UNITED STATES OF AMERICA v. (1) LITSSON ANTONIO PEREZ-GALLAN
PE:22-CR-00427-DC
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS PECOS DIVISION
November 10,
MEMORANDUM OPINION
Before Bruen, the Second Amendment looked like an abandoned cabin in the woods. A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin‘s sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little—if any—consideration given to their constitutionality. That is, until the Supreme Court intervened in Bruen.
No longer can lower courts account for public policy interests, historical analysis being the only tool. But after growing unchecked for almost 100 years, today‘s tangle of gun laws has left lower courts with a gordian knot. And after engaging with this Nation‘s tradition of firearm regulations several times already, the Court‘s unanswered question is whether Bruen demands lower courts manicure the Second Amendment‘s landscape by scalpel or chainsaw.
The facts are simple. Defendant Litsson Antonio Perez-Gallan was driving an 18-wheeler near the Mexico-United States border in Presidio, Texas when he entered a border patrol checkpoint. After Defendant was directed to a secondary inspection area, he was asked whether he was armed. Defendant said yes; he had a pistol with him. Defendant consented to a search, and border patrol agents found the pistol in Defendant‘s backpack.
Agents also found a Kentucky state court order in Defendant‘s wallet (“Court Order“). The Court Order outlined Defendant‘s conditions of release stemming from his May 2022 arrest for assault. The Government later discovered a separate restraining order against Defendant from a Kentucky family court (“Restraining Order“). Defendant was indicted in June 2022 for one count under
Defendant moved to dismiss the indictment on August 25, 2022. After multiple continuances and extensions of time to respond, the Government responded to Defendant‘s motion in early October. Yet even though the Court has consistently reiterated after Bruen that the Government must prove through a historical inquiry that the challenged regulation complies with this Nation‘s tradition, the Government‘s response did not analyze any history even close to 1791. The Government‘s authorities closest to 1791 were the Militia Act of 1662 and a Fifth Circuit decision from 2001, leaving some 339 years of intervening history unaddressed. As a result, the Court ordered the parties to submit supplemental briefing on various issues, which the parties filed on October 28, 2022.
DISCUSSION
Before reaching
(A) have been issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrain such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.1
The Government acknowledges it has no proof Defendant had actual notice, the opportunity to participate, or was even present when the Restraining Order was issued, so the Court addresses only the Court Order. Defendant‘s Court Order prohibited him from “threatening to commit or committing acts of domestic violence or abuse against the alleged victim or other family or household member.”2 Defendant argues that because the Court Order‘s language doesn‘t “explicitly prohibit[] the use, attempted use, or threatened
Yet the Fifth Circuit has held that a court order need not perfectly match
Defendant‘s Court Order prohibited him from committing or threatening to commit “abuse“—which is commonly understood to include “violent acts involving physical force within the [statutory] definition.”6 Thus, following the Fifth Circuit‘s precedent, the Court finds Defendant‘s Court Order satisfies
I. The Second Amendment and Bruen‘s new framework.
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”7 In Heller, the Supreme Court held that the Second Amendment protects the right to possess a firearm in the home for self-defense.8 And just last term, in New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, the Supreme Court held “consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual‘s right to carry a handgun for self-defense outside the home.”9
Before Bruen, courts of appeals had “coalesced around a ‘two-step’ framework” when assessing Second Amendment claims, combining a historical analysis with means-end scrutiny.10 For the first step, the court would establish the Second Amendment‘s original scope through a historical analysis.11 If the regulated conduct fell outside the Amendment‘s original scope, “the analysis can stop there; the regulated activity is categorically unprotected.”12 But if not outside the Amendment‘s scope or “inconclusive,” the court would proceed to step two.13
In step two, a court would generally analyze “how close the law comes to the core of the Second Amendment right and the severity of the law‘s burden on that right.”14 If the “core” Second Amendment right—self-defense in one‘s home—was burdened, the court would apply strict
But in Bruen, Justice Thomas stated the two-step approach was “one step too many.”17 In its place, Justice Thomas enumerated a new standard courts must follow:
[W]hen 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.”18
So the threshold question is whether the Second Amendment‘s plain text covers Defendant‘s conduct.
