Wednesday, September 21, 2022

Why Reading Federal Court Decisions Can Be Quite Fun

 Volokh Conspiracy examines a recent decision  U.S. v. Quiroz, (W.D. Tex. 2022) which ruled that 18 U.S.C. § 922(n), which prohibits receipt of a firearm by a person under indictment, runs afoul of the Second Amendment.  As the decision observes:

Yet the plain meaning of the verbs “have” or “possess” include the act of receipt. For example, “to have” means “to be in possession of . . . something received.” 24 Therefore, “to have weapons” would encompass the past receipt and the current possession of those weapons.

And logically, excluding “receive” makes little sense. To receive something means “to take into . . . one’s possession.”  How can one possess (or carry) something without first receiving it? Receipt is the condition precedent to possession—the latter is impossible without the former. Taking the Government’s argument at face value would also lead to an absurd result. Indeed, if receiving a firearm were illegal, but possessing or carrying one remained a constitutional right, one would first need to break the law to exercise that right. The Government is asking in effect to banish gun rights to Hotel California’s purgatory: “You can check out any time you like, but you can never leave.”...

With nothing further, the Government’s argument can be boiled down to the following syllogism: 
(1) felon-in-possession laws have the same history as § 922(n);

(2) Heller endorsed felon-in-possession laws as constitutional; 

(3) Therefore, § 922(n) is constitutional. 
The first problem with this argument is it’s a logical fallacy. Sharing a history with felon-in-possession laws makes § 922(n) constitutional in the same way a dog is a cat because both have four legs. 

On to a less amusing but more important point:

The nature of grand jury proceedings is one such area that casts a shadow of constitutional doubt on § 922(n). Some feel that a grand jury could indict a [burrito] if asked to do so. The freewheeling nature of such proceedings stems from the Supreme Court holding that (1) the rules of evidence don’t apply, (2) evidence barred by the Fourth Amendment’s exclusionary rule may be heard, and (3) the grand jury may rely on evidence obtained in violation of a defendant’s Fifth Amendment privilege against selfincrimination. Simply put, “[a] grand jury investigation is not an adversarial process.” 

As Professor Volokh wryly observes about the burrito: "That appears to be a Texification of a New York Chief Judge's famous quote involving a "ham sandwich." 

An indictment is far from a conviction.  It is at best a strong hint this guy might be a criminal.

I think more important is that if an indictment is sufficient reason to take away someone's Second Amendment rights than it is equally valid to take away their other rights in the Bill of Rights.  (Residents of a prison have no protection against unwarranted searches; convicted felons have no guarantee of a right to vote; their property can be confiscated without due process, among other matters).

In addition, if possession of a gun makes them too dangerous to the larger society, why do we allow them to possess or drive 400 horsepower 4000 pound metal battering rams (yes, a typical Texas motor vehicle); incendiary materials (like gasoline), or knives.  If they are too dangerous to release, give them their guaranteed trial right quick, unlike Jan. 6 defendants, many of whom were kept in jail until they  plea-bargained their way out.

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