Picon v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 23-CF-0344

EMANUEL LEYTON PICON, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2021-CF3-004336)

(Hon. Robert D. Okun, Trial Judge)

(Argued June 5, 2025 Decided September 4, 2025)

Matthew B. Kaplan for appellant.

Eric Hansford, Assistant United States Attorney, with whom Matthew M.

Graves, United States Attorney at the time the brief was filed, and Chrisellen R.

Kolb, John P. Mannarino, Alec Levy, and Randle Wilson, Assistant United States

Attorneys, for appellee.

Alice Wang, with whom Jaclyn S. Frankfurt was on the brief, for Public

Defender Service as amicus curiae.

Caroline S. Van Zile, Solicitor General, with whom Brian L. Schwalb,

Attorney General for the District of Columbia, Ashwin P. Phatak, Principal Deputy

Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General, and Tessa Gellerson,

Assistant Attorney General, were on the brief, for intervenor-appellee the District of

Columbia.

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Before BLACKBURNE-RIGSBY, Chief Judge, SHANKER, Associate Judge, and

EPSTEIN, * Senior Judge, Superior Court of the District of Columbia.

SHANKER, Associate Judge: A jury convicted appellant Emanuel Leyton Picon

of multiple offenses in connection with a shooting outside of a District of Columbia

nightclub in July 2021: one count each of aggravated assault while armed, assault

with a dangerous weapon, assault with significant bodily injury while armed,

carrying a pistol without a license, possession of an unregistered firearm, and

unlawful possession of ammunition, and three counts of possession of a firearm

during a crime of violence. Mr. Leyton appeals those convictions on two grounds. 1

First, Mr. Leyton contends that we must vacate his convictions for carrying a

pistol without a license, possession of an unregistered firearm, and unlawful

possession of ammunition on the ground that the District’s statutes requiring that an

applicant be at least twenty-one years old to obtain a firearm registration or license

violate the Second Amendment to the United States Constitution. We hold that the

District’s age-based firearm registration and licensing statutes are constitutional

* Sitting by designation pursuant to D.C. Code § 11-707(a).

1

Mr. Leyton also asserts that his convictions for assault with a dangerous

weapon and assault with significant bodily injury while armed merge with his

conviction for aggravated assault while armed, and his three convictions for

possession of a firearm during a crime of violence merge. The government agrees,

as do we.

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because they are consistent with our Nation’s historical tradition of firearm

regulation.

Second, Mr. Leyton argues that the government made improper arguments

regarding the inconsistency between his out-of-court statement to police that he did

not shoot the complainant and his in-court testimony—delivered after the

government had presented its evidence—that he shot the complainant in self-

defense. We conclude that the government’s arguments were not improper.

Accordingly, we affirm Mr. Leyton’s convictions and remand for the limited

purpose of merging Mr. Leyton’s convictions and resentencing as necessary.

I. Factual and Procedural Background

Following the shooting, Mr. Leyton was charged with multiple offenses.

Before trial, he moved to dismiss the charges of carrying a pistol without a license,

possession of an unregistered firearm, and unlawful possession of ammunition,

arguing that the District’s age-based licensing and registration scheme is

unconstitutional under the Supreme Court’s decision in New York State Rifle &

Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

The District’s firearm licensing statute states that “no person shall carry within

the District of Columbia either openly or concealed on or about their person, a pistol,

4

without a license issued pursuant to District of Columbia law.” D.C. Code

§ 22-4504(a). District law further requires that “a person who submits an

application” for a license to carry a pistol “shall certify and demonstrate . . . that he

or she . . . is at least [twenty-one] years of age.” Id. § 7-2509.02(a)(1) (citation

modified).

The firearm registration statute provides that “no person or organization in the

District shall possess or control any firearm, unless the person or organization holds

a valid registration certificate for the firearm.” Id. § 7-2502.01(a). A related

provision states that “no registration certificate shall be issued to any

person . . . unless . . . such person . . . is [twenty-one] years of age or older.” Id.