II. Bruen‘s first step: “possessing” a firearm under the Second Amendment‘s plain text.
Defendant is charged with violating
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.
The Court has already answered the question of whether “keep and bear arms” includes possession of a firearm—it does. According to Justice Scalia in Heller, to “keep arms” means to “have weapons.” The plain meaning of “have” is “to be in possession of.”19 And the Government doesn‘t contest this interpretation. Thus, the Second Amendment‘s “keep and bear arms” language plainly encompasses possession.
Bruen‘s first step asks a strictly textual question with only one answer: the Second Amendment‘s plain text covers possession of a firearm. Because the Constitution presumptively protects possessing a firearm,
III. Bruen‘s second step: the historical evidence for protective orders.
The Government must now show that
“more nuanced” approach.22 In those cases, courts can reason by analogy, which involves finding a historical analogue—but not a “historical twin“—that is “relatively similar” to the modern regulation.23 The Court‘s straightforward historical inquiry is first, starting with
A. The Violent Crime Control and Law Enforcement Act of 1994.
Section 922(g)(8) started as three separate bills in 1993. Senator Paul Wellstone and Representative Robert Torricelli, working closely with each other, proposed identical bills in the Senate and House of Representatives, respectively.24 These proposals sought to restrict gun ownership of those subject to a restraining order and those convicted of a domestic violence misdemeanor.25 Around the same time, Senator John Chafee proposed another version, which did not include a gun ban against misdemeanants, only prohibiting possession by those subject to a restraining order.26 All three were submitted as amendments to the Omnibus Crime Bill, with
Almost all courts analyzing
believed that defendants had to prove that losing their gun rights affected the militia‘s “readiness.”29
In any event,
B. Protective orders are not much older than § 922(g)(8).
Even though
Black‘s Law Dictionary defines restraining orders as a “court order prohibiting family violence; esp., an order restricting a person from harassing, threatening, and sometimes merely contacting or approaching another specified person.”32
Yet it wasn‘t until the mid- to late-1970s before states enacted laws enabling civil protection orders barring domestic abusers from further abusing the victim.33 And it wasn‘t
until the mid-1990s—around the time Congress created
Protective orders for domestic violence then, are also a recent legal invention. And because they are so recent, a much deeper historical inquiry is needed to satisfy Bruen‘s historical requirement. Thus, the Court‘s straightforward historical analysis digs deeper to uncover how this Nation has historically punished domestic abusers.
C. How this Nation has historically punished domestic violence: seventeenth and eighteenth centuries.
This straightforward historical analysis, however, reveals a historical tradition likely unthinkable today. Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual‘s firearms—because of domestic violence practically did not exist.
A reason for that was how infrequently domestic abusers were prosecuted. For example, the Plymouth Colony court records from 1633 to 1802 represent the only jurisdiction where the prosecution of domestic violence has been studied over a long time frame.35 And during that almost 200-year period, only 12 cases involving wife beating were prosecuted.36 Zero complaints during that time were for child abuse.37 Another study of the six New England colonies from 1630 to 1699 confirmed the same—
numbers is that “a second judicial system, the church court, existed alongside the magistrate‘s court.”38 And church courts relied more on public shaming than anything else.39
That said, religious communities handed out the most severe consequences. Indeed, colonial New England, dominated by Puritans, imposed the harshest punishments on domestic violence offenders. For instance, a 1672 court sentenced a man convicted of abusing and beating his wife to be whipped with ten stripes or pay a five pounds monetary fine to the court.40 Or around that same time, a Plymouth court sentenced a man to “sit in the stocks” after he pushed his wife off a stool.41 But even then, the Puritans’ belief in a strong, hierarchal family kept most disputes internal. As a result, the law was encouraged to side with maintaining the nuclear family—not separating the abuser from the victim through a prosecution.42
The Puritan‘s moral law, however, was not the British common law. And as society moved into the eighteenth century, Puritan morality dissipated. Indeed, like domestic violence historian Elizabeth Pleck stated, any prosecution of domestic violence charges at that point “were remnants of a much more extensive form of social policing that ended with the demise of the Puritan experiment.”43
