Jessica J. Yeary, Public Defender, and Tyler K. Payne, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Michael L. Schaub, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. Kevin J. Carroll, Judge.
Jessica J. Yeary, Public Defender, and Tyler K. Payne, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Michael L. Schaub, Assistant Attorney General, Tallahassee, for Appellee.
William F. Edenfield was convicted of two counts of aggravated battery and one count of possession of a firearm by a convicted felon. We affirm the aggravated battery convictions without comment and affirm the possession of a firearm conviction over his constitutional challenge as discussed below.
Appellant argues that his conviction for possession of a firearm by a convicted felon cannot stand because the statute criminalizing such conduct under Florida law, section 790.23(1)(a), Florida Statutes (2020), is facially unconstitutional given the recent holding of the United States Supreme Court in New York State Rifle Ass'n v. Bruen, 142 S.Ct. 2111 (2022). We disagree. A review of the pertinent precedent from the United States Supreme Court on the Second Amendment shows that a felon, such as Appellant, still cannot claim an unfettered constitutional right to possess a firearm post Bruen. Additionally, if the two-step analysis given in Bruen is conducted, Appellant's claim also fails.
The facial constitutional challenge to section 790.23(1)(a) was not made in the trial court. Nonetheless, we can consider this unpreserved issue because "a conviction for the violation of a facially invalid statute would constitute fundamental error." Westerheide v. State, 831 So.2d 93, 105 (Fla. 2002) (quoting Trushin v. State, 425 So.2d 1126, 1129 (Fla. 1982)); see also Davis v. Gilchrist Cnty. Sheriff's Off., 280 So.3d 524, 531 (Fla. 1st DCA 2019).
In District of Columbia v. Heller, 554 U.S. 570, 626 (2008), the Supreme Court recognized that the Second Amendment protects an individual right to possess firearms. However, the Court observed, "Like most rights, the right secured by the Second Amendment is not unlimited." Instead, the protection afforded by the Second Amendment extends to "law-abiding, responsible citizens" who keep or bear arms for lawful purposes. Id. at 635. Heller thus contemplates that certain citizens were "disqualified" from keeping or bearing arms under the Second Amendment. See id. Indeed, the Heller Court plainly explained that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill...." Id. at 626.
This view was reaffirmed by the Supreme Court in McDonald v. City of Chicago, 561 U.S. 742 (2010), where the Court held that the rights contained in the Second Amendment were incorporated against the States. But again, the Court noted that the Second Amendment protections were not unlimited in reaffirming that "[w]e made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill" and "[w]e repeat those assurances here." Id. at 786 (internal quotation marks omitted).
The Bruen Court did not retreat from these assurances. Rather, the Bruen Court recognized Heller's premise that the right to bear arms belongs to "law-abiding, responsible citizens." 142 S.Ct. at 2131 (quoting Heller, 554 U.S. at 635). Further, the Bruen Court stated that "shall issue" firearm licensing regimes are presumptively constitutional because "they do not necessarily prevent law-abiding, responsible citizens from exercising their Second Amendment right" and because they "are designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens." Id. at 2138 n.9 (internal quotation marks omitted).
In Bruen, the majority articulated two analytical steps when passing on the constitutionality of a firearm restriction. First, courts must determine whether "the Second Amendment's plain text covers an individual's conduct[.]" 142 S.Ct. at 2129-30. If so, then the "Constitution presumptively protects that conduct," and therefore, the Government "must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Id. at 2130. "Only then may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command." Id. (internal quotation marks omitted). To carry its burden, the state or federal government must point to "historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation." Id. at 2131-32 (internal quotation marks omitted).
Since the Court decided Bruen, various lower courts have addressed whether convicted felons have a right under the Second Amendment to "keep and bear Arms." Appellant has provided no case in which a majority of a court supports his contention.
Appellant also cited then Judge Barrett's dissent in Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019), where she argued that the disenfranchisement of Second Amendment rights should only apply to violent felons. Appellant provides no case that has adopted this view. Even if the Kanter dissent was adopted as law, Appellant would not benefit since he is a "violent" felon. Appellant was twice convicted of burglary of a dwelling before he possessed a shotgun. This is a forcible felony in Florida along with other serious offenses like murder and sexual battery. See § 776.08, Fla. Stat. Housebreaking, which is another name for burglary of dwelling, was also described in Kanter as a crime of violence. 919 F.3d at 466 n.14 (Barrett, J., dissenting); see also United States v. Thompson, 54 F.4th 849 (5th Cir. 2022) (defining burglary of a dwelling as a crime of violence in allowing enhancement of sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e)). Appellant cites United States v. Quiroz, PE:22-CR-00104-DC, 2022 WL 4352482 (W.D. Tex. Sept. 19, 2022), which held that the federal law prohibiting indicted persons from possessing firearms was facially invalid post Bruen. But Quiroz did not concern convicted felons. In fact, analogizing restrictions on possessing a firearm with prior restraint of freedom of assembly, the district court stated, "In the Second Amendment context, however, restrictions against those already convicted of a crime, for example, would not be a prior restraint-they have already been found guilty in a constitutionally sufficient proceeding. Likewise, the right of the people doesn't protect violent actors or criminals." Quiroz, PE:22-CR-00104-DC, 2022 WL 4352482, at *10.
