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September 20, 2022

District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges.  Specifically, I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1) and the federal drug-user-in-possession statute, 18 U.S.C. § 922(g)(3) (see posts linked below).  Interestingly, I did not even think about how Bruen might impact another federal firearm prohibition provision, 18 U.S.C. § 922(n), which criminalizes a person under indictment from receiving a firearm. Yesterday, as detailed in this AP article, a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional:

A U.S. law banning those under felony indictments from buying guns is unconstitutional, a federal judge in West Texas ruled Monday.  U.S. District Judge David Counts, whom then-President Donald Trump appointed to the federal bench, dismissed a federal indictment against Jose Gomez Quiroz that had charged him under the federal ban....

In a 25-page opinion filed in Pecos, Texas, Counts acknowledged “this case’s real-world consequences — certainly valid public policy and safety concerns exist.”  However, he said a Supreme Court ruling this summer in a challenge brought by the New York Rifle & Pistol Association “framed those concerns solely as a historical analysis.”

“Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.”

Hence, he ruled the ban unconstitutional as the “Second Amendment is not a ’second class right,” as noted in a 2008 Supreme Court ruling.  ”No longer can courts balance away a constitutional right,” Counts wrote.  After the New York case, “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.”

The full 25-page ruling in US v. Quiroz, PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022), is available at this link.  The full opinion is worth a full read, in part for a bits of west Texas flair such as this line: "Some feel that a grand jury could indict a [burrito] if asked to do so." 

Some prior related posts:

September 20, 2022 at 06:15 PM | Permalink


I like the Judge's mention of "Hotel California purgatory"! He plainly put work and thought into writing this important decision, as he realizes that this case could go all the way up to the U. S. Supreme Court.

Posted by: Jim Gormley | Sep 21, 2022 9:50:35 AM

Seems to be contrary to the concurring opinions in Bruen. I am doubtful that the ruling survives the Fifth Circuit.

Posted by: tmm | Sep 21, 2022 12:58:36 PM

As usual, tmm is correct. This thing won't survive.

Posted by: Bill Otis | Sep 21, 2022 11:18:21 PM

Bill and tmm: What part of the analysis do you think Judge Counts got wrong in Quiroz? Do you think his originalist/historical analysis is wrong or do you think he is wrong to believe Bruen now means that originalism is the key to Second Amendment analysis?

I get that you might not like the Quiroz result -- lots of people do not like the results of lots of modern Second Amendment jurisprudence. But I am eager to hear more about just why you think this ruling is wrong in light of what Justice Thomas wrote for the full Court in Bruen.

Notably, the Bruen concurrence by Justice Kavanaugh quotes Heller's dicta about "longstanding prohibitions on the possession of firearms by felons." But Judge Counts expressly concludes that 18 U.S.C. § 922(n) is NOT "longstanding." Moreover and even more importantly, being under a felony indictment does NOT make one a felon. I do not quite see how double dicta in a concurring opinion that is not even on-point suggests Judge Counts is off-base here.

Posted by: Doug B. | Sep 22, 2022 8:22:57 AM

Doug --

It's not that Judge Counts gets it wrong, exactly. He's onto something but makes the classic error of turning an insight into a theory. In other words, he takes what he sees too far, and certainly farther than SCOTUS (or the court of appeals for that matter) is going to go. The government has five or more likely six votes at the SCOTUS level (the three liberals plus Roberts, Kavanaugh and probably Alito).

Posted by: Bill Otis | Sep 22, 2022 9:54:12 AM

Doug, I am not enough of a legal historian to know much more than that much of the majority opinion in Bruen was very selective history. (And arguably, by writing the militia clause out of the Second Amendment, the modern jurisprudence gets the intent of the framers backwards -- the problem of translating an amendment written when the common infantry weapon was the same as the common personal weapon used in hunting into modern practice when there is a vast difference between infantry weapons and personal weapons.) The problem in the current opinion is taking the majority in Bruen too literally about the need to do a "historical analysis" on every restriction. The concurrences in Bruen show where the votes are on whether FIP laws have sufficiant historical support. Assuming that the judges on the Fifth Circuit can count the votes with maybe three or four members of the majority in Bruen supporting FIP laws along with the two dissenters and Justice Jackson.

