Following the assassinations of JFK, his brother Bobby, and Martin Luther King, Congress passed the Gun Control Act of 1968, which established background checks for gun purchases. Criminals, the mentally ill, drug addicts, alcoholics and others were banned from buying guns.
The first category of the banned were a person who "is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."
In short, felons.
What is curious is that being accused of a crime -- "is under indictment for" -- can deprive you of your right to purchase a firearm.
Now this law has been on the books for 54 years and no one has successfully challenged the deprivation of a liberty protected by the Constitution without due process.
On Monday, that changed. In Pecos, Texas, U.S. District Judge David Counts dismissed an indictment of Jose Gomez Quiroz, who had purchased a pistol while under indictment for burglary and missing court dates. At the time, Quiroz was not a convicted felon. He was only charged.
The reporting is limited to AP and the Texas Tribune, a whackadoodle lefty publication that keeps pushing Beto as the man who will turn Texas blue. The phrase sounds like strangulation.
AP reported, "In a 25-page opinion filed in Pecos, Texas, Counts acknowledged 'this case’s real-world consequences — certainly valid public policy and safety concerns exist.' However, he said a Supreme Court ruling this summer in a challenge brought by the New York Rifle & Pistol Association 'framed those concerns solely as a historical analysis.
"'Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.'"
The judge said, the "Second Amendment is not a ’second class right.'"
Of course not. Nor is the Fifth Amendment, which states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
You cannot be deprived if life or liberty without due process. I can see where a judge might say, OK, Jose, you are a risk, so I'm going to keep you from buying a gun pre-trial.
But the law forbids people who are indicted but not convicted of a crime from buying a gun. Why should a fellow charged with not paying his full taxes be banned from buying a gun?
To me, this should not be a Second Amendment case but rather a Fifth Amendment one.
Most of the Gun Control Act of 1968 makes sense, but denying a liberty without due process bothers me.