§ 7-2502.03(a)(1) (citation modified). That provision allows for an “applicant

between the ages of [eighteen] and [twenty-one] years old . . . who is otherwise

qualified” to be issued a registration certificate if the application is “accompanied

by a notarized statement of the applicant’s parent or guardian.” Id.

§ 7-2502.03(a)(1).

The ammunition registration statute states that “no person shall possess

ammunition in the District of Columbia unless . . . he is the holder of a valid

registration certificate for a firearm.” Id. § 7-2506.01(a)(3) (citation modified). As

stated above, one must be at least twenty-one years old, or have parental approval,

5

to be issued a firearm registration certificate and, thus, be able to possess

ammunition. Id. § 7-2502.03(a)(1).

In his motion to dismiss, Mr. Leyton contended that these age-based

restrictions preventing people between eighteen and twenty-one years old from

possessing and carrying firearms amount to “a total ban on an entire population of

individuals from exercising a core constitutional right.”

The government countered that the challenged regulations are constitutional

under Bruen because the laws are “consistent with this Nation’s historical tradition

of firearm regulation” where, among other things, eighteen-to-twenty-one-year-olds

were not considered legal adults for much of American history. The trial court

agreed with the government and denied Mr. Leyton’s motion, ruling that the age-

based gun restrictions are consistent with the text of the Second Amendment and the

Nation’s history and tradition of firearm regulation.

The case proceeded to trial, where the evidence established the following. In

the early morning hours of July 30, 2021, someone shot Edwin Hernandez in the

chest outside a nightclub located on 14th Street NW in the District of Columbia.

Police officers stopped and detained Mr. Leyton, then twenty years old, because he

matched the description given by a member of the club’s security team. The police

then took Selvin Amaya, Mr. Hernandez’s cousin who had accompanied him to the

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club, to the location where they had detained Mr. Leyton. There, Mr. Amaya

positively identified Mr. Leyton as the shooter. Officers also discovered a shell

casing near the crime scene. After his arrest, Mr. Leyton told police that he did not

shoot Mr. Hernandez and that the gunshot came from two cars parked in the nearby

vicinity.

The next day, police recovered a black handgun hidden in a flowerpot near

the nightclub. A firearm examiner concluded that the shell casing found at the crime

scene was consistent with having been fired from that handgun. DNA recovered

from the handgun was consistent with Mr. Leyton’s DNA. Mr. Leyton had neither

a firearm registration nor a license to carry. He had no prior criminal history.

At trial, Mr. Leyton testified in his own defense. He admitted that he “lied”

to police officers on the night of the shooting when he said he did not shoot

Mr. Hernandez and that the shots came from two cars parked on a nearby street.

Mr. Leyton testified to shooting Mr. Hernandez but claimed that he did so in self-

defense.

Seizing on Mr. Leyton’s inconsistencies, the government sought to impeach

his credibility during cross-examination. Through its questioning, the government

suggested that on the night of the incident, Mr. Leyton believed that the gun used in

the shooting would not be traced to him (given that he had dumped it in a flowerpot).

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The government intimated that it was because of this belief that Mr. Leyton told the

police that he was not the shooter. The government contended that Mr. Leyton

adopted a self-defense strategy only after he learned of the DNA evidence

connecting him to the recovered gun and ballistics evidence connecting the gun to

the shooting.

Defense counsel objected to this line of questioning, arguing that the only way

Mr. Leyton would be able to rebut the assertion that he changed his defense theory

after seeing the evidence offered in court would be by divulging privileged attorney-

client communications. The trial court ruled that the government could ask

Mr. Leyton whether he heard the DNA and ballistics testimony at trial and make

further arguments during closing but could not ask additional questions given the

objection raised by defense counsel.

During its closing argument, the government recapped its DNA and ballistics

evidence and argued to the jury that “only after you heard all that evidence did

[Mr. Leyton] tell you, okay, yeah, I’m the shooter.” The government characterized

the change in Mr. Leyton’s defense theory as the following:

On the scene, when he stashed the gun, when he thinks

he’s gotten away with it and he fooled police, he says,

yeah, I was there, but I just wasn’t the shooter. Once the

gun is found, once you hear the DNA evidence linking the

defendant to the gun, once you hear the ballistics evidence

8

linking the gun to the shooting, now it seems that—he

can’t really say he’s not the shooter anymore, so how else

is he going to get out of trouble? His only choice left is

self-defense, and so that’s what he says. Ladies and

gentlemen, that is—that is too convenient. That is not

credible.

