A Quincy man with a record that includes convictions for armed assault with intent to murder and assault and battery on a police officer will have to stand trial in federal court on a charge of being a felon in possession of a firearm for the loaded gun police say they found in his apartment following his arrest on drug charges in Roxbury last year.
An attorney for Rey David Fulcar, 37, had asked US District Court Judge Denis Casper to dismiss the gun charge because of recent Supreme Court decisions that said the Second Amendment gave people the right to pack guns for personal protection both in and outside the home - which he claimed meant that the federal law that prohibits felons from being caught with guns or ammunition was now unconstitutional.
"Mr. Fulcar argues that possessing a firearm within the home is a core right protected by the Second Amendment," and prohibiting an entire class of people - felons - from doing so is a violation of their rights, Fulcar's attorney, Gordon Spencer of Framingham, argued, calling on Casper to do something he acknowledged the Supreme Court has yet to do: Rule that the law barring anybody convicted of a felony with a sentence longer than a year is overly broad and effectively turns the Second Amendment into a "second-class" right.
Referring to the most recent of the two decisions, issued last year, and known as the Bruen decision, Spencer continued:
All Fulcar is saying is that for [the ban on gun-owning felons] to render ALL felons as outlawed from arming themselves within their respective homes is overly broad, and not within our historical tradition with respect to gun regulation and therefore fails the test under Bruen. Mr. Fulcar stands confident to argue that any application of [the law], and in particularly one (as applied to him) which prohibits ALL felons from possessing a firearm in the home fails to pass constitutional muster.
Nice try, but no, Casper ruled, providing a raft of reasons why neither decision means absolutely anybody can now walk around with a gun or keep one under the pillow, including:
Fulcar argues that the Second Amendment's reference to "the people" necessarily includes individuals who have committed felonies. The Supreme Court in Bruen, however, repeatedly used the phrase "law-abiding citizens" in reference to the holders of the Second Amendment right. Although the Supreme Court did not elaborate upon the meaning of this phrase, “law-abiding citizens” does not plainly refer to individuals convicted of felonies
Casper even went back to the founding of the country, as the Supreme Court is now so fond of doing, and as federal prosecutors did to argue against Fulcar, and found an analog in early laws that could be used as a precedent for banning felons from owning guns.
She noted that the first Congress - which helped draft the Second Amendment, "made a variety of violent and non-violent felonies punishable by death, including treason, murder on federal land, forgery, counterfeiting, uttering a forged or counterfeited public security, and piracy on the high seas."
While the government's historical precursors - capital punishment and estate forfeiture - do not specifically concern the regulation of firearms, "it is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms." Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019)
According to prosecutors, Fulcar got his first one-year sentence in 2006 - when he was 19 - in West Roxbury Municipal Court, where he was convicted of possession of a Class A substance with intent to distribute, assault and battery on a police officer and resisting arrest.
In 2013, when he lived in Roxbury, Fulcar pleaded guilty in Suffolk Superior Court to two counts of armed assault with intent to murder, aggravated assault and battery with a dangerous weapon, illegal possession of a firearm and illegal possession of a loaded firearm for a 2011 incident in which he fired multiple shots into a home on School Street in Egleston Square, hitting one man under his left eye, prosecutors say.
Fulcar received a five year sentence in state prison for that.
In the current case, federal prosecutors argued:
The Second Amendment’s plain text does not foreclose Congress’ goal of categorically banning firearm possession by convicted felons, and [the felon ban] is consistent with the Nation’s historical tradition of firearms regulation.