UNITED STATES OF AMERICA v. (1) JOSE GOMEZ QUIROZ
PE:22-CR-00104-DC
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS PECOS DIVISION
September 19, 2022
DAVID COUNTS
Case 4:22-cr-00104-DC Document 82 Filed 09/19/22
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.
BACKGROUND
On June 9, 2020, Jose Gomez Quiroz (“Defendant“) was indicted in a Texas state court for burglary, a second-degree felony.1 Defendant subsequently failed to appear for a hearing on the burglary charge and was indicted almost a year later for jumping bail/failing to appear, a third-degree felony. In late 2021, while both charges were pending, Defendant attempted to buy an M1911, Semi Auto .22
Defendant was federally charged in March 2022 with two counts: (Count 1) making a false statement during the purchase of a firearm under
Defendant‘s motion hinges on the constitutionality of
LEGAL STANDARD
Under
A motion for reconsideration “calls into question the correctness of a judgment.” Indeed, according to the United States Court of Appeals for the Fifth Circuit, a motion for reconsideration “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Instead, it merely allows “a party to correct manifest errors of law or fact or to present newly discovered evidence.”4 A motion for reconsideration may, however, also allow a party to bring an intervening change in the controlling law to the Court‘s attention.5 That is the case here.
The Supreme Court‘s ruling in Bruen6 changed the applicable framework for analyzing firearm regulations under the Second Amendment. Defendant‘s conviction rests on the constitutionality of
DISCUSSION
The Second Amendment provides: “A well regulated Militia, being necessary
I. The Supreme Court in Bruen laid out a new standard for courts to use when analyzing firearm regulations.
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 scrutiny.15 Otherwise, it would apply intermediate scrutiny, considering whether the Government has shown that the regulation is “substantially related to the achievement of an important governmental interest.”16
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.
The right to “keep and bear arms” shall not be infringed. Defendant‘s pivotal conviction was under
Yet from the jump, the Government seems to misread Bruen. The Government first frames Defendant‘s conduct as “buying a gun while under felony indictment.”19 Bruen‘s first step, however, requires only that “the Second Amendment‘s plain text cover the conduct.” And the prohibited conduct under
To illustrate, take
The Government next argues for a rigid, sterile reading of “keep and bear arms.” Quoting Heller, the Government notes that to “keep arms” means to “have weapons” or “possess” and to “bear arms” means to “carry.”22 So anything not “having,” “possessing,” or “carrying” weapons is excluded and thus, the Government argues, receiving a firearm falls outside the Second Amendment right to “keep and bear arms.”23
Yet the plain meaning of the verbs “have” or “possess” include the act of receipt. For example, “to have” means “to be in possession of ... something received.”24 Therefore, “to have weapons” would encompass the past receipt and the current possession of those weapons.
And logically, excluding “receive” makes little sense. To receive something means “to take into ... one‘s possession.”25 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.”26
Bruen‘s first step asks a strictly textual question: does the Second Amendment‘s plain text cover the conduct? Without a doubt the answer here is yes. The Second Amendment‘s plain text does cover “receipt” and the Constitution presumptively protects such conduct. Thus,
III. Bruen‘s second step: the historical analysis.
Next, the Government must justify its regulation through a historical analysis. To do so, the Government‘s historical inquiry must show that