The jury convicted Mr. Leyton of the firearm offenses. Mr. Leyton timely

appealed.

II. Analysis

Mr. Leyton contends that (1) the District’s age-based firearm registration and

licensing statutes are unconstitutional under the Second Amendment as applied to

people between the ages of eighteen and twenty-one and (2) the government’s

argument regarding the inconsistency between his out-of-court statement and in-

court testimony requires reversal. We consider each argument in turn.

Unpersuaded, we affirm Mr. Leyton’s convictions.

A. Age-Based Firearm Registration and Licensing Regulations

1. Legal Standards and Standard of Review

“We review a challenge to the constitutionality of a statute de novo.” District

of Columbia v. Towers, 260 A.3d 690, 693 (D.C. 2021). The Second Amendment

states: “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.

9

amend. II. “Like most rights, the right secured by the Second Amendment is not

unlimited.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008). “From

Blackstone through the 19th-century cases, commentators and courts routinely

explained that the right was not a right to keep and carry any weapon whatsoever in

any manner whatsoever and for whatever purpose.” Id.

In Heller, the Supreme Court held that the Second Amendment confers an

individual right of law-abiding citizens to possess a handgun in the home for self-

defense. Id. at 635-36. In McDonald v. Chicago, 561 U.S. 742 (2010), the Court

held that the Fourteenth Amendment applies this right to the States. Then, in Bruen,

the Court held that such a right applies outside the home as well. 597 U.S. at 17.

The Court also articulated a new test for evaluating the constitutionality of firearm

restrictions:

We hold that when the Second Amendment’s plain text

covers an individual’s conduct, the Constitution

presumptively protects that conduct. To justify its

regulation, the government may not simply posit that the

regulation promotes an important interest. Rather, the

government must demonstrate that the regulation is

consistent with this Nation’s historical tradition of firearm

regulation. Only if a firearm regulation is consistent with

this Nation’s historical tradition may a court conclude that

10

the individual’s conduct falls outside the Second

Amendment’s “unqualified command.”

Id. (citation modified). The Court set forth a two-part test. First, courts must

determine whether a defendant is “part of ‘the people’ whom the Second

Amendment protects” and whether “the plain text of the Second Amendment

protects” the defendant’s “course of conduct.” Id. at 31-32. Courts have indicated

that the party challenging the regulation bears the burden of proof on this point. See

Hanson v. District of Columbia, 120 F.4th 223, 232 (D.C. Cir. 2024). Second, if the

challenger is entitled to protection under the Second Amendment, the government

bears the burden to show that the challenged regulation “is consistent with this

Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 34. Courts

must evaluate whether a “historical tradition of firearm regulation” exists by

determining whether a modern firearm regulation has a historical regulation that is

a “historical analogue” “relevantly similar” to it. Id. at 29-30. “[A]nalogical

reasoning under the Second Amendment is neither a regulatory straightjacket nor a

regulatory blank check” and “requires only that the government identify a well-

established and representative historical analogue, not a historical twin” or “dead

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ringer.” Id. at 30 (emphasis in original). The modern regulation need only be

“analogous enough to pass constitutional muster.” Id.

Two years after Bruen, the Supreme Court applied the history-and-tradition

test in United States v. Rahimi, 602 U.S. 680, 691-92 (2024). The Court sought to

clarify “misunderst[andings]” that had plagued lower courts, saying that it did not

intend to “suggest a law trapped in amber” with its Second Amendment

jurisprudence and methodology. Id. at 691. The Court stated that a regulation is

lawful if it “fits within” and “is consistent with the principles that underpin our

regulatory tradition.” Id. at 691-92.

