United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion to Dismiss the
Indictment (Doc. 25). The Court now rules on the motion.
February 21, 2017, Israel Torres (“Defendant”)
was indicted on two counts of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc.
6). Defendant was previously convicted for felony Aggravated
DUI in both 2004 and 2010. (Doc. 25 at 2). Count one of the
instant Indictment (Doc. 6) alleges that Defendant possessed
a Colt .45 caliber pistol between January 5, 2017 and January
10, 2017 based on visual evidence obtained through Facebook
and Instagram posts. (See Doc. 25 at 2). Count two
of the Indictment (Doc. 6) alleges that Defendant possessed
10 total firearms seized from Defendant's residence
during the execution of a search warrant on February 17,
2017. (See Doc. 25 at 2). Here, Defendant moves to
dismiss arguing that “the charged statute, 18 U.S.C.
§ 922(g)(1), unconstitutionally burdens his right under
the Second Amendment to keep and bear arms.”
(Id. at 1). Specifically, Defendant argues that-
while he satisfied the elements of being a felon in
possession of firearms-the categorical prohibition on felon
possession contained in 18 U.S.C. § 922(g)(1) is
unconstitutional as applied to those convicted of only
non-violent felonies, which were not contemplated at the time
of the ratification of the Second Amendment. (Doc. 25 at 4).
McDonald v. City of Chicago, the United States
Supreme Court provided that the individual right recognized
by the Second Amendment to keep and bear arms is
“fundamental to the American scheme of ordered liberty
and deeply rooted in this Nation's history and
traditions.” 561 U.S. 742, 746 (2010) (internal
quotation marks and citation omitted). The Supreme Court,
however, has also observed that “[l]ike most rights,
the Second Amendment right is not unlimited.” D.C.
v. Heller, 554 U.S. 570, 626 (2008). The Second
Amendment right may be restricted by “presumptively
lawful regulatory measures, ” including
“longstanding prohibitions on the possession of
firearms by felons and the mentally ill[.]”
Id. at 626-27 n.26.
Defendant concedes “that a facial challenge to 18
U.S.C. § 922(g)(1) is likely foreclosed by
Heller, ” but seeks to mount an as-applied
Second Amendment challenge to the law. (Doc. 25 at 4).
Defendant argues that the Supreme Court's decision in
Heller implies that the prohibition on felon
possession is a rebuttable presumption and, therefore,
subject to an as-applied challenge. (Id.). While
several U.S. Courts of Appeal have permitted as-applied
challenges in this context,  the Ninth Circuit has not.
See United States v. Vongxay, 594 F.3d 1111, 1115
(9th Cir. 2010) (holding that the prohibition on felon
possession in 18 U.S.C. § 922(g)(1) does not violate the
Second Amendment because, in part, “felons are
categorically different from the individuals who have a
fundamental right to bear arms”); see also United
States v. Phillips, 827 F.3d 1171, 1174 (9th Cir. 2016)
(holding that the Ninth Circuit's decision in
Vongxay “forecloses” a defendant's
argument that his non-violent felony conviction cannot
constitutionally serve as a predicate for a conviction under
§922(g)(1)). Although the Ninth Circuit did explain that
“there are good reasons to be skeptical of the
constitutional correctness of categorical, lifetime bans on
firearm possession by all ‘felons,
'” binding precedent forecloses Defendant's
argument before this Court. Phillips, 827 F.3d at
1174 (emphasis in original).
further “contends that [Vongxay and
Phillips] are wrongly decided” to the extent
that they foreclose an as-applied challenge to 18 U.S.C.
§ 922(g)(1) because those cases effectively apply
rational basis scrutiny regulations burdening the Second
Amendment right, which Heller rejected as an
insufficiently low level of scrutiny. (Doc. 25 at 9 (citing
Heller, 554 U.S. at 628 n.27)). Defendant also
argues that those cases effectively deem the presumption that
a prohibition on felon possession is constitutionally valid
to be irrebuttable, which contradicts the Supreme Court's
reasoning in Heller. (Id. (citing
Heller, 554 U.S. at 626-27 n.26)). This Court need
not and may not fully resolve those arguments because
“a district court [is] bound to follow the reasoning of
prior circuit authority unless it ha[s] been
‘effectively overrule[d]' or [is] ‘clearly
irreconcilable' with higher authority[.]” Lopez
v. Ryan, CV-97-224-TUC-CKJ, 2015 WL 5817642, at *17 (D.
Ariz. Oct. 6, 2015) (citing United States v.
Gonzalez-Zotelo, 556 F.3d 736, 740-41 (9th Cir. 2009).
Rather, “a decision by a panel of [the Ninth Circuit]
is binding unless it is overruled by the court en banc or by
the U.S. Supreme Court.” Rodriguez-Martinez v.
Holder, 498 Fed.Appx. 713, 714 (9th Cir. 2012)
Court observes that Defendant noted, in all candor, that
“this Court may likely find that [Defendant's
argument] is barred by current Ninth Circuit precedent,
” but Defendant “nevertheless files this motion
to preserve his claims for appeal.” (Doc. 25 at 1).
That is precisely what this Court finds, as current Ninth
Circuit precedent prevents this Court from entertaining an
as-applied challenge to 18 U.S.C. § 922(g)(1) at this
time. See, e.g., Vongxay, 594 F.3d at 1114
(“Nothing in Heller can be read legitimately
to cast doubt on the constitutionality of §
922(g)(1)”). The Ninth Circuit may, if it is so
inclined, re-examine its holdings in Vongxay and
Phillips en banc, in light of Defendant's
arguments, but it is not the function of this Court to do so.
Accordingly, this Court will not consider the merits of
Defendant's as-applied challenge.
reasons stated above, IT IS ORDERED that
Defendant Israel Torres' Motion to Dismiss the Indictment
(Doc. 25) is hereby DENIED.
 This Court agrees that Heller
forecloses the possibility of a facial challenge by
explicitly listing the prohibition on felon possession as an
example of a “presumptively lawful” ...