Full opinion text
MEMORANDUM & ORDER JACK B. WEINSTEIN, Senior District Judge: I. Introduction...............................................................80 II. Facts.....................................................................81 A. Prior State Indictment .................................................81 B. Indictment Under 18 U.S.C. § 922(n).....................................81 II. 18 U.S.C. § 922(n).........................................................82 A. Legislative History.....................................................82 B. Current Statutory Text............................................,.....84 C. Meaning of “Receive” ..................................................84 D. Government Interest at Stake...........................................87 E. Prior Constitutional Challenges..........................................88 IV. Background...............................................................88 A. Power of the Grand Jury................................................88 B. Rights of Individuals Under Arrest or Indictment.......:..................90 C. Treatment of Unconvicted Conduct.......................................93 V. Constitutionality of 18 U.S.C. § 922(n)........................................93 A. Facial vs. As Applied Challenges........................................93 B. Commerce Clause......................................................94 C. Fifth Amendment Notice Requirement ...................................94 D. Presumption of Innocence...............................................95 E. Second Amendment....................................................97 1. Kinds of Constitutional Scrutiny......................................98 2. Right to Bear Arms ...............................................100 3. 18 U.S.C. § 922(n) Imposes a Substantial Burden......................101 4. No More Than Intermediate Scrutiny is Appropriate...................102 5. 18 U.S.C. § 922(n) Survives Intermediate Scrutiny.....................104 F. Equal Protection......................................................105 G. Procedural Due Process ...............................................106 1. Private Interest at Stake...........................................107 2. Risk of Erroneous Deprivation......................................108 3. Government Interest at Stake.......................................108 VI. Power to Dismiss for Insufficient Evidence...................................109 VII. Conclusion...............................................................110 I. Introduction Defendant Jamal Laurent is charged with receipt of a firearm and ammunition while under indictment for a crime punishable by a term of imprisonment exceeding one year. See 18 U.S.C. § 922(n). On October 18, 2011, the parties were ordered to show cause why the indictment should not be dismissed on the grounds that § 922(n) is unconstitutional. Ct.’s Order to Show Cause, Doc. Entry 34, Oct. 18, 2011. Concerns raised included that the statute may violate equal protection, the Fifth Amendment’s notice requirement, and the presumption of innocence. Defendant subsequently argued that the statute violates his Second Amendment right to keep and bear arms, Def.’s Mem. of L. in Supp. of Mot. to Dismiss, Doc. Entry 46, Nov. 17, 2011, and the Commerce Clause, Def.’s Letter, Doc. Entry 51, Nov. 20, 2011. A hearing on these issues was held on November 21, 2011. See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011. Challenges to the statute are multifarious. Under § 922(n), the fact of an indictment in any jurisdiction for any felony converts what can be assumed to be an otherwise lawful activity — the shipping, transportation, or receipt of a firearm— into a crime. At the time the defendant commits this act, he has not been convicted of any offense. He has not seen the evidence against him, or had the other protections of due process, including an opportunity to present his own version of events. While the grand jury which originally indicted him determined that there was probable cause of a crime, there has not necessarily been an independent judicial determination that the defendant poses a danger to the community. Despite the absence of these procedural protections, the statute permits the government to both deprive someone of what is arguably a constitutional right to receive a gun, and to punish the exercise of that right with criminal sanctions. Defendant questions whether the broad prohibition of the statute is necessary to achieve the congressional goals. Arguably, public safety could be adequately protected if the judge in the initial felony case made an individual determination regarding whether the defendant is sufficiently dangerous to be deprived of his right to obtain a gun as a condition of bail. Def.’s Mem. of L. in Supp. of Mot. to Dismiss, Doc. Entry 46, Nov. 17, 2011. See, e.g., 18 U.S.C. § 3142(e)(l)(B)(xiv) (permitting federal courts to set conditions of pre-trial release); N.Y.Crim. Proc. § 530.14 (stating conditions when a trial court may revoke or suspend a defendant’s firearms license, order the defendant ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed). Even if the statute does not violate the presumption of innocence, equal protection, the Commerce Clause, or the Second Amendment, does it run afoul of the Fifth Amendment right to procedural due process? The issues raised pose the question: is it necessary to impinge on a fundamental right to receive guns with a strict rule when the same interest in public safety might be adequately served while providing appropriate procedural protections to defendants? The answer is that Congress could reasonably respond, “Yes.” For the reasons stated below, the motion to dismiss on constitutional grounds is denied. The facts of this case demonstrate that the statute is constitutional both on its face and as applied to this particular defendant. Defendant also moved for a bill of particulars specifying when and where the defendant received the firearm in question. Def.’s Mem. of Law in Supp. of Pre-Trial Mot., Doc. Entry 49, Nov. 18, 2011. The motion was granted. Ct.’s Mem. & Order, Doc. Entry 53, Nov. 23, 2011. In accordance with the terms of § 922(n), the government is required to demonstrate that the defendant received the weapon after indictment. If it fails to do so, the indictment will be dismissed without prejudice. II. Facts A. Prior State Indictment On June 21, 2010, an individual (“Victim 1”) residing at 1445 Schenectady Avenue, Brooklyn, New York reported to the New York City Police Department (NYPD) that someone shot a bullet through the wall of his apartment