United States v. Martin Wilson, Jr. ( 2003 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-2265
    ___________
    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.     *
    *
    ___________
    Submitted: November 5, 2002
    Filed: January 10, 2003
    ___________
    Before McMILLIAN and SMITH, Circuit Judges, and LONGSTAFF,1 District Judge.
    ___________
    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.
    -2-
    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.
    -3-