A. Under indictment: the Federal Firearms Act of 1938 to present.
Section 922(n)‘s history begins in 1938, when Congress passed the Federal Firearms Act (“FFA“).32 The FFA prohibited “individuals under indictment for, or convicted of, a crime of violence from shipping or transporting any firearms or ammunition in interstate commerce.”33 The Act only covered those under indictment in federal court and “crimes of violence” was commonly understood to include only those offenses “ordinarily committed with the aid of firearms.”34
According to legislative history, Congress implemented the FFA to combat roaming criminals crossing state lines.35 Without federal laws, ex-convicts would simply cross state lines to circumvent conditions of probation or parole.36 The FFA‘s main goal then was to “eliminate the guns from the crooks’ hands, while interfering as little as possible with the law-a-biding citizen.”37 In Congress‘s eyes, those under indictment for, or convicted of, a crime of violence had already “demonstrated their unfitness to be entrusted with such dangerous instrumentalities.”38
Congress expanded gun regulations yet again with the Gun Control Act of 1968 (“GCA“).41 Key amendments included defining “indictment” to mean “an indictment ... in any court,” thus adding persons indicted under state law.42 In full, the GCA 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.”43 In 1986, Congress combined all prohibitions against persons under indictment into what is now
B. Analogizing felons-in-possession.
The Government analogizes regulations prohibiting felons from possessing firearms with those prohibiting receipt of a firearm by persons under indictment. According to the Government,
With nothing further, the Government‘s argument can be boiled down to the following syllogism:
- felon-in-possession laws have the same history as
§ 922(n) ; - Heller endorsed felon-in-possession laws as constitutional;
- Therefore,
§ 922(n) is constitutional.
The first problem with this argument is it‘s a logical fallacy. Sharing a history with felon-in-possession laws makes
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.45 Dicta is therefore “entitled to little deference because they are essentially ultra vires pronouncements about the law.”46 Or, as Francis Bacon put it, dicta is only the “vapours and fumes of law.”47
The last, and most significant problem with the Government‘s argument is that it lacks historical analysis from the Second Amendment‘s ratification, much less anything pre-1938. “Constitutional rights are enshrined with the scope they
i. The state‘s power to disarm in the early colonies.
The Court therefore will conduct its own historical inquiry in the Government‘s absence, starting with the law preceding the Second Amendment‘s adoption in 1791. But this Court “must be careful when assessing evidence concerning English common-law rights” because “[t]he common law, of course, developed over time.”50 And with this cautious inquiry, the Court finds one contextual clue: not what laws the colonies retained from their English roots, but what they excluded.
English law had a long history of disarming citizens for any reason or no reason at all.51 For example, Parliament granted officers of the Crown the power to disarm any person they judged “dangerous to the peace of the Kingdom.”52 Or in 1688, Parliament disarmed Catholics because of their faith.53
Yet even while still under English rule, the colonies’ attitude toward disarming individuals diverged from its English roots. Indeed, when Virginia disarmed all citizens who refused to take an allegiance test, it did so only partially, allowing citizens to keep “such necessary weapons as shall be allowed him by order of the justices of the peace at their court, for the defense of his house and person.”54 So even “traitors” unwilling to swear allegiance to the Crown retained their weapons in colonial America.
Leading up to the Second Amendment‘s adoption, the colonies “consistently refrained from exercising such a power over citizens.”55 As one historian wrote, after he searched all existing printed session laws of the first fourteen states year by year from 1607 to 1815, he couldn‘t find “a single instance in which these jurisdictions exercised a police power to prohibit gun ownership by members of the body politic.”56
ii. State Conventions when ratifying the Constitution.
More evidence can be gleaned from the state conventions ratifying the Constitution. In February 1788, the Massachusetts Convention was the first to recommend amendments with its ratification.57 John
Massachusetts wasn‘t the only state, as New Hampshire copied nine of Massachusetts’ proposals almost verbatim, while adding three of its own.59 One of the three involved the right to keep and bear arms: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”60
iii. The state‘s power to disarm leading up to 1938.
Until federalized by the FFA, prohibiting possession of a firearm, even by those convicted of violent crimes, was a rare occurrence. For instance, it wasn‘t until 1886 that a state court ruled on a firearm regulation that regulated “the condition of a person—rather than directly regulating his manner of carrying.”61 There, in Missouri v. Shelby, the Supreme Court of Missouri upheld a ban on carrying a deadly weapon while intoxicated.62
And even though other state courts eventually ruled on laws regulating the condition of a person,63 very few states prohibited felons—or any other type of person for that matter—from possessing a firearm. Indeed, by the mid-1920s, only six states had laws banning concealed carry by someone convicted of a crime involving a concealed weapon.64 And zero states banned possession of long guns based on a prior conviction.65
Whether this Nation has a history of disarming felons is arguably unclear—it certainly isn‘t clearly “longstanding.” And what‘s even more unclear—and still unproven—is a historical justification for disarming those indicted, but not yet convicted, of any crime.