Post Bruen, in upholding the prohibition on convicted felons possessing firearms, some courts have first or solely looked to precedent following McDonald and Heller rather than conducting Bruen's two-step analysis. See, e.g., United States v. Farley, 22-cr-30022, 2023 WL 1825066, at *2 (C.D. Ill. Feb. 8, 2023) (declining a constitutional challenge to the charge of possession of a firearm by a prohibited person based solely on precedent including McDonald and Heller). A federal district court recently observed that despite Bruen's language requiring the analysis of historical traditions, "six Justices nonetheless warned that the Bruen decision should not be read as casting doubt on the validity of certain firearms regulations, including those identified in Heller." United States v. Minter, 3:22-CR-135, 2022 WL 10662252, at *6 (M.D. Pa. Oct. 18, 2022).
In United States v. Kirby, 3:22-cr-26-TJC-LLL, 2023 WL 1781685, at *2 (M.D. Fla. Feb. 6, 2023), the district court looked to precedent from the United States Eleventh Circuit that had upheld the prohibition on convicted felons possessing firearms over a Second Amendment challenge and cited United States v. Rozier, 598 F.3d 768 (11th Cir. 2010). In Rozier, the circuit court relied on Heller's statement that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]" 598 F.3d at 770-72 (11th Cir. 2010) (quoting Heller, 554 U.S. at 626).
The district court in Kirby noted that it was bound by Eleventh Circuit precedent, 2023 WL 1781685, at *3, just as we are bound by precedent from this court barring an intervening decision from a higher court. See Wanless v. State, 271 So.3d 1219 (Fla. 1st DCA 2019). In Epps v. State, 55 So.3d 710, 711 (Fla. 1st DCA 2011), we upheld a constitutional challenge to a conviction for possession of a firearm by a convicted felon over a McDonald and Heller challenge. Because of the assurances in Bruen that its holding applies only to "law-abiding, responsible citizens," 142 S.Ct. at 2131 (quoting Heller, 554 U.S. at 635), Bruen does not require us to recede from our holding in Epps. See also United States v. Hunter, 1:22-cr-84-RDP-NAD-1, 2022 WL 17640254, at *2 (N.D. Ala. Dec. 13, 2022) (recognizing the continued validity of pre Bruen precedent upholding convictions for possession of a firearm by a convicted felon over Second Amendment challenges).
Even applying the two-step Bruen test, Appellant's constitutional challenge fails. We must first determine if "the Second Amendment's plain text covers an individual's conduct." 142 S.Ct. at 2126. Appellant was charged with possessing a single-shot shotgun. Reading the plain text of the Second Amendment, the first step of the Bruen test is met. A single-shot shotgun is a common "arm" that a person has a right to bear. See Heller, 554 U.S. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)) (holding that the Second Amendment provides a right to bear arms "in common use").
Since Appellant meets the first step under Bruen, the burden then shifts to the State to show that prohibiting convicted felons from possessing arms "is consistent with this Nation's historical tradition of firearm regulation." 142 S.Ct. at 2126. The district court in Kirby looked at several recent cases that analyzed whether a prohibition on felons possessing firearms meets this test. 2023 WL 1781685, at *3.
One of the cases cited in Kirby was Folajtar v. Attorney General of the United States, 980 F.3d 897 (3d Cir. 2020). Although pre Bruen, Folajtar extensively analyzed the history and tradition of the Second Amendment. The court noted that "[t]he death penalty was ubiquitous in the Founding Era" in holding that "someone facing death and estate forfeiture" would not be "within the scope of those entitled to possess arms." Id. at 904-05 (citations omitted). The Folajtar court noted that at common law, felons "could not be trusted" to bear arms. Id. at 905 (citations omitted). Although not explicitly stated in Folajtar, given the ubiquity of the death penalty, many felons at common law would not be alive to bear arms after their conviction and sentence.
No Florida appellate court has yet cited Bruen. But along with Kirby, another federal district in Florida analyzing Bruen has found that a prohibition on felons possessing firearms adheres to historical tradition. United States v. Johnson, 22-CR-20370, 2023 WL 2308792, at *6 (S.D. Fla. Feb. 20, 2023), report and recommendation adopted, 1:22-cr-20370, 2023 WL 2302253 (S.D. Fla. Feb. 28, 2023). The court in Johnson analyzed cases including Folajtar, treatises, and law review articles in holding:
Historical analysis of Colonial America, the founding era, and Antebellum America clearly confirms that there were several instances of the disarming of non-law-abiding or non-virtuous citizens at these times-so close to, and simultaneously with-the ratification of the Second Amendment. The Court finds that these examples are sufficient to show a tradition of limiting the possession of firearms to that class of citizens society, at that time, considered virtuous.Id.
Whether based on the language from McDonald, Heller, and Bruen excluding convicted felons from having protected Second Amendment rights, or whether based on the historical tradition of the Second Amendment as given by Bruen, we conclude that Florida law prohibiting convicted felons from possessing firearms survives Second Amendment scrutiny. Accordingly, we reject Appellant's constitutional challenge to section 790.23(1)(a). Appellant's convictions are AFFIRMED.
WINOKUR, J., concurs; and LONG, J., concurs in result with opinion.
LONG, J., concurring in result with opinion.
I concur in the court's holding that Florida's prohibition on felon firearm possession is constitutional. Heller, McDonald, and Bruen expressly permit such a prohibition. District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (“[w]e made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons”); and New York State Rifle Ass'n v. Bruen, 142 S.Ct. 2111, 2131 (2022) (repeatedly applying the analysis to “law-abiding citizens”); see also Bruen, 142 S.Ct. at 2162 (Kavanaugh, J., concurring) (“As Justice Scalia wrote in . . . Heller, and Justice Alito reiterated in . . . McDonald: . . . [N]othing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons”). Because the Supreme Court's decisions clearly answer the constitutional challenge presented, we should affirm and need not say more.