The inquiry turns on “why and how” the regulation burdens the right to keep

and bear arms. Rahimi, 602 U.S. at 692 (citation modified). If the challenged

regulation addresses the same or similar problems as historical restrictions, then it

shares a “why” with those restrictions. Id. This shared “why” is a “strong indicator”

that modern regulations “fall within a permissible category of regulations.” Id. If a

regulation shares a “why” with historical restrictions, it is lawful if it is similar to

those restrictions in “how” it burdens the right. Id. (noting that “even when a law

regulates arms-bearing for a permissible reason it may not be compatible with the

12

right if it does so to an extent beyond what was done at the founding” (citation

modified)).

2. Discussion

We hold that the District’s age-based firearm registration and licensing

statutes are constitutional. Mr. Leyton argues that the District’s firearm regulations

are unconstitutional only as applied to people between the ages of eighteen and

twenty-one. Neither he nor amicus Public Defender Service contend that the Second

Amendment prohibits all age-based restrictions on the right to keep and bear arms.

Put differently, there is no dispute that some age-based restrictions are consistent

with this Nation’s historical tradition of firearm regulation. We are deciding only

the age at which the Second Amendment renders a restriction unconstitutional.

We assume without deciding that eighteen-to-twenty-one-year-olds with no

criminal history are part of “the people” that the Second Amendment protects. We

nonetheless conclude that the challenged regulations are consistent with our Nation’s

historical tradition of firearm regulation. We find persuasive recent decisions by

two federal circuit courts of appeals—National Rifle Association v. Bondi, 133 F.4th

1108 (11th Cir. 2025) (en banc), pet. for cert. filed, 2025 WL 1458530 (U.S. May

16, 2025) (No. 24-1185) (holding that a Florida law prohibiting the purchase of

firearms by those under twenty-one is constitutional as applied to people between

13

the ages of eighteen and twenty-one because the law is consistent with our historical

tradition of firearm regulation), and McCoy v. ATF, 140 F.4th 568 (4th Cir. 2025),

pet. for cert. filed, 2025 WL 1908029 (U.S. July 3, 2025) (No. 25-24) (holding that

a federal regulation prohibiting the commercial sale of handguns to individuals

under the age of twenty-one is constitutional because from “English common law to

America’s founding and beyond, our regulatory tradition has permitted restrictions

on the sale of firearms to individuals under the age of twenty-one”). See also Rocky

Mountain Gun Owners v. Polis, 121 F.4th 96, 119-24 (10th Cir. 2024) (concluding

that the trial court erred in preliminarily enjoining a Colorado law establishing

twenty-one as the minimum age for the sale and purchase of guns because an age-

based restriction on the commercial sale of firearms is presumptively lawful under

Heller and the Colorado law does not employ “abusive ends” in ensuring that guns

“are held by law-abiding, responsible persons”); id. at 124 (“[A] considerable

portion of our country has made the normative judgment that setting a minimum

purchase age at [twenty-one] is appropriate to ensure that firearms are held by

responsible, law-abiding persons, in accordance with the Second Amendment.”).

But see Reese v. ATF, 127 F.4th 583, 600 (5th Cir. 2025) (reaching the opposite

conclusion).

The en banc Eleventh Circuit set forth a comprehensive historical analysis in

Bondi. We adopt that analysis in relevant part as follows. At the Founding, “a

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person was an infant or a minor in the eyes of the law until age [twenty-one].” Bondi,

133 F.4th at 1117 (citation modified). “The Founders’ generation shared the view

that minors,” i.e., anyone under the age of twenty-one, “lacked the reason and

judgment necessary to be trusted with legal rights.” Id. Concerns included their

want for maturity, prudence, and discretion. Id. Due to their “lack of reason, infants

were subject to the power of their parents until they reached age [twenty-one].” Id.

(citation modified). Accordingly, “dependent minors lacked the formal capacity to

participate in public life and were subject to the authority of household heads.” Id.

at 1118 (citation modified).

“Among the many legal disabilities that secured minors from hurting

themselves by their own improvident acts, minors generally lacked the capacity to

contract and to purchase goods on account.” Id. at 1118 (citation modified). Aside

from a few exceptions for necessities such as food and clothing, all “contracts with

infants were either void or voidable” because “infants were supposed to want

judgment and discretion in their contracts and transactions with others.” Id. (citation

modified). “By the early nineteenth century, voidability was applied so broadly that

15

it became almost impossible for children to form any contracts.” Id. (citation

modified).