from the adjoining room. Compl. ¶ 2, Doc. Entry 1, Apr. 11, 2011. Shortly thereafter, the defendant entered Victim l’s room. Id. He apologized for the shooting and asked Victim 1 not to report the incident to the police. Id. Later that day, NYPD officers entered the defendant’s room and observed a nine millimeter pistol, a spent shell casing, and a bag of marijuana. Id. ¶ 3. Although Laurent was present when the NYPD first arrived, he immediately fled the scene on foot. Id. Defendant was arrested by NYPD officers on July 11, 2010 in connection with the June 21, 2010 incident. Id. ¶ 4. On July 29, 2010, he was indicted in Kings County Supreme Court for: 1) criminal possession of a weapon in the second degree; 2) reckless endangerment in the first degree; 3) intimidating a witness in the third degree; 4) reckless endangerment in the second degree; 5) criminal possession of a weapon in the fourth degree; and 6) menacing in the third degree. Gov’t Resp. to Order to Show Cause 4, Doc. Entry 41, Nov. 16, 2011. Both the first and second counts charged are felonies punishable by a term of imprisonment exceeding one year. Id. Laurent was arraigned on the state court indictment on August 24, 2010. Id. The charges, as amended, are still pending. Id. He currently stands indicted for intimidating a witness in the third degree, a felony, and menacing in the third degree, a misdemeanor. Gov’t Resp. to Order to Show Cause Ex. A, Doc. Entry 41, Nov. 16, 2011. It is defense counsel’s view that he may be permitted to plead guilty to a misdemeanor. Def.’s Mem. of L. in Supp. of Mot. to Dismiss 2 n. 2, Doc. Entry 45, Nov. 17, 2011. B. Indictment Under 18 U.S.C. § 922(n) On March 21, 2011, eight months after his initial state indictment, two NYPD officers witnessed an altercation between defendant and another victim (“Victim 2”). Victim 2 shouted to the officers that he was being robbed and that the defendant had a gun. Compl. ¶ 7, Doc. Entry 1, Apr. 11, 2011. When Laurent ran, the officers pursued him. Id. They caught up with him while he was attempting to hide behind a tree. Id. He was ordered to come out with his hands up; Laurent complied and was placed under arrest. Id. When the police officers searched the area where he had tried to hide, they located a .38 caliber revolver, a brown wallet, and $3,000 in cash. Id. ¶ 8. Victim 2 identified the wallet and cash as his. Id. On May 9, 2011, the defendant was arraigned in federal court on a single-count indictment for receiving a firearm in violation of 18 U.S.C. § 922(n). Indictment, Doc. Entry 9, Apr. 26, 2011. Section 922(n) reads as follows: It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(n) (emphasis added). A superseding indictment on the same charge was filed on November 22, 2011. Superseding Indictment, Doc. Entry 52, Nov. 22, 2011. III. 18 U.S.C. § 922(n) A. Legislative History The federal government and many states now limit indictees’ access to guns. See, e.g., Ohio Rev.Code Ann. § 2923.13(A)(2)~(3) (“Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if ... [t]he person is under indictment for ... any felony offense of violence” or “is under indictment for ... any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”); Wash. Rev.Code § 9.41.040(2)(a)(iv) (“A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm ... [i]f the person is free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense.”); see also Gun Laws: Prohibited Persons (Most Recent) By State, StateMaster.com, http:// www.statemaster.com/graph/gov_gun_Iaw_ pro-per-government-gun-laws-prohibited-persons# source (last visited Nov. 18, 2011) (describing restrictions on gun possession by state). This limitation is of comparatively recent vintage. Prior to 1923, at least seven state legislatures had adopted bans on the carrying of concealed weapons by violent offenders. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 702, 707-09 (citing Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Thirty-Fifth Annual Meeting 862-63 (1925)). The first federal statute limiting the right of individuals under indictment to access firearms was enacted in 1938. Federal Firearms Act of 1938, 75 Cong. Ch. 850, § 2(e), 52 Stat. 1250, 1251 (repealed). It prohibited individuals under indictment for, or convicted of, a crime of violence from shipping or transporting any firearms or ammunition in interstate commerce. Id. It also proscribed possession of firearms by any fugitive from justice, id., as well as by violent felons and misdemeanants. Id. § 2(f), 52 Stat. 1250, 1251. “Crimes of violence” were commonly understood to include only those offenses “ordinarily committed with the aid of firearms.” Marshall, supra, at 702. As described by one court: The evils sought to be corrected by Congress through the Federal Firearms Act, 15 U.S.C.A. § 901 et seq., are well known — the practice of roaming racketeers and predatory criminals who know no state lines — a situation beyond the power of control by local authorities to such an extent as to constitute a national menace. United States v. Platt, 31 F.Supp. 788, 790 (S.D.Tex.1940) (citing Record of Hearings on H.R. 9066 Before the House Committee on Ways and Means, 73d Congress). Congress enacted the statute in order to “eliminate the guns from the crooks’ hands, while interfering as little as possible with the law-a-biding citizen.” S.Rep. No. 82, 75th Cong., 1st Sess. 2 (1937). It thus “sought to protect the public by preventing the transportation and possession of firearms and ammunition by those who, by their past conduct, had demonstrated then-unfitness to be entrusted with such dangerous instrumentalities.” Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942). In 1961, Congress expanded the prohibition of § 2(e) to encompass all individuals under indictment, regardless of the crime they were accused of. See Act of Oct. 3, 1961, Pub.L. No. 87-342, 75 Stat. 757 (repealed). The act was intended “[t]o strengthen the Federal Firearms Act,” id., and “make it more difficult for the criminal elements of our society to obtain firearms,” S.Rep. No. 364, 87th Cong., 1st Sess. 2 (1961). Introduced at the request of the Attorney General, the legislation was an integral part of an anti-crime program. S.Rep. No. 364, 87th Cong., 1st Sess. 2 (1961). In recommending that § 2(e) and other portions of the Federal Firearms Act be amended, the House Ways and Means Committee reported that “the infiltration of racketeering into society and the exploding crime rate ha[d] increasingly become a cause for national concern.” United States v. Thoresen, 428 F.2d 654, 659 (9th Cir.1970) (citing 2 U.S.Code Cong, and Admin. News, p. 3068, 87th Cong. 1st Sess. (1961)). New laws were needed “so the Federal Government can better assist local authorities in the common assault against crime.” Id. (citing 2 U.S.Code Cong, and Admin. News, p. 3068, 87th Cong. 1st Sess. (1961)); see also S.Rep. No. 364, 87th Cong., 1st Sess. 2 (1961). Accordingly, Congress deleted the words “crime of violence” in §§ 2(d), (e), and (f) of the 1938 Act and inserted the words “crime punishable by imprisonment for a term exceeding one year.” Act of Oct. 3, 1961, Pub.L. No. 87-342, § 2, 75 Stat. 757. The scope of the statute was again expanded by the Gun Control Act of 1968. Pub.L. