USA v. Henry

Filing 44

Final Report and Recommendation, Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
MATTHEW WAYNE HENRY,
Defendant.

3:10-cr-115-HRH-JDR
FINAL RECOMMENDATION
REGARDING
MOTION TO DISMISS
COUNTS 1 AND 2
(Docket No. 23)

The Court issued an Initial Recommendation at Docket 35.

The

Government filed it’s Objections at Docket 42 and the Defendant filed his Reply at
Docket 43. After due consideration, the magistrate judge declines to modify the
Initial Recommendation. A few comments regarding the Objections and Reply are
appropriate, however.
I. Heller outlines a more stringent test regarding the right to bear
arms, which this court must apply in this case.
The Government has not cited any case law specifically addressing the
issue of whether 18 U.S.C. § 922(o), as applied to Mr. Henry, is an invalid exercise
of the Commerce Clause considering the new heightened scrutiny analysis

addressed in Heller.1 The Initial Recommendation adequately examined this issue
and the Government has offered no arguments or case law which persuade the
magistrate judge to alter his recommendation.
II. This Court does not lack authority to make a determination in
a case of first impression.
The Government asserts that this court does not have the authority to
make a decision outside of the parameters established in Stewart II.2

More

specifically, the Government argues that this court does not have the authority to
make the decision recommended in the Initial Recommendation. The issue of
possession of a machine gun in the context of the facts of this case, and in light of
the individual right conferred in Heller, makes this a case of first impression. This
court has authority to determine the appropriate legal remedy under case precedent
and the facts presented in this matter.
//

1

See District of Columbia v. Heller, 554 U.S. 570 (2008); the
Recommendation Regarding Motion to Dismiss Counts 1 and 2 should be
amended to add “proper test” on page 15, to read: “In the instant case the
Defendant, Henry, argues that since the Supreme Court determined that the
Second Amendment conveys a personal right to bear arms, now viewed as a
fundamental right, the proper test for review under the Commerce Clause would
be a heightened scrutiny test.”
2

United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006).

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III. The Initial Recommendation adequately analyzed Stewart II in
light of Heller.
The Government argues in their Objections that the Initial
Recommendation misconstrued the Ninth Circuit’s decisions in Stewart I and Stewart
II. The Stewart cases examined the constitutionality of 18 U.S.C. § 922(o). The
Court in Stewart II noted that the analysis of whether the defendant’s activities
substantially affects interstate commerce would be different if the Second
Amendment granted individual rights.3 The magistrate judge examined the facts of
this case and the case precedent in Stewart II in light of the individual right
recognized in Heller. The magistrate declines to modify the analysis or conclusions
outlined in the Initial Recommendation.
IV. The Recommendation examines the intersection of Second
Amendment rights in light of the controlling case precedent of
Stewart II.
As noted above, the magistrate judge analyzed the Second Amendment
rights described in Heller and their intersection with the Commerce Clause in this
case, with the heightened scrutiny resulting from the individual right conveyed in
Heller. That examination intersects with analysis in Stewart II in that the heightened
scrutiny described in Heller results in a test that is out of line with the analysis in

3

Id. at 1075; Id. at n.6.

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Stewart II. The magistrate judge declines to modify the analysis or conclusions
outlined in the Initial Recommendation based on the arguments asserted by the
Government in it’s Objections.
V. Ninth Circuit case precedent establishes an analysis of § 922(o)
under the third prong of the Commerce Clause test.
The Government argues in their Objections that this court should
examine the facts of this case under the first test regarding the Commerce Clause:
Congress may regulate the use of the channels of interstate commerce. In this
case, the Defendant is charged in Counts 1 and 2 of the Indictment of violating 18
U.S.C. § 922(o). In Stewart II, the Ninth Circuit determined that § 922(o) “could not
be justified under either of the first two categories” and instead examined whether
§ 922(o) “substantially affected interstate commerce.”4 The magistrate judge applied
this test in the Initial Recommendation.
The Government points to United States v. Rambo to support it’s
position.5 However, Rambo was decided in 1996, prior to Stewart II. The court,
instead, followed the rule outlined by Stewart II in 2006. Again, the magistrate judge
declines to modify the analysis or conclusions outlined in the Initial Recommendation
based on the arguments asserted by the Government in it’s Objections.

4

Id. at 1073.

5

74 F.3d 948 (9th Cir. 1996).

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VI. Conclusion
The magistrate judge has reviewed the Objections filed by the
Government and the Defendant’s Reply. The magistrate judge declines to modify
the Initial Recommendation filed at Docket 35. The magistrate judge recommends
the Court GRANT Defendant’s Motion to Dismiss at Docket 23 for the reasons stated
in this Final Recommendation and the Initial Recommendation. This matter is now
forwarded to the assigned District Court Judge for his determination.

DATED this

28th

day of February, 2011, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

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