                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

MARK BAGINSKI,                                   :
                                                 :
       Plaintiff,                                :       Civil Action No.:      15-1225 (RC)
                                                 :
       v.                                        :       Re Document Nos.:      10, 13
                                                 :
LORETTA LYNCH, et al.                            :
                                                 :
       Defendants.                               :

                                 MEMORANDUM OPINION

       GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS;
       DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

                                      I. INTRODUCTION

       Plaintiff Mark Baginski was convicted by a Massachusetts state trial court in 2004 of

driving a motor vehicle while under the influence of alcohol, in violation of Massachusetts

General Law chapter 90 section 24(1)(a)(1). Under Massachusetts law, violation of that statute

is considered a misdemeanor offense and carries a maximum possible penalty of two and a half

years imprisonment. Although Baginski was sentenced to only a year of probation, he is

prohibited from purchasing a firearm under federal law as a consequence of his conviction, and

he risks criminal prosecution if he purchases a firearm. Section 922(g)(1) of Title 18 of the

United States Code makes it unlawful for any person “who has been convicted in any court of[] a

crime punishable by imprisonment for a term exceeding one year” to ship, transport, possess, or

receive firearms or ammunition. 18 U.S.C. § 922(g)(1). Congress has excluded from that

scheme only those state misdemeanor offenses that are “punishable by a term of imprisonment of

two years or less.” Id. § 921(a)(20)(B). In this civil action, Baginski challenges application of

section 922(g)(1) to him on two grounds—one statutory and the other constitutional. He
contends that the plain language of section 921(a)(20)(B), the misdemeanor exception, excludes

any misdemeanor offense for which an actual sentence of two years imprisonment or less is

possible, even if the maximum sentence available exceeds two years imprisonment.

Alternatively, Baginski claims that section 922(g)(1) is unconstitutional, as applied to him, under

the Second Amendment to the United States Constitution. The government has now moved to

dismiss Baginski’s complaint. As stated during the January 10, 2017 status conference and

explained below, the Court will grant in part and deny in part the government’s motion.


                                II. FACTUAL BACKGROUND

       For purposes of resolving the government’s motion to dismiss, the Court accepts all well-

pleaded factual allegations in Baginski’s complaint as true, and draws all reasonable inferences

in his favor. See, e.g., Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012). On January 30,

2004, Baginski was convicted in a Massachusetts trial court of driving a motor vehicle under the

influence of alcohol. See 1st Am. Compl. ¶ 7, ECF No. 5. As relevant here, Massachusetts law

classifies driving under the influence as a misdemeanor, and provides that anyone convicted of

that offense “shall be punished . . . by imprisonment for not more than two and one-half years.”

Mass. Gen. Laws ch. 90, § 24(1)(a)(1); see also, e.g., Commonwealth v. Savage, 719 N.E.2d 473,

477 & n.6 (Mass. 1999) (citing section 24 and explaining that “an initial offense of operating a

motor vehicle while under the influence of liquor is a misdemeanor,” but that “three convictions

in ten years for operating while under the influence is a felony”). As a result of his infraction,

Baginski was sentenced to one year of probation, lost the ability to drive in Massachusetts for

over 200 days, was ordered to pay certain fines and costs, and was ordered to attend an alcohol

awareness class. See 1st Am. Compl. ¶ 8. He was not incarcerated. See id.




                                                  2
       With the exception of minor traffic violations, Baginski alleges that he has never been

convicted of any crime other than his single driving while under the influence offense. See id.

¶ 9. He states that he is “a responsible, law-abiding American citizen,” that he “votes and pays

his taxes,” and represents that he “holds a Connecticut gaming license, and remains employed, as

he has since November, 1996 without incident, in positions of significant trust at a casino.” Id.

¶ 10. Baginski also alleges that he “has no history of violent behavior, or of any other conduct

that would suggest he would pose any more danger by possessing firearms than an average, law-

abiding responsible citizen.” Id. ¶ 11.

