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United States of America v. James Francis Barton

March 4, 2011

UNITED STATES OF AMERICA
v.
JAMES FRANCIS BARTON, JR., APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania D.C. No. 07-cr-00376

PRECEDENTIAL

District Judge: Honorable Alan N. Bloch

Submitted Under Third Circuit LAR 34.1(a)

October 21, 2010

Before: HARDIMAN, GREENAWAY, JR. and NYGAARD,

Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

James Barton pleaded guilty to two counts of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). In doing so, he reserved the right to argue on appeal that these convictions violate his Second Amendment right to keep and bear arms. Because we hold that 18 U.S.C. § 922(g)(1) is constitutional both on its face and as applied to Barton, we will affirm.

I

On April 20, 2007, a confidential police informant paid Barton $300 for an Iver Johnson 32-caliber revolver loaded with five rounds of ammunition and a box containing 44 rounds of ammunition. The serial number on the firearm had been drilled out, rendering it indecipherable. Based on the information provided by the confidential informant, the police obtained a warrant to search Barton's residence. The search uncovered seven pistols, five rifles, three shotguns, and various types of ammunition.

Barton was indicted on two counts of violating 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm and ammunition.*fn1 It is undisputed that Barton had prior felony convictions for possession of cocaine with intent to distribute and for receipt of a stolen firearm. Barton moved to dismiss the indictment, arguing that 18 U.S.C. § 922(g)(1) violated his fundamental right to "use arms in defense of hearth and home," recognized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 635 (2008), as the "core" principle embodied in the Second Amendment. Id. at 630.

The District Court denied Barton's motion to dismiss, relying on the Supreme Court's statement in Heller that certain "longstanding" statutes restricting the Second Amendment right to bear arms, such as those prohibiting gun possession by felons, are "presumptively lawful." See id. at 626-27 n.26. Finding that such dispossession statutes cannot be both "presumptively lawful" and facially unconstitutional, the District Court refused to read Heller to invalidate this prohibition.

Following the District Court's denial of his motion to dismiss, Barton entered conditional ...


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