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. § 921 et seq.). The 1968 Act clarified the definition of “indictment” to include an information or indictment in any court- — state or federal — if the court had power to prosecute any crime punishable by more than one year in prison. Id. § 921(a)(14), 82 Stat. 1216 (defining indictment as “an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted” (emphasis added)). The statute was designed to require the indictment to be a felony, emphasizing the crime rather than the indicting court’s jurisdiction. See S.Rep. No. 1501, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2201 (“Inasmuch as a person under indictment for certain crimes is proscribed from shipping or receiving firearms in interstate or foreign commerce and a license will not be issued to such a person, the definition makes it clear that either an indictment or an information in any court for a felony comes within the meaning of the term.” (emphasis added)). It criminalized receipt of a firearm or ammunition “by any person ... who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” Gun Control Act of 1968, Pub.L. 90-618, § 102, 82 Stat. 1219-20 (emphasis added). It also continued to criminalize the shipping or transportation of firearms or ammunition by an individual under indictment. Id. § 922(g)(1), 82 Stat. 1219. As described by the Supreme Court: [T]he 1968 Act reflects a ... concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons. Its broadly stated principal purpose was “to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.” S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968), 1968 U.S.C.C.A.N. 2112, 2113. See also 114 Cong. Rec. 13219 (1968) (remarks by Sen. Tydings); Huddleston v. United States, 415 U.S. [814] at 824-825, 94 S.Ct. 1262, 39 L.Ed.2d 782.... Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976). The Act sought to combat violence and promote public safety. See United States v. Pruner, 606 F.2d 871, 874 (9th Cir.1979); United States v. Haddad, 558 F.2d 968, 972 (9th Cir.1977); United States v. Turcotte, 558 F.2d 893, 896 (8th Cir.1977). “[M]aximiz[ing] the possibility of keeping firearms out of the hands of [felons]” was the method used. Pruner, 606 F.2d at 874 (citing 114 Cong. Rec. 21784 (1968)). At the same time, Congress affirmed its intent not to interfere with “law-abiding citizens’ ” rights: [I]t is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and ... this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes. S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968), 1968 U.S.C.C.A.N. 2112, 2199. In 1986, Congress again revised the statute to combine the provisions of § 922(g)(1) and (h)(1) that dealt with indictees into a single section, § 922(n). Firearms Owners’ Protection Act, Pub.L. 99-308, 100 Stat 449 (1986). In passing the Act, Congress found that “the rights of citizens ... to keep and bear arms under the second amendment to the United States Constitution; ... and assurance of due process of law under the fifth amendment ... require additional legislation to correct existing firearms statutes and enforcement policies.” Id. § 1, 100 Stat 449. Congress also reaffirmed its intent not “to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.” Id. Subsequent amendments to the statute have not changed the language of § 922(n) or the content of its prohibitions. B. Current Statutory Text 18 U.S.C. § 922 imposes a wide range of restrictions on gun manufacture, transportation, sale, and possession. While it does not prohibit the transportation or receipt of guns generally, it regulates the transportation, receipt, or possession of guns by certain classes of individuals. Section 922(n) specifically prohibits the shipment, transportation, or receipt of firearms by “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(n). Under the statute, the fact that the defendant has been indicted for any felony converts the otherwise lawful act of transporting or receiving a gun into criminal conduct. It thus both limits the ability of indictees to access weapons and applies criminal sanctions to the exercise of that liberty. It does so categorically, without requiring an independent determination of dangerousness. It imposes significant penalties for this crime, including imprisonment of up to five years. 18 U.S.C. § 924(a)(1). C. Meaning of “Receive” When viewed in the context of other provisions of 18 U.S.C. § 922, the words “ship,” “transport,” and “receive” in § 922(n) are used with precision. They contrast with specifications such as, e.g., “to ship or transport ..., or possess ...; or to receive,” § 922(g); “to receive, possess, or transport,” § 922(h)(1); “to receive, possess, conceal, store, barter, sell or dispose of,” § 922(j); “to import,” § 922(¿); “and to transfer or possess,” § 922(o )(1). The word “receive” is defined principally as an action: “to take back, take, accept.” Webster’s Third New International Dictionary (1993); see also, e.g., The Complete Oxford English Dictionary (2d ed. 2002) (“To take in one’s hand, or into one’s possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party.”). By contrast, to “possess” is passive, defined primarily as “to have and hold as property.” Webster’s Third New International Dictionary (1993); see also, e.g., The Complete Oxford English Dictionary (2d ed. 2002) (“To hold as property; to have belonging to one, as wealth or material objects; to own.”). In the present case, the contrast is between possession, which does not require a change in condition — possession could have started at any time, even before indictment for a felony — and “receipt,” which requires a transfer of possession at a specific time, the taking. By its own terms, § 922(n) does not prohibit possession of a weapon by someone under indictment, but only shipping, transportation, or receipt. The government urges that receipt can be proved by mere possession or constructive possession. See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011. This claim has no merit. The government points to United States v. Rivera, in which the Court of Appeals for the Second Circuit held that evidence of constructive possession was sufficient to support a conviction under § 922(h)(1), an earlier version of § 922(n). 