       Despite his criminal conviction, Baginski “desires and intends to possess firearms for

self-defense and for defense of his family.” Id. ¶ 16. To that end, Baginski sought to purchase a

firearm on May 25, 2010 in Rhode Island, where he resides. See id. ¶ 17. After the requisite

seven-day waiting period, Baginski learned that the National Instant Criminal Background Check

System (“NICS”) “had advised that [he] was prohibited from possessing firearms.” Id.

According to Baginski’s complaint, Rhode Island law would not prohibit him from possessing or

carrying a firearm. Id. ¶ 12. But federal law, by contrast, makes it a criminal offense for a

person “to sell or otherwise dispose of any firearm or ammunition to any person knowing or

having reasonable cause to believe that such person . . . has been convicted in any court of[] a

crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(d)(1).

Under federal law, Baginski is one such person. Federal law defines a “crime punishable by

imprisonment for a term exceeding one year” to include all crimes except, as relevant here, state

misdemeanor offenses that are “punishable by a term of imprisonment of two years or less.” Id.

§ 921(a)(20)(B). And federal law similarly makes it a crime for individuals convicted of

qualifying offenses to ship, transport, possess, or receive firearms or ammunition. Id.




                                                 3
§ 922(g)(1). As a result of his prior Massachusetts conviction, the firearm transaction was

canceled. See 1st Am. Compl. ¶ 17.

       Baginski appealed his NICS denial, during the pendency of which Rhode Island state

officials again checked Baginski’s eligibility to possess a firearm under state law. See id. ¶ 18.

He was again cleared. See id. His NICS appeal was denied on September 16, 2010, however,

and federal officials “stated that [Baginski] was prohibited from possessing firearms pursuant to

18 U.S.C. § 922(g)(1) on account of his single Massachusetts misdemeanor conviction for

driving under the influence.” Id. ¶ 19.

       Baginski filed this lawsuit on July 29, 2015, against Loretta Lynch, Attorney General of

the United States, and Thomas Brandon, Acting Director of the Bureau of Alcohol, Tobacco,

Firearms, and Explosives, in their official capacities. See id. ¶¶ 2–3; Compl., ECF No. 1.

Baginski seeks injunctive and declaratory relief on two counts. Count I asserts a statutory claim,

and Baginski alleges that, pursuant to the plain language of 18 U.S.C. § 921(a)(20)(B), his

Massachusetts driving under the influence conviction falls within the safe harbor for

misdemeanor convictions capable of being punished by two years of incarceration or less and,

therefore, that 18 U.S.C. § 922(g)(1) cannot be applied to him. See 1st Am. Compl. ¶¶ 21–23.

Count II alleges a constitutional claim that 18 U.S.C. § 922(g)(1) is unconstitutional under the

Second Amendment of the United States Constitution, as applied to his “unique personal

circumstances, including but not limited to the nature of his misdemeanor conviction, the

passage of time since that conviction, Baginski’s generally law-abiding record over the years, his

trustworthiness with firearms[,] and the lack of danger that his possession of firearms would

pose.” See id. ¶ 26.




                                                 4
        The government has filed a motion to dismiss both counts of the complaint, contending

that the plain language of 18 U.S.C. § 921(a)(20)(B) and binding precedent preclude Baginski’s

statutory claim and that his constitutional claim fails. See generally Defs.’ Mem. P. & A. Supp.

Defs.’ Mot. Dismiss (“Defs.’ Mem. Supp.”), ECF No. 10. Baginski opposes the motion to

dismiss on both fronts. See generally Pl.’s Mem. P. & A. Opp’n Defs.’ Mot. Dismiss (“Pl.’s

Opp’n”), ECF No. 12. Baginski has also filed a separate motion for summary judgment, and the

Court vacated the government’s deadline to oppose that motion pending the Court’s review of

the motion to dismiss. See generally Pl.’s Mot. Summ. J., ECF No. 13; Jan. 15, 2016 Minute Order.