D. Nineteenth century and onward.
Another historical chunk comes from the nineteenth century. As society advanced, removing firearms from an abuser—through government intervention or otherwise—was still not a prevalent occurrence. For instance, one prominent scholar examined statutory materials and articles from major newspapers across eight states in the American West from 1860 to 1930.44 And from that historical examination, the usual mode of punishment for domestic violence was a fine, with the most common being between $50–200.45 Some offenders—although it was far less common—could receive a whipping or jail time. Consider the short period in the 1870s when the California penal code allowed an abuser to be punished with “not less than twenty-one lashes on the bare back.”46
Yet even in the late nineteenth century, many states still adhered to the belief that without serious violence, the government should not interfere in familial affairs. In just one of many examples, the North Carolina Supreme Court stated as late as 1874 that “[i]f no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the
This is not to say society encouraged or turned a blind eye toward spousal abuse. Quite the opposite. One judge in 1914 stated that “wife-beating is one of the most contemptible of crimes.”49 Or as another scholar recounts, private citizens sometimes rebuffed abusers. Indeed, railroad workers in 1886 responded to the sounds of an assault from a nearby home by accosting the husband and taking him to the stationhouse.50 Or the woman who fended off a would-be abuser with a shotgun while harboring the battered wife in her home.51 Or the tarring and feathering of abusive husbands.52 Stories like these appear to have been common.
But glaringly absent from the historical record—from colonial times until 1994—are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.
IV. The circuit courts’ historical analysis under the old Second Amendment framework also shows a lack of historical evidence.
This Court‘s historical inquiry aligns with what almost all circuit courts realized pre-Bruen—historical restrictions on “who” may possess a firearm are almost nonexistent. Indeed, the Second Amendment framework courts used after Heller started with a historical analysis.
Under the old Second Amendment framework, the first step was for courts to establish the Second Amendment‘s original scope through a historical analysis.53 So even
though the cases are pre-Bruen, other circuit courts have looked at
The first example is the Tenth Circuit‘s opinion in United States v. Reese—a
Another example is the Ninth Circuit‘s
What‘s more, the Chovan court concluded that “[b]ecause of ‘the lack of historical evidence in the record before us, we are certainly not able to say that the Second Amendment, as historically understood, did not apply to persons convicted of domestic violence misdemeanors.‘”61 Thus, Chovan was entitled to the Second Amendment‘s protection.62
Yet another
But it wasn‘t what the Skoien‘s majority opinion said, it‘s what it didn‘t say that speaks loudest. Indeed, the majority opinion skipped right to the old Second Amendment framework‘s second step. And like Judge Sykes noted in her dissenting opinion, the second step is “necessary only if Skoien‘s Second Amendment rights are intact notwithstanding his domestic-violence conviction.”68 The court “simply cannot say with any certainty that persons convicted of a domestic-violence misdemeanor are wholly excluded from the Second Amendment right as originally understood.”69 Thus, by skipping the first step, and
applying a higher level of scrutiny in the second, the Skoien majority implied that history did not support a categorical prohibition of domestic violence misdemeanants.
After the Seventh Circuit‘s opinion in Skoien, the Fourth Circuit addressed
Although the above circuit courts eventually upheld the regulations using means-end scrutiny, an approach since jettisoned by Bruen, a consistent theme was how little historical support the record contained. This Court has already held that some restrictions—like prohibiting felons from possessing firearms—are constitutional even without direct historical evidence. But if other § 922 restrictions—such as felon-in-possession—lack clear historical support, the Court questions, like the Fourth Circuit did in Chester, how solid the constitutional foundation is for other firearm regulations like
V. The historical inquiry continued: reasoning by analogy.
This Court, and other courts in the time between Heller and Bruen, uncovered little (if any) “straightforward” historical support for
The Court instead moves to the “more nuanced” approach outlined by Bruen. Under this approach, courts can analogize to historical regulations that are “relatively similar” to the modern regulation.76
A. How the Court reads the Second Amendment.
The Government argues that
The Court reads the Second Amendment‘s operative clause—like Justice Scalia did in Heller—as containing three separate pieces:
“The right of the people / to keep and bear Arms / shall not be infringed.”