844 F.2d 916, 925 (2d Cir.1988). Section 922(h)(1) provided that: It shall be unlawful for any person ... who is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Gun Control Act of 1968, Pub.L. 90-618, § 102, 82 Stat. 1219-20 (emphasis added). The defendant Pedro Rivera stipulated that he was a convicted felon, and that the gun travelled in interstate commerce. Brief for Appellant Pedro Rivera at 7, United States v. Rivera, 844 F.2d 916 (2d Cir.1988) (No. 87-1053). Because Rivera exercised dominion and control over the gun, the appellate court found that he had “received” it for purposes of § 922(h)(1). Rivera, 844 F.2d at 925. The government argues that, because the language of § 922(h)(1) mirrors the current language of § 922(n), this court should adopt the Second Circuit’s interpretation of receipt by a felon under § 922(h)(1) as the meaning of receipt by an indictee under § 922(n). See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011. The Court of Appeals for the Second Circuit’s holding in Rivera is inapposite. First, because the defendant in Rivera conceded that possession was sufficient to establish receipt, the distinction between “receipt” and “possession” was never before the court. Brief for Appellant Pedro Rivera at 7, United States v. Rivera, 844 F.2d 916 (2d Cir.1988) (No. 87-1053) (“Obviously possession by a defendant would support an inference that he had ‘received’ it in violation of the statute” under the facts in Rivera.). Rivera instead argued that, as a factual matter, there was insufficient evidence that he was in possession of the gun. Id. at 8. The gun was found behind a panel in a hall closet of Rivera’s apartment; he contended that it belonged to his son or another current or former occupant of the property, and that he, the defendant, never received or possessed it. See id. at 6-8. It is obvious from Rivera’s argument that the court on appeal never had before it the issue posed in the present case: whether a defendant must receive a firearm after indictment. See id. passim. Second, in recodifying the provisions of § 922(h)(1) relating to indictees in § 922(n), Congress intended not to criminalize mere possession of firearms. The defendant in Rivera was indicted in 1985 and convicted in May 1986. See United States v. Rivera, 634 F.Supp. 204 (S.D.N.Y.1986), aff'd 802 F.2d 593 (2d Cir.1986); Rivera v. United States, No. 92-cv-7726, 1993 WL 464747, at *1 (S.D.N.Y. Nov. 12, 1993). Following Rivera’s conviction — although before his appeal was completed — the provisions of the prior 18 U.S.C. § 922(h)(1) that pertained to felons, as well as other sections that limited access to guns by dangerous persons, were separated and recodified at 18 U.S.C. § 922(g). See Firearms Owners’ Protection Act, Pub.L. 99-308, § 110, 100 Stat 449 (1986) (stating that the Act shall go into effect one hundred and eighty days following its passage on May 19, 1986). Although these amendments had gone into effect by the time the Court of Appeals for the Second Circuit heard the case, because Rivera challenged the sufficiency of the evidence justifying his conviction under the prior version of the statute, the appellate court applied and interpreted the earlier iteration. See Rivera, 844 F.2d at 924. As described in Part 111(A), supra, the 1986 amendments to § 922 were intended to provide further protection to “the rights of citizens ... to keep and bear arms under the second amendment to the United States Constitution; ... and assurance of due process of law under the fifth amendment....” Id. § 1. As amended, section 922(g) specifically criminalizes gun possession, as well as transportation and receipt, by several categories of individuals, including convicted felons. 18 U.S.C. § 922(g) (stating that it shall be unlawful for particular categories of individuals to “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce” (emphasis added)). Other subsections of the amended § 922 prohibit possession of certain kinds of firearms, or of firearms by certain individuals. See, e.g. 18 U.S.C. § 922(k) (“It shall be unlawful for any person knowingly to ... possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” (emphasis added)). In the same 1986 act, the provisions of 18 U.S.C. § 922(h)(1) that pertained to individuals under indictment were recodified as 18 U.S.C. § 922(n). By omitting the word “possession” from § 922(n), Congress intended that “[persons under indictment are prohibited from receiving or transporting firearms but may continue to possess them.” H.R.Rep. No. 495, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1360; see Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (“[Wjhen Congress includes particular language in one section of a statute but omits it in another ... it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). In recodifying the provisions of § 922(h)(1) so it pertained only to indictees as § 922(n), rather than as part of § 922(g), Congress evinced its decision not to criminalize mere possession of firearms by indictees. “[A]n indictment that alleges only possession of a firearm by a person under indictment is insufficient to charge a violation of 18 U.S.C. § 922(n)”: Even assuming that one who possesses a firearm necessarily received it first, receipt is a discrete occurrence while possession implies a continuous act. A person who acquires a firearm and is later indicted continues to possess the firearm, but he does not receive the firearm again by virtue of that possession. United States v. Adams, No. 11-cr-00046, 2011 WL 1475978, at *2 (S.DAla. April 18, 2011). In order to prove the defendant guilty of violating § 922(n), the government must establish that he shipped, transported, or received the gun after and while still under an indictment for a crime punishable by a term of imprisonment exceeding one year. To interpret the statute otherwise would criminalize mere possession and would be contrary to the law as written and interpreted. D. Government Interest at Stake The government’s interest is of critical importance in evaluating the statute’s constitutionality. Substantial legislative history indicates that § 922(n) is supported by a compelling government interest in public safety. In its report on the Gun Control Act of 1968, the Senate found that “[t]he ready availability; that is, ease with which any person can anonymously acquire firearms (including criminals ... and others whose possession