                                     III. LEGAL STANDARD

        The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v.

Fitzgerald, 457 U.S. 800 (1982). A court considering such a motion presumes that the

complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See,

e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Nevertheless,

“[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief 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, 570 (2007)). This means that a

plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint are true (even if doubtful in


                                                   5
fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements,” are therefore insufficient to

withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff’s legal

conclusions as true, see id., however, nor must a court presume the veracity of the legal

conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.


                                          IV. ANALYSIS

        In this memorandum opinion, the Court will address the government’s motion to dismiss

Baginski’s claims on statutory grounds.1 For the reasons stated during the January 10, 2017 status

hearing, the Court will reject the government’s motion to dismiss Count II of the complaint.

        Baginski first claims that his predicate driving under the influence conviction is not “a

crime punishable by imprisonment for a term exceeding one year,” as defined by 18 U.S.C.

§ 921(a)(20)(B) and, therefore, that section 922(g)(1) is not applicable to him at all. See Pl.’s

Opp’n at 6–13. Binding D.C. Circuit precedent, and the language of the statute, both dictate

otherwise. Accordingly, the Court will grant the government’s motion to dismiss Count I.



        1
          Although the government does not raise the issue, the Court is satisfied that Baginski
has standing to pursue his claims. Baginski alleges that he “presently intends to purchase and
possess a handgun and long gun for self-defense within his own home,” that he “is prevented
from doing so only by Defendants’ active enforcement of [the] unconstitutional policies
complained of in this action,” and that he “refrains from obtaining a firearm only because he
reasonably fears arrest, prosecution, incarceration[,] and fine, under 18 U.S.C. § 922(g)(1).” 1st
Am. Compl. ¶¶ 1, 20. Taking the complaint’s allegations as true, Baginski has demonstrated that
he has a well-founded fear that the law will be enforced against him, and therefore has shown a
concrete and particularized injury in fact causally connected to the government’s enforcement of
the statute. See Schrader v. Holder, 831 F. Supp. 2d 304, 308–09 (D.D.C. 2011), aff’d 704 F.3d
980 (D.C. Cir. 2013) (finding standing under similar circumstances, where the plaintiff had been
“denied the right to purchase guns on two occasions because he is listed in the NICS database as
disqualified”); see also Dearth v. Holder, 641 F.3d 499, 502 (D.C. Cir. 2011) (finding standing
where “the Government has denied [the plaintiff] the ability to purchase a firearm and he thereby
suffers an ongoing injury”).


                                                   6
       As referenced above, section 922(g)(1) makes it unlawful for a person “who has been

convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year”

to ship, transport, possess, or receive firearms or ammunition. 18 U.S.C. § 922(g)(1). But, as

other courts have recognized, “the words of § 922(g)(1) do not always mean what they say.”

United States v. Essig, 10 F.3d 968, 971 (3d Cir. 1993), superseded on other grounds by United

States v. Turner, 677 F.3d 570 (3d Cir. 2012). That is because Congress drew a distinction

between those crimes that a state classifies as a felony and those that a state classifies as

misdemeanors. Specifically, section 921(a)(20) defines a “crime punishable by imprisonment

for a term exceeding one year,” in part, by exclusion. See 18 U.S.C. § 921(a)(20). As relevant

here, that section states that “[t]he term ‘crime punishable by imprisonment for a term exceeding

one year’ does not include . . . any State offense classified by the laws of the State as a

misdemeanor and punishable by a term of imprisonment of two years or less.” Id.

§ 921(a)(20)(B) (emphasis added).

