[Story By Jacob Lehrer]

Last Monday, a United States District Judge in Texas, David Counts, ruled that people under indictment for crimes can still receive firearms, and ruled 18 USC 922(n), the law that prevented receiving firearms under indictment, is unconstitutional. 

Judge Counts looks at people under indictment, not criminal convictions. People under indictment are not yet convicted of a crime, and the Judge pointed out that other Amendments, while they may be stripped from those convicted, are still upheld to those only under indictment. 

People under indictment can vote, but not those convicted of crimes. “Likewise, the rights of the people don’t protect violent actors or criminals. But that is not the case for those merely under indictment,” argues the Judge.

This case comes a few months after the Supreme Court ruled in New York State Rifle & Pistol Assn., Inc. v. Bruen that “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.” People can carry handguns for self-defense outside of the home. 

Bruen also created a new framework to interpret the legality of situations which the Second Amendment touches upon. Judge Counts stated that “Justice Thomas enumerated a new standard court must follow: “[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,” said Judge Counts.

Judge Counts believes that the Second Amendment’s “to bear arms” includes “receiving”. He basically states that to possess something means you have had to receive it at some point. “The Government next argues for a rigid, sterile reading of “keep and bear arms,” said Judge Counts quoting District of Columbia v Heller. “The Government notes that to “keep arms” means to “have weapons” or ”possess” and to “bear arms” means to “carry,” says Counts. “Yet the plain meaning of the verbs ”have” or ”possess” includes the act of receipt.” The judge argues the act of receiving leads to possessing. How can you possess something if you have not received it in some way. 

The Federal Judge argues barring people under indictment from receiving firearms was not in the nation’s history until more federal gun regulations happened in the 1960’s and so on. The Federal Firearms Act “in 1938 prevented criminals or indicted persons in federal courts from receiving firearms. Those criminals were guilty or under indictment of crimes that were “ordinarily committed with the aid of firearms,” says Counts. 

This was used for criminals crossing state lines to abuse their parole rules in other states. “Without federal laws, ex-convicts would simply cross state lines to circumvent conditions of probation or parole,” said Judge Counts. He focuses on the fact that this law at the time was for violent criminals already convicted. 

Judge Counts notes that the FFA was amended in 1961, changing the rule in the FFA to “‘all individuals under indictment, regardless of the crime they were accused of.’ Congress also removed the “crimes of violence” language, replacing it with “crime punishable by imprisonment for a term exceeding one year,’” says Counts. 

Gun laws expanded again in 1968 and 1986 to include all crimes and felonies in any court of law that resulted in imprisonment for a year or more. So those indicted under state laws.

Judge Counts rules that this is not long standing in the totality of our nation’s history, since firearms regulations are less than a century old. “What’s even more unclear—and still unproven—is a historical justification for disarming those indicted, but not yet convicted, of any crime,” says Counts.

Judge Counts argues that at the founding of America, and continuing into the 1800s, firearm regulation was not grand in the legal codes of the different states but only in rare occurrences, like you could not carry a weapon when intoxicated in 1886.

Counts says that 18 USC 922(n) departs from historical analysis. “And if relegated to step two, the Government must prove that restricting rights for a specific group (e.g., those under indictment or felons) adheres to this Nation’s historical tradition,” argues the Judge.