of firearms is similarly contrary to the public interest) is a matter of serious national concern.” S.Rep. No. 1501, 90th Cong., 2d Sess., 1968 U.S.C.C.A.N. 2112, 2113 (1968). It was believed that crime and racketeering could be curtailed nationwide by limiting the ability of those whose past records demonstrated a propensity to engage in such activity from transporting or receiving weapons in interstate commerce. “The federal gun control statute is designed to prohibit the ownership of firearms not only by individuals who have already committed dangerous acts, but also by those with a potential for violence as well.” United States v. Waters, 23 F.3d 29, 34 (2d Cir.1994). Specifically, Congress concluded that individuals under indictment “have a somewhat greater likelihood than other citizens to misuse firearms.” United States v. Munsterman, 177 F.3d 1139, 1142 (9th Cir.1999); United States v. Graves, 554 F.2d 65, 72 (3d Cir.1977); see also United States v. Weingartner, 485 F.Supp. 1167, 1172 (D.N.J.1979) (“Congress could rationally conclude that persons indicted for non-trade regulation offenses punishable by a term of imprisonment exceeding one year have a significantly greater propensity for the misuse of firearms than the population as a whole.”). The Supreme Court has explained that “[t]he government’s interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also Schenck v. Pro—Choice Network, 519 U.S. 357, 376, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (referring to the “significant governmental interest in public safety”); United States v. Skoien, 614 F.3d 638, 642 (7th Cir.2010) (“[N]o one doubts that the goal of ... preventing armed mayhem, is an important governmental objective.”). While this interest is heightened “when the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community,” Salerno, 481 U.S. at 750, 107 S.Ct. 2095, the absence of such an individual determination does not substantially dilute the interest. Since the statute requires the defendant to know that he has been indicted and thereafter to knowingly received a gun, see Part V(C), infra, the government’s interest is narrow and clear. It would take a particularly brazen and dangerous individual to engage in a gun transaction while knowingly under a felony indictment. E. Prior Constitutional Challenges The Supreme Court has not ruled on the constitutionality of 18 U.S.C. § 922(n) or its predecessor provisions. Several district courts and courts of appeals have found that the section does not violate the Commerce Clause, e.g. United States v. Gaines, 295 F.3d 293, 302 (2d Cir.2002); equal protection secured ■ by the Fifth Amendment, e.g. United States v. Craven, 478 F.2d 1329 (6th Cir.1973); the presumption of innocence, Thoresen, 428 F.2d at 661; United States v. Brown, 484 F.2d 418, 424 (1973); Craven, 478 F.2d 1329; or the Second Amendment, United States v. Rivero, 218 Fed.Appx. 958, 958 (11th Cir.2007). Although the Court of Appeals for the Second Circuit has noted in a stray reference that 18 U.S.C. § 922(n) “prohibit[s] the possession of firearms by individuals under indictment, even though they are presumed innocent under the law,” Waters, 23 F.3d at 34, it has not ruled on the constitutionality of the statute outside the context of the Commerce Clause, see Gaines, 295 F.3d at 302. Apparently no court has ruled on a constitutional challenge to § 922(n) since District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) held that the Second Amendment protects an individual right to bear arms. IV. Background In order to understand the nature of the deprivation accomplished by the statute, some background on the grand jury and the rights of individuals under indictment is necessary. A. Power of the Grand Jury An indictment is not a finding of guilt beyond a reasonable doubt, nor even by a preponderance of the evidence. It requires only two things: 1) that a prosecutor seek an indictment; and 2) that a grand jury conclude that there is probable cause to believe that the defendant is guilty of the charged crime. The grand jury need not consider either exculpatory evidence or the defendant’s version of events. ' Federal grand jury proceedings are not limited by the procedural protections guaranteed to defendants at trial. Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (“[N]either the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act.”). As the Supreme Court has noted, “the whole history of the grand jury institution” is one “in which laymen conduct their inquiries unfettered by technical rules.” Id. at 364, 76 S.Ct. 406. Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 63 L.Ed. 979 (1919). United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Federal grand juries have enormous power to consider a wide range of evidence, regardless of whether that evidence is reliable or would be admissible at trial. They may consider hearsay. Costello, 350 U.S. at 363, 76 S.Ct. 406. They may hear evidence that would ordinarily be barred by the Fourth Amendment’s exclusionary rule. Calandra, 414 U.S. at 354, 94 S.Ct. 613. They may rely on evidence obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination. Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). A defendant has a limited ability to inquire into the propriety of a grand jury’s determinations, even if that determination is based on incompetent, irrelevant, or unconstitutionally-obtained evidence. See Costello, 350 U.S. at 364, 76 S.Ct. 406 (refusing to establish a rule that would permit defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence); cf. Blair, 250 U.S. at 282, 39 S.Ct. 468 (stating that a witness in a grand jury proceeding “is not entitled to urge objections of incompetency or irrelevancy, such as a party might raise, for this is no concern of his”); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910) (refusing to quash an indictment although “there was very little evidence against the accused” and some of the available evidence was incompetent). Defense attorneys are not allowed in the grand jury room. Transcripts are rarely made available. Some state grand juries may provide some additional procedural protections. John F. Decker, Legislating the New Federalism: Grand Jury Reform in the States, 58 Okla. L.Rev. 341, 369-70 (2005) (“[A]t least twenty-four state legislatures have created a statutory right to counsel in conjunction with the grand jury.”); id. at 373-74 (noting that several states require prosecutors, either by statute or case law, to present exculpatory evidence to the grand jury); id. at 380 (stating that five states recognize that the target of a proceeding has a right to