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Do convicted felons facing new indictments retain their constitutional right to receive a gun?



Based on a 2022 U.S. Supreme Court ruling, NYSRPA v. Bruen, the U.S. District Court for the Western District of Texas struck down a federal law prohibiting access to guns if those people are subject to domestic violence protection orders.
Do convicted felons facing new indictments retain
their constitutional right to receive a gun?
Elisa Reiter and Daniel Pollack | December 27, 2022
Based on a 2022 U.S. Supreme Court ruling, NYSRPA v. Bruen, the U.S.
District Court for the Western District of Texas struck down a federal law
prohibiting access to guns if those people are subject to domestic
violence protection orders.
In this highly unusual ruling, the court reasoned that it was compelled to
question the constitutionality of firearm regulation in the United States
in a post-Bruen world.
Whatever one’s political perspective, one must revel in the written word
of this memorandum opinion, United States of America v. Jose Gomez
Quiroz, from the U.S. District Court for the Western District of Texas,
Pecos Division, which begins, “This Court faces a predicament similar to
Plato’s allegory of the cave.”
Lessons Learned
What do we learn from this allusion? Education serves the purpose of
pulling students from the cave, by enlightening them in the real world
with real objects. To talk about gun control is far different from the
reality of facing a gun wielded by a person who has been convicted of a
violent crime so grave as to warrant being placed on probation.
Is it also a condition which curtails a person’s ability to be allowed to
exercise their Second Amendment freedom to purchase a gun? When out
of the cave, we learn that there is the opportunity to learn from real life
and real objects. Prisoners are involved in the allegory, just as they are in
the Quiroz opinion.
Once one has the opportunity to emerge from the cave and learn, the
enlightened can return to the cave to assist others. However, with
knowledge, reverting to the cave becomes impossible.
In Quiroz, the court holds that: “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 traditions. The Government does not meet its burden.”
The court goes on to analyze 18 USC § 922(n). That provision provides:
“(n) 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.”
The Quiroz Case
In Quiroz, the defendant was indicted in a Texas state court for
burglary. Quiroz failed to appear for a hearing regarding the burglary
charge, and was therefore later charged with jumping bail and failing to
appear. The charges against Quiroz included both a second-degree felony
(burglary) and a third-degree felony (jumping bail).
Approximately 18 months later, while those charges were
pending, Quiroz attempted to purchase from a local arms dealer a
M1911, a semi-automatic .22 caliber firearm. As part of the purchase,
Quiroz filled in paperwork (ATF Firearms Transaction Record Form
4473) denying that he was under indictment. The National Instant
Criminal Background Check System (NICS) provided a delayed response;
Quiroz waited seven days and then picked up the .22 on Dec. 30, 2021.
Early in 2022, NICS advised ATF that Quiroz made an illegal firearm
purchase. As a result, Quiroz was indicted for violating 18 U.S.C. Section
922(n). A jury convicted him. Quiroz then filed a motion to set aside the
verdict per Rule 29 of the Federal Rules of Criminal Procedure, and
seeking dismissal in light of the Supreme Court’s holding in Bruen.
Federal Rule of Criminal Procedure 29(c) allows a defendant to move for
a judgment of acquittal within 14 days of entry of a guilty verdict or after
a court discharges the jury, whichever is later.
The essence of such a review is whether, viewing the evidence in a
manner most favorable to the prosecution, a rational trier of fact could
find the government met its burden in establishing the essential
elements of a crime beyond a reasonable doubt.
Second Amendment Claims
Much has been written about the Second Amendment. Prior to Bruen, the
Supreme Court established a new two-step framework regarding Second
Amendment claims, “combining a historical analysis with means-end
Step one involves establishing the Second Amendment’s original scope
via a historical analysis. If the regulated conduct falls outside the Second
Amendment’s original scope, the analysis stops there, as the regulated
activity is “categorically unprotected.” If not outside the Second
Amendment’s scope, or if the analysis proves inconclusive, the court
proceeds to step two.
Step two involves whether the core Second Amendment right of self-
defense in one’s home was tested. The court would then apply strict
scrutiny. If something other than self-defense in one’s home is involved,
then intermediate scrutiny is to be applied, in which the court considers
“whether the Government has shown that regulation is ‘substantially
related to the achievement of an important governmental interest.’”
In the instant case, the court notes that the prohibited conduct under
Section 922(n) is simply “receipt” of a firearm. By mixing in “while under
felony indictment,” to the Defendant’s conduct, the court notes that “the
Government conflates Bruen’s first step with its second.”
The court notes that “the plain meaning of the verbs ‘have’ or ‘possess’
include the act of receipt.” The court reasons that “receipt is the
condition precedent to possession the latter is impossible without the
The Pecos Division reasons that “if receiving a firearm were illegal, but
possession or carrying one remained a constitutional right, one would
first need to break the law to exercise the right.”
Legislative history establishes that Congress enacted the Federal
Firearms Act in 1938 “to combat roaming criminals crossing state lines,”
in an attempt to keep ex-convicts from simply crossing from one state to
another to get around their terms of probation or parole. The goal was to
“eliminate the guns from the crooks’ hands, while interfering as little as
possible with the law-a-biding citizen.”
The Quiroz Appeal
The Pecos Division faults the government’s argument in concluding that
it is grounded on a logical fallacy. It compares the government’s
argument that “sharing a history with felon-in-possession laws makes
Section 922(n) constitutional in the same way a dog is a cat because both
have four legs.”
The court tracks historical precedent, concluding that “[w]hether 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.”
Quiroz is being appealed. In an era when gun violence is on the rise, will
Justice Clarence Thomas’ analysis in Bruen stand? In the surety laws
discussed in the Bruen holding, Thomas notes that “the 1795 surety laws
required a person ‘reasonably likely to breach the peace,’ and who,
standing accused, could not prove the need for self-defense, to post a
bond before carrying a firearm.”
Thomas notes that the surety cases appeared to involve Black
defendants possibly marked “for selective or pretextual enforcement.”
In Quiroz, the court concludes that Section 922 (n) unlawfully restricts a
person’s right to receive a firearm indefinitely following indictment by a
grand jury, and such an indictment is not an adversarial proceeding nor a
Are those “under indictment” nonetheless “of the people”? The court
concludes that “little evidence supports excluding those under
indictment in any context.”
What will happen on further appeal? It’s a shot in a dark cave for now.
Elisa Reiter is board certified in family law and in child welfare law by the
Texas Board of Legal Specialization, and is a senior attorney with
Underwood Perkins in Dallas.
Daniel Pollack is a professor at Yeshiva University’s School of Social Work
in New York City. He was also a commissioner of Game Over: Commission
to Protect Youth Athletes, an independent blue-ribbon commission created
to examine the institutional responses to sexual grooming and abuse by
former USA Gymnastics physician Larry Nassar.
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