Beckley, WV (LOOTPRESS)- 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.- U.S. v. Quiroz, 2022 U.S. Dist. LEXIS 168329
Very quietly on Monday, a West Texas Federal District Court propelled the cause of 2nd
Amendment proponents light years forward. Federal Judge William David Counts, III issued his opinion in the case of U.S. v. Quiroz
on September 19, 2022. The Defendant, Quiroz, was indicted by a Texas state court grand jury for Burglary and skipping bail/bond, both of which are felonies under Texas state law. While awaiting trial on those charges, Quiroz went to a gun store and purchased a .22 caliber M1911 handgun. Quiroz answered the ATF transfer form 4473, indicating he was not currently charged with a felony. The federal government, after discovering Quiroz was under indictment by a Texas state court for a felony, charged Quiroz with a violation of 18 U.S.C. 922(a)(6)
, making a false statement during the purchase of a firearm, and a violation of 18 U.S.C. 922(n)
, the illegal receipt of a firearm by a person under indictment. Quiroz went to trial on the matter and was found guilty by a jury.
Following his conviction, the U.S. Supreme Court issued its opinion in the case of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen. The Bruen decision changed the landscape for evaluating Constitutional challenges to federal gun laws based upon 2nd amendment protections. In the Bruen decision, Justice Thomas, in delivering the opinion of the Court, outlined a new test for federal firearms laws:
“[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.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2127, 213 L. Ed. 2d 387 (2022).
Following the Bruen framework laid out by Justice Thomas, Quiroz timely filed a Motion for a Judgment of Acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure. The basis of that motion was that following the Bruen decision, the law applicable to Quiroz’s case had substantially changed. The West Texas trial Court agreed. Quiroz’s conviction was overturned and vacated, with the indictment dismissed after the Court found that the Defendant’s right to receive and possess a firearm was protected by the 2nd Amendment, even if he was under indictment for a felony.
In evaluating 18 U.S.C. 922 under the new standard promulgated by the Supreme Court in Bruen, Judge Counts took us back to the foundation of the Republic and gave us a complete view of the historical treatment of prohibiting certain persons from possessing firearms. Historically, the federal government could not prevent anyone from possessing a firearm, and the Court illustrated the sentiment of policymakers during the debate on the ratification of the U.S. Constitution and the 2nd amendment as wholly rejecting the English rule of arbitrary limitations on the possession of firearms. Moreover, the Court illustrated that even violent felons could not be prevented from possessing a firearm in the early republic, with the most stringent of limitations being the posting of a bond by convicted violent felons. Possession of a firearm in the early republic was essential to survival for most of the American population. The idea of prohibiting the possession of firearms by felons is a modern notion unsupported by the historical record.
The Court went on to illustrate that most firearms prohibitions contained in state law were designed to disarm certain disenfranchised minorities, such as African-Americans. The Court recounted the situation in Ohio after the 1841 Cincinnatti race riots:
“Another example would be the aftermath of the Cincinnati race riots in 1841. The day after the riot was quelled, all blacks were disarmed. And the day after that, white rioters ransacked the now-defenseless black residential district. That pretextual disarmament wrenched away black residents’ “individual right to self-defense”—”the central component” of their Second Amendment right.”
The Court in Quiroz, through its historical analysis, reaffirmed the central tenant of the 2nd amendment: that citizens of all classes have an absolute right to self-defense, even defense of one’s self against the government that is attempting to disarm them. By highlighting the historical need of the citizenry to defend themselves against imperial action (English military occupation), and actions by our own governments (Florida, Illinois, and Ohio gun confiscation laws leading to oppressive government abuses). A person’s prior criminal behavior was not a factor in determining their personal right to bear arms until 1933, and even then it took the federal congress another 53 years to whittle away at the rights of the accused to arrive at the current status of the law in 1986.
