https://www.washingtonpost.com...nt-unconstitutional/

U.S. can’t ban gun sales to people indicted on felony charges, judge says

By Derek Hawkins
September 20, 2022 at 2:18 p.m. EDT

A federal law barring people under felony indictment from purchasing guns is unconstitutional, a federal judge in Texas ruled Monday in an early test of a watershed decision by the Supreme Court expanding firearm access.

U.S. District Judge David Counts found that the law’s prohibitions clashed with the high court’s June decision in New York State Rifle & Pistol Association v. Bruen, in which a 6-3 conservative majority ruled that law-abiding Americans have a right to carry a handgun outside the home for self-defense.

The 25-page opinion by Counts, a Donald Trump appointee, invoked the language of originalism, the conservative legal theory that judges should interpret the Constitution based on how it was understood when it was adopted.

The judge said he found little historical evidence that the law barring those under felony indictment from obtaining a firearm “aligns with this Nation’s historical tradition.”

“The Second Amendment is not a ‘second class right,’ ” Counts wrote. “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.”

Accordingly, he said, the law was unconstitutional.

The Justice Department said it intended to appeal the case to the U.S. Court of Appeals for the 5th Circuit.

The case arose from the indictment of Jose Gomez Quiroz of West Texas, who bought a .22-caliber semiautomatic handgun in 2021 while facing state charges of burglary and jumping bail.

According to the ruling, Quiroz denied at the time of sale and background check that he was under indictment. After waiting a week, he picked up the weapon from a retailer in Alpine, Tex.

Soon after, the National Instant Criminal Background Check System alerted authorities that the purchase was illegal.

Federal prosecutors charged Quiroz in March with making a false statement during a firearm purchase and illegal receipt of a firearm by a person under indictment.

After a jury convicted him on both counts, Quiroz asked the court to reconsider his case in light of the Supreme Court’s ruling in Bruen.

The government’s attorneys contended that prosecutors were permitted to impose a range of restrictions on indicted defendants, including detention and pretrial release conditions.

But Counts said the Supreme Court’s ruling had “changed the legal landscape” on firearm restrictions. He found that prohibiting Quiroz from receiving the gun while under indictment amounted to a form of prior restraint that violated the Second Amendment.

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

A federal public defender representing Quiroz did not immediately respond to a request for comment Tuesday.

The ruling comes a few weeks after another significant court decision on firearm access, in which a different federal judge in Texas struck down a state law barring adults under 21 from carrying handguns.

U.S. District Judge Mark T. Pittman found last month that the Constitution did not put an age restriction on the right to bear arms, meaning adults 18 to 20 should not be prevented from carrying handguns outside the home.

He may have a point.

Whether you think it's a good idea or not to suspend rights of those we think are bad I like to see points of law challenged.

Innocent until proven guilty. If we abandon that principle, we’ll decay into a mob.

It will be very interesting to see how the ruling holds up.

If upheld, it’s a ruling I’d be citing front and center if I were challenging a “red flag” law that prohibits firearms ownership and mandates confiscation on the basis of a judge’s ruling that can totally disregard the usual standards of due process. If an indictment isn’t justification to “prior restrain” firearms possession, a person whom the accused doesn’t even have the right to confront: “I’m skeert of him.”
Judge: “I agree; skeert you should be. Sheriff: seize his guns. If he can prove there’s no reason to be skeert of him, you can give them back. Someday. Maybe. If no one else is skeert of him.”

Thanks for posting.

Indicted != convicted.

4473 does ask if you are under indictment. And IIRC, it has been there for a long time.

While the innocent till proven guilty is a very valid point, this guy did jump bail. It is hard to say he is just waiting for his day in court when he never showed up when his day was scheduled.

The question isn’t whether this guy is good or bad, but whether an accusation is sufficient reason to deny someone a basic right. I admit that I have conflicting opinions about the ruling, but fundamentally it’s like the principle that we don’t have to “protect” speech or religions that we agree with. The First Amendment is intended to protect the speech and religions we don’t like, and there are countless other examples of protecting the rights of people we don’t like regardless of whether we like them. If we’re going to debate an issue like this, that’s the first thing we should keep in mind.

Being charged is not a conviction and it's only an allegation.

Perhaps if the underlying charge is one based on violence, threats of criminal harm or similar then a better argument can be made for temporary forfeiture. We do it for DV cases all the time and no one thinks it's a bad idea.

On the other hand, if the accused is charged with a non-violent crime, such as tax evasion, forfeiture makes little sense.

Innocent until proven guilty seems like a pretty basic concept.

At the same time, if he said he wasn’t under indictment then he lied on the 4473. Maybe if this ruling stands there will be an argument to strike the question from the 4473 or at least to preclude using a positive answer as a reason for denial.

Like many things, it will be interesting to see how this plays out.

Yeah, but it's possible to be indicted and be in jail because of that indictment if the risk is high, correct.

In that case, if the risky indictments are in jail, and if the system works as it should, then seems like less of an issue.

But, these days they don't really keep anyone in jail..... They seem to release most everyone. At least at the state / county / local level. Not sure about fed.

Perhaps the question needs to be stricken from the 4473 as it’s already making decisions on rights in advance of a trial. The 4473 can and should be changed.

The Constitution is fine the way it is.

quote:

Perhaps if the underlying charge is one based on violence, threats of criminal harm or similar then a better argument can be made for temporary forfeiture. We do it for DV cases all the time and no one thinks it's a bad idea.

It seems to me innocent until proven guilty should apply here as well

quote:

Originally posted by darthfuster:
Innocent until proven guilty.

That was my take too. Indicted does not mean convicted. Until you're convicted you keep all your rights.

It’s interesting. A warrant is enough due process to, temporarily, deprive you of liberty.

I could see a requirement to disarm surviving under the fifth - it would explicitly prohibit them from seizing arms, without a conviction.

Being arrested doesn’t strip someone of the right of speech - might get people a bit more willing to hold animals for trial, instead of kicking them out and shrugging their shoulders about crime.

quote:

Originally posted by Aglifter:
A warrant is enough due process to, temporarily, deprive you of liberty.

Yes, and even if it’s possible for an aggressive prosecutor to “indict a ham sandwich,” that process is more involved than (usually/often) getting a warrant. If this case makes it to the Supreme Court I would bet that the judge’s ruling gets overturned. If someone can be locked away due to processes far short of conviction, I imagine that in most courts’ view depriving someone of the right to acquire a firearm is pretty minor. I do not expect any big—or even small—changes to the judicial system because of this ruling.

quote:

Originally posted by nhtagmember:
Perhaps the question needs to be stricken from the 4473 as it’s already making decisions on rights in advance of a trial. The 4473 can and should be changed.

The Constitution is fine the way it is.

The 4473 should be abolished.

So sorry to bother you mister government, would it be okay if i exercised my rights today?

quote:

Originally posted by tigereye313:
Indicted != convicted.

You mean, Indicted ≠ convicted, right?

quote:

Originally posted by 12131:

quote:

Originally posted by tigereye313:

Indicted != convicted.

You mean, Indicted ≠ convicted, right?

Either one is fine, they mean the same thing.

If you are writing computer code you use !=

I wonder if red flag laws could be challenged with that ruling.

A common condition of bond is no guns.