Posted by: tmm | Sep 22, 2022 10:59:51 AM

Bill and tmm: It sounds like you are both suggesting Judge Counts gets the current law right, but may not be tuned into where the Justices might take the law in the near future. But aren't judges supposed to apply current law, not what they think future law will be? I think marijuana is likely to be fully legalized in Ohio in the next decade, but judges need to apply the law in place now, no? Same for SCOTUS jurisprudence, I think. There are likely now 5 votes to overrule Employment Division v. Smith, but lower court judges are not supposed to be engaging in predicting where the votes might go. They have to apply the law as it currently stands --- and neither of you seemed to have indicated any failing in how Judge Counts has applied the law as it currently stands in light of Bruen.

So is it fair to say you both think Judge Counts got the law right as it stands after Bruen, but you expect the Fifth Circuit and/or SCOTUS to alter the law because they care more about reaching a certain result than about being faithful to the originalist jurisprudence put forward by SCOTUS in Bruen? That may be a sound prediction, but is certainly suggests originalism here is really much more about reaching result than sticking with any principles.

Posted by: Doug Berman | Sep 22, 2022 11:31:07 AM

Doug --

Not exactly. Counts is extrapolating from current law to take it to one destination where it could plausibly land, but to my way of thinking there are other, more plausible landing spots. One of those is where the reviewing courts will wind up.

In other words, general language in current law can be seen to suggest, but it does not compel, Counts' outcome. SCOTUS won't be going as far as Counts anytime soon.

Posted by: Bill Otis | Sep 22, 2022 4:16:24 PM

Bill, here is the "current law" according to Justice Thomas writing for the Court in Bruen:

"We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s 'unqualified command'."

Do you dispute that the plain text of the Second Amendment covers Quiroz's conduct? Do you dispute Judge Counts' conclusion that government failed to "justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation"? In light of what SCOTUS said in Bruen is to be a "text, history, and tradition test" for the Second Amendment, I struggle to see many "plausible landing spots" in this case.

But maybe I just take too seriously the oft-heard claim that originalism is a good method of interpretation because it is more about history and less about subjective feelings regarding the "right" result in a case. To me, if originalism is really useful because it more objective, this ought to be a relatively easy case. But if originalism is truly just a smoke-screen for result-oriented decision-making --- as many on the left (and even a few on the right now) claim --- perhaps this case is a useful as a reminder of all the "plausible" ways to read history when one wants to get to a particular outcome for whatever reason.

Posted by: Doug B. | Sep 22, 2022 4:34:46 PM

Regarding whether military weaponry was the same as personal firearms. Does that mean I can own a puckle gun?

Posted by: TarlsQtr | Sep 22, 2022 4:41:38 PM

I strongly disagree that the current interpretation is consistent with the plain text of the Second Amendment. But putting aside the question of whether the majority opinion got it right since it is (for now) the law, it still puts judges in the role of historian -- a role to which they are not well-suited and basically allows them to input their own spin on cases and statutes. And the issue is whether the spin put on by the trial judge in this case is one that appellate judges will buy.

In reading Bruen, you don't just have the majority opinion establishing the test, you have the concurring opinions. While they may not be binding, they are still persuasive authority. And the concurring opinions strongly suggest that the majority of the Supreme Court believes that FIP statutes pass the test. When the justices writing the concurring opinions are necessary to the majority, I think a reasonable appellate panel will take that into account in deciding how to apply the test to the next case.

To use a case from my own state, we just had an opinion in a case on propensity evidence from our state supreme court. The opinion of the court found that the issue was not preserved and that the alleged error did not amount to a manifest injustice. But a concurring opinion went at length into why the evidence was close too and may have crossed the line. While that concurring opinion is not binding, it reflects what the court may do in the next case and will certainly be treated by most trial judges (and our court of appeals) as something that they should pay close attention to in their evidentiary rulings. If I argued to any of my judges that they did not have to comply with that concurring opinion, they would look at me as if I grew a second head.

Given that it is clear how the majority of the U.S. Supreme Court views FIP laws, my expectation is that the Fifth Circuit will respectfully reverse the trial court.

Posted by: tmm | Sep 22, 2022 8:11:39 PM

tmm: for the record, I think the historical evidence for FIP is complicated and challenging to make sweeping statements about. From what little I know, I surmise that there may be historical support for disarming "dangerous" people, though how that history should map out onto FIP statutes and this "person indicted" provision seems to be the question that Bruen requires engaging. This is not about "complying" with a concurring opinion, it is about applying the law as the full Court set it forth. And all sorts of jurisprudence is subject to "spin," but Bruen now says the "spin" must be based in "text, history, and tradition," not on off-point dicta from prior cases.