       Drawing on the “commonsense meaning of the term ‘punishable,’” courts have generally

construed Congress’s use of the phrase “punishable by” in section 922(g)(1) to refer to “any

punishment capable of being imposed.” Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013)

(citing Webster’s Third New International Dictionary 1843 (1993)); see Webster’s, supra, at

1843 (defining the term “punishable” as: “deserving of, or liable to, punishment: capable of

being punished by law or right”). Thus, for purposes of section 922(g)(1), courts look solely to

the maximum possible punishment in determining whether a defendant’s predicate conviction

was for “a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C.

§ 922(g)(1). For example, the Supreme Court rejected a defendant’s claim that he did not fall

within the statute because he was sentenced only to a period of probation, finding the actual




                                                  7
sentence imposed was “irrelevant.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113

(1983).2 And other courts have similarly held that the maximum possible sentence that can

possibly be imposed—as opposed to the actual penalty to which the defendant is sentenced—is

what matters when determining whether a predicate offense qualifies. See, e.g., Schrader, 704

F.3d at 986; United States v. Horodner, 993 F.2d 191, 194 (9th Cir. 1993). If that sentence

exceeds a year, then the statute applies even if the defendant received a sentence of less than a

year. Baginski does not dispute this reading. See Pl.’s Opp’n at 3.

       Thus, if the phrase “punishable by” as used in the misdemeanor exclusion similarly refers

to the maximum possible punishment, the exception for misdemeanor offenses only excludes

those predicate offenses for which the maximum possible sentence is two years or less—and for

which there is thus no possibility that an individual can be sentenced to a term of imprisonment

exceeding two years. In Baginski’s case, the Massachusetts misdemeanor driving under the

influence offense for which he was convicted carries a potential penalty of up to two and a half

years imprisonment. See Mass. Gen. Laws ch. 90 § 24(1)(a)(1). As a result—because the crime

for which Baginski was convicted was punishable by a term of imprisonment for more than two

years—section 922(g)(1) would appear to apply to him.

       Nevertheless, Baginski claims that the phrase “punishable by” does not refer solely to the

maximum penalty—at least in the misdemeanor context. He concedes that the phrase refers to

the predicate crime’s potential punishment, but he argues that a crime’s “potential” punishment



       2
          Several of the cases which the Court cites in this opinion, including Dickerson, were
abrogated on other grounds by the Supreme Court’s decision in Logan v. United States, 552 U.S.
23 (2007), which interpreted an amendment to the statute providing an exception for convictions
that have been expunged or set aside, or where an individual has been pardoned or has had his or
her civil rights restored. The relevant portions of each of the decisions the Court cites here
remain good law, however, because they do not deal with that added provision.


                                                 8
and a crime’s “maximum” punishment only align perfectly when the statute references the upper

end of a sentencing range—as it does when section 922(g)(1) refers to crimes punishable by

imprisonment for a term exceeding one year. See Pl.’s Opp’n at 3. Baginski claims, however,

that because the misdemeanor exclusion refers to crimes for which a possible sentence falls

below a particular term of imprisonment, the statute excludes all misdemeanors for which the

court retains discretion to sentence a defendant—and thus the defendant is capable of being

sentenced—to a term of imprisonment of two years or less. See id.; see also id. at 7–8. Despite

the fact that Massachusetts provides for a potential term of imprisonment of up to two and a half

years for driving under the influence, Baginski contends that the offense is still “‘capable of

being punished by’ a sentence of ‘two years or less,” as his own sentence of probation

demonstrates. Id. at 7. Moreover, because courts always retain discretion to impose a sentence

below the maximum possible penalty in the absence of a statutory mandatory minimum,

Baginski claims that section 921(a)(20)(B) excludes any misdemeanor offense for which there is

no mandatory minimum. See id. at 7–8.

       Baginski’s reading has some superficial appeal when the phrase “punishable by” is

equated simply with “capable of being imposed” and is viewed only in the abstract.

Nonetheless, the Court ultimately disagrees with Baginski’s reading for several reasons. Most

importantly, as Baginski acknowledges, his argument is “foreclosed, at least in this circuit.”

