United States v. Ogilvie.
No. 24-4089. 9/3/2025. D.Utah. Judge Phillips. Second Amendment—Possession of Weapons by a Restricted Person—18 USC § 922(n)—Facial Constitutionality of Statute—Historical Tradition of Firearm Regulation.
September 3, 2025
Ogilvie has a significant criminal record involving misuse of firearms, which he is barred from possessing. Most recently, while Ogilvie was under indictment for possessing a dangerous weapon by a restricted person, officers responded to a report of gunshots and located a bullet-ridden vehicle. The officers later found Ogilvie at a nearby parking garage with a Taurus handgun in his waistband, and he admitted to shooting the gun about six times at a group of people. Ogilvie was charged under 18 USC § 922(n) with illegal receipt of a firearm by a person under indictment. He moved to dismiss the indictment, arguing that § 922(n) is facially unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). The district court determined that the Second Amendment presumptively protected Ogilvie’s conduct, but that § 922(n) is consistent with the historical tradition of firearm regulation, citing colonial laws disarming groups of people perceived as dangerous and surety laws, which formed an integral part of bail. The court denied the motion, and Ogilvie pleaded guilty, reserving his right to appeal.
On appeal, Ogilvie argued that § 922(n) facially violates the Second Amendment because it is inconsistent with the historical tradition of firearm regulation in the United States. Bruen established a two-step analysis for reviewing the constitutionality of firearm regulations: first, the party challenging the regulation must show that the Second Amendment’s plain text covers the regulated conduct, and if this burden is met, the Second Amendment presumptively protects that conduct. The burden then shifts to the government to justify how its regulation of that conduct is outside the scope of the Second Amendment’s protected right, which is accomplished by demonstrating that the regulation is consistent with the US’s historical tradition of firearm regulation. Here, the government did not argue that the district court erred at the first step of the Bruen analysis, so the Tenth Circuit assumed without deciding that the Second Amendment’s plain text covers Ogilvie’s conduct. As to the second step, § 922(n) bars a person under indictment for a crime punishable by imprisonment for more than one year from shipping, transporting, or receiving a firearm or ammunition through interstate commerce. The statute’s prohibition is thus temporary and limited to the time between indictment and trial, so it does not intrude on the Second Amendment’s central right, that of armed self-defense. The Tenth Circuit determined that § 922(n) is relevantly similar to (1) laws that disarmed indicted persons through pretrial detention, because pretrial detention at the founding shows a historical tradition of restricting access to firearms for those accused of serious crimes; and (2) bail, because a number of states prevented many accused individuals from accessing bail after indictment depending on the seriousness of the charges. And like § 922(n), pretrial detention and bail at the founding addressed public safety concerns. The Tenth Circuit thus held that § 922(n) is facially constitutional.
The judgment was affirmed.