While some might seem to think that it is a given that a person under indictment for a felony or convicted of a felony would have always been prevented from possessing a firearm, the Quiroz court illustrated that not only was this notion contrary to historical precedent, its birth as an idea is less than 40 years old as it wasn’t until 1986 that Congress outlawed the conduct of which Quiroz was found guilty. The Quiroz case informs us that when analyzed under the new Bruen standard, it will be difficult to impossible for any neutral court to find prohibitions on receipt or possession of firearms by persons of any classification to be in conformity with those persons’ protections afforded by the 2nd amendment to the United States Constitution.
People need to realize that the Quiroz and Bruen decisions are not messages to the public that the Courts are pro-gun. They are telling us that the 2nd Amendment is not of a different level of importance than the 1st or 5th amendments. A felon, or person accused of a felony, is not stripped of their right against self-incrimination or stripped of their freedom of assembly or religion. What the Courts are telling us is we have a Constitution that guarantees certain rights, and we can’t rationalize those rights away based upon the status of the person asserting the right. What they are telling us, based upon the way the rules are currently agreed upon, this is the conduct which is protected. Should you wish to no longer protect that conduct, or protect it differently, there is a rule that lines out how you change the rules. Until you follow that process, these are the rules you live by. This is what creates the certainty necessary for the Republic to persist for generations.
What does this mean going forward? Following the Bruen decision and the Court’s opinion in Quiroz, Defense attorneys across the nation should likely be copying Quiroz’s brief to vacate his conviction and applying it to their client’s cases if they are accused of or convicted of status offenses regarding firearms possession or receipt. This likely means that State Supreme Courts will face a litany of challenges to felon-in-possession statutes that challenge them to evaluate the statutes according to the framework ofBruen. In short, attorneys at the Defense bar in this country must dust off their appellate practice regarding state and federal firearms regulations.
As for attorneys like myself that are also state legislators, it is time for us to question in debate the legitimacy of our own state criminal statutes regarding firearms possession and transfer.
While some may think that the Quiroz decision is an anomaly from a right-wing West Texas judge, you may be interested to find out that Judge Counts was appointed a Federal Magistrate in 2009 under then President Barrack Obama. He was then nominated for a lifetime appointment by President Obama as a Federal Judge, but the nomination was returned by Congress following sine die adjournment in 2016, Judge Counts was then nominated and appointed by President Trump as a Federal Circuit Judge, a role in which he has continued to serve since 2017. Judge Counts is a reasoned jurist, respected by members of both parties, that found the courage to follow the Constitution regardless of the societal pressures upon his decision. State Legislators need to have the courage to follow the same.
Like day-time soap operas and professional wrestling, nothing in politics is ever definitively decided. With the Quiroz decision and the challenges across the nation that are likely to follow, there will likely be differing results as these challenges are meted out in varying jurisdictions. The U.S. Supreme Court will likely be revisiting this issue in the coming years as there will be discrepancies between jurisdictions applying the new Bruen standard.
As a state legislator I find this decision to be a positive development in meeting the challenges presented by our current political climate. It is unnecessary and unwelcome for West Virginia and, say, California, with such different perspectives and philosophies, to be forced into homogeneity on such a broad array of issues never contemplated by the individuals that formed our Union of States. The diversity of these jurisdictions is what gives us strength. The focus of the Union was to preserve peace and promote commerce, not foster discontent and force compliance by judicial fiat. With a Supreme Court that strictly applies the U.S. Constitution, we should see more decisions that uphold federalism and the State’s role in governing its people. If we are to better preserve the Republic, we should welcome the retreat of broad federal regulation of areas of law traditionally reserved to the States. By strictly reading the Constitution, we affirm that diversity amongst the States is healthy for a thriving Republic. Where issues are not explicitly delineated by the Federal Constitution, those issues should rightly be left to the States to regulate. In so doing, we also guarantee that those rights protected by the Federal Constitution are not infringed upon by modern apologetics influenced by emotional reactions. State legislators should now be emboldened to challenge the Federal intrusions upon State Sovereignty that have been accepted as the norm for the last 100 years. The Supreme Court is signaling a new age of a return to federalism and the proper role of the Federal government in preserving and growing the Union. State legislatures should welcome that change.
Brandon Steele is an attorney practicing in Beckley, WV and a member of the West Virginia House of Delegates, serving Raleigh County, WV.