This “inability to contract impeded minors from acquiring firearms during the

Founding era.” Id. “Minors also lacked disposable income to otherwise purchase

firearms because they either worked for their parents for no wages . . . or any wages

earned belonged to their parents.” Id.

The court drew “two lessons from the legal treatment of minors at the

Founding.” Id. First, “minors generally could not purchase firearms because they

lacked the judgment and discretion to enter contracts and to receive the wages of

their labor.” Id. Second, “minors were subject to the power of their parents and

depended on their parents’ consent to exercise rights and deal with others in society.”

Id.

The court observed that state militia laws from the Founding era “confirm[ed]

this understanding.” Id. at 1119. “Because of the legal incapacity of individuals

under the age of [twenty-one], states enacted laws at the Founding to address minors’

inability to purchase firearms required for their militia service.” Id. Some states

exempted those under twenty-one from having to comply with the firearm

requirement for militia service. Id. Other states explicitly required parents of

individuals under twenty-one to acquire firearms for their children’s militia service.

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Id. And other states “implicitly required parents to supply minors with firearms

because those states held parents liable for minors’ fines related to militia service,

including the failure to obtain a firearm.” Id. Moreover, during the Founding era,

“minors generally lacked unrestricted access to firearms.” Id. at 1120. By 1826, at

least twenty-one of the twenty-four states admitted to the Union “had enacted laws

that placed the onus on parents to provide minors with firearms for militia service.”

Id. These laws, the court observed, reflected that, “at common law, minors could

not purchase weapons for themselves.” Id. 2

“Mid-to-late-nineteenth-century laws consistent with these principles,” the

court explained, “further establish that our law historically precluded the purchase

of firearms by individuals under the age of [twenty-one].” Id. at 1121. “In the

second half of the nineteenth century, [twenty] jurisdictions enacted laws that

restricted access to arms for minors.” Id. “Most of those laws prohibited all methods

2

The court also noted that Founding era university regulations “confirm[ed]

that minors needed parental consent to access firearms.” Id. Exercising parental

authority through the doctrine of in loco parentis, universities “commonly restricted

firearm access both on and off campus.” Id.

17

of providing arms to individuals under the age of [twenty-one]. And only a few of

these laws allowed parents to provide arms to their children.” Id.

“When the common-law regime became less effective at restricting minors’

access to firearms, statutes increasingly did the work.” Id. at 1122. Accordingly.

“the law of the Founding era, which restricted the purchase of firearms by minors,

continued into the nineteenth century in the form of statutory prohibitions.” Id. “By

the end of the nineteenth century, at least [nineteen] states and the District of

Columbia—representing roughly [fifty-five] percent of the population of states

admitted to the Union—restricted the purchase or use of certain firearms by minors.”

Id. (citation modified). These mid-to-late-nineteenth-century laws carried criminal

penalties, from fines to imprisonment. Id.

“The age of the majority remained unchanged in the United States from the

country’s founding well into the twentieth century.” Id. (citation modified); see

Rocky Mountain Gun Owners, 121 F.4th at 124 (“The age of majority, as set by most

states, remained at [twenty-one] well into the [twentieth] century.”). States

eventually lowered the age of majority to eighteen years in keeping with lowering

the age of conscription during World War II. Bondi, 133 F.4th at 1122. Then the

1971 ratification of the Twenty-Sixth Amendment guaranteed the right to vote to

individuals at the age of eighteen. Id. “But for much of the first two centuries of

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our nation, our law limited the rights of individuals under the age of [twenty-one],

including their purchase of firearms.” Id. Moreover, a state lowering “the age of

majority for some rights does not mean that it has less power to restrict the rights of

minors than it did at the Founding.” Id. at 1125; see Rocky Mountain Gun Owners,

121 F.4th at 126 (“[T]he minimum age for firearm purchases need not rise or fall

entirely with the age at which most states currently set as the age of majority.”). The

Second Amendment does not turn “on an evolving standard of adulthood that is

divorced from the text of the Amendment and from our regulatory tradition.” Bondi,

133 F.4th at 1125. Ultimately, the court concluded that “[f]rom this history emerges

a straightforward conclusion: the Florida law is consistent with our regulatory

tradition in why and how it burdens the right of minors to keep and bear arms.” Id.

at 1122.