appear before the grand jury, at least in some instances). Even so, these protections fall far below those a defendant is entitled to at trial. Id. at 370-71(“In most states that have established a statutory right to counsel [in the grand jury], this light is limited to counsel privately retained; only seven states require the appointment of counsel to targets, subjects, or witnesses.... Virtually all the state laws permitting counsel to be present in the grand jury room include language strictly limiting the attorney’s participation in the proceedings.”); id. at 375 (“Cases in which an indictment was dismissed for failure to present exculpatory evidence generally involve egregious problems with the prosecutor’s presentation of the evidence to the grand jury.”); id. at 376 (“Many state courts ... are reluctant to limit the grand jury’s investigative powers and to permit judicial inquiries into the quality of evidence presented to the grand jury.”). The great power and discretion vested in the grand jury reduces delay. See Costello, 350 U.S. at 363-64, 76 S.Ct. 406. “In some cases the delay might be fatal to the enforcement of the criminal law.” Calandra, 414 U.S. at 349, 94 S.Ct. 613. It also brings with it the potential for mistake and abuse. “[M]any lawyers and judges have expressed skepticism concerning the power of the Grand Jury.” United States v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir.2005) (en banc). These qualms were summarized by the Chief Judge of New York when he publicly stated that a grand jury would indict a “ham sandwich” if asked to do so by the prosecutor. Id. (citing In re Grand Jury Subpoena of Stewart, 144 Misc.2d 1012, 545 N.Y.S.2d 974, 977 n. 1 (N.Y.Cnty.Sup.Ct.1989), aff'd as modified, 156 A.D.2d 294, 548 N.Y.S.2d 679 (1st Dep’t 1989)). While “the modern grand jury technically remains an independent body ... as a practical matter, it relies heavily on the prosecutor to secure evidence and give the jurors legal advice.” John Decker, Legislating New Federalism: The Call for Grand Jury Reform in the States, 58 Okla. L.Rev. 341 (2005). Federal grand juries indict in almost all cases brought by prosecutors. Navarro-Vargas, 408 F.3d at 1195 (citing Federal Justice Statistics Database, Federal Justice Statistics Resource Center, http:// fjsrc.urban.org (last visited January 5, 2005) (noting that federal grand juries returned only twenty-one no-bills in 2001)). Many criticize the modern grand jury as no more than a “rubber stamp” for the prosecutor. 1 Sara Sun Beale, et al., Grand Jury Law and Practice § 1:1 (2d ed. 2001); Marvin E. Frankel & Gary Naftalis, The Grand Jury: An Institution on Trial 22 (2d ed. 1977) (“Day in and day out, the grand jury affirms what the prosecutor calls upon it to affirm — investigating as it is led, ignoring what it is never advised to notice, failing to indict or indicting as the prosecutor ‘submits’ that it should.”); Roger Roots, Grand Juries Gone Wrong, 14 Rich. J.L. & Pub. Int. 331, 331-32 (2010) (“The ongoing national disgrace that is contemporary federal grand jury practice has attracted the attention of scholars for several decades. Today’s federal grand juries fail to provide even a modicum of resistance to the government, and serve as a machine of government expansion and caprice. Instead of obstructing and opposing the powerlust of government prosecutors, contemporary grand juries provide their government captors with cover for misconduct and perjury on a massive scale and a means to abuse, threaten and intimidate the American people.”); Fred A. Bernstein, Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. Rev. 563, 569 n. 31(1994) (It is “almost always easier to get an indictment [from a grand jury] than to satisfy a judge that there is probable cause.”); Peter Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich. L.Rev. 463, 474 (1980) (noting “the grand jury’s tendency to rubberstamp the prosecutor’s decisions”); William J. Campbell, Eliminate the Grand Jury, 64 J.Crim. L. & Criminology 174, 174 (1973) (noting that “the grand jury is the total captive of the prosecutor who, if he is candid will concede that he can indict anybody at any time, for almost anything, before any grand jury”). Because of the ease of indictment, courts have been troubled by the possibility that individuals may suffer the collateral consequences of an indictment that is unfounded. See, e.g., United States v. Serubo, 604 F.2d 807, 817 (3d Cir.1979) (“[W]hile in theory a trial provides a defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo.”); In re Fried, 161 F.2d 453, 458 (2d Cir.1947) (“[A] wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot easily be erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.”). B. Rights of Individuals Under Arrest or Indictment While an indictee is presumed innocent, see Part V(D), infra, an indictment “is not without [adverse] legal consequences.” It establishes that there is probable cause to believe that an offense was committed, and that the defendant committed it. Upon probable cause a warrant for the defendant’s arrest may issue; a period of administrative detention may occur before the evidence of probable cause is presented to a neutral magistrate .... Once a defendant has been committed for trial he may be detained in custody if the magistrate finds that no conditions of release will prevent him from becoming a fugitive. United States v. Salerno, 481 U.S. 739, 764, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (Marshall, J., dissenting). Indictment has historically had a limited effect on an individual’s constitutional rights. Probably the most important consequence is the potential for pre-trial detention. See Bail Reform Act of 1984, 18 U.S.C. § 3141 eb seq.; Salerno, 481 U.S. 739, 107 S.Ct. 2095. This deprivation of liberty is accompanied by substantial procedural protections. In the federal system, for example, defendants are arraigned before a judge or magistrate judge after indictment. At this hearing, the official has the power to remand the defendant to federal custody; to release the defendant on his own recognizance; or to set bail. See 18 U.S.C. § 3141(a) (requiring a judicial officer to determine whether an arrestee shall be detained). The defendant may request the presence of counsel at the detention hearing; testify and present witnesses in his behalf; proffer evidence; and cross-examine other witnesses appearing at the hearing. 