Pl.’s Opp’n at 2. In Schrader v. Holder, the D.C. Circuit concluded that a defendant’s predicate

conviction for a common law misdemeanor fell within section 922(g)(1)’s definition, even

though the offense did not have a statutorily proscribed maximum penalty. 704 F.3d 980, 984–88

(D.C. Cir. 2013). In the course of its discussion, and as relevant here, the circuit stated that the

term “punishable,” as used in the misdemeanor exclusion, “refers to the maximum potential




                                                  9
punishment a court can impose.” Id. at 986 (emphasis added). To be sure, Baginski’s exact

argument was not before the circuit. But it is instructive that the circuit read “punishable by” to

refer to the predicate crime’s maximum penalty. In the same vein, the Supreme Court indicated

(albeit in a case where the petitioner did not dispute the meaning of the phrase) that it similarly

reads the statute to make a misdemeanor “a predicate for a felon-in-possession conviction” under

section 922(g)(1) “only if the offense is punishable by more than two years in prison.” Logan v.

United States, 552 U.S. 23, 27 (2007). The precise argument Baginski raises was recently

considered and rejected unanimously by an en banc panel of the Third Circuit. Binderup v.

Attorney General, --- F.3d ---, Nos. 14-4549, 14-4550, 15-1975, 15-1976, 2016 WL 4655736, at

*3 (3d Cir. Sept. 7, 2016) (“We disagree. The exception in § 921(a)(20)(B) covers any crime that

cannot be punished by more than two years’ imprisonment. It does not cover any crime that can

be punished by more than two years in prison.”). Other circuits have also interpreted the

statutory definition to exclude only those misdemeanors for which the predicate crime’s

maximum penalty is no greater than two years. See, e.g., United States v. Coleman, 158 F.3d

199, 203–04 (4th Cir. 1998), abrogated on other grounds by United States v. Royal, 731 F.3d

333 (4th Cir. 2013); United States v. Indelicato, 97 F.3d 627, 628 n.1 (1st Cir. 1996); United

States v. Schoolcraft, 879 F.2d 64, 70 (3d Cir. 1989).

       Even though Baginski’s specific statutory argument was not advanced in most of the

cases listed above, the Court hastens to add that several considerations confirm that these courts’

reading of the misdemeanor exclusion is the correct one. First, while the phrase “punishable by”

certainly refers to a predicate crime’s potential penalty, in American legal parlance the phrase is

typically used more specifically to connote only the maximum potential penalty. This is true

even where, like here, reference is made to all crimes for which the maximum sentence falls




                                                 10
below a particular threshold. For example, the Supreme Court recently employed the phrase in

the course of describing its Sixth Amendment case law. As the Court explained, the right to a

jury trial does not attach to petty offenses. See S. Union Co. v. United States, 132 S. Ct. 2344,

2351 (2012). Whether an offense is petty is “measured by the ‘severity of the maximum

authorized penalty,’” and the Court has established a rebuttable presumption that “offenses

punishable by six months’ imprisonment or less are petty.” Id. (emphasis added) (quoting

Blanton v. City of North Las Vegas, 489 U.S. 538, 541 (2012)). The D.C. Circuit has similarly

referred to misdemeanors as “offenses punishable by imprisonment for one year or less”—which,

under Baginski’s understanding of the phrase, would oddly encompass all offenses also

punishable by more than a year that lack a mandatory minimum. See Franklin v. District of

Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998). A third example is provided in the Federal Rules

of Criminal Procedure, which also uses “punishable by” in combination with a particular term of

imprisonment in the same way. Rule 7(a)(2) states that “[a]n offense punishable by

imprisonment for one year or less may be prosecuted in accordance with Rule 58(b)(1)”—that is,

by way of a criminal information or complaint, in lieu of an indictment—while an offense

punishable by “imprisonment for more than one year” must proceed by way of an indictment

unless the defendant waives prosecution by indictment. Fed. R. Crim. P. 7(a)(2), (b); see also

