- The Washington Times - Tuesday, September 20, 2022

The Biden administration is appealing a ruling by a federal judge in Texas that says a federal ban on persons under felony indictment buying firearms is unconstitutional.

In his ruling on Monday, U.S. District Judge David Counts cited the Supreme Court’s decision in a Second Amendment case in June, in which the conservative majority said gun control laws must align with the history and tradition of the nation.

Judge Counts, a Trump appointee, reasoned that historically it was rare for a state to ban an individual from owning a firearm — even those convicted of violent crimes.

“Whether 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,” the judge wrote in his 25-page order.

Judge Counts sided with Jose Gomez Quiroz, who challenged his conviction earlier this year after he lied in order to buy a gun.

Quiroz did not disclose that he was under felony indictment for a 2020 burglary charge and subsequent missed court appearances on his background check.

SEE ALSO: GOP attorneys general warn credit card companies over tagging gun purchases

Despite the erroneous background check, Quiroz was able to pick up the gun. About a week later, the feds were alerted to the unlawful purchase.

Quiroz challenged a federal law that prohibits those under felony indictment from purchasing guns, citing the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, which said courts must analyze laws based on the nation’s history of the Second Amendment.  

The justices’ 6-3 decision in the Bruen case struck down New York’s subjective standard for concealed carry licenses and laid out a historical test for courts to use when examining gun control laws. The government must show that any firearm regulation is consistent with the nation’s history and traditions.

If a firearm law existed at the time of the nation’s founding, then it is most likely legal, according to the originalist test derived by Justice Clarence Thomas, who wrote the majority opinion.

The Biden administration filed a notice of appeal to the U.S. Court of Appeals for the 5th Circuit on Monday.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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