Jose Gomez Quiroz was indicted in a Texas state court for burglary and later indicted for jumping bail. Both are felonies under Texas state law. While on the lam, Quiroz sought to buy a .22LR pistol from a dealer and answered “no” on the Form 4473 when asked if he was under indictment for a felony. He got a delayed (but not denied) response and subsequently took possession a week later. Then, the NICS System notified the BATFE of Quiroz’s transaction. He was charged with lying on the Form 4473 (18 USC §922(a)(6)) and illegal receipt of a firearm by a person under indictment (18 USC §922(n)). A Federal jury found him guilty on both charges. A week later, Quiroz moved to set aside the conviction under Rule 29 of the Federal Rules of Criminal Procedure and asked the court to reconsider in light of Bruen.
US District Court Judge David Counts of the Western District of Texas issued his decision yesterday and found §922(n) facially unconstitutional. Moreover, since §922(n) was found unconstitutional, Quiroz’s lie on the Form 4473 was immaterial. The US Attorney is already appealing the decision to the Fifth Circuit Court of Appeals.
The media is making a big deal over the fact that Judge Counts was appointed by President Trump. What they fail to say is that Counts was originally nominated for the position by President Barack Obama and that the clock ran out before he could be confirmed by the Senate. Prior to the nomination by President Obama, Counts served as a Magistrate Judge in the Western District and was the State Judge Advocate for the Texas National Guard where he was a Colonel.
The expansion of civil rights has often come in cases with less than desirable defendants. Witness the expansion of rights thanks to Clarence Earl Gideon, a drifter, and Ernesto Miranda, a kidnapper and rapist, whose cases established the right to counsel and the right to a warning against self-incrimination respectively.
Now it is time to examine the decision in detail. It starts out by saying the court is dealing with three things: the known knowns, the known unknowns, and the unknown unknowns. The known knowns are that the defendant did buy a gun while under indictment and that he asked the court to reconsider the conviction in like of the Bruen decision. The known unknown was whether the current law on firearms purchases by those indicted for a felony aligned with the historical tradition of firearms regulation. Finally, the unknown unknown is the constitutionality of firearms regulation in a post-Bruen world. Judge Counts then methodically works his way through these issues.
First, did Quiroz’s motion for reconsideration under Rule 29 meet the legal standard? Looking at 5th Circuit precedent, a Rule 29 challenge is appropriate when there is “an intervening change in the controlling law”. Thus, because Bruen changed the framework with which to analyze firearms regulations under the Second Amendment, it met the standard for reconsideration.
Next, does the plain text of the Second Amendment cover Quiroz’s conduct in purchasing a pistol while under indictment? §922 (N) states that it is unlawful to “receive” a firearm while under indictment. Judge Counts says that the government has misread Bruen and lumped possession in with the historical justification for preventing it while under indictment. The government argued that the Second Amendment only covers possession and carrying with everything else is outside this. Judge Counts disagreed saying that you cannot possess something without first receiving something which is what the law states. Therefore possession is covered by the plain text of the Second Amendment. The question remained whether there was historical justification for excluding those under indictment from possession of a firearm.
The Federal Firearms Act of 1938 was the first federal attempt to regulated possession by a felon or those under indictment. It only applied to those under Federal indictment and “crimes of violence.” Congress implemented this law to deal with the motor bandits of the ’30s such as Bonnie and Clyde. Indictments in state courts were not added to Federal law until the Gun Control Act of 1968. The current version of §922 (N) was codified in FOPA 1986. The government argued that felon in possession laws were roughly the same as that when under indictment. Judge Counts disagreed and noted they lacked historical analysis going back to the enactment of the Second Amendment. He noted that the colonies and later the states generally refrained from disarming its citizens. He says the government has failed to make the case that long-standing historical precedent prevents those under indictment from possessing firearms.
Judge Counts looked at other rights of “the people”. He found that those who had been convicted or were “violent actors” had been excluded from “the rights of the people.” However, he did not find similar exclusions for those under indictment. He then noted that grand jury proceedings were not adversarial and rules of evidence don’t apply to them. Further, you can be indicted in a state without being indicted by a grand jury. Other laws that disarmed people were aimed at minorities.
Judge Counts then concludes:
The Second Amendment is not a “second class right.” No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition. The Government does not meet that burden.
Although not exhaustive, the Court’s historical survey finds little evidence that § 922(n)—which prohibits those under felony indictment from obtaining a firearm—aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutional.
In coming to this conclusion, Judge Counts said that the new framework under Bruen creates unknown unknowns which raised many questions regarding balancing societal costs and benefits. He didn’t know the answers but he said he must “faithfully follow Bruen’s framework.”
UPDATE: Jake Fogelman at The Reload has a follow-up on this ruling that has comments from law professors at Duke and George Mason. Both think the 5th Circuit Court of Appeals as well as those of other circuits will “moderate some early decisions by lower courts as Second Amendment jurisprudence matures after Bruen.” Frankly, I hope they are mistaken.