The opinion
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10693
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORRENCE DENARD WHITAKER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cr-80196-KAM-1
____________________
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 2 of 8
2 Opinion of the Court 24-10693
Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Torrence Whitaker appeals his conviction for possession of
a firearm and ammunition as a convicted felon, arguing that
18 U.S.C. § 922(g)(1) violates the Second Amendment and the
Commerce Clause, both facially and as applied to him. The gov-
ernment responds by moving for summary affirmance, arguing
that § 922(g)(1) is constitutional under the Second Amendment and
the Commerce Clause, both facially and as applied to Whitaker,
under our binding precedent and that this precedent has not been
overruled or undermined to the point of abrogation by the Su-
preme Court or by this Court sitting en banc.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).
We review the constitutionality of a statute de novo. United
States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).
A criminal defendant’s guilty plea does not bar a subsequent
constitutional challenge to the statute of conviction. Class v. United
States, 583 U.S. 174, 178 (2018).
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 3 of 8
24-10693 Opinion of the Court 3
The prior precedent rule requires us to follow a prior bind-
ing precedent unless it is overruled by this Court en banc or by the
Supreme Court. United States v. White, 837 F.3d 1225, 1228 (11th
Cir. 2016). “To constitute an overruling for the purposes of this
prior panel precedent rule, the Supreme Court decision must be
clearly on point.” United States v. Kaley, 579 F.3d 1246, 1255 (11th
Cir. 2009) (quotation marks omitted). “In addition to being
squarely on point, the doctrine of adherence to prior precedent also
mandates that the intervening Supreme Court case actually abro-
gate or directly conflict with, as opposed to merely weaken, the
holding of the prior panel.” Id. “The prior panel precedent rule
applies regardless of whether the later panel believes the prior
panel’s opinion to be correct, and there is no exception to the rule
where the prior panel failed to consider arguments raised before a
later panel.” United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir.
2019).
Section 922(g) of Title 18 of the United States Code prohibits
anyone who has been convicted of a crime punishable by more
than one year of imprisonment from possessing a firearm or am-
munition. 18 U.S.C. § 922(g)(1).
The Commerce Clause reads: “The Congress shall have
Power . . . To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” U.S. Const.
art. I, § 8, cl. 3. We have “clearly held that 18 U.S.C. § 922(g) is
constitutional under the Commerce Clause.” United States v. Lon-
goria, 874 F.3d 1278, 1283 (11th Cir. 2017), abrogated on other grounds
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 4 of 8
4 Opinion of the Court 24-10693
by Erlinger v. United States, 144 S. Ct. 1840 (2024). We have also
rejected as-applied challenges to 18 U.S.C. § 922(g), holding that
the government proves a “minimal nexus” to interstate commerce
where it demonstrates that the firearms were manufactured out-
side of the state where the offense took place and, thus, necessarily
traveled in interstate commerce. Wright, 607 F.3d at 715-16. In
United States v. McAllister, we explicitly rejected the argument that
United States v. Lopez, 514 U.S. 549 (1995), rendered § 922(g)(1) un-
constitutional as applied to the appellant, holding that § 922(g)(1)’s
statutory requirement of a connection to interstate commerce was
sufficient to satisfy the “minimal nexus” requirement that re-
mained in binding precedent. 77 F.3d 387, 390 (11th Cir. 1996).
Similarly, in United States v. Scott, we held that United States v. Mor-
rison, 529 U.S. 598 (2000), did not abrogate McAllister because
§ 922(g)(1) contained an explicit statutory jurisdictional require-
ment that “immunizes § 922(g)(1) from Scott’s facial constitutional
attack,” and Morrison did not compel a different conclusion than
reached in McAllister. 263 F.3d 1270, 1273 (11th Cir. 2001).
The Second Amendment reads: “A well regulated Militia,
being necessary to the security of a free State, the right of the peo-
ple to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. In District of Columbia v. Heller, the Supreme Court held
that the Second Amendment right to bear arms presumptively “be-
longs to all Americans,” but is not unlimited. 554 U.S. 570, 581,
626 (2008). The Supreme Court noted in Heller that, while it “[did]
not undertake an exhaustive historical analysis . . . of the full scope
of the Second Amendment, nothing in [the Heller] opinion should
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 5 of 8
24-10693 Opinion of the Court 5
be taken to cast doubt on longstanding prohibitions on the posses-
sion of firearms by felons.” Id. at 581, 626. Courts of appeals
adopted a “two-step” framework for assessing Second Amendment
challenges following Heller: (1) determine whether the law in ques-
tion regulates activity within the scope of the right to bear arms
based on its original historical meaning; and (2) if so, apply means-
end scrutiny to test the law’s validity. New York State Rifle & Pistol
Ass’n, Inc. v. Bruen, 597 U.S. 1, 18-19 (2022).
In United States v. Rozier, we relied on Heller in holding that
§ 922(g)(1) did not violate the Second Amendment, “even if a felon
possesses a firearm purely for self-defense.” 598 F.3d 768, 770 (11th
Cir. 2010). We recognized that prohibiting felons from possessing
firearms was a “presumptively lawful longstanding prohibition.”
