United States District Court, E.D. Wisconsin
RICKEY I. KANTER, Plaintiff,
JEFFERSON B. SESSIONS III,  Attorney General of the United States, and BRAD D. SCHIMEL, Attorney General of the State of Wisconsin, Defendants.
DECISION AND ORDER
William C. Griesbach, Chief Judge
Rickey Kanter, filed the instant action against defendants
Jefferson Sessions and Brad Schimel, in their capacities as
Attorney General for the United States and the State of
Wisconsin, respectively, challenging the statutes that
prohibit felons from possessing firearms, 18 U.S.C. §
922(g)(1) and Wis.Stat. § 941.29. He asserts that these
statutes, as applied to him, an individual convicted of
felony mail fraud, violate his Second Amendment right to bear
arms. This matter, recently reassigned to this court, comes
before the court on Sessions' motion to dismiss,
Schimel's motion for judgment on the pleadings, and
Kanter's motion for summary judgment. For the following
reasons, Sessions' motion to dismiss and Schimel's
motion for judgment on the pleadings will be granted and
Kanter's motion for summary judgment will be denied.
was the owner, operator, and CEO of Dr. Comfort, a
therapeutic shoe insert company. In July 2004, Medicare
determined Dr. Comfort's heat-moldable inserts failed to
meet certain standards and would no longer pay for this
product. Dr. Comfort disregarded this warning and continued
to sell the inserts to a podiatrist using a commercial
interstate carrier and then subsequently billed Medicare for
the non-compliant inserts. From January to March 2006, Dr.
Comfort received $375, 000 in payment from Medicare for these
inserts. The government uncovered his fraud in March 2006,
and he was charged with one count of mail fraud under 18
U.S.C. § 1341.
pled guilty to the charge on May 24, 2011. The court imposed
a sentence of twelve months and one day and ordered Kanter to
pay a $50, 000 fine as well as a $100 assessment.
Id. Kanter now desires to possess a firearm for
legal purposes, but 18 U.S.C. § 922(g)(1) and Wis.Stat.
§ 941.29 prohibit him from doing so. As a result, Kanter
asserts these statutes violate his Second Amendment right to
standards governing a motion to dismiss for failure to state
a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure are well established. Rule 8(a) requires that a
complaint contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
To state a claim, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “[T]he plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678.
12(c) permits a party to seek judgment on the pleadings after
the pleadings have been closed. Buchanan-Moore v. Cnty.
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). A
motion for judgment on the pleadings, pursuant to Rule 12(c),
is governed by the same standards as a Rule 12(b)(6) motion
to dismiss for failure to state a claim.
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). Summary
judgment is properly entered against a party “who fails
to make a showing sufficient to establish the existence of an
element essential to the party's case, and on which that
party will bear the burden of proof at trial.”
Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922
(7th Cir. 2012) (internal quotations omitted).
were a facial challenge to the federal and state laws
prohibiting possession of firearms by felons, it would
undoubtedly fail, at least at this level. In United
States v. Price, the court performed a minimum analysis
finding § 922(g)(1) to be constitutional because it was
bound by previous precedent finding the same. 328 F.3d 958,
961 (7th Cir. 2003) (citing United States v. Three
Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d
1288 (7th Cir. 1974); Gillespie v. City of
Indianapolis, 185 F.3d 693 (7th Cir. 1999); United
States v. Hemmings, 258 F.3d 587 (7th Cir. 2001));
see also United States v. Davis, 406 Fed.Appx. 52,
54 (7th Cir. 2010) (observing that a challenge to the
constitutionality of § 922 is “frivolous”
and foreclosed by the Supreme Court's decision in
McDonald). Those cases (except for Davis)
found § 922(g)(1) to be constitutional because the
Second Amendment does not bestow an individual right to
possess firearms. The Price court declined to
revisit that position. Id.
Seventh Circuit's holding that the Second Amendment did
not confer an individual right to bear arms was abrogated in
District of Columbia v. Heller. 554 U.S. 570 (2008).
But even though the Supreme Court held in Heller
that “the Second Amendment conferred an individual
right to keep and bear arms, ” id. at 595,
that holding did not disturb the Seventh Circuit precedent
cited above. In Heller, a District of Columbia
special police officer sought to register a handgun to keep
in his home. Id. at 574. The District refused his
application for a registration certificate based on its local
ordinance making it a crime to carry an unregistered firearm
and prohibiting the registration of handguns. After reviewing
the history of the Second Amendment, the Court concluded the
District's “ban on handgun possession in the home
violates the Second Amendment, as does its prohibition
against rendering any lawful firearm in the home operable for
the purpose of immediate self-defense.” Id. at
635. It reasoned that the Second Amendment “surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.” Id. The Court noted, however, that
“[l]ike most rights, the right secured by the Second
Amendment is not unlimited . . . 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 position was reaffirmed
in McDonald v. City of Chicago, 561 U.S. 742, 791
(2010). In other words, Heller does not call into question
“longstanding prohibitions on the possession of
firearms by felons.” This circuit's rejection of a
facial challenge to § 922(g) therefore remains the law
of this circuit which, of course, is binding on this court.
Kanter's challenge is not a facial one. Kanter challenges
the constitutionality of the federal and state dispossession
laws, 18 U.S.C. § 922(g)(1) and Wis.Stat. § 941.29,
as applied to him. Citing United States v. Williams,
Kanter notes that the Seventh Circuit has suggested that
“§ 922(g)(1) may be subject to an overbreadth
challenge at some point because of its disqualification of
all felons, including those who are non-violent” and
argues that these statutes should not apply to his personal
circumstances as a non-violent felon. 616 F.3d 685, 693 (7th
Seventh Circuit has established a two-part test for
evaluating a Second Amendment claim. A court must
“first determine if the challenged restriction covers
conduct falling within the scope of the Amendment's
protection. If it does, then the restriction must satisfy
some level of heightened scrutiny, depending on whether the
conduct in question falls at the core or at the periphery of
the Amendment's protection.” Baer v.
Lynch, 636 Fed.Appx. 695, 698 (7th Cir. 2016) (citing
Horsley v. Trame, 808 F.3d 1126, 1130-31 (7th Cir.
2015); Ezell v. City of Chicago, 651 F.3d 684, ...