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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ) 

) No. 20 CR 257 

v. ) Hon. Martha M. Pacold 

) 

AMBER PELTZER ) 

) 

MOTION TO WITHDRAW PLEA AND DISMISS THE INDICTMENT 

ON SECOND AMENDMENT GROUNDS

Defendant Amber Peltzer, by her attorneys, Michael B. Nash and Lisa L. Wood, 

moves to withdraw her guilty plea on the ground that 18 U.S.C. §922(g)(1) is 

unconstitutional as applied to her and she is therefore legally innocent of the crime 

charged. The Supreme Court’s “text and tradition” approach to the Second 

Amendment, outlined and explained in Atkinson v. Garland, No. 22-1557, 2023 WL 

4071542 (7th Cir. June 20, 2023), United States v. Bullock, --- F. Supp. 3d ----, 2023 WL 

4232309 (S.D. Miss. June 28, 2023), Range v. Att'y Gen. United States of Am., 69 F.4th 96, 

103 (3d Cir. 2023) (en banc), and New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 

2111 (2022), compels the conclusion that §922(g)(1) is unconstitutional as applied to Ms. 

Peltzer and the Court should dismiss this case with prejudice.

PROCEDURAL BACKGROUND

On June 1, 2020, the government filed a complaint against Ms. Peltzer, charging 

her with being a felon in possession of a firearm. Dkt. 1. The grand jury later returned 

an indictment on June 10, 2020. Dkt. 5. On June 9, 2023, Ms. Peltzer entered a plea of 

guilty to Count One of the indictment. Dkt. 106. 

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On June 7, 2023, the Third Circuit became the first federal appellate court to hold 

18 U.S.C. § 922(g)(1) unconstitutional in an as-applied challenge. See Range, 69 F.4th 96.

The Range opinion interpreted the Supreme Court’s recent decision in New York State

Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). Subsequently, on June 20, 2023, the 

Seventh Circuit issued its opinion in Atkinson v. Garland, No. 22-1557, where it held that 

the government’s historical analysis of the constitutionality of Section 922(g)(1) fell 

“well short of Bruen’s demands.” While Atkinson ultimately remanded the case to allow 

the government to attempt to develop more persuasive historical evidence, the decision 

also established that the government has so far failed to “affirmatively prov[e] 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 *5 (quoting Bruen, 142 S. Ct. at 2127).1 As a result 

of these developments, Ms. Peltzer moves to withdraw her guilty plea and dismiss the 

indictment against her.

ARGUMENT

After a guilty plea is accepted, a defendant may withdraw it upon the showing of 

a “fair and just reason for requesting the withdrawal.” Fed.R.Crim.P., Rule 11(d)(2)(B); 

see also United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003); United States v. 

Bradley, 381 F.3d 641, 644-45 (7th Cir. 2004). The Seventh Circuit has long held that legal 

1 The Eighth Circuit has come to the opposite conclusion of the en banc Range court and 

found the government’s historical evidence to be sufficient to support the 

constitutionality of Section 922(g). United States v. Jackson, 69 F.4th 495, 505 (8th Cir. 

2023). But while Judge Wood’s dissent in Atkinson would have followed the Eighth 

Circuit’s lead, the Atkinson majority refused to do so.

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innocence is a fair and just reason for withdrawing a guilty plea. United States v. GomezOrozco, 188 F.3d 422, 425 (7th Cir. 1999); United States v. Groll, 992 F.2d 755, 758 (7th Cir. 

1993). Ms. Peltzer asserts that because the statute of her conviction is unconstitutional, 

she is legally innocent and should be allowed to withdraw her plea.

Ms. Peltzer submits that recent jurisprudence makes clear that §922(g)(1) is 

unconstitutional as applied to her. In its 2022 decision in New York State Rifle & Pistol

Ass’n v. Bruen, the Supreme Court rejected the “intermediate scrutiny” framework that 

many appellate courts, including the Seventh Circuit, had previously applied to Second 

Amendment challenges. Bruen, 142 S. Ct. at 2127 (rejecting the two-step test set out in 

Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019) because it “involved one step too many”). 

In its place, the Bruen Court explained that

the standard for applying the Second Amendment is as follows: When the 

Second Amendment’s plain text covers an individual’s conduct, the 

Constitution presumptively protects that conduct. The government must 

then justify its regulation by demonstrating that 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 

Amendment’s “unqualified command.”

