United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2265
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United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the
Martin G. Wilson, Jr., * Eastern District of Missouri.
*
Defendant - Appellant. *
*
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Submitted: November 5, 2002
Filed: January 10, 2003
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Before McMILLIAN and SMITH, Circuit Judges, and LONGSTAFF,1 District Judge.
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SMITH, Circuit Judge.
Martin G. Wilson, Jr. ("Wilson") appeals the decision of the District Court2 to
deny his motion to dismiss. In the motion, Wilson argues that Title 18 U.S.C.
1
The Honorable Ronald E. Longstaff, Chief Judge, United States District
Court for the Southern District of Iowa, sitting by designation.
2
The Honorable E. Richard Webber, United States District Court Judge for the
Eastern District of Missouri.
§ 922(g)(1), the statute under which he was indicted, violates the Second Amendment
to the Constitution. We affirm.
I.
On January 24, 2001, the Bureau of Alcohol, Tobacco, and Firearms ("ATF")
executed a federal search warrant at Wilson's home. An investigation by local law
enforcement into Wilson’s failure to register as a sex offender precipitated the search.
During the search, ATF agents discovered and seized approximately seventeen
firearms and some ammunition. Wilson, a convicted felon, admitted that he jointly
possessed the firearms with his wife.
On September 6, 2001, a grand jury indicted Wilson as a felon who was in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The indictment recited
Wilson’s 1990 conviction for a sexual offense against a minor and listed the details
of the seventeen firearms in his possession. In response, Wilson moved to dismiss
the indictment, arguing that the statute violated the Second Amendment. The District
Court denied the motion. On January 28, 2002, Wilson pled guilty to the one-count
indictment, reserving his right to appeal the denial of his motion to dismiss. Wilson
now appeals the motion's denial.
II.
Wilson argues (1) that the Second Amendment provides an individual right to
bear arms and (2) that because of this right, 18 U.S.C. § 922(g)(1) is
unconstitutional.3 However, as Wilson acknowledges, this Circuit's established
3
Wilson relies heavily upon United States v. Emerson, 270 F.3d 203, 259 (5th
Cir. 2001) (holding that the Second Amendment "protects the right of individuals,
including those not then actually a member of any militia or engaged in active
military service or training, to privately possess and bear their own firearms. . . .").
However, Emerson nonetheless upheld the constitutionality of § 922(g)(8) which
prohibits an individual subject to certain restraining orders from possessing a firearm.
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precedent upholds the constitutionality of § 922(g)(1). See, e.g., United States v.
Waller, 218 F.3d 856, 857 (8th Cir. 2000) (per curiam) (holding that "it is now
well-settled that Congress did not violate the Second Amendment in enacting" 18
U.S.C. § 922(g)(1)); Cody v. United States, 460 F.2d 34, 37 (8th Cir. 1972).
Wilson does not seek to distinguish our precedents, but instead argues that this
Panel should overrule them. Wilson requested an initial hearing of this case before
the Court en banc, acknowledging the controlling law against him and this Court’s
precedent that prohibits any three-judge panel of the Court from overruling a previous
panel opinion. See, e.g., United States v. Riza, 267 F.3d 757, 760 (8th Cir. 2001). The
Court denied Wilson's en banc request on September 3, 2002. Wilson admittedly
seeks reversal of clearly established precedent. We decline to do so and affirm the
District Court's decision to deny his motion to dismiss.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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