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Appellate and District Courts Grapple with Firearms Crimes Challenges Post-Bruen

In the wake of Bruen, defendants across the country are challenging whether restrictions covering the right to possess firearms are constitutional.

Less than six months ago, the U.S. Supreme Court changed long-standing law related to how courts should evaluate restrictions on Second Amendment rights to have firearms. That case was New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). In the wake of that case, defendants across the country are now challenging whether restrictions (criminal laws) covering the right to possess firearms are still constitutional.

Texas District Court Finds 922(n) Receiving Firearm While Under Indictment Unconstitutional: Quiroz

In March 2022, Quiroz was charged by way of a federal indictment with: making a false statement during the purchase of a firearm under 18 U.S.C. 922(a)(6) (Count 1), and illegal receipt of a firearm by a person under indictment under 18 U.S.C. 922(n). A jury convicted Quiroz of both counts, and Quiroz moved to set aside the verdict pursuant to Fed. R. Crim. P. 29 based on the Supreme Court’s decision in Bruen.

In Bruen, the Supreme Court changed the applicable framework for analyzing firearm regulations under the Second Amendment. The Court held a new standard courts must follow in making this analysis:

“[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.’”

In analyzing Quiroz’ Rule 29 claim, the district court delved into the history of the Second Amendment and Section 922(n). The court noted that previous Supreme Court cases involving the Second Amendment, including Bruen, dealt with the regulations of restricting “where” someone can keep and bear arms, whereas 922(n) restricts “who” can keep and bear arms.

After a lengthy historical and procedural analysis, the district court concluded that it “is skeptical that the Government here, or in any other court, could defend 922(n)’s constitutionality.” Ultimately, the district court found that Bruen dramatically changed the legal landscape involving the Second Amendment and who may possess firearms. “The Bruen Court made the constitutional standard ‘more explicit’ to eliminate ‘asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearm restriction.’”

In sum, the district court concluded:

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 the Nation’s historical tradition. The Government does not meet that burden.

Although not exhaustive, the Court’s historical survey finds little evidence that 922(n)-which prohibits those under felony indictment from obtaining a firearm-aligns with this Nation’s historical tradition. As a result, this Court holds that 922(n) is unconstitutional.”

Accordingly, the district court granted Quiroz’s motion and dismissed the indictment.

District Court Holds Portions of 922 Unconstitutional: United States v. Price

Randy Price was stopped by the police. During the stop police discovered a gun in the car with an obliterated serial number. Randy Price also had a prior felony conviction. Things were not looking good.

Price was indicted by a grand jury on Count One for being a felon in possession of a firearm (922(g)) and Count Two for possession of a firearm with an obliterated serial number in violation of 18 U.S.C. Section 922(k). Price filed a pretrial motion to dismiss under Federal Rule of Criminal Procedure 12 arguing that both Count One and Count Two were unconstitutional in light of the Bruen decision from SCOTUS.

The district court discussed how Bruen changed the legal landscape. Post-Bruen, courts are required to evaluate the scope of the Second Amendment in light of what it was understood to cover at the time the Second Amendment was originally adopted in 1791. Only regulations that would have been considered constitutional in 1791 can be considered constitutional today according to the U.S. Supreme Court.

The Government tried to argue that 922(k) did not prohibit conduct that is protected by the text of the Second Amendment because the requirement that guns have serial numbers is a “commercial regulation.” This was an absurd argument and honestly shows that the Government is grasping at straws here.

As the Price court pointed out, the regulation at issue (18 USC 922(k)) is not a commercial regulation. It is a law that criminalizes the mere possession of a gun after a serial number is altered in any way. The district court gave examples of how someone could die, give a serial-number-altered gun to their child by their will, and then the adult child would commit a crime in violation of 922(k) just by having the gun.

Once the district court determined 922(k) implicates the Second Amendment, it moved on to step-two of the analysis. At this step, the law is presumptively unconstitutional unless the Government can show that the law “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. The historical analysis requires looking to what was going on at the Nation’s founding and ratification of the Second Amendment in 1791.

The district court engaged in a thorough historical analysis. As the district court pointed out, serial numbers were not required or even in common use in 1791. The first legal requirement for serial numbers did not appear until 1934. It was not until 1990 that the mere possession of a gun with an altered serial number became criminal.

The result, the district court said that 922(k) prohibiting the possession of a firearm with an altered serial number was UNCONSTITUTIONAL.

However, the district court upheld the 922(g) as constitutional. The court said that 922(g)’s prohibition on felons possessing firearms was consistent with the Nation’s historical tradition of firearm regulation.

Western District of Texas Vacates 922 Charge Based on Family Violence Protective Order:  Perez-Gallan

In Perez-Gallan, 4:22-cr-00427-DC (W.D. Tex.), the same district court has ruled that 18 U.S.C. 922(g)(8) unconstitutional post-Bruen and granted the defendant’s motion to dismiss the indictment. Section 922(g)(8) makes it a crime for an individual who is subject to court order that-

(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 or 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;

After applying a lengthy legal and historical analysis of Bruen’s new framework to the statute at issue, the court concluded that 922(g)(8) lacks supporting history and that Bruen mandates that a gun regulation’s constitutionality hinges solely on the historical inquiry. In conclusion, the court wrote:

“[T]his Court embraces Bruen’s charge. Thus, after sifting through the history [], this Court finds that the Government did not prove that 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen. As a result, the Court holds that 922(g)(8) is unconstitutional under Bruen’s framework.

Takeaways:  Expect more of this, but not for 922(g) Felon in Possession just yet.

Courts across the country are grappling with challenges based on Bruen right now. Various parts of 922 have been held unconstitutional by district courts. Expect more of these to be struck down in the coming months and years.

No court has yet struck down 922(g). It will take a very brave judge to be the first jurist to make that ruling. In the interim, smart attorneys and litigants will be raising these challenges pre-trial and in their timely 2255 motions wherever they can. The longer you can keep your challenge alive the more likely you are able to be able to benefit from a future favorable decision.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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