The Fourth Circuit in McCoy and the Tenth Circuit in Rocky Mountain Gun

Owners reached similar conclusions based on similarly persuasive reasoning. See

McCoy, 140 F.4th at 572 (“From English common law to America’s founding and

beyond, our regulatory tradition has permitted restrictions on the sale of firearms to

individuals under the age of [twenty-one].”); Rocky Mountain Gun Owners, 121

F.4th at 123-27 (noting that it “seems evident that the necessity of some minimum

age requirement is widely accepted—after all, no one is reasonably arguing that

[eight]-year-olds should be allowed to purchase guns,” and explaining why setting a

19

minimum purchase age at twenty-one is appropriate to ensure that firearms are held

by responsible, law-abiding persons, in accordance with the Second Amendment).

For the same reasons, we see no constitutional infirmities with the District’s

age-based firearm registration and licensing statutes. History reveals a regulatory

tradition of restricting access to firearms based on age for those considered to lack

the judgment and discretion to use them safely. Bondi involved restrictions on the

ability of eighteen-to-twenty-one-year-olds to purchase firearms and therefore relied

in part on common-law limitations on the right of those under twenty-one to contract.

113 F.4th at 1118-20. “But the right to keep and bear arms surely implies the right

to purchase them.” Reese, 127 F.4th at 590 (citation modified). Accordingly, a

restriction on the ability of those under twenty-one to purchase firearms necessarily

implicates their ability to possess and carry them. The historical tradition of

restricting the purchase of firearms by individuals under twenty-one is therefore a

historical analogue relevantly similar to laws regulating the ability of those under

twenty-one to possess or carry firearms. Because regulations preventing those under

twenty-one from purchasing firearms are constitutional, so too are restrictions

preventing those under twenty-one from possessing and carrying them.

While age-based firearm statutes became more common during the nineteenth

century, the absence of Founding-era firearm-specific statutes is not dispositive.

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Invocation of the absence of specific legislation as support for the existence of a

right “assumes that founding-era legislatures maximally exercised their power to

regulate.” Rahimi, 602 U.S. at 739-40 (Barrett, J., concurring). The Second

Amendment does not demand such a “‘use it or lose it’ view of legislative authority.”

Id. at 740. Indeed, “the common law’s general, far-reaching restrictions on minors’

purchasing power made it unnecessary for Founding-era legislatures to more

pointedly prohibit minors from buying firearms, in particular.” Bondi, 133 F.4th at

1159 (Newsom, J., concurring). But “when those common-law restrictions waned

in the nineteenth century, the states filled the void by enacting a flurry of outright

bans, thereby . . . making explicit what was implicit at the Founding: laws may

regulate the purchase of firearms by minors.” Id. (citation modified). We need not

and do not decide in this appeal how to address a conflict between the Founding-era

and Reconstruction-era understandings of the right to keep and bear arms because

the law of both eras restricted firearm possession by individuals under twenty-one.

The District’s firearm laws are consistent with our regulatory tradition in why

and how they burden the right of those under twenty-one to keep and bear arms.

With respect to the “why,” the District’s regulations address the same problems as

historical age-based restrictions on firearm access: preventing those deemed to lack

reason, maturity, and judgment from obtaining firearms. See Bondi, 133 F.4th at

1122-23 (noting that the rationale of Florida’s law, like Founding era law, is

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motivated in part by concerns that “individuals under the age of [twenty-one] have

not reached the age of reason and lack the judgment and discretion to purchase

firearms responsibly”); see also McCoy, 140 F.4th at 577 (observing that federal

firearm regulation and historical infancy doctrine “share[d] a common rationale” in

that they were both “motivated by a recognition that individuals under the age of

[twenty-one] lack good judgment and reason”); Rocky Mountain Gun Owners, 121

F.4th at 126 (“[P]sychological studies provide that individuals in their late teens and

early [twenties] are less mature than adults in several significant and relevant

ways.”).

