When it comes to gun laws in this country, we are tipping from tragedy into farce. To be sure, the result will be yet more tragedy.
A ruling Monday from U.S. District Judge David Counts would upend nearly a century of American regulation that prevented people charged with serious crimes from possessing a firearm.
The law made plain sense to all of us. People charged with crimes very often have committed crimes, and permitting them to buy, carry or get their hands on pistols and rifles is the sort of thing we should stop.
But such is not the mind of Counts, who opens his 25-page opinion on longstanding federal law thusly: “This Court faces a predicament similar to Plato’s allegory of the cave.”
You can imagine what we are in for after that. The ruling that follows is a ponderous if misguided reading of history and law that doubles down on the questionable analysis we saw in the Supreme Court’s Bruen ruling earlier this year.
In New York State Rifle & Pistol Association v. Bruen, the high court concluded that to regulate firearms, the government must “justify its regulation by demonstrating it is consistent with the Nation’s historical tradition of firearm regulation.”
Writing for the court, Justice Clarence Thomas then went on a highly selective reading of the history of firearm regulation to reach the preordained conclusion that really it can’t be regulated much at all.
Counts follows that lead in a fashion that would be comical if it weren’t so dangerous.
Here were the facts Counts was considering: In June 2020, a man named Jose Gomez Quiroz was indicted for burglarizing a home in Pecos County. He didn’t show up to court for a hearing and was charged in June 2021 with jumping bail.
In December, while charges were pending for both burglary and jumping bail, Quiroz decided he needed a handgun, in this case a .22 caliber semi-automatic M1911.
Quiroz ordered the pistol from American Tactical Imports “to be transferred to Morrison True Value in Alpine, Texas,” according to a defense motion for acquittal.
Was he denied this purchase? He was not. He did fill out a federal form that inquired whether he was under indictment, to which he falsely responded no. The National Instant Criminal Background Check System, or NICS, “returned a delayed response” on a query about Quiroz, according to Counts’ ruling.
Quiroz then waited seven days before his gun was ready to pick up.
Was he stopped when he went to the store to get it? He was not. Quiroz got his gun on Dec. 30 and walked out of the door.
It was days later that NICS finally flagged Quiroz to the Bureau of Alcohol, Tobacco and Firearms. He was arrested and charged with a violation of federal law for the illegal receipt of a firearm by a person under indictment, and for making a false statement that he was not under indictment.
A jury heard the facts and convicted Quiroz on June 23 on both counts.
Which brings us back to Plato’s cave.
Relying on Bruen, Counts dismissed Quiroz’s conviction because, according to his reading of history, the federal law prohibiting a person under indictment to receive and possess a firearm is insufficiently historic.
Yes, there is the 1938 law wherein Congress regulated firearms for people under indictment for violent crimes. And yes, the purpose of that law was to “eliminate the guns from crooks’ hands, while interfering as little as possible with the law-a-biding citizen,” according to Counts’ own quote of the Congressional record.
And, yes, that law was amended in 1961 to expand it to include all federal crimes. And, yes, in the Gun Control Act of 1968, it was expanded to any indictment in any court for just about any crime. And, yes, in 1986, Congress combined these prohibitions into the single law under which Quiroz was indicted.
That’s not good enough as a historical record. Or as Counts writes, “Yet the Government fails to explain why regulations enacted less than a century years [sic] ago count as ‘longstanding.’”
Plato’s cave indeed.
The opinion goes on to selectively apply Colonial and post-Colonial history around gun restrictions in ways that defy common historical understanding of the way firearms were treated in that era.
This would be funny if it weren’t so serious. The danger this ruling could create is real if it holds. Imagine the domestic abuser who can go buy a gun or who can’t have his guns taken away, who is enraged because his wife was able to summon the courage to get away. That’s just one scenario that leaps to mind.
Past Congresses understood something that should be obvious. People under indictment for crimes should not have access to firearms. Those past Congresses acted on behalf of the citizens who want to live without the fear of knowing people arrested and awaiting trial can go buy a gun.
We live today in an all-or-nothing political and legal climate. The kind of common sense that guided Congress and the courts is evaporating under these sorts of rulings.
This ruling is not a philosophical puzzle to be pondered. It’s a weak twisting of history and law that should be dismissed.
Some folks just need to get out of the cave and see the light of day.
