United States v. Jackubowski
Opinion of the Court
ORDER
This is an easy case treading deep constitutional waters. John Jackubowski argues that his conviction for possessing a firearm after a felony conviction, 18 U.S.C.
In September 2000, an Oak Forest, Illinois, police officer observed Jackubowski driving his truck erratically and pulled him over. Jackubowski failed two field sobriety tests and could not produce a valid driver’s license or proof of insurance. The officer arrested him and searched the truck, finding two loaded semi-automatic handguns and an ammunition box containing over 50 bullets of various calibers.
The officer’s discovery led the state of Illinois to prosecute Jackubowski for unlawful weapons possession by a felon. 720 ILCS 5/24-1.1. The predicate felony was a 1995 federal conviction for unlawful weapons sales and making threats against the president; Jackubowski had spent almost 3 years in federal prison for those crimes, and was still on supervised release. To the state weapons charge Jackubowski pleaded guilty and was sentenced to 3 years in the Illinois Department of Corrections (“IDOC”).
Upon his release from the IDOC in December 2001, federal authorities took Jac-kubowski into custody, charging him with possession of a firearm by a felon, § 922(g)(1), based on the same two guns for which Illinois had prosecuted him. Jackubowski filed two motions to dismiss the indictment, raising Second Amendment and Commerce Clause arguments. These the district court denied. Jackubowski then entered a guilty plea and received a sentence of 32 months’ imprisonment and 3 years’ supervised release. He was also taken before Judge Coar for a hearing on whether he had violated the conditions of his supervised release from his 1995 conviction by possessing the handguns. The judge found that he had, and sentenced him to 18 months’ imprisonment to be served consecutively to the 32 months’ he’d just received. This appeal concerns only the new conviction.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const, amend. II. On appeal, Jackubowski argues that his conviction under § 922(g)(1) runs afoul of this amendment because, according to him, the constitutional language reserves to the states the power to regulate firearms. Additionally, he contends that the Commerce Clause, U.S. Const, art. I, § 8, cl. 3, did not provide Congress the power to enact § 922(g)(1).
Neither of these arguments has merit. The first is foreclosed by the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), which, however unclear it left the precise scope of the liberties shielded by the Second Amendment, see, e.g., Printz v. United States, 521 U.S. 898, 938-39 n. 1, 117 S.Ct. 2365, 138 L.Ed.2d 914
Jackubowski’s contention that § 922(g)(1) exceeds Congress’s power under the Commerce Clause is equally flawed. Like other defendants before him, he contends that United States v. Lopez, 514 U.S. 549, 551, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which struck down the Gun Free Schools Act of 1990, 18 U.S.C. § 922(q), as an infringement upon states’ authority, should be read broadly to invalidate § 922(g)(1) as well. We have rejected Jackubowski’s argument again and again, noting that § 922(g) contains what the statute in Lopez did not-a specific requirement that the government prove that the firearm at issue had affected interstate commerce. See, e.g., Hemmings, 258 F.3d at 594; Gillespie, 185 F.3d at 704-05; United States v. Wesela, 223 F.3d 656, 659-660 (7th Cir. 2000); Bell, 70 F.3d at 497-98. See also United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996); United States v. Harkrider, 88 F.3d 1408, 1409 (5th Cir. 1996); United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1996).
Our case law dealing with Jackubowski’s contentions is substantial and well-settled. The Supreme Court might some day tell us that we are wrong on these points. Until then we will adhere to our prior decisions.
AFFIRMED.
. Although Jackubowski’s written plea agreement did not expressly reserve his right to appeal, his guilty plea did not result in waiver of his appellate arguments for two reasons. First, Jackubowski’s counsel orally conditioned the guilty plea on a reservation of Jackubowski’s right to appeal the issues he now presents. The government agreed, and we respect oral reservations of the right to appeal. See United States v. Yasak, 884 F.2d 996, 999 (7th Cir. 1989). Second, in United States v. Bell, 70 F.3d 495, 496-97 (7th Cir. 1995), we ruled that an attack on the constitutionality of § 922(g)(1) is jurisdictional, and thus cannot be waived.
Reference
- Full Case Name
- United States v. John S. JACKUBOWSKI
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