The Second Amendment – A Second Class Right No Longer!

Second Amendment

The Second Amendment is not a second class right. The Supreme Court announced that in the landmark Bruen decision (Read our blog on Bruen) and now a federal judge in Texas has applied this pronouncement in another gun case. On, September 19, 2021, a federal judge in Texas ruled that based on the recent U.S. Supreme Court decision in New York State Rifle and Pistol Association v. Bruen, that 18 U.S.C. §922(n) is unconstitutional.

The Facts:

Here is a brief breakdown of the facts in the case from yesterday’s ruling. The Defendant, Jose Quiroz, while under a felony indictment for burglary attempted to purchase a handgun. He lied about being under a felony indictment on ATF Form 4473 and after a short delay took receipt of the handgun. Quiroz was then indicted for lying on ATF Form 4473 and for receiving a firearm. Quiroz’s case proceeded to trial and the jury found him guilty of both charges. The same day that Quiroz was found guilty, the decision in New York State Rifle and Pistol Association v. Bruen was released.  Quiroz filed a Motion to Reconsider, a hearing was conducted and the court granted Quiroz’s motion. In the order, the court wrote:

The Second Amendment is not a “second class right!”

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 national 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 the national historical tradition. As a result, this Court holds that 922 is unconstitutional. 

The fight for Second Amendment equality is not over!

The government has filed a notice of appeal so the case will be sent to the Fifth Circuit Court of Appeals where we hope the trial court’s ruling will be affirmed.  This decision out of the Texas federal court is a step in the right direction for the Second Amendment community.  Of course, not everyone is excited about this ruling.  As you all can imagine, gun control activists and the extreme left-wing politicians are going to be crying that this will increase gun violence by allowing criminals to purchase weapons. 

Criminals do not follow the law!

The reality is that this ruling will have no effect on criminals who wish to purchase guns and commit more crimes. Why? First, because those under indictment are presumed innocent and are therefore by definition, not criminals. Second, because criminals don’t follow the laws anyway nor care about the consequences of breaking the law. 

In this country those accused are presumed innocent!

Instead, this ruling will help those who are not criminals but find themselves under an indictment for an alleged crime.  An indictment is just a formal allegation that someone committed a crime.  Anyone listed in an indictment is presumed innocent until such time they are found guilty or enter a plea to a crime.  So, if the named person in an indictment is presumed innocent, then why should they have their constitutional right to bear arms automatically suspended? They shouldn’t!

At Katz & Phillips, P.A., we often represent individuals who have been forced to defend their lives, only to be arrested, have their firearm confiscated for evidence and prosecuted for a crime. To make matters worse, if that was the only firearm they owned, then they could not legally purchase another one to protect themselves or their loved ones. Further, criminal cases take time to resolve. Some criminal cases, take years before the case is closed, so those who did nothing but defend themselves must wait out the entire legal process without protection and without their constitutionally guaranteed right to keep and bear arms, even though they have not been convicted of any crime.  This ruling was made to help those kind of individuals protect themselves, not to help criminals commit more crimes. 

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