C. Analogizing Massachusetts’ surety laws to § 922(n) .
In another analogy closer to
Justice Thomas dismisses the contention that surety laws were a severe restraint as having “little support in the historical record.”69 Surety laws were “not meant as any degree of punishment.”70 And there‘s little evidence that such laws were regularly enforced.71 Indeed, the handful of cases highlighted by Justice Thomas from Massachusetts and the District of Columbia all involved “black defendants who may have been targeted for selective or pretextual enforcement.”72
The Government also argues that the surety laws provide an imperfect but similar analogue to
Much like
In contrast,
IV. Other historical analogies.
The Court points to an important distinction here—
And if relegated to step two, the Government must prove that restricting rights for a specific group (e.g., those under indictment or felons) adheres to this Nation‘s historical tradition. There lie Plato‘s unknown unknowns.
If the Government must prove a historical tradition for every regulation restricting a specific subgroup, Bruen‘s framework creates an almost insurmountable hurdle. For one thing, one could easily imagine why historical analogies from the 18th century would be difficult to find. For example, if one lived more than a day‘s journey from civilization, a firearm was not only vital for self-defense—it put food on the table. Indeed, whether fending off wild animals or hunting, a firearm was a necessary survival tool. That is why disarming someone was likely unthinkable at the time—no firearm in the wilderness meant almost certain death.
So finding similar historical analogies is an uphill battle because of how much this Nation has changed. Society, population density, and modern technologies are all examples of change that would make something unthinkable in 1791 a valid societal concern in 2022. But the only framework courts now have is Bruen‘s two-step analysis.
That said, this Court believes there are other historical analogies that neither the Government nor Defense explore. As stated, Bruen and Heller dealt with regulations restricting where someone may keep and bear arms and unlike the challenged regulations in Bruen and Heller,
Both Heller and Bruen note that the Second Amendment is not the only constitutional provision that reserves rights or powers to the people. For example, the First Amendment‘s Assembly–and–Petition Clause prevents Congress from making laws abridging “the right of the people peaceably to assemble.” The Fourth Amendment protects the right of “the people ... to be free from unreasonable searches and seizures.” Or § 2 of Article I, which provides that “the people” will choose members of the House.
And just like the Second Amendment, the above provisions’ reservation of rights or powers for “the people” are not absolute. Indeed, there is a long history of the Government regulating those rights—including restriction on who can exercise that right. Thus, the history of excluding specific groups from rights and powers of “the people” in other constitutional contexts can provide useful analogies.
A. Restrictions on the power of “the people” to vote in Section 2, Article I.
Section 2, Article I of Constitution states, “the House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Put simply, it‘s the right of the people to vote. This enumerated power of “the people,” however, doesn‘t provide an analogy to
State laws restricting voting rights for those convicted of certain crimes are not a
B. Regulating the rights of “the people” to assemble under the First Amendment.
The First Amendment‘s Assembly-and-Petition Clause also furnishes a helpful analogy. The First Amendment states, “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The “very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably.”83 But this right is not absolute—the Supreme Court has excluded groups from the people‘s right of assembly.
In De Jonge v. Oregon, the Supreme Court declared the right to peaceful assembly “equally fundamentally” with other First Amendment clauses.84 There, De Jonge was charged under a state criminal syndicalism statute after speaking at a Communist party meeting.85 Although the objectives of the Communist Party are heinous, the Supreme Court held that De Jonge “still enjoyed his personal right . . . to take part in a peaceable assembly having a lawful purpose.”86
Yet the Supreme Court also highlighted the right of assembly “without incitement to violence or crime.”87 Indeed, much like the right to keep and bear arms, the First Amendment‘s right to assembly can be abused to incite violence or crime. Thus, legislation protecting against such abuses would be constitutional if “made only against the abuse.”88 The rights themselves may not be curtailed.89
The Supreme Court has also held that the Government may restrict the right to assembly when there‘s 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.”90 Prior restraints against such dangers, however, incur a heavier burden.