18 U.S.C. § 3142(f). Pre-trial detention may be ordered only “[i]f, after a hearing ..., the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community,” 18 U.S.C. § 3142(e), based on “clear and convincing evidence,” 18 U.S.C. § 3142(f). The court must consider the nature and seriousness of the charges, the substantiality of the government’s evidence against the arrestee, the arrestee’s background and characteristics, and the nature and seriousness of the danger posed by the suspect’s release. 18 U.S.C. § 3142(g). Such procedural protections are necessary to avoid infringing on the rights of defendants pre-trial. In Salerno, the Supreme Court upheld the ability of a federal court to detain an arrestee before trial on a finding by “clear and convincing” evidence that detention is the only way to reasonably insure the safety of the community. Salerno, 481 U.S. at 741, 107 S.Ct. 2095. The provision withstood constitutional scrutiny because it included procedural protections. The Court declared: [T]he Government must first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.... Id. at 751-52, 107 S.Ct. 2095 (internal citations omitted) (emphasis added). An indictee may also be subject to pre-trial release conditions that infringe upon his constitutional rights, provided that there has been an independent judicial determination that such conditions are necessary. Compare, e.g., 18 U.S.C. § 3142(c)(l)(B)(xiv) (“If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person ... subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person ... satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.”); and Berry v. District of Columbia, 833 F.2d 1031, 1036 (D.C.Cir.1987) (stating that drug testing and treatment as a condition of pre-trial release would likely be constitutional if “there is an individualized determination that an arrestee will use drugs while released pending trial”); with United States v. Scott, 450 F.3d 863, 874 (9th Cir.2006) (holding that a pretrial release condition imposed under state law requiring that the defendant consent to random drug testing and the searching of the defendant’s home violated the Fourth Amendment in the absence of any judicial determination that such condition was necessary); United States v. Polouizzi, 697 F.Supp.2d 381, 394-95 (E.D.N.Y.2010) (holding that the Adam Walsh Child Protection and Safety Act of 2006’s requirement that individuals under arrest for child pornography charges be required to undergo electronic monitoring as a condition of pre-trial release unconstitutional); United States v. Smedley, 611 F.Supp.2d 971, 976 (E.D.Mo.2009) (same); United States v. Merritt, 612 F.Supp.2d 1074, 1079 (D.Neb.2009) (holding that requirement of electronic monitoring and imposing a curfew as a condition of pre-trial release unconstitutional); United States v. Torres, 566 F.Supp.2d 591, 598 (W.D.Tex.2008) (same); United States v. Arzberger, 592 F.Supp.2d 590, 607 (S.D.N.Y.2008) (striking down the Adam Walsh amendment’s curfew and electronic monitoring requirements; restrictions on firearms possession; and restrictions on associating with witnesses); United States v. Crowell, Nos. 06-M-1095, 06-CR-291, 06-CR-304, 2006 WL 3541736, at *10 (W.D.N.Y. Dec. 7, 2006) (holding the Adam Walsh amendment’s mandatory imposition of pretrial release conditions unconstitutional). Arrest can sometimes trigger other collateral consequences such as loss of public housing or employment. See, e.g., 24 C.F.R. § 966.4(1)5(iii)(A) (stating that in conventional public housing, a Public Housing Authority may terminate assistance “regardless of whether the covered person has been arrested or convicted for such activity and without satisfying the standard of proof used for a criminal conviction”); 24 C.F.R. § 982.553(c) (describing an analogous provision for Section 8 vouchers); K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order Maintenance Policing, 33 N.Y.U. Rev. L. & Soc. Change 271, 304-05 (2009) (describing the effects of arrest on employment). These deprivations may occur without significant procedural protections. See 42 U.S.C. 1437d(k) (stating that tenants must be given an opportunity to contest a termination of tenancy through the public housing authority’s grievance procedure); 24 C.F.R. § 966.51(a)(2) (excluding evictions based on certain types of tenant criminal activity from the grievance requirement, including evictions for drug-related criminal activity on or near the premises or criminal activity that threatens the health, safety, or peaceful enjoyment of the premises of other tenants). Generally, indictees are deprived of their constitutional rights only following an individual determination of need by a judge. Convicted felons, by contrast, are often subject to categorical deprivations of constitutional rights. See, e.g., McKune v. Lile, 536 U.S. 24, 38, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (“[Ljawful conviction and incarceration necessarily place limitations on the exercise of a defendant’s privilege against self-incrimination.”); Jones v. Helms, 452 U.S. 412, 419, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981) (upholding restrictions on a felon’s fundamental right to travel); Richardson v. Ramirez, 418 U.S. 24, 54-56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (upholding a state law disenfranchising felons on the basis of criminal conviction). Such deprivations may be justified, in part, because the factfinder has already made an individual determination of guilt beyond a reasonable doubt, removing the presumption of innocence and the protection it provides. C. Treatment of Unconvicted Conduct Reliance on unconvicted conduct — i.e., activities that have not been proven beyond a reasonable doubt — to sanction defendants is constitutionally suspect. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); but see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that defendant could be sentenced above the maximum for the offense alleged in the indictment; because he admitted to unconvicted conduct during his plea allocution, no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court). The government cannot circumvent the protections of the Due Process Clause merely by “redefining] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.” Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). V. Constitutionality of 18 U.S.C. § 922(n) A. Facial vs. As Applied Challenges “To successfully challenge a statute on its face, the challenger must show that no set of circumstances exists under which the Act would be valid.” Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is -... