United States District Court, D. Montana, Billings Division
L. Christensen, Chief Judge United States District Court.
Stetson Lee Hinebauch moves to dismiss Count I of the
Indictment. (Doc. 21.) For the reasons explained, the Court
denies the motion.
August 16, 2018 Hinebauch was indicted under 18 U.S.C.
§§ 922(g)(1), (a)(6). Hinebauch seeks to dismiss
Count I for felon in possession of a firearm as
unconstitutional under the Second Amendment, the equal
protection clause, and substantive due process. Because
Hinebauch does not brief his substantive due process claim,
it is not properly before the Court and will not be
considered. Hinebauch's other claims are discussed below.
Second Amendment Challenge
concedes that the Ninth Circuit has held that a Second
Amendment challenge to 18 U.S.C. § 922(g)(1) fails.
See United States v. Vongxay, 594 F.3d 1111
(9th Cir. 2010). However, Hinebauch seems to suggest that
this Court should pick up where the United States Supreme
Court left off in District of Columbia v. Heller,
544 U.S. 570 (2008) and conduct a "proper and complete
historical analysis" to extend the fundamental right to
bear arms to felons, in violation of the Ninth Circuit's
holding in Vongxay and Heller's
instructions to the contrary. (Doc. 22 at 3-4 (quoting
Heller, 544 U.S. at 627 ("Although we do not
undertake an exhaustive historical analysis today of the full
scope of the Second Amendment, nothing in our opinion should
be taken to cast doubt on the longstanding prohibitions on
the possession of firearms by felons .. .")).) This
Court declines to do so. "Under [the] law of the circuit
doctrine, a published decision of [the Ninth Circuit]
constitutes binding authority which must be followed unless
and until overruled by a body competent to do so."
In re Zermeno-Gomez, 868 F.3d 1048, 1052 (9th Cir.
2017) (quoting Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012) (en banc)) (internal quotation marks
Ninth Circuit has clearly held that Heller does not
constitute a basis on which to challenge a criminal charge
involving the possession of a firearm by a prohibited person.
Vongxay, 594 F.3d at 1115. To the extent that
Hinebauch argues that Heller's "language
about certain long-standing restrictions on gun possession is
dicta, and therefore not binding," the Ninth Circuit has
expressly held to the contrary. Id. Because this is
the "law of the circuit," the Court denies
Hinebauch's Second Amendment challenge.
Equal Protection Challenge
Hinebauch challenges Count I under the equal protection
clause of the Fifth Amendment. He argues that the statutory
scheme under § 922 creates an irrational distinction
between non-violent felons and business-crimes felons,
because it excludes those convicted of "antitrust
violations, unfair trade practices, restraints of trade, or
other similar offenses relating to the regulation of business
practices" under § 921(a)(20)(A), but not other
non-violent felons. Hinebauch argues that Vongxay
does not control the outcome here, because Vongxay
involved a challenge the statute's definition of a
"felon" itself, whereas Hinebauch challenges the
exclusion of certain kinds of felons from the firearm
extent that Vongxay's resolution of the equal
protection challenge itself may be distinguishable,
Vongxay''s conclusion that rational basis
remains the appropriate level of scrutiny
post-Heller controls. Id. at 1118. Notably,
the Government provides no justification for why
Congress' exclusion of business related crimes under
§ 921(a)(20)(A) survives rational basis review.
Nevertheless, "rational basis review requires deference
to reasonable underlying legislative judgments," and the
Court will not invalidate a legislative decision where it is
based on a "plausible policy reason for the
classification." Armour v. City of Indianapolis,
Ind., 566 U.S. 673, 681-82 (2012).
courts have upheld Congress' decision to exempt
business-felons in the face of an equal protection challenge.
The Seventh Circuit concluded that Congress had a rational
basis to exclude these felons because § 922(g)(1) was
enacted "to keep firearms out of the hands of those
persons whose prior conduct indicated a heightened proclivity
for using firearms to threaten community peace."
United States v. Jester, 139 F.3d 1168, 1171 (7th
Cir. 1998). The Fourth Circuit applied similar reasoning,
even in the face of the defendant's challenge that his
prior conviction for robbery was a "non-violent"
crime. United States v. Pruess, 703 F.3d 242, 247
(4th Cir. 2012). There, the Court concluded that
"[t]here is a plainly rational relation between the
felon-in-possession prohibition as applied to a collector of
dangerous, often stolen weapons and explosives who has
repeatedly and flagrantly ignored the laws of the United
States, like [the defendant, ] and the legitimate government
interest in public safety." Id. Additionally,
in an unpublished decision, the Ninth Circuit concluded that
these very same arguments lacked merit, reasoning that
"Congress could rationally conclude that firearms are
more likely to be involved in drug conspiracies than they are
in monopolization attempts or other business-related
crimes." United States v. Small, 494 Fed.Appx.
789, 791 (9th Cir. 2012) (unpublished).
the reasoning of these courts, the Court agrees that Congress
could rationally conclude that there was reason to exclude
business-felons from the firearm prohibition, because
financially motivated or regulatory-avoidance crimes do not
contain the same inherent "heightened proclivity"
for violence and danger as the crimes included in §
922(g)(1), even those categorized as "non-violent."
Similarly, in Vongxay, the Ninth Circuit found no
equal protection concern even where Vongxay's three prior
convictions (two for car burglary and one for drug
possession) were all classified as non-violent crimes.
the Court denies Hinebauch's motion to dismiss Count I of