In the Second Amendment context, however, restrictions against those already convicted of a crime, for example, would not be a prior restraint—they have already been found guilty in a constitutionally sufficient proceeding. Likewise, the right of
“[A] free society prefers to punish the few who abuse rights of [the people] after they break the law than to throttle them and all others beforehand.”91
In sum, this Court does not rehash all constitutional interpretations since 1791, and although not a perfect fit, the “rights of the people” in other contexts can supply useful comparisons. And as seen above, this Nation does have a historical tradition of excluding specific groups from the rights and powers reserved to “the people” in those contexts. But unlike the historical tradition of excluding felons or violent actors from the rights of “the people,” little evidence supports excluding those under indictment in any context.
V. Courts should be skeptical of § 922(n) for other reasons.
This Court is skeptical that the Government here, or in any other court, could defend
A. Grand Jury Proceedings.
The nature of grand jury proceedings is one such area that casts a shadow of constitutional doubt on
The Fifth Amendment guarantees the right to a grand jury indictment for federal felonies.97 But the right to a grand jury indictment is not always applicable to state court proceedings.98 So because an indictment under
The Government argues here that it has always been able “to impose substantial liberty restrictions on indicted defendants.”100 To support that claim, the Government lists detentions or conditions of pretrial release as examples.101 Why the Government believes those examples support its argument is unclear; detention hearings have substantial procedural safeguards. For one thing, at a detention hearing, the defendant may request the presence of counsel; testify and present witnesses; proffer evidence; and cross-examine other witnesses appearing at the hearing.102 Grand jury proceedings have none of these safeguards. Detention hearings also occur at a different stage in the proceeding—often after indictment. And even if restricting a defendant‘s right to possess a firearm as a condition of pretrial release is constitutional—an issue which this Court does not consider here—that doesn‘t also make
In line with procedural concerns, the Court notes in passing that the expansion of gun rights by the Supreme Court in Bruen might also implicate procedural due process under the Fifth Amendment. Courts that have analyzed due process and
B. The historical disarmament of specific groups.
Another reason that
The Government cites the Seventh Circuit‘s reasoning in United States v. Yancey109
C. Past courts interpreted § 922(n) ‘s constitutionality under the collective-right view the Supreme Court rejected in Heller.
One last issue that gives this Court pause is that the question whether the right to keep and bear arms was a collective right or an individual right wasn‘t answered until the Supreme Court in Heller held that the Second Amendment bestowed an individual right. So courts interpreting the constitutionality of what is now
Another example that same year was the Third Circuit‘s decision in United States v. Tot.115 There, the court also upheld the FFA‘s “crimes of violence” disability, noting that the Second Amendment “was not adopted with individual rights in mind,” and the FFA “[did] not infringe upon the preservation of the well regulated militia protected by the Second Amendment.”116
Thus, the FFA‘s regulations were found constitutional under the collective-right view later dismantled by Heller. And
The Court notes the above concerns not to bolster its conclusion, but to highlight how Bruen changed the legal landscape. The Bruen Court made the constitutional standard “more explicit” to eliminate “asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions.‘”117 Bruen did not, however, erase societal and public safety concerns—they still exist—even if Bruen‘s
CONCLUSION
The Second Amendment is not a “second class right.”118 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
It is therefore ORDERED that Defendant‘s Motion to Reconsider is GRANTED. (Docs. 73 and 74). The indictment is DISMISSED.
It is so ORDERED.
SIGNED this 19th day of September, 2022.
DAVID COUNTS
UNITED STATES DISTRICT JUDGE