Id. at 2129–30 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 51 n.10 (1961)). 

In its recent holding in Atkinson, the Seventh Circuit acknowledged both that 

Bruen abrogated its previous precedents applying a two-step test and that the 

government may defend the constitutionality of a gun regulation only “by proving that 

it is ‘consistent with this Nation’s historical tradition of firearm regulation.’” Atkinson, at 

*1 (citing Bruen at 2126). 

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Here, Ms. Peltzer’s conduct—the possession of a firearm—is covered by the plain 

text of the Second Amendment and is presumptively protected by the Constitution. As 

a result, the government can only prevail if it can “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.” Bruen, at 2127 (emphasis added); see also Atkinson at *1. But it 

cannot. In fact, the historical record from the time of the founding demonstrates the 

exact opposite: Laws prohibiting felons from bearing arms did not begin to appear, in 

any form, until the twentieth century. See C. Kevin Marshall, Why Can’t Martha Stewart 

Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 708 (2009) (“Though recognizing the hazard 

of trying to prove a negative, one can with a good degree of confidence say that bans on 

convicts possessing firearms were unknown before World War I.”). This historical 

evidence means that the government cannot carry its burden to establish the 

constitutionality of Section 922(g)(1) as applied to offenders like Ms. Peltzer. 

A. The plain text of the Second Amendment covers conduct criminalized by 

Section 922(g)(1). 

The Second Amendment protects “the right of the people to keep and bear

arms[.]” U.S. Const. amend. II. As the Supreme Court has explained, this plain language

“guarantee[s] the individual right to possess and carry weapons[.]” D.C. v. Heller, 554 

U.S. 570, 592 (2008). Supreme Court precedent also indicates that individuals who have 

prior felony convictions are part of “the people” protected by the Second Amendment. 

Specifically, in Heller, the Supreme Court noted that the term “the people” 

appears not just in the Second Amendment, but in the First and Fourth Amendments as 

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well. Id. at 579. And the Heller Court found that the repeated use of this term reflected a 

consistent meaning—namely, that “[a]ll three of these instances unambiguously refer to 

individual rights, not ‘collective’ rights, or rights that may be exercised only through 

participation in some corporate body.” Id. Based on this, the Heller Court held that the 

language of the clause creates “a strong presumption that the Second Amendment right 

is exercised individually and belongs to all Americans.” Id. at 581 (emphasis added). 

And while the Heller decision also included dicta emphasizing the Second 

Amendment’s protections for “law-abiding, responsible citizens,” id. at 635, the Seventh 

Circuit has rejected the notion that this dicta limits the scope of the Second Amendment. 

Specifically, in United States v. Meza-Rodriguez, issued prior to Bruen, the Seventh Circuit 

held that:

While some of Heller’s language does link Second Amendment rights with 

the notions of “law-abiding citizens” and “members of the political 

community,” see Heller, 554 U.S. at 580, 625, 128 S.Ct. 2783, those passages 

did not reflect an attempt to define the term “people.” We are reluctant to 

place more weight on these passing references than the Court itself did.

United States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2015). Instead—following the 

actual holding of the Heller decision—the Seventh Circuit has concluded that “the term 

‘the people’ in the Second Amendment has the same meaning as it carries in other parts 

of the Bill of Rights[.]” Id. at 670. 

Nothing in the Supreme Court’s recent Bruen decision casts doubt on the

understanding articulated in Meza-Rodriguez. Indeed, Bruen reiterated Heller’s holding 

that “[t]he Second Amendment guaranteed to ‘all Americans’ the right to bear 

commonly used arms in public subject to certain reasonable, well-defined restrictions.” 

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Bruen, 142 S. Ct. at 2156 (quoting Heller, 554 U.S. at 581). And while Bruen—like Heller 

itself—also contained dicta emphasizing the Second Amendment’s protections for “law 

abiding, responsible citizens,” those passages do not purport to define (much less to 

redefine) the term “the people.” As a result, for the reasons the Seventh Circuit already 

identified in Meza-Rodriguez, the Court should find “the people” protected by the 

Second Amendment are the same as those protected by the First and Fourth 

Amendments. That means that Ms. Peltzer is presumptively covered by the Second 

Amendment’s plain text. See, e.g., Bullock, *47-48 (concluding that the Second

Amendment applies to all felons who possess weapons); Range, 69 F.4th at 101-103 

(same).

