U.S. District Judge Staci Yandle concluded that the law precluding felons from possessing a firearm is unconstitutional, citing the same precedent that gun owners rely upon in their constitutional challenges to the state's ban on so-called "assault weapons."
On Feb. 1, Yandle granted Bernard L. Cherry’s motion to dismiss indictment after he was charged with possession of a firearm by a felon, finding that “Cherry is included in ‘the people’ protected by the Second Amendment.”
“This court is well aware of the gun violence epidemic in our community, district, and country at large, and the risks imposed by allowing potentially dangerous individuals to be armed,” Yandle wrote. “That said, it is persuaded that adherence to the Bruen directive, that a proper historical analogue must be both comparably justified and impose a comparative burden, compels its conclusion.”
Yandle cited the U.S. Supreme Court’s June 2022 ruling in New York State Rifle & Pistol Association Inc. v Bruen, in which the court struck down New York’s “law which required residents to demonstrate cause to obtain a license to carry a handgun outside the home.” The Bruen ruling has laid the framework for recent Second Amendment challenges, including constitutional challenges to Illinois’ Protect Illinois Communities Act.
“Noting that certain firearm regulations remain constitutional, the court provided an analytical framework for determining whether a particular firearm regulation violates the Second Amendment: courts must first determine whether the ‘Second Amendment’s plain text covers an individual’s conduct,’” Yandle wrote.
“If so, the constitution presumptively protects that conduct, and the government must ‘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,’” she added.
In Cherry’s case, he challenges U.S. Code 922 (g)(1), which states, “It shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”
He was indicted on Sept. 19, 2023, for possessing a Glock 22 .40 caliber firearm and a Smith and Wesson M&P rifle after he was previously imprisoned for more than a year.
He filed a motion to dismiss the indictment on Dec. 29 through public defender Kim Freter, arguing that the Second Amendment’s text “covers the conduct at issue and there is no historical tradition of permanently disarming felons like him.”
“Mr. Cherry appears to have prior convictions for which the term of imprisonment exceeded one year (felonies) consisting of federal felon in possession of a weapon charge and State of Illinois felon in possession of a weapon charges and an acting with others aggravated robbery and attempted aggravated vehicular hijacking from when Mr. Cherry was 17 years old,” Freter wrote.
“Mr. Cherry’s prior felony convictions related to possession of a weapon or teenage robbery and attempted vehicular hijacking would not constitute the type of ‘historical tradition’ that would automatically preclude him from possession of a weapon as guaranteed by the Second Amendment to the United States Constitution,” she added.
In her order, Yandle noted that the circuit courts are split on the constitutionality of the felon firearm law.
“Courts in this district and throughout the circuit have also grappled with, and decided on various grounds, the constitutionality of 922(g)(1) under Bruen - most, but not all upholding the statute as constitutional,” she wrote.
Yandle also cited recent cases by fellow U.S. District Judges Stephen McGlynn and David Dugan of the Southern District of Illinois, who found that felons are protected under the plain text of the Second Amendment (22-cr-30096 and 22-cr-30017), according to her order.
She noted that committing a felony results in the forfeiture of certain constitutional rights, including the right to vote, the right to hold office and the right to serve on a federal jury.
“There is no dispute in this case that the straightforward historical inquiry does not apply as there were no laws categorically restricting individuals with felony convictions from possessing firearms at the time of the Founding or ratification of the Second or Fourteenth Amendments,” Yandle wrote.
In support of Cherry's indictment, the government argues that the Second Amendment’s plain text does not protect the right of felons to possess firearms. It cites Bruen’s “repeated references” to “law abiding” and “responsible citizens,” arguing that Cherry is excluded from “the people” as a convicted felon.
“This court finds that the references cited by the Government are clearly dicta, which the court is not bound to follow,” Yandle wrote.
“It is evident that Cherry is included in ‘the people’ covered by the Second Amendment, and that his conduct is presumptively protected,” she continued.
In regards to historical tradition of disarming certain groups of people, the government relied on laws involving “Catholics in England who were disarmed for refusing to renounce their faith, Native Americans and enslaved Black people in Colonial America who were disarmed for not being ‘dependable adherents to the rule of law,’ and individuals who were disarmed for failing to take oaths of loyalty to the government during the Revolutionary War.”
Yandle disagreed that the government’s cases were relevant in determining the historical understanding of the right to keep and bear arms.
“Laws reflecting the English tradition of categorically disarming religious, ethnic, and racial minorities are not relevantly similar and historically analogous,” Yandle wrote. “These laws, justified solely on discriminatory bases, would thankfully be prohibited today. As such, this court finds that they cannot impose a ‘comparably justified’ burden on the right of armed self-defense.”
The government also relied on crimes that were punishable by death and forfeiture of estate in Colonial America.
“The second category of laws referenced by the Government, laws that authorize capital punishment and estate forfeiture for certain felonies, fare no better,” Yandle wrote. “While the penalties were severe, they were imposed for criminal conduct; not for status crimes that arose from otherwise lawful conduct by felons who had completed their sentences.”
She concluded that lifetime disarmament for felons is not rooted in the nation’s history and tradition.
U.S. District Court for the Southern District of Illinois case number 23-cr-30112