Fed. R. Crim. P. 58(b)(1).3

       Moreover, Congress’s use of “punishable by” in section 921(a)(20)(B) to refer to

misdemeanors for which the maximum incarcerative penalty does not exceed a particular term of


       3
          Baginski offers Black’s Law Dictionary as support for his argument, which does define
“punishable,” when used to refer to a crime or tort, as “giving rise to a specified punishment.”
Black’s Law Dictionary 1353 (9th ed. 2009). But, consistent with the term’s typical usage in
statutes, court rules, and judicial opinions, the example Black’s provides—“a felony punishable
by imprisonment for up to 20 years”—ties that definition to a maximum penalty. Id.


                                                11
years is consistent with at least one other provision in the U.S. Code where the phrase is used to

classify offenses according to their potential punishment. Cf. Smith v. City of Jackson, 544 U.S.

228, 233 (2005) (“[W]hen Congress uses the same language in two statutes having similar

purposes . . . it is appropriate to presume that Congress intended that text to have the same

meaning in both statutes.”). In 18 U.S.C. § 4083, Congress provided that individuals convicted

of a federal offense “punishable by imprisonment for more than one year may be confined in any

United States penitentiary,” but individuals convicted for “an offense punishable by

imprisonment for one year or less” cannot serve their sentence in a penitentiary “without the

consent of the defendant.” 18 U.S.C. § 4083 (emphasis added). Consistent with the

government’s reading of the phrase “punishable by” in section 921(a)(20)(B), courts have

interpreted section 4083’s consent requirement to apply only to individuals convicted of a crime

punishable by no more than a year imprisonment. See, e.g., United States v. Smith, 982 F.2d

757, 761 (2d Cir. 1992) (explaining that the provision is applicable to “those subject to no more

than a year imprisonment”). Indeed, if the phrase were read otherwise, there would likely be few

offenses for which consent would not be required.

       Beyond his argument concerning section 921(a)(20)(B), Baginski does not identify a

single instance in which Congress used the phrase “punishable by” untethered from a predicate

crime’s maximum punishment. He does invoke the “basic canon of statutory construction that

identical terms within an Act bear the same meaning.” Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469, 479 (1992). Yet, as already explained, Baginski’s argument extends the definition

of “capable of being imposed” too far. Given the consistent usage of “punishable by” to connote

the predicate offense’s maximum possible punishment, Congress’s use in 922(g)(1) and

922(a)(20)(B) is consistent. Nor does the Court believe that Congress’s use of the qualifier “or




                                                12
less,” rather than “exceeding” commands a different interpretation. The qualifier merely

indicates that the term of imprisonment identified in section 921(a)(B)(20) operates as a ceiling,

rather than a floor. Thus, while a predicate offense must be subject to a maximum term of

imprisonment of no less than a year to be “punishable by a term exceeding one year,” a predicate

misdemeanor offense must be subject to a maximum term of imprisonment for no more than two

years, to be “punishable by two years or less.” In either case, Congress tasked courts with

comparing the predicate offense’s term of imprisonment with the relevant term identified in

section 921(a)(20): two years for misdemeanors, and one year for other offenses. In either case,

the relevant comparison point is the maximum potential penalty of the predicate crime.

       Ultimately, the Court does not lightly assume that, when Congress employed the phrase

“punishable by” in section 921(a)(20)(B), it intended to depart from the consistent usage of that

phrase. And even if there existed some marginal doubt about Congress’s intended meaning, the

legislative history resolves it. The House of Representatives Conference Report for the Gun

Control Act of 1968, which discussed this provision, indicates that the House and Senate

versions of the legislation initially sought to apply the firearm possession proscription to

different sets of predicate crimes. See H.R. Rep. No. 90-1956, at 28–29 (1956) (Conf. Rep.), as

reprinted in 1968 U.S.C.C.A.N. 4426, 4428. The House proposal applied to all crimes

punishable by more than one year imprisonment, while the Senate proposal applied only to a

“crime of violence punishable as a felony.” Id. As a compromise, the conference adopted the

current text of the statute. Id. at 29. Critically, however, the Conference Report described the

new provision as excluding state offenses “classified by the laws of the State as a misdemeanor,

and punishable by a term of imprisonment of not more than 2 years.” Id. (emphasis added).