The Third Circuit reached this same conclusion in its recent en banc opinion in 

Range. 69 F.4th at 101-103. There, the appellate court cited four reasons why the “lawabiding” language was dicta and did not compel a conclusion that felons fall outside 

the “people” to whom the Second Amendment refers. First, the court noted that the 

criminal histories of the plaintiffs in Heller, McDonald v. Chicago, 561 U.S. 742, 780 (2010), 

and Bruen were not at issue. Id. at 101. Second, the court pointed to Heller’s discussion of 

the term “the people” in multiple amendments. It reasoned that “[u]nless the meaning 

of the phrase ‘the people’ varies from provision to provision—and the Supreme Court 

in Heller suggested it does not—to conclude that Range is not among ‘the people’ for 

Second Amendment purposes would exclude him from those rights as well.” Id. at 102. 

The Range court saw “no reason to adopt an inconsistent reading of ‘the people.’” Id. 

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Third, the Range court cited then-Judge Barrett’s reasoning in her dissent in

Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019), where she “persuasively explained that 

‘all people have the right to keep and bear arms,’ though the legislature may 

constitutionally ‘strip certain groups of that right.’” Range at 102 (citing Kanter). The 

court also endorsed its own previous precedent stating that the idea that “individuals 

with Second Amendment rights may nonetheless be denied possession of a firearm is 

hardly illogical.” Id. (citing Binderup v. Att'y Gen. United States of Am., 836 F.3d 336, 344 

(3d Cir. 2016)); see also United States v. Rahimi, 61 F.4th 443, 451-52 (5th Cir. 2023) 

(endorsing then-Judge Barrett’s interpretation of the phrase “the people” as consistent 

with Heller and Bruen).

 Finally, the Range court pointed to the expansiveness of the phrase “lawabiding,” asserting that the Supreme Court could not mean that any individual who 

ever ran afoul of any law, however minor, could be excluded from the protections of the 

Second Amendment. Range, 69 F.4th at 102. It also took issue with the vagueness of the 

phrase “responsible,” noting that such a term was susceptible to many different 

interpretations. Id.; see also Rahimi, 61 F.4th at 453 (“Under the Government's reading, 

Congress could remove ‘unordinary’ or ‘irresponsible’ or ‘non-law-abiding’ people—

however expediently defined—from the scope of the Second Amendment. Could 

speeders be stripped of their right to keep and bear arms? One easily gets the point[.]”). 

Ultimately, the Range court disagreed with the government’s characterization of the 

scope of the phrase “the people” within the text of the Second Amendment because it 

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would essentially delegate to the legislature who receives the protection of the Second 

Amendment. 

This Court should find, consistent with Meza-Rodriguez, Bullock, and Range, that 

the Second Amendment extends to individuals with prior felony records.

B. The government cannot carry its burden to establish that Section 922(g)(1) is 

“consistent with the Nation’s historical tradition of firearm regulation.”

Because the plain text of the Second Amendment covers the conduct criminalized 

by Section 922(g)(1), the burden shifts to the government to “justify its regulation by 

demonstrating that it is consistent with the Nation’s historical tradition of firearm 

regulation.” Bruen, 142 S. Ct. at 2130; Atkinson, at *2.2 The government cannot meet that 

burden because the historical record demonstrates that there is no longstanding 

tradition of preventing felons from possessing guns. 

In Atkinson, the Seventh Circuit was presented with a record developed before 

the Bruen opinion was issued. In deciding to remand to the district court for further 

briefing, the Seventh Circuit acknowledged that “the government’s brief before us 

includes some historical analysis,” but stated that the record was “nothing close to what 

would satisfy the demanding standard set forth in Bruen.” Atkinson at *3. In its briefing, 

the government had provided the court with “some Founding era commentary,” and 

explained that “that felons ... were historically subject to execution and estate forfeiture, 

2 As noted above, prior to the Supreme Court’s opinion in Bruen, the Seventh Circuit 

rejected challenges to § 922(g)(1) under the means-end inquiry after determining that the 

historical record on felons possessing firearms was “inconclusive.” See, e.g., Kanter v. Barr, 

919 F.3d 437 (7th Cir. 2019); Hatfield v. Barr, 925 F.3d 950 (7th Cir. 2019). The means-end 

test was abrogated in Bruen. 