If you or Bill wanted to dicker with Judge Counts' historical analysis that Bruen makes the touchstone of the Second Amendment, have at it. But that's my key point: it seems you and Bill, rather than take on the legal analysis that the Bruen court demands, are content to say that there is some dicta in a concurrence that arguably justifies ignoring the Court's statement of the law and just reaching a particular desired result. The Fifth Circuit might follow such a path, but that feels to me like an exertion of power, not the application of law.

Posted by: Doug B. | Sep 23, 2022 10:56:27 AM

Doug, I think that's my point. What Bruen requires is not legal analysis -- what is the meaning of the text. It involves historical research of a type that lawyers are poorly suited to do. More significantly, in the case of the Second Amendment, it requires translating the history of regulations of one type of firearm (mostly muskets and single shot pistols) to define the scope of permissible regulations of the vastly improved modern firearms.

By definition, all concurrences are dicta as is any suggestion in a majority opinion like Heller about how the test might apply to a future case. However, that is a somewhat narrow definition of precedent. To practitioners, the entirety of what all members of the court say in all of the opinions matter. In practice it is a later court that will decide what is dicta and what is precedent. Attorneys and lower courts ignore what they would characterize as "dicta" at their peril. Maybe that is legal realism rather than law. But think back to Ramos. While the majority opinion left the actual Teague analysis to the other day, when you looked at the dicta in the majority and the concurring opinions, it was pretty clear that the majority thought that the decision would not be retroactive. And when the Teague issue was finally heard, the majority not only found that Ramos was not retroactive, it buried Teague.

I am not enough of a historian to say whether the historical conclusion in Quiroz is accurate. And if I were the U.S. Attorney's Office doing the appeal, I would have to put in the work to prove that the judge read the legal history wrong. (A lot of work by interns going through cases and statutes from the Eighteenth century.) But the actual historical correctness of the decision is not the "real" question on appeal. The question on appeal is whether the appellate court will accept the judge's historical conclusions as legally accurate (because that is a question of law which will be reviewed de novo) or will read the history differetly. And I think the writing is on the wall as to what conclusion the Supreme Court has drawn on that question. To paraphrase an old quote, the law is whatever five justices on the Supreme Court say it is. And there are at least five votes on the Supreme Court to hold that FIP regulations are similar enough to the regulations allowed in 1789 to withstand constitutional scrutiny.

If, god forid, I was on a tenure committee at a university or a publisher of scholarly books, I have no idea how I would judge the scholarship of Judge Counts. But I do not see many appellate judges (either on the lower federal courts or the Supreme Court) who are sufficiently qualified to play either of those two roles. And, while I could be shocked, I am mostly confident about what the Fifth Circuit and the U.S. Supreme Court will do with this issue.

Posted by: tmm | Sep 23, 2022 1:57:59 PM

Doug --

I trust then that you will join me in seeking to overrule Miranda, which exaggerates to the point of absurdity the "historical understanding" of the Fifth Amendment. I mean, if we're going to be faithful to the Bruen method of constitutional interpretation, Miranda hasn't a leg to stand on. Because if you persist in supporting Miranda post-Bruen, then I might be compelled to think that you are -- oh dear, how should I say this? -- result oriented.

Posted by: Bill Otis | Sep 24, 2022 11:20:15 AM

Bill, I have long thought the plain text of the Fifth Amendment --- stating "no person ... shall be compelled in any criminal case to be a witness against himself" --- should be understood to mean that no prior statement by a defendant should ever be used at trial (or any other proceeding in "any criminal case") over the defendant's current objection no matter how that prior statement was obtained.

Miranda does not comply with this plain text understanding, and so I have long considered Miranda a bad decision as a matter of textualism. Shall we work together on an amicus brief encouraging adopting a textual approach to giving the Fifth Amendment the meaning its words suggest? (I am not knowledgeable as a Fifth Amendment originalist, and I am much more committed to textualism than originalism as a sound method of constitutional interpretation.)

I also think the Sixth Amendment text supports a much different view of the right to counsel when it comes to police interrogation than Miranda provides. So I would like to see sounder law on that front, too.

I have long viewed Miranda as a legal and policy mess, which likely just helps career criminals and probably few others (as Paul Cassell has argued). But I am especially eager to see all of our Amendments interpreted in light of their text more faithfully, which may often (but not always) provide more protections for individuals against the state --- as we are seeing now more and more with the Second Amendment. Shall we work together on this front to give textualism its due with respect to the Bill of Rights?

Posted by: Doug B. | Sep 24, 2022 1:05:23 PM

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