Based on the Second Amendment‘s plain text, the Court sees only two ways a firearm regulation can survive Bruen‘s scrutiny: (1) the “who” being regulated has historically been excluded from “the people,” or (2) the conduct being regulated (the what, where, when, and how) has historically been excluded from “keep and bear Arms.” If the regulation doesn‘t fall into either of those categories, the Second Amendment is unequivocal: the right “shall not be infringed.”
Here,
i. “The people” means members of the political community.
The Government claims ”Heller and Bruen defined the right to keep and bear arms as belonging to ‘law-abiding, responsible citizens.‘”79 Thus, they argue because of the Court Order and Restraining Order, Defendant is not a “law-abiding citizen” and is not protected by the Second Amendment.80 The Court disagrees with that reading for many reasons but limits itself to three. First, the crux of Heller‘s reasoning—that the Second Amendment enshrined an individual right—highlights that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.”81 So the Heller Court‘s “determination of a matter of
law pivotal to its decision” defined “the people” as “members of the political community,” not “law-abiding, responsible citizens.”82
Second, history supports Justice Scalia‘s “members of the political community” definition. For example, at the time of the Second Amendment‘s ratification, the right to vote, hold public office, or serve on a jury were thought of as equal to keeping and bearing arms because all were so-called “political rights.”83
Third, like Justice Stevens noted in his Heller dissent, if “the people” is restricted to “law-abiding, responsible citizens,” and “the people” means the same group in the First and Fourth Amendments, those other constitutional protections are endangered.84 Indeed, “the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions.”85
Taking Justice Stevens’ argument further, defining “the people” as law-abiding, responsible citizens would lead to absurd results. Surely the Government doesn‘t believe that someone ticketed for speeding—thus, not abiding by the law—should lose their Second Amendment rights. Nor should the person who negligently (irresponsibly)
B. Historical analogy to surety statutes.
Another argument the Government makes is that
First, the Government cites William Blackstone‘s commentaries that advocated for a “surety of the peace” against a person causing or threatening violence against another.87 Yet the Government ignores Blackstone‘s analysis—from the very same commentaries—that in comparison to crimes of public mischief, private vices (like spousal disputes) lay outside the law‘s legitimate domain.88 As one example, Blackstone noted the difference between public intoxication and intoxication in one‘s home.89 Although both public and private vices are subject to “eternal justice,” only public vices were subject to “the temporal punishments of human tribunals.”90
Second, the Government notes that a surety was “either a money payment or pledge by others in support of his future good conduct.”91 Notably absent then, is where
someone‘s guns were confiscated as a surety. Nothing the Government presents as historical evidence reveals that sureties were being used to strip guns from the accused. And even the Government admits sureties, in their most potent form, were only a “possible disarmament” if the person violated the surety.92
The Government attempts to deliver such historical proof by citing the Sundry Acts of Parliament in 1771, which in the colonies could “upon confession’ or ’legal proof of the offense... cause [the accused‘s] arms or weapons to be taken away.“’93 The Court agrees: Only after they confessed, or a jury found them guilty through a constitutional process, would they lose an enumerated right.
Lastly, the Government argues that
Bruen is clear: if a challenged regulation addresses a “general societal problem that has persisted since the 18th century,” and “earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”97 Domestic violence, or violence against anyone for that matter, is not just a modern problem. So by analogizing the “material different” ways
C. Historical analogy to disarming “dangerous” people.
The Government also hangs its historical argument on the idea that there is a historical tradition of disarming “dangerous persons.”98 The Government cites debates from the Pennsylvania, Massachusetts, and New Hampshire ratifying conventions, “which were considered ‘highly influential’ by the Supreme Court in Heller.”99
In the Pennsylvania convention, the influential Pennsylvania Minority suggested that the right to arms be guaranteed “unless for crimes committed, or real danger of public injury from individuals.”100 The Massachusetts convention‘s proposed amendment was that the Second Amendment “be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”101 Likewise, one of New Hampshire‘s proposed amendments was that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”102
But those proposed amendments were just that: proposed. In the Seventh Circuit‘s Kanter v. Barr, now-Justice Barrett‘s dissent noted four problems with using those conventions as evidence of the founder‘s intent:
- (1) None of the relevant limiting language from those conventions made
its way into the Second Amendment; - (2) New Hampshire‘s proposal—the least restrictive of the three—was the only proposal to carry a majority of its convention;
- (3) proposals from other states that advocated a constitutional right to arms did not contain similar language of limitation or exclusion; and
- (4) similar limitations or exclusions do not appear in any of the four parallel state constitutional provisions enacted before ratification of the Second Amendment.103
At the same time, Justice Barrett did state that “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” And the Government is correct to quote it.104 This Court‘s leap of faith, however, is not that the colonies wished to keep the public safe from those seen as “dangerous“—history supports that proposition. Rather the leap of faith is whether the colonies considered domestic abusers a “threat to public safety.” The Government and the Court‘s historical inquiries above don‘t support that conclusion.