The District’s age-based regulations are thus consistent with the Founding-era

common-law tradition of disarming “particular groups for public safety reasons.”

National Rifle Ass’n of America, Inc. v. ATF, 700 F.3d 185, 200 (5th Cir. 2012); 3

see also Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019) (Barrett, J., dissenting)

(explaining that the Second Amendment permits the categorical disarmament of

3

Certain groups, such as African and Indigenous Americans, were historically

disarmed for odious reasons, and discrimination on this basis would no longer pass

constitutional muster under the Equal Protection Clause. See Rahimi, 602 U.S. at

775-76 (Thomas, J., dissenting). The fact remains, however, that the historical

record of prohibitions establishes a tradition of safety-related restrictions, and

restricting gun ownership and other activities (such as alcohol consumption) by

eighteen-to-twenty-one year olds does not violate the Equal Protection Clause.

22

individuals whose possession “would otherwise threaten public safety”). 4 This

shared “why” is a “strong indicator” that the District’s firearm restrictions “fall

within a permissible category of regulations.” Rahimi, 602 U.S. at 692.

The District’s age-based regulations are also similar to historical restrictions

in “how” they burden the right of those under twenty-one to keep and bear arms.

The laws prevent those under the age of twenty-one from possessing and carrying

firearms. In this regard, the District’s laws regulate arms-bearing conduct in no more

restrictive a manner as Founding era laws that limited access to firearms by those

under twenty-one. See Bondi, 133 F.4th at 1118 (noting that at the Founding, “it

became almost impossible for children to form any contracts,” including those for

the purchase of firearms by people under the age of twenty-one); see also McCoy,

140 F.4th at 572 (noting that both the infancy doctrine and the federal firearm

regulation “ma[d]e it exceedingly difficult for a minor to purchase a handgun from

a commercial seller, and they d[id] so in similar ways”).

4

With respect to public safety, we note that in a different context the D.C.

Council has made a reasonable judgment that the “hallmark features” of people

under twenty-five years old include “immaturity, impetuosity, and failure to

appreciate risks and consequences” (Incarceration Reduction Amendment Act, D.C.

Code § 24-403.03(c)(10)), and the District cites statistics that in 2019, eighteen-to-

twenty-year-olds accounted for over fifteen percent of arrests for homicide and

manslaughter even though they comprise less than four percent of the nation’s

population.

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District law is therefore “consistent with the principles that underpin our

regulatory tradition,” Rahimi, 602 U.S. at 691-92, and is “analogous enough” to

historical restrictions “to pass constitutional muster,” Bruen, 597 U.S. at 30; see also

id. at 73 (Alito, J., concurring) (noting that the Bruen decision “d[id] not expand the

categories of people who may lawfully possess a gun, and federal law generally

forbids the possession of a handgun by a person who is under the age of

[eighteen] . . . and bars the sale of a handgun to anyone under the age of [twenty-

one]”). We are therefore satisfied that the government has carried its burden of

showing that there is a historical tradition that permits limiting firearm registration

and licenses to people who are at least twenty-one years old and that District law

“fits comfortably within this tradition.” Rahimi, 602 U.S. at 690. Accordingly, we

hold that the District’s age-based firearm registration and licensing statutes are

constitutional because they are consistent with our Nation’s historical tradition of

firearm regulation.

B. Prosecutor’s Statements

1. Standard of Review

We review a claim of prosecutorial misconduct for abuse of discretion.

Teoume-Lessane v. United States, 931 A.2d 478, 494-95 (D.C. 2007). “When

evaluating claims of prosecutorial error, we must first determine whether the

24

challenged statements from the prosecutor, viewed in context, were, in fact,

improper.” Bost v. United States, 178 A.3d 1156, 1190 (D.C. 2018). 5

2. Discussion

In Griffin v. California, 380 U.S. 609, 615 (1965), the Supreme Court held

that the right against self-incrimination found in the Fifth Amendment to the U.S.

