As a result, Defendant filed this motion to dismiss, seeking to withdraw his guilty plea and asking the Court to follow the reasoning in Bruen and Quiroz to dismiss his indictment under § 922(n). United States v. Quiroz, No. PE:22-CR-00104-DC, 629 F.Supp.3d 511, — (W.D. Tex. Sept. 19, 2022) (the Government's appeal is pending at the Fifth Circuit: United States v. Quiroz, #22-50834). I. Defendant has provided fair and just reasons for withdrawing his guilty plea.

And the district court decision from the Western District of Texas, on which Rowson largely bases his claim that § 922(n) is unconstitutional, found facial invalidity only. See United States v. Quiroz, No. 22 Cr. 0104 (DC), 629 F.Supp.3d 511, 527 n.119 (W.D. Tex. Sept. 19, 2022) (declining to reach as-applied challenge). Accordingly, the Court considers Rowson's present challenge as facial only, without prejudice to Rowson's right to later pursue an as-applied challenge.

In the wake of Bruen, the following district courts have held Section 922(n) as unconstitutional after applying the Bruen framework. See United States v. Quiroz, No. PE:22-CR-00104-DC, 629 F.Supp.3d 511 (W.D. Tex. Sept. 19, 2022) (finding Section 922(n) invalid because the statute is inconsistent with the Nation's historical tradition of firearm regulation); United States v. Stambaugh, No. CR-22-00218-PRW-2, 641 F.Supp.3d 1185 (W.D. Okla. Nov. 14, 2022) (same), reconsideration denied, No. CR-22-00218-PRW-2, 650 F.Supp.3d 1227 (W.D. Okla. Jan. 12, 2023); United States v. Hicks, No. W:21-CR-00060-ADA, 649 F.Supp.3d 357 (W.D. Tex. Jan. 9, 2023) (relying in Quiroz, found Section 922(n) invalid), appeal docketed, No. 23-50030 (Jan. 12, 2023); United States v. Holden, No. 3:22-CR-30 RLM-MGG, 638 F.Supp.3d 931 (N.D. Ind. Oct. 31, 2022) (same), appeal docketed, No. 22-3160 (Dec. 1, 2022). In contrast, three district courts have found Section 922(n) constitutional, and the Fifth Circuit has recognized the statute as valid applying plain error analysis.

Or, rather, as discussed below, whether 18 U.S.C. § 922(q)(2)(A) prohibits conduct covered by the Second Amendment. See United States v. Quiroz, 629 F.Supp.3d 511, 515-16 (W.D. Tex. 2022); see also Barber, 2023 WL 1073667, at *5 ("The burdened conduct at issue in this case is [the defendant's] possession of a type of AR-15 semi-automatic rifle in his home."); United States v. Holton, 639 F.Supp.3d 704, 708 (N.D. Tex. 2022) ("The Court first determines 'whether the plain text of the Second Amendment protects' the conduct regulated by these statutes." (quoting Bruen, 142 S. Ct. at 2134)). a. The Scope of "The People"

And courts regularly reconsider civil orders when the parties "bring an intervening change in the controlling law to the Court's attention." United States v. Quiroz, 629 F.Supp.3d 511, 514 (W.D. Tex. Sept. 19, 2022) (citing Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567-68 (5th Cir. 2003)).

district courts that have specifically addressed the constitutionality of § 922(n) post-Bruen, they have all concluded that the plain text of the Second Amendment covers the conduct of individuals under indictment. See United States v. Kays, 624 F.Supp.3d 1262, 1264-65 (W.D. Okla. 2022) (concluding that a defendant charged under § 922(n) is covered by the plain text of the Second Amendment, but nonetheless finding that the statute does not violate the Second Amendment); see also, e.g., United States v. Bartucci, EPG-19-244, 658 F.Supp.3d 794, 802-03 (E.D. Cal. Feb. 23, 2023); United States v. Gore, SDM-23-4, 2023 WL 2141032, at *3 (S.D. Ohio Feb. 21, 2023); United States v. Rowson, PAE-22-310, 652 F.Supp.3d 436, 462-64 (S.D.N.Y. Jan. 26, 2023); United States v. Hicks, 649 F. Supp. 3d 357, 361-62 (W.D. Tex. Jan. 9, 2023); United States v. Stambaugh, 641 F. Supp. 3d 1185, 1188-89 (W.D. Okla. Nov. 14, 2022); United States v. Holden, 638 F. Supp. 3d 931, 936-37 (N.D. Ind. Oct. 31, 2022); United States v. Quiroz, 629 F. Supp. 3d 511, 515-16 (W.D. Tex. Sep. 19, 2022); United States v. Kelly, AAT-22-37, 2022 WL 17336578, at *3 (M.D. Tenn. Nov. 4, 2022); United States v. Reaves, HEA-22-224, ECF 55 (E.D. Mo. Jan 9, 2023).

Receiving a firearm is necessarily a precursor to keeping or bearing a firearm, so Mr. Holden's conduct is presumptively protected by the Second Amendment. SeeUnited States v. Quiroz, No. PE:22-CR-00104-DC, 629 F.Supp.3d 511, 515-18 (W.D. Tex. Sept. 19, 2022) (holding that "to keep and bear Arms" includes receiving arms); United States v. Kays, No. CR-22-40-D, 624 F.Supp.3d 1262, 1264-67 (W.D. Okla. Aug. 29, 2022). The Second Amendment presumptively protects the regulated conduct, so the government must affirmatively show that § 922(n) fits in the history and tradition of firearms regulations.

In contrast, a robust majority of courts have upheld § 922(n), finding that restrictions on the purchase and shipment of guns by persons under indictment are consistent with the Nation's historical tradition of firearm regulation.See United States v. Quiroz, 629 F.Supp.3d 511, 527 (W.D. Tex. 2022); United States v. Hicks, 649 F.Supp.3d 357, 366 (W.D. Tex. 2023); United States v. Stambaugh, 641 F.Supp.3d 1185, 1193 (W.D. Okla. 2022). A court in the Northern District of Indiana also found § 922(n) unconstitutional, see United States v. Holden, 638 F.Supp.3d 931, 940 (N.D. Ind. 2022), but- as discussed further below-that decision was overturned by the Seventh Circuit.

Indeed, as courts have observed, "[i]f 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." United States v. Hicks, 649 F Supp. 3d 357, 360 (W.D. Tex. Jan. 9, 2023); United States v. Quiroz, 629 F. Supp. 3d 511, 515-16 (W.D. Tex. Sept. 19, 2022).

In the Western District of Texas, courts have found at least two § 922 offenses to be unconstitutional under Bruen. Judge David Counts and Judge Alan Albright dismissed § 922(n) indictments (related to felony indictees), and Judge Counts dismissed a § 922(g)(8) indictment (related to a person under a domestic violence protective order).United States v. Quiroz, No. PE:22-CR-00104-DC, 629 F.Supp.3d 511 (W.D. Tex. Sept. 19, 2022); United States v. Hicks, No. W:21-CR-00060-ADA, 649 F.Supp.3d 357 (W.D. Tex. Jan. 9, 2023); United States v. Perez-Gallan, No. PE:22-CR-00427-DC, 640 F.Supp.3d 697 (W.D. Tex. Nov. 10, 2022). The undersigned judge has rejected two Bruen challenges, to § 922(g)(1), which prohibits felons from possessing a firearm, and § 922(a)(6), which proscribes making a false statement during a firearm sale.