D. Historical analogy to disarming the politically disloyal.
The Government makes a final historical analogy to the colonies disarming those unwilling to take an oath of allegiance.105 In the mid- to late-1770s, several states allowed guns to be confiscated from all persons refusing to take allegiance oaths.106 Thus, the Government reasons, there is a history of disarming those the government perceives as a “threat.”
Punishment for failing to display the proper political affiliation, however, was what the Second Amendment was meant to deter. Indeed, with British tyranny still fresh on their minds, the founders understood that “[t]o preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.”107 Or as Noah Webster put it: “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed.”108
And the Government‘s allegiance-oath analogy could be used elsewhere. Consider how those burning the United States flag could be disarmed because history supports disarming those disloyal to the government. The Supreme Court has already upheld the First Amendment rights of those burning American flags.109 But if the Second Amendment can be read separate from the First as the Government argues, the history of disarming someone because of political allegiance oaths could be used to justify disarming political dissidents today.
This Court upheld other firearm regulations—even when the direct history was unconvincing—by analogizing to other constitutional provisions. Like the Court reasoned above, Justice Scalia‘s majority opinion in Heller defined “the people” as unambiguously referring to “all members of the political community, not an unspecified subset.”110 And history supports defining “the people” as “members of the political community” because the Second Amendment was thought equal to other so-called “political rights” like the right to vote, hold public office, or serve on a jury.111
Heller also stated that “the people” means the same thing throughout the Constitution.112 Indeed, both Heller and Bruen recognize a consistent usage within the Constitution.113 Therefore, if the meaning is the same throughout the Constitution, other constitutional provisions enshrining rights or powers to “the people“—and critically, who can be categorically excluded from “the people“—provide similar historical analogues.
i. Section 2, Article I and the First Amendment.
In other
The Court also analogized to the First Amendment‘s “right of the people peaceably to assemble, and to petition the government for a redress of grievances.”117 Although the exclusion cannot be used as prior restraint, the Supreme Court has held that the Government can restrict the right to assembly when there is a “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order.”118
Those subject to a court order, however, do not fit so neatly under the constitutional provisions above. Felons, for example, have already been convicted by a jury through a constitutional process; that‘s not
In short, the historical record does not contain evidence sufficient to support the federal government‘s disarmament of domestic abusers. And without historical support,
VI. Scalpel or chainsaw?
Finding historical analogies is difficult. Likewise, the Court doesn‘t pretend that analogizing to other constitutional provisions is a perfect fit. If the Court analogizes to uphold a regulation, some will say it‘s the Court‘s attempt to circumvent Bruen‘s framework. And if the Court analogizes the other way, some will argue that the Court is cherry-picking history to fulfill a contrary agenda. The Court believes both arguments miss the mark. But therein lies the point.
Like the Court noted at the beginning, the critical question lower courts now face is whether Bruen requires the regulatory landscape be trimmed with a scalpel or a chainsaw. Justice Thomas made clear that courts post-Heller failed to engage in the necessary constitutional analysis, deferring too often to the legislature through intermediate scrutiny.120 This Court concedes that such deference made Bruen necessary. But how strict—or loose—an interpretation Bruen requires hasn‘t been clarified, leaving important questions.