This description indicates that any misdemeanor punishable by more than two years does fall




                                                 13
within the statute, and the legislative history thus confirms that Congress intended to use the

phrase “punishable by” to refer to the predicate offense’s maximum potential punishment.4

       Having found the statute clear, the rule of lenity and the canon of constitutional

avoidance are inapplicable. See, e.g., Voisine v. United States, 136 S. Ct. 2272, 2282 n.6 (2016)

(explaining that “neither of those arguments can succeed if the statute is clear”). Moreover, the

mere possibility that an as-applied constitutional challenge might succeed under some limited

circumstances does not counsel in favor of reading the statute, generally, in the manner Baginski

urges. See Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (“Statutes should be interpreted to avoid

serious constitutional doubts, not to eliminate all possible contentions that the statute might be

unconstitutional.” (internal citation omitted)).

       Baginski’s predicate misdemeanor driving under the influence offense qualifies as a

crime “punishable by imprisonment for a term exceeding one year,” as that phrase is defined in

section 921(a)(20)(B), because Massachusetts law makes that offense punishable by a term of

imprisonment that exceeds two years. Accordingly, the government’s motion to dismiss Count I

is granted.

       However, Baginski has plausibly pled facts which, if proven, might show that he falls

within the core of the Second Amendment’s protection and outside the presumptively lawful

scope of section 922(g)(1). See Schrader, 704 F.3d at 988–89, 991. Therefore, Defendants’

motion to dismiss is denied with respect to Count II.



       4
          Moreover, although Baginski argues that his reading “makes more sense as written” and
“reflects the familiar concept that serious crimes carry mandatory minimum sentences,” Pl.’s
Opp’n at 11, Baginski has not identified anything in the legislative history indicating this was a
contemporaneous consideration, nor does the Conference Report’s brief discussion of the
addition of the misdemeanor exception make any reference to misdemeanor mandatory
minimum sentences.


                                                   14
                                         *       *       *

       Baginski has also filed a motion for summary judgment, of which the Court deferred

consideration until it was able to assess the government’s motion to dismiss. In its motion to

stay summary judgment briefing, the government indicated that “if Plaintiff’s claims survive a

motion to dismiss, [those claims] may require further factual development before the parties can

meaningfully brief summary judgment.” Defs.’ Mot. Stay Summ. J. Briefing & Extension Time

at 3, ECF No. 15. The government raised the possibility that it might seek to pursue discovery

concerning Baginski’s personal circumstances. Id. at 4. In light of the Court’s determination

that an analysis of Baginski’s personal circumstances—and whether he is a “‘law-abiding,

responsible citizen[]’ whose possession of firearms is, under Heller, protected by the Second

Amendment”—will be relevant to at least some part of the Second Amendment analysis, some

discovery might be warranted. Schrader, 704 F.3d at 991 (quoting Heller, 554 U.S. at 635)).

Thus, Baginski’s motion is premature and the Court will deny it at this time, without prejudice,

to allow the government to take the discovery that it has asserted it needs.


                                       V. CONCLUSION

       For the foregoing reasons and those stated during the January 10, 2017 status conference,

the government’s motion to dismiss (ECF No. 10) is GRANTED IN PART AND DENIED IN

PART, and Plaintiff’s motion for summary judgment (ECF No. 13) is DENIED WITHOUT

PREJUDICE. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: January 23, 2017                                            RUDOLPH CONTRERAS
                                                                   United States District Judge




                                                15
