A federal district court in Texas has concluded that a federal statute, part of the 1968 Gun Control Act, which makes it a felony for an individual who has an order of protection issued against them is prohibited from possessing a firearm, is unconstitutional. See, U.S. v. Perez-Gallan, Case: 22-CR-00427-DC (W.D. Texas, Nov 11, 2022). Specifically, the court held that 18 U.S.C. § 922(g)(8) is unconstitutional.
The Defendant, Mr. Perez-Gallan, was driving a vehicle near the Mexico-United States border when he entered a border patrol checkpoint. During the inspection, he was asked if e had a firearm and he responded that he had a handgun. However, the agents also found a Kentucky court order which outlined the conditions of release of Mr. Perez-Gallan based on a May 2022 arrest for assault. The agents later discovered a restraining order from a Kentucky family court. The government charged Mr. Perez-Gallan under 18 U.S.C. § 922(g)(8), which makes it a crime to possess a firearm while subject to a court order.
The district court started its opinion with the following comments:
Before Bruen, the Second Amendment looked like an abandoned cabin in the woods. A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little—if any—consideration given to their constitutionality. That is, until the Supreme Court intervened in Bruen.
No longer can lower courts account for public policy interests, historical analysis being the only tool. But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot. And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw.
That observation is likely one that is sensed by judges across the nation as they now address how to apply the Supreme Court’s mandate in Bruen to a wide spectrum of local, state and federal statutes and regulations that have accumulated year after year for more than two centuries in an ever burdensome oppression of the rights protected by the Second Amendment’s “shall not be infringed” mandate. Further, if read in deference to Bruen‘s plain words that the Second Amendment protects a right from government infringement excepting only those government provisions in common existence as of 1791 (or in some instances 1876 when the 14th Amendment was enacted), it is likely that many state and local laws and regulations, and perhaps most if not all of the 1968 Gun Control Act (as amended) will fail constitutional scrutiny. Certainly, most of Tennessee’s “Jim Crow” based prohibitions on civilian ownership and possession would fail such a review.
Through a detailed review of the case before it, the district court found it appropriate to strike down a long standing federal prohibition that many – including almost all of Tennessee’s state legislators – assumed was “the law”. The court’s conclusion did not equivocate:
How strictly or flexibly a court reads Bruen impacts its conclusion. Bruen‘s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry. According to Bruen, that can be this Court’s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.
That said, this Court embraces Bruen‘s charge. Thus, after sifting through the history above, this Court finds that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen. As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen‘s framework.
It is therefore ORDERED that Defendant’s Motion to Dismiss Indictment be GRANTED. (Doc. 30).
It is so ORDERED.
Under Article X, Section 2 of the Tennessee Constitution, every elected member of the Legislature is required to take this oath of office:
I______ do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.
Tennessee Constitution, Article X, Section 2
Based on that oath of office and in light of the Supreme Court’s decision in Bruen, the question now arises whether and to what extent these election officials must, when they return to office in January 2023, immediately set about the task of repealing all of the statutes, regulations and rules in the state that impose restrictions on the rights of the People to keep, bear and wear arms or to demonstrate clearly that such restrictions existed commonly in the 13 colonies as of 1791. Failing to do so, and to do so forthwith, may well raise the question whether there has been a breach of that oath of office. We believe several House and Senate members are truly ready to wipe the slate clean of the state’s infringements but we are not comfortable that this urgency is felt by the majority of those in the Legislature.
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