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); see Diaz v. Paterson, 547 F.3d 88, 101 (2d Cir.2008) (applying Salerno standard in evaluating facial constitutional challenge). But see Washington v. Glucksberg, 521 U.S. 702, 739-40, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Stevens, J., concurring) (observing that the standard for assessing facial challenges has been the subject of debate in the Supreme Court). In an as-applied challenge, the question is whether the statute would be unconstitutional if applied to the facts of the case. Cf. Field Day LLC v. County of Suffolk, 463 F.3d 167, 174 (2d Cir.2006). Factual context and defendant’s circumstances are critical. See, e.g., Arzberger, 592 F.Supp.2d at 599. A sequential analysis, putting off facial challenges, permits the courts to protect the constitutional rights of individual defendants in particular situations, while avoiding the unnecessary striking down of a congressional enactment. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (noting that facial invalidation contravenes the “fundamental principle ... that courts ... should [not] formulate a rule of constitutional law broader than is required by the precise facts to which it is applied”). The defendant challenges the statute on its face. Def.’s Mem. of L. in Supp. of Mot. to Dismiss 2-8, Doc. 46, Nov. 17, 2011. He also argues that the fact that he may plead guilty to a misdemeanor may ultimately render it unconstitutional as applied to him. See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011. B. Commerce Clause The Court of Appeals for the Second Circuit has held that the conduct proscribed by 18 U.S.C. § 922 has a sufficient nexus with interstate commerce and does not violate the Commerce Clause. E.g., United States v. Gaines, 295 F.3d 293, 302 (2d Cir.2002). Any Commerce Clause challenge is without merit. Alternatively, defendant argues unpersuasively that § 922(n) should be read to require the government to prove that the firearm he received traveled in interstate or foreign commerce after the indictment. Def.’s Letter, Doc. Entry 51, Nov. 20, 2011. Defendant points to dicta in United States v. Bass: Title IV, 18 U.S.C. s 922(g) and (h), is a modified and recodified version of 15 U.S.C. s 902(e) and (f) (1964 ed.), 75 Stat. 757, which in turn amended the original statute passed in 1938, 52 Stat. 1250, 1251.... The wording of the substantive offense has remained identical, although the original Act had a provision that possession of a firearm ‘shall be presumptive evidence that such firearm or ammunition was shipped or transported or received (in interstate or foreign commerce).’ That presumption was struck down in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), and the Court there noted: “(T)he Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate.” Id., at 466, 63 S.Ct., at 1244. 404 U.S. 336, 343 & n. 10, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The Court noted, however, that “the reach of Title IV itself is a question to be decided finally some other day.” Id. Such a cramped reading of the statute is inappropriate. Under that interpretation, an indictee could buy a firearm after indictment at a local gun store — or use a straw purchaser to do so — without running afoul of the statute. It would render § 922(n) toothless. C. Fifth Amendment Notice Requirement Concerns that § 922(n) may violate the Fifth Amendment’s notice requirement, see Ct.’s Order, Doc. Entry 34, Oct. 18, 2011, are unfounded. Although the statute does not specifically state that a defendant must know that he is under a felony indictment, courts will imply such a requirement. In order to be convicted under 18 U.S.C. § 922(n), the defendant must “willfully” commit a violation of the statute. See 18 U.S.C. § 924(a)(1)(D) (“Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever ... willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both.”); Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006). Conduct is “willful” under § 924(a)(1)(D) if the defendant to has “acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). The statute does not, on its face, require that the defendant know that he was indicted in order to be convicted under the statute. While the Court of Appeals for the Second Circuit has not ruled on whether such knowledge is required, other courts of appeals have held that the government must prove that the defendant knew that he was under indictment. United States v. Forbes, 64 F.3d 928, 932-34 (4th Cir.1995) (“In the eyes of the law ..., buying an assault weapon is innocent behavior.... The defendant must have knowledge of the fact or facts that convert this innocent act into a crime. Here, that fact is the existence of a pending indictment.”); United States v. Hayden, 64 F.3d 126, 133 (3d Cir.1995) (“[I]f a defendant knows he has been indicted or deliberately avoids ascertaining his status, and thereafter purchases a firearm, he will have satisfied the knowledge requirement of § 922(n).”); United States v. Ballentine, 4 F.3d 504, 506 (7th Cir.1993) (“Because there is a possibility that an indictment will remain sealed, a knowledge requirement would appear to be necessary to address the circumstance of a defendant’s receiving a firearm while subject to an undisclosed sealed indictment. Without such a requirement, there could be unintended strict liability.”), cert. denied, 510 U.S. 1179, 114 S.Ct. 1222, 127 L.Ed.2d 568 (1994); United States v. Renner, 496 F.2d 922, 926 (6th Cir.1974) (requiring that defendant know that he is under indictment because “special circumstances that may surround one under indictment, i.e., he may not be aware of the fact that he has been indicted because of failure to serve him on a secret indictment”); cf. United States v. Chambers, 922 F.2d 228, 241 (5th Cir.1991) (“[T]he requirement that the jury find that Chambers had knowledge of the existence of the indictment at the time he purchased the firearm and signed the form was clearly stated in the jury charge.”). At least one court has stated that the defendant need not know that the crime for which he is indicted is punishable by a year or more of incarceration. Hayden, 64 F.3d at 133 n. 12. A defendant must have knowledge of the fact that he is under indictment. As so interpreted, the Fifth Amendment’s notice requirement is satisfied. D. Presumption of Innocence Individuals have the fundamental right to be free from punishment unless and until the underlying conduct has been proven beyond a reasonable doubt at a jury trial. See U.S. Const, amend. V, XIV; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding that due process protects the right to have every element of the offense proved beyond a reasonable doubt to a jury). Although not specifically mentioned in the Constitution, an important component of this right is the presumption of innocence. Estelle v. Williams,