitled to

the Second Amendment s guarantees, all other things equal.

Rahi i s possession of a pistol and rifle easily falls within the purview of the

Second Amendment. The amendment grants him the right “to keep” firearms, and

“possession” is included within the meaning of “keep.” See id, at 2134 35. And it is

undisputed that the types of firear s that Rahi i possessed are “in common use,” such

that they fall within the scope of the amendment. See id. at 2143 (“[ ]he Second

Amendment protects only the carrying of weapons that are those in common use at the

time,’ as opposed to those that ‘are highly unusual in society at large. ”) (quoting

Heller, 554 U.S. at 627)). Thus, Bruen s first step is met, and the Second Amendment

presumptively protects Rahimi’s right to keep the we pons officers discovered in his

home. See id. at 2126.

Aspects of how the surety laws worked resemble certain of the mechanics of §

922(g)(8) as well. The surety laws required only a civil proceeding, not a criminal

conviction. The “credible threat” finding required to trigger § 922(g)(8)’s prohibition

on possession of weapons echoes the showing that was required to justify posting of

surety to avoid forfeiture. But that is where the analogy breaks o n: As the

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Government acknowledges, historical surety laws did not prohibit public carry, much

less possession of weapons, so long as the offender posted surety. See also id. at 2149

(noting that there is little evidence that authorities ever enforced surety laws ). Where

the surety laws imposed a conditional, partial restriction on the Second A endment

right, § 922(g)(8) works an absolute depriv tion of the right, not only publicly to carry,

but to possess any firear , upon entry of a sufficient protective order. At bottom, the

historical surety laws did not impose “a comparable burden on the right of armed self

defense,” id. at 2133, as § 922(g)(8).10

The Govern ent fails to demonstrate that § 9 2(g)(8) s restriction of the Second

Amendment right fits within our Nation s historical tradition of firearm regulation. The

Government’s proffered analogues falter under one or both of the metrics the Supreme

Court articulated in Bruen as the baseline for measuring “relevantly si ilar” analogues:

“how and why the regulations burden a law-abiding citizen’s right to armed

self-defense.” Id. As a result, § 922(g)(8) falls outside the class of firearm regulations

countenanced by the Second Amendment.

In conclusion, doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals

meant to protect vulnerable people in our society. Weighing those policy goals’ merits

through the sort of means-end scrutiny our prior precedent indulged, we previously

concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s

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Second Amendment rights. But Bruen forecloses any such analysis in favor of a

historical analogical inquiry into the scope of the allowable burden on the Second

Amendment right. Through that lens, we conclude that § 922(g)(8) s ban on ossession

of firear s is an outlier[] that our ancestors would never have accepted. Id.

Therefore, the statute is unconstitutional, and Rahimi s conviction under that statute

was vacated and reverses the district court s ruling to the contrary.

Thus,inlightof5rwenandRa u>nr,Greerprosecutionunder 18U.S.C. § 922(g)

is null and void. Hence, the Court should consider and vacate Greer’s sentence.

VI. CONCLUSION

For the above and foregoing reasons, Greer’s sentence should be vacated for

resentencing because § 922(j) is unconstitutional, in light of Bruen and Rahimi.

Respectfully submitted,

Dated: M y Z, 2023

ANDREW GREteR

REG. NO. 27297-078

USP COLEMAN I

U.S. PENITENTIARY

P.O. BO 1033

COLEMAN, FL 33521

Appearing Pro Se

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