Constitution forbids the government from arguing or making adverse inferences that

a defendant’s decision not to testify was evidence of guilt. This court took this

principle a step further in Jenkins v. United States, 374 A.2d 581 (D.C. 1977).

Relying on Griffin, we held that the government could not argue that a defendant’s

ability to be present during the trial allowed him to listen to the evidence and tailor

his testimony accordingly. Jenkins, 374 A.2d at 584. We reasoned that such an

argument interfered with the defendant’s Sixth Amendment constitutional right to

confront the witnesses against him. Id. The Jenkins panel, therefore, took Griffin,

a Fifth Amendment case, and extended its reasoning to the Sixth Amendment

context. When confronted with the question of whether Griffin extends to cases in

which the defendant does testify, however, the Supreme Court disagreed. In those

5

While it is unclear whether Mr. Leyton preserved his claim of prosecutorial

error, the government “waived the waiver” by not arguing forfeiture on appeal.

Walker v. United States, 201 A.3d 586, 594 (D.C. 2019). We thus assume without

deciding that Mr. Leyton’s claim is preserved.

25

circumstances, the Court held that the government is permitted to make arguments

about a defendant “tailoring” his testimony after seeing the government’s evidence.

Portuondo v. Agard, 529 U.S. 61, 70 (2000).

This court subsequently had to decide whether to uphold Jenkins or change

course in light of the Supreme Court’s decision in Portuondo. In Teoume-Lessane,

931 A.2d at 494, we adopted the reasoning of the Supreme Court in Portuondo and

overruled Jenkins. We held that “the prosecutor did not impermissibly comment

upon the effect of the defendant’s presence at trial on his credibility as a witness,

and that the trial court did not abuse its discretion in permitting the jury to consider

the remarks.” Id. at 495.

In so doing, a division of this court overruled a prior division’s decision in

Jenkins in light of Portuondo. Id. at 494-95 (concluding that “Jenkins, in its reliance

on Griffin, was a constitutional decision that has now been overruled by the United

States Supreme Court in Portuondo and therefore is no longer binding on this

court”). The Teoume-Lessane panel noted the significant nature of its action,

explaining that “a division of this court may not overrule the prior decision of

another” but a panel also “cannot blindly follow a prior ruling in the face of clearly

controlling doctrine later enunciated by the Supreme Court; a panel decision

interpreting the Constitution would undoubtedly yield to a later Supreme Court

26

decision on point.” Id. at 494 (citation modified). Teoume-Lessane therefore

controls the issue whether the government acts improperly by commenting on a

defendant’s presence at trial and how his presence affects the credibility of his

testimony.

Mr. Leyton asserts that Jenkins was not in fact a constitutional decision

overruled by Portuondo and therefore we should apply Jenkins, not Teoume-

Lessane, to his claim. We expressly held in Teoume-Lessane, however, that Jenkins

was a constitutional decision, id. at 494, and, even assuming (without suggesting)

that that conclusion is subject to debate, as a division of this court we are bound by

Teoume-Lessane. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).

Applying Teoume-Lessane, we conclude that the government’s argument that

Mr. Leyton changed his defense theory only after hearing the government’s evidence

was not improper. While Mr. Leyton characterizes the government as having

commented on his pretrial “silence,” the government in fact highlighted the conflict

between Mr. Leyton’s statements to police on the night of the shooting (that he was

not the shooter) and his in-court testimony (that he shot Mr. Hernandez in self-

defense). This argument was consistent with the government’s right to impeach a

defendant’s credibility as a witness when the defendant testifies at trial. See

Portuondo, 529 U.S. at 69 (“The prosecutor’s comments in this case concerned

27

respondent’s credibility as a witness, and were therefore in accord with our

longstanding rule that when a defendant takes the stand, his credibility may be

impeached and his testimony assailed like that of any other witness.” (citation

modified)). The trial court therefore did not err in allowing the jury to hear the

prosecutor’s arguments.

III. Conclusion

For the foregoing reasons, we affirm Mr. Leyton’s convictions and remand

for the limited purpose of merging Mr. Leyton’s convictions and resentencing as

necessary.

So ordered.