Monday, September 26, 2022

Ban on People Receiving Firearms while under Indictment is Unconstitutional


On September 19, 2022, the District Court, W.D. Texas, found the ban on individuals under indictment from receiving firearms in federal law, (§ 922(n)) to be unconstitutional under the standards clarified by the Bruen Decision of 2022.

This correspondent has always believed the indictment ban to be unconstitutional.

In the United States, people are considered innocent until proven guilty. If a mere indictment can eliminate the ability to exercise an enumerated constitutional right before there is any conviction, that standard is set on its head.

Courts loaded with Progressive Judges previously danced around this obvious barrier by promoting the fiction the Second Amendment did not apply to individuals.  The 1943 Cases decision is discussed in a previous article.

In Cases, a three judge panel, all Progressives appointed by President Franklin Delano Roosevelt (FDR), held the Supreme Court in the Miller case, could not possibly have meant what it said.

The three judge panel ignored the  Miller decision. The Progressive judges made up their own standard in the 1942 decision.

Judge Counts, in the current Quiroz case, mentions the 1942 Cases decision and discounts it because it relies on the discredited "collective rights" argument.

Instead, Judge Counts follows the requirements of the recent Bruen decision.

From the Memorandum Opinion in US v Quiroz:

This Court faces a predicament similar to Plato’s allegory of the cave. There are the known knowns: a defendant was convicted of buying a gun while under indictment; after the Supreme Court’s recent ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, that defendant asks this Court to reconsider the constitutionality of his statute of conviction. The known unknowns:whether a statute preventing a person under indictment from receiving a firearm aligns with this Nation’s historical tradition of firearm regulation. And the unknown unknowns: the constitutionality of firearm regulations in a post-Bruen world. 

There are no illusions about this case’s real-world consequences—certainly valid public policy and safety concerns exist. Yet Bruen framed those concerns solely as a historical analysis. This Court follows that framework.

Judge Counts goes on to show how the "indictment" ban slowly was expanded in law from applying only to fugitives indicted under a federal law, who crossed state lines, in a crime involving violence and guns; to all felons, in all courts, anywhere.

Today, we have absurd situations where a refugee fleeing tyranny to the United States, is banned from exercising Second Amendment rights, because they were convicted  under a tyrannical law in a tyrannical nation, when the law there would have been unconstitutional in the United States.

The Biden Administration attempts to separate "receive" from "keep" or "possess". Judge Counts does not buy into the absurd argument. From page 7:

And logically, excluding “receive” makes little sense. To receive something means “to take into . . . one’s possession.” How can one possess (or carry)something without first receiving it? Receipt is the condition precedent to possession—the latter is impossible without the former. Taking the Government’s argument at face value would also lead to an absurd result. Indeed, if receiving a firearm were illegal, but possessing or carrying one remained a constitutional right,one would first need to break the law to exercise that right. The Government is asking in effect to banish gun rights to Hotel California’s purgatory: “You can check out any time you like, but you can never leave.”

The Biden administration tries to make the argument: Bruen upheld the ban on felons possessing firearms. The ban on people under indictment is just the same.

Judge Counts is brutally honest in his response. From page 10:

The first problem with this argument is it’s a logical fallacy. Sharing a history with felon-in-possession laws makes § 922(n) constitutional in the same way a dog is a cat because both have four legs.

The second problem is that Heller’s endorsement of felon-in-possession laws was in dicta. Anything not the “court’s determination of a matter of law pivotal to its decision”is dicta. Dicta is therefore“ entitled to little deference because they are essentially ultra vires pronouncements about the law.” Or,as Francis Bacon put it, dicta is only the “vapours and fumes of law.”

Judge Counts is correct. The felon-in-possession endorsement in Heller was in dicta. So were Heller's endorsements of bans in "sensitive places" and "laws imposing conditions and qualifications on the commercial sale of arms." From Heller, p. 2 :

Like most rights, the Second Amendment right is not unlimited.It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire-arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

Judge Counts' Memorandum Opinion is well reasoned, well written, and easy to understand. So is his conclusion:


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. 119

It is therefore ORDERED that Defendant’s Motion to Reconsider is GRANTED.(Docs. 73and 74). The indictment is DISMISSED.

For those interested read the entire opinion, available online.

Judge Counts may not like the results of his decision. He may have preferred to have found Quiroz guilty, so he could be locked up. However, unlike the Progressive judges in the 1942 Cases decision, he did his job. He followed the Supreme Court decision and upheld the Constitution and the rule of law.

Will the Biden administration appeal his decision to the Fifth Circuit?

This correspondent expects the case to be appealed.

 ©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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