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as well as the loss of other civic rights.” Id. Given the Atkinson court’s statement this 

type of information “falls well short of Bruen’s demands,” id., the burden is on the 

government to make a more substantial showing before this court.

 The defense asserts that the government will be unable to meet this burden 

because the historical evidence instead shows a lack of a tradition restricting felons from 

gun ownership. Two prescient dissents from the pre-Bruen era—which largely 

predicted Bruen and which exhaustively canvassed the historical record—firmly 

demonstrate that felon-in-possession laws do not have historical support. See Kanter v. 

Barr, 919 F.3d at 454 (7th Cir. 2019) (Barrett, J., dissenting) (“at least thus far, scholars 

have not been able to identify any such laws” barring offenders from possessing 

firearms); Folajtar v. Att’y Gen. of the United States, 980 F.3d 897, 915 (3d Cir. 2020) (Bibas, 

J., dissenting) (“I cannot find, and the majority does not cite, any case or statute from 

that era that imposed or authorized such bans.”).

Under Bruen, that lack of regulation is itself entitled to substantial weight. In 

Bruen, the Supreme Court held that “when a challenged regulation addresses a general 

societal problem that has persisted since the 18th century, the lack of a distinctly similar 

historical regulation addressing that problem is relevant evidence that the challenged 

regulation is inconsistent with the Second Amendment.” Bruen, 142 S. Ct. at 2131. That 

is the situation here. Crime and recidivism are general societal problems that have 

existed throughout history. But American society did not traditionally respond to these 

problems by barring all felons from possessing guns.

This conclusion is consistent with the position adopted by the Third Circuit in 

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Range. There, the government and amici relied on a 1961 law restricting firearm 

ownership, and other similar, slightly older laws. The Third Circuit rejected these laws 

as analogues, stating that it was “confident that a law passed in 1961—some 170 years 

after the Second Amendment’s ratification and nearly a century after the Fourteenth 

Amendment’s ratification—falls well short of ‘longstanding’ for purposes of 

demarcating the scope of a constitutional right.” 69 F.4th at 104.

Nor did the Third Circuit accept other older historical analogues proffered by the 

government that prohibited firearm ownership based on race and religion. The Range

court noted, first, that those restrictions would be unconstitutional today, and second, 

that the government is required to analogize those prohibited groups to the individual 

at issue (in that case, Mr. Range). Id. at 104-105. The government failed to carry this 

burden as to Mr. Range, and in this case must be held to that strict burden as to Ms. 

Peltzer.

And while the majority opinion in Range included language stating that its 

opinion was a “narrow” one, id., it is clear that the reasoning of the opinion is more 

broadly applicable. The dissent in that case recognized as much, acknowledging that 

“the analytical framework [the majority has] applied to reach their conclusion renders 

most, if not all, felon bans unconstitutional.” 69 F.4th at 113 (J. Shwartz, dissenting).

This Court should apply that same analytical framework, which leads to the inevitable 

conclusion that, under the Supreme Court’s “text and tradition” approach to the Second 

Amendment, Section 922(g)(1) is unconstitutional as applied to Ms. Peltzer.

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CONCLUSION

Amber Peltzer is covered by the plain text of the Second Amendment. The 

historical record demonstrates that laws prohibiting felons from possessing arms did 

not appear until the 20th Century. At the time that the Second Amendment was ratified, 

there were not any felon-in-possession laws on the book, nor were there any other 

firearms restrictions that were meaningfully similar to Section 922(g)(1). For those 

reasons, the Court should find that Section 922(g)(1) is unconstitutional as to Ms. Peltzer

and grant her motion to withdraw her plea and dismiss the indictment. 

Respectfully submitted,

s/ Lisa L. Wood 

LISA L. WOOD

Attorney Name Lisa Wood

Firm Name Lisa Wood Law, LLC

Attorney for Amber Peltzer

Firm Address 53 W. Jackson Blvd., Suite 1424, Chicago, IL 60604 

Firm Phone (872) 888-7089 

Attorney No. 6304324 

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