5th Circ. skeptical of ban on gun purchases by people facing felony charges

(Reuters) - A U.S. appeals court panel on Wednesday appeared skeptical of federal prosecutors' bid to revive a Texas man's conviction under a federal law barring people under indictment for felonies from buying guns, which a lower court judge declared unconstitutional.

The dispute over the decades-old law has divided trial-level federal courts since the U.S. Supreme Court's ruling last year finding that the U.S. Constitution's 2nd Amendment protects the right to carry a handgun in public for self-defense. The 6-3 decision also established a new standard that any gun control measures must be in line with the nation's "historical tradition" of gun regulation.

Assistant U.S. Attorney Charles Fowler of the Western District of Texas told a three-judge panel of the 5th U.S. Circuit Court of Appeals that the law was consistent with the "strong tradition" of restricting the rights of people accused of serious crimes while they await trial.

"Although the 2nd Amendment may not be a second-class right, it also doesn't hold some kind of superior status" compared to other rights that are restricted for criminal defendants, he said.

Timothy Shepherd, a federal public defender representing the defendant in the case, Jose Gomez Quiroz, countered that there was nothing specific in the historical record to support the law. He said that if there had been a "credible individualized fear" that Quiroz posed a danger, he could have been detained rather than released on bail.

Circuit Judge Stephen Higginson pressed both sides about how the court could make a decision when there had been no discovery in the trial court about the historical basis for the law, suggesting instead that it could be remanded. At least four trial court judges have said the law is unconstitutional in light of the Supreme Court's ruling, while at least three had upheld it.

"Who's doing the history that's dividing courts?" Higginson asked, later saying that if "judges are just throwing their hands up, they do need to do some work."

Both sides resisted the suggestion of a remand.

"There is something troubling about remanding to give the government a second opportunity when a man's liberty is at stake," Shepherd said.

Quiroz was indicted in a Texas state court for burglary, a felony, and later for bail jumping when he attempted in late 2021 to buy a handgun. That resulted in his federal indictment.

U.S. District Judge David Counts, an appointee of Republican former President Donald Trump, last September dismissed the case in light of the Supreme Court's ruling, which had come on the day of Quiroz's conviction. Counts cited the high court's conclusion that the right to bear arms was not a "second-class right."

Wednesday's 5th Circuit panel also included Chief Circuit Judge Priscilla Richman and Circuit Judge Carolyn King. Higginson and King were appointed by Democratic presidents, while Richman was appointed by a Republican.

The case is United States v. Quiroz, 5th U.S. Circuit Court of Appeals, No. 22-50834.

For the government: Assistant U.S. Attorney Charles Fowler of the Western District of Texas

For Quiroz: Timothy Shepherd of the Federal Public Defender's Office for the Western District of Texas

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