Id. at 771 (quotation marks omitted). We stated that Heller sug-
gested that “statutes disqualifying felons from possessing a firearm
under any and all circumstances do not offend the Second Amend-
ment.” Id. We concluded that Rozier’s purpose for possessing a
firearm, and the fact that the firearm was constrained to his home,
was immaterial because felons as a class could be excluded from
firearm possession. Id.
In Bruen, the Supreme Court held that Heller does not sup-
port applying means-end scrutiny in the Second Amendment con-
text. 597 U.S. at 19. Instead, a court must ask whether the firearm
regulation at issue governs conduct that falls within the plain text
of the Second Amendment. Id. at 17. If the regulation does govern
such conduct, the court will uphold it so long as the government
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 6 of 8
6 Opinion of the Court 24-10693
“affirmatively prove[s] that its firearms regulation is part of the his-
torical tradition that delimits the outer bounds of the right to keep
and bear arms.” Id. at 19. The Supreme Court in Bruen, as it did in
Heller, referenced the Second Amendment rights of “law-abiding,
responsible citizens.” Id. at 26, 38 n.9, 70; Heller, 554 U.S. at 635.
In United States v. Dubois, we rejected a defendant’s Second
Amendment challenge to § 922(g)(1). 94 F.4th 1284, 1291-93 (11th
Cir. 2024). We noted that Bruen, like Heller, repeatedly described
the right to bear arms as extending only to “law-abiding, responsi-
ble citizens.” Id. at 1292-93. We then determined that Bruen did
not abrogate our precedent in Rozier under the prior-panel-prece-
dent rule because the Supreme Court made it clear that Heller did
not cast doubt on felon-in-possession prohibitions and that its hold-
ing in Bruen was consistent with Heller. Id. at 1293. We noted that
Rozier interpreted Heller as limiting the right to “law-abiding and
qualified individuals,” and as clearly excluding felons from those
categories by referring to felon-in-possession bans as presump-
tively lawful. Id. (quotation marks omitted). We held that, because
clearer instruction was required from the Supreme Court before
we could reconsider § 922(g)(1)’s constitutionality, we were still
bound by Rozier, and Dubois’s challenge based on the Second
Amendment therefore failed. Id.
In United States v. Rahimi, the Supreme Court held that
§ 922(g)(8), which prohibits the possession of firearms by individu-
als subject to a domestic violence restraining order, did not facially
violate the Second Amendment because regulations prohibiting
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 7 of 8
24-10693 Opinion of the Court 7
individuals who pose a credible threat of harm to others from mis-
using firearms are part of this country’s historical tradition. 144 S.
Ct. 1889, 1889, 1896, 1898, 1902 (2024). The Supreme Court noted
that courts have “misunderstood” the Bruen methodology and
stated that the Second Amendment permitted not just regulations
identical to those in existence in 1791, but also those regulations
that are “consistent with the principles that underpin our regula-
tory tradition” and are “relevantly similar to laws that our tradition
is understood to permit.” Id. at 1898-99 (quotation marks omitted).
The Supreme Court noted that the right to bear arms “was never
thought to sweep indiscriminately” and extensively detailed the
historical tradition of firearm regulations, including the prohibition
of classes of individuals from firearm ownership. Id. at 1897,
1899-1901. The Supreme Court held that § 922(g)(8) was constitu-
tional as applied to Rahimi because the restraining order to which
Rahimi was subject included a finding that he posed “a credible
threat to the physical safety” of another, and the government pro-
vided “ample evidence” that the Second Amendment permitted
“the disarmament of individuals who pose a credible threat to the
physical safety of others.” Id. at 1896-98. The Supreme Court
noted that, “like surety bonds of limited duration,” the restriction
imposed on Rahimi’s rights by § 922(g)(8) was temporary because
it applied only while Rahimi was subject to a restraining order. Id.
at 1902. The Supreme Court also rejected the government’s prop-
osition, in response to Rahimi’s as-applied challenge, that citizens
who are not “responsible” may be disarmed as a class, noting that
USCA11 Case: 24-10693 Document: 35-1 Date Filed: 08/14/2024 Page: 8 of 8
8 Opinion of the Court 24-10693
the term “responsible” is too vague to act as a rule and did not de-
rive from caselaw. Id. at 1903.
Here, we grant the government’s motion for summary affir-
mance because it is clearly right as a matter of law that Whitaker’s
challenges to the constitutionality of § 922(g)(1) are foreclosed by
our binding precedents. See Groendyke Transp., 406 F.2d at 1162;
McAllister, 77 F.3d at 389-90. As Whitaker has conceded, his Com-
merce Clause arguments are foreclosed under White, McAllister,
and Scott. See White, 837 F.3d at 1228; Kaley, 579 F.3d at 1255; Gillis,
938 F.3d at 1198; McAllister, 77 F.3d at 390; Scott, 263 F.3d at 1273.
Our binding precedents in Dubois and Rozier similarly foreclose his
Second Amendment Arguments. See Rozier, 598 F.3d at 770-71; Du-
bois, 94 F.4th at 1293. Neither Bruen nor Rahimi abrogated Rozier
or Dubois. Accordingly, we affirm.
AFFIRMED.