If the historical analysis must be so tightly constrained to historical analogies involving categorical restrictions of only the specific group regulated (e.g., those subject to a court order), there are likely very few (if any) modern firearm regulations that will survive. That may have been Bruen‘s point. But such a strict interpretation would seem to turn the historical analysis into the “regulatory straitjacket” shunned by Bruen.121
The Court noted its concerns with reading Bruen so strictly in its Quiroz opinion.122 There, the Court highlighted the heavy burden the historical analysis places on the Government, especially when around 1791, firearms represented tools to protect a homestead in the wilderness and to hunt for food.123 The Court also expounded on those concerns when upholding the felon-in-possession law‘s constitutionality.124 Those concerns bear repeating here.
For one thing, one could easily imagine a scenario where separate courts can come to different conclusions on a law‘s constitutionality, but both courts would be right under Bruen. Say the Government in Court A develops an in-depth historical analysis to uphold a regulation, and Court A finds that the Government met the burden imposed by Bruen‘s step two. The Government in Court B, in contrast, could face the same regulation as in Court A on
What‘s more, because most gun regulations are relatively new, the Second Amendment‘s jurisprudence is underdeveloped compared to other constitutional provisions. It wasn‘t until Heller in 2008 that the individual right to keep and bear arms was solidified.125 And the Second Amendment wasn‘t incorporated against the states through the Fourteenth Amendment‘s Due Process Clause until McDonald in 2010—almost 100 years after the First Amendment was incorporated.126 Thus, analyzing the Second Amendment through a historical lens as an individual right, applicable against the states, has only been around for some 14 years. Or put another way, the Supreme Court‘s jurisprudence that the Second Amendment enshrines an individual right is younger than Twitter, Facebook, or YouTube.
VII. Other issues: court orders and speedy trial.
A. Piggybacking off state court orders.
This Court‘s opinion says nothing about whether a state court could remove someone‘s guns through conditions of release or a restraining order. But by piggybacking off a state court‘s order,
Take television host David Letterman‘s experience, for example.127 In 2005, a disturbed woman, whom Letterman had never met, obtained a protective order against him from a state court because Letterman‘s presence on television harassed her.128 And when asked why it had issued the restraining order, the state court said it was because the woman had filled out the restraining-order request form correctly.129
More importantly, Letterman was never notified of the order entered against him.130 So although the order was eventually dismissed, if Letterman had possessed a firearm when the court entered the order without his knowledge, was he now a felon under
Another problem is that
Some will argue vehemently that ruling
Yet the Court notes that even if
It‘s also ridiculous to argue that a second piece of paper, one charging a violation of
B. A defendant‘s right to a speedy trial.
Few courts have ruled thus far on challenges to various
Other constitutional protections separate from the Second Amendment exist. Indeed, although this case, and other cases involving
To the layperson, the concept of a speedy trial may be new. Under the Sixth Amendment, a criminal defendant “shall enjoy the right to a speedy and public trial.” Put simply, under the Sixth Amendment and federal law, a criminal defendant‘s trial must start within 70 days after return of an indictment.132 Starting the trial within a certain time frame—the “speedy trial clock“—protects our constitutional rights and prevents indefinite detention.
But there are exceptions, and if a defendant moves to dismiss the indictment—as is the case here and in other cases challenging the constitutionality of a statute before trial—the speedy trial clock is paused.133 When an accused challenges a gun regulation‘s constitutionality, if in custody, they remain so until the court rules on the motion—so in other words, indefinitely.
Defendant‘s speedy trial clock is paused, and while the Court would be more comfortable waiting until the courts form a consensus on interpretation post-Bruen, it cannot wait, believing that a criminal defendant‘s Sixth Amendment right to a speedy trial deserves the same reverence and protection as another‘s right to keep and bear arms under the Second.
How strictly or flexibly a court reads Bruen impacts its conclusion. Bruen‘s mandate is that a gun regulation‘s constitutionality hinge solely on the historical inquiry. According to Bruen, that can be this Court‘s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.
That said, this Court embraces Bruen‘s charge. Thus, after sifting through the history above, this Court finds that the Government did not prove that
It is therefore ORDERED that Defendant‘s Motion to Dismiss Indictment be GRANTED. (Doc. 30).
It is so ORDERED.
SIGNED this 10th day of November, 2022.
DAVID COUNTS
UNITED STATES DISTRICT JUDGE