Court Rules Second Amendment Prohibits Federal Pre-Conviction Firearms Ban

Last week, a federal judge in the Western District of Texas ruled that a law which prohibits the acquisition of firearms by someone who is under felony indictment violates the Second Amendment. The decision to invalidate a major provision of the Gun Control Act of 1968 underscores the gravity of the U.S. Supreme Court’s recent decision in New York Rifle & Pistol Association v. Bruen, which prescribed a standard of review that lower courts must apply when resolving Second Amendment cases. The case from the Western District of Texas is United States v. Quiroz.

The federal law at the center of Quiroz is codified at 18 U.S.C. 922(n). It states:

It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

An indictment occurs when prosecutors present evidence to a grand jury that there is probable cause a person has committed a crime, and the jury agrees. This decision can then be used as the basis for the government to prosecute the person for the offense. 

Grand jury proceedings are not the same thing as a criminal trial. They are merely meant to establish that the government has completed the necessary investigative work to legitimately arrest someone and haul that person before a criminal court. An indicted person, in the American legal system, still enjoys the presumption of innocence.

As the Quiroz decision explained, moreover, grand jury proceedings are entirely one-sided – with the jury hearing only from the prosecution – and the accused does not enjoy the same due process protections that apply during a criminal trial. For example, grand jury members may consider evidence against the accused that would be illegal for the prosecution to use in the criminal trial itself. The “freewheeling” and uncontested nature of the proceedings, as the court observed, led one judge to famously opine that “a Grand Jury would indict a ham sandwich.”

The court noted that the federal law in question had survived previous constitutional challenges, but those decisions all occurred before the Supreme Court’s ruling in Bruen, which clarified the process courts must use in resolving Second Amendment challenges. First, the court must determine if “the Second Amendment’s plain text covers [the] individual’s conduct” the government hopes to restrict. If it does, “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” If the government fails to carry this burden, then the challenged law cannot stand.

In the Quiroz case the court found that “receipt” of a firearm was clearly covered by the Second Amendment’s plain text, as the very definition of “receive” is to “to take into . . . one’s possession,” and “possess” is synonymous with “keep.”

The court then held that the government could not point to a similar law that was common at the time of the Second or Fourteenth Amendment’s adoption, and none of the historical precedents the government offered to justify the regulation were sufficiently similar to it. But then the court went further, conducting a lengthy historical analysis of its own to determine if relevant precedents might yet support the law. Ultimately, it determined that they did not.

The court acknowledged that public safety concerns might validly argue in favor of prohibiting the receipt of arms by someone formally charged with a serious crime but observed there may be other mechanisms under the law to deal with that, apart from 922(n)’s blanket prohibition. For example, once a person is actually arrested post-indictment, a court will hold a hearing to determine if the person should be held in custody pending trial or released, and if the latter, if conditions should apply to the release. At this stage of the proceedings, however, the accused can meaningfully participate and advocate for his or her own position. Thus, the constitutional calculus might be different for a court-ordered restriction on weapons receipt that occurs after a detention hearing than for a sweeping prohibition that applies after all felony indictments.

According to news reports, the Biden administration has already appealed the court’s decision to the U.S. Court of Appeals for the Fifth Circuit. It may therefore take many years of additional litigation to determine if the ban on receipt of firearms for those under indictment for crimes punishable by more than a year in prison will ultimately stand.

In the meantime, the court’s decision is a Quiroz is a hopeful sign for pro-gun advocates that even federal gun control dating to the mid-20^th Century will require a high standard of justification to survive Second Amendment scrutiny under Bruen.