On February 8, 2023, the Fifth Circuit heard oral argument in United States v. Quiroz to consider whether 18 U.S.C. § 922(n)—receipt of a firearm while under felony indictment—can withstand a Second Amendment facial challenge. Below, Judge Counts in the Western District of Texas had dismissed the government’s indictment, under Bruen, holding that “unlike the historical tradition of excluding felons or violent actors from the rights of ‘the people,’ little evidence supports excluding those under indictment in any context.” It is the latest in a raft of post-Bruen litigation, which is beginning to reach the circuit courts in greater volume. Based on the nature of the questioning—which, in my eight years of experience arguing before the Fifth Circuit, tends to be quite predictive—the Fifth Circuit will likely follow the lead of Rahimi and strike the restriction as historically unsupported. But that’s not the interesting part, at least for now.
What’s fascinating about Quiroz is two-fold: (1) Judge Stephen Higginson’s line of questioning; and (2) the panel’s post-argument directive requesting supplemental briefing from the Office of the Solicitor General. Both reflect an evolving approach from some judges seeking a way to consolidate the Bruen analyses in order to prevent a patchwork quilt of post-Bruen outcomes across the country.
Judge Higginson’s Questioning
First, for those unfamiliar with Judge Higginson, he’s an Obama-appointed former federal prosecutor who generally leans to the left on social issues and to the right on crime. He is exceedingly non-ideological and often looks for pragmatic, institutional solutions to problems. There are several prior cases in which Judge Higginson, believing that the record or briefing was inadequate, suggested remand or a certified question in order to get it right the first time. In short, he’s an “ask questions first, shoot later” kind of jurist. His questioning in Quiroz put this approach on full display.
Judge Higginson’s questioning reflected a series of global concerns over the trajectory of post-Bruen litigation: (1) courts had almost immediately splintered over identical legal and historical issues; (2) there did not appear to be a consolidated government strategy to address the post-Bruen cases; (3) the records in the district and circuit court cases were almost entirely devoid of amici by historians; and (4) there has been insufficient attention to the Heller “carve-outs” that Chief Justice Roberts and Justice Kavanaugh reembraced in their Bruen concurrence. All of these concerns merit continued discussion, but I want to focus here on Judge Higginson’s suggestion that the Solicitor Generals of both the United States and the affected states (Texas, Louisiana, and Mississippi) weigh in on individual post-Bruen cases in order to present a consolidated government position(s).
Early into his questioning of the government, Judge Higginson asked about the U.S. Solicitor General’s position:
Who’s doing the history that’s dividing courts? … How do you interpret Justice Thomas’s instruction that the parties have to compile the history, get the historical evidence, and test it so we don’t just have judges all over the country disagreeing about what history is? Some people going to jail, others not? … Here’s the question: have you consulted with the Solicitor General as to where the history finding should occur so that we can review it as a court of review?
Later, Judge Higginson asked about the involvement of the Solicitor Generals of the affected states:
Higginson: Is it just the U.S., Solicitor General? Is it true that all three of our states in our circuit have laws that govern permitting and licensing and make ineligible charged persons? Is that correct?
U.S. Att’y: That is absolutely correct.
Higginson: Okay, so we need to hear from the Solicitor Generals of all three states as to whether they think their state laws now have to fall under Bruen.
Still, when pressed further on the point by Judge King, the government would not—perhaps could not—commit to involving the Solicitor General directly. Instead, the government offered only to “consult with higher-ups” and asserted that it had met its burden under Bruen based on the record presented on appeal.
The Panel Directive
Eight days later, on February 16, 2023, the Quiroz panel sent a directive to the Solicitor General requesting supplemental briefing to address five specific questions. The first question focused on whether the Solicitor General’s Office knew of any historical analogues for § 922(n)’s prohibition. The next three questions were related, asking for historical analogues to any colonial-era policies that would suggest a historical view on § 922(n), including whether there was an analogue to the Bail Reform Act and whether there were firearms restrictions on defendants who were released while awaiting trial.
The fifth question was more complex, involving a series of unanswered procedural matters. It asked whether the Solicitor General believed that a court’s analysis of historical precedent is “best conceptualized as a question of law or as a question of fact.” If it were a fact question or a mixed question of law and fact, the panel asked whether the Solicitor General believed that an appellate court could consider new information—presented by amici or through a supplemented record—in the first instance.
The Quiroz panel gave the Solicitor General until March 10, 2023, to submit its supplemental briefing, which would be followed by an opportunity for Mr. Quiroz to respond.
Judge Higginson (and perhaps other members of the Quiroz panel) believes that the court has an insufficient record to evaluate whether the government can meet its burden under Bruen. While the Federal Public Defender welcomed supplemental historical evidence from amici, he opposed a remand, explaining that “there is something troubling about remanding to give the government a second opportunity when a man’s liberty is at stake.” The entire line of questioning about the Solicitor General’s involvement, requesting additional supporting history, and the procedural questions, all get at a fundamental question that courts are struggling with when applying Bruen: are the judges supposed to be doing history, or are they simply evaluating whether the government has met its burden on a case-by-case basis?
Judge Higginson has emerged as a strong voice for the former view. To him, it would lead to an absurd legal landscape if, as he stated at the beginning of the argument, “[i]n portions of the country, you’re a felon because some judges think history is one thing; in other portions of the country, now, you’re not a felon.” To Judge Higginson, American history should have the same import in every American jurisdiction. The counter view is arguably less principled but much easier to apply: judges don’t need to become historians, they just need to do what they do every single day—evaluate whether sufficient evidence was presented to carry a party’s burden. That’s more workable but also, in terms of its outcome, more Kafkaesque.
One solution might be to include the Solicitor General in every case. At least, then, the historical record would be uniform across cases. But are we so sure that judges would see the same evidence similarly? Perhaps the individual views and personal biases of judges will prove untamable after all. Time will tell.