Friday, September 30, 2011

Jennings et al v. BATFE et al Loses In District Court

The NRA challenge to the ban on purchases of handguns from licensed dealers for those over 18 but under 21 was found in the favor of the defendants by U.S. District Court Judge Sam Cummings yesterday. The suit, Jennings et al v. BATFE et al (former D'Cruz v. BATFE), was brought in the U.S. District Court for the Northern District of Texas.

The NRA brought this suit approximately one year ago along with a companion suit against the State of Texas to allow the same age group concealed carry licenses. Texas currently only allows those who are serving or have served in the military to be able to obtain Texas concealed carry permits if they are under the age of 21. These are the suits in which the Brady Campaign took the low road and tried to villify James D'Cruz due to his Halloween costume.

The NRA brought both suits on Second Amendment and Equal Protection grounds.

The first thing Judge Cummings considered was whether the plaintiffs had standing to sue. The DOJ attorneys sought to have the case dismissed under Fed. R. Civ. P. 12(b)(1) saying that the court lacked subject matter jurisdiction over the complaint. Judge Cummings denied their Motion to Dismiss saying:
The ban prevents 18- to 20-year-olds from purchasing handguns and handgun ammunition from FFLs who would likely purchase these items were it legal to do so. The NRA presents evidence from its vendor members that they have lost profits from refusing to sell handguns to 18- to 20-year-olds and would sell handguns to law-abiding citizens in this age range if it were legal to do so. The fact that the ban restricts a would-be buyers’ market demonstrates a judicially cognizable injury directly affecting FFLs. See Craig, 429 U.S. at 194. As such, the NRA also has standing to bring this suit on behalf of its FFL members.
Judge Cummings then examined whether the ban on the sale of handguns by FFLs to the 18 to 20-years olds violated their rights under the Second Amendment. Noting along the way that nothing precluded them from purchasing handguns in private sales, he said that based upon the exceptions noted in Heller and on 5th Circuit precedent which made a distinction between possessing and the dealing of firearms, the rights of this age group were not violated under the Second Amendment. He then suggested that it was up to Congress to make the decision on this.
In essence, it is within the purview of Congress, not the courts, to weigh the relative policy considerations and to make decisions as to the age of the customer to whom those licensed by the federal government may sell handguns and handgun ammunition.
With that he granted the government's Motion for Summary Judgment and denied the plaintiffs cross-motion for summary judgment as to the Second Amendment grounds. He also denied as moot the defendant's motion to dismiss on Rule 12(b)(6) grounds (failure to state a complaint).

Finally, Judge Cummings examined whether this ban on the sale of handguns by FFLs to 18 to 20-years olds violated their rights under the Equal Protection Clause. While these rights apply expressly to the states, the Supreme Court has found that the Due Process Clause of the 14th Amendment encompasses the rights provided by the Equal Protection Clause.

Noting that the Supreme Court has held that age is not a suspect classification and that the defendants had presented evidence that Congress in passing the Gun Control Act of 1968 had made the considered decision that this age group was "emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior", he again found that the government was not violating the plaintiffs' Equal Protection rights. He applied a Rational Basis scrutiny to this claim and said:
Congress identified a legitimate state interest—public safety—and passed legislation that is rationally related to addressing that issue—the ban; thus, it acted within its constitutional powers and in accordance with the Equal Protection Clause.
With that he granted the defendant's Motion for Summary Judgment, denied that of the plaintiffs, and denied the defense motion to dismiss under Rule 12(b)(6) on their Equal Protection claim.

I would presume now that the NRA will appeal this case to the 5th Circuit as they needed a judgment at this level before they could move up the appellate chain. I know Alan Gura has said that in the cases he has brought for the Second Amendment Foundation that he has sought a quick decision, whether good or bad, so that the cases can then be brought to the relevant Circuit Court of Appeals.

Sebastian at Snowflakes in Hell is critical of Judge Cummings' attempt to punt a decision on this back to Congress.
So Congress could say no one who has not yet attained the age of 90 is permitted to own a firearm, and that is completely within Congress’ purview? The Courts should have nothing to say about it? What other right do we treat that way?

It continues to amaze me how little regard lower courts have for Heller and McDonald. Maybe there’s sound legal reasoning involved here. I have not seen the opinion. But punting to Congress strikes me as awfully weak.
While I would agree with Sebastian, I do think Judge Cummings threw the NRA a bone when it said they and the plaintiffs had standing to sue. I don't think it is reasonable to expect a District Court judge to go against precedent within his own circuit nor what other courts have said post-Heller on this sensitive issue. I think by saying they had standing and by closing this case out in just a little over a year, Judge Cummings may have done as much as he could do. This case was always going to be appealed regardless of how he ruled.

UPDATE: The NRA-ILA has announced plans to file a prompt appeal of Judge Cummings' ruling in this case.
Yesterday, a federal judge in the Northern District of Texas ruled that the federal ban on dealer sales of handguns to adults from the ages of 18 to 20 does not violate the Second Amendment. The National Rifle Association plans to file a prompt appeal of the court's ruling to the Fifth Circuit U.S. Court of Appeals.

"We strongly disagree with this ruling," said Chris W. Cox, Executive Director of the NRA Institute for Legislative Action. "As we said when we filed this case, adults 18 and up have fought and died for American freedom throughout our country's history. They are adults for virtually every legal purpose under federal and state law, and that should include the ability to buy handguns from licensed dealers to defend themselves, their homes and their families. Our fellow plaintiffs in this case are law-abiding and responsible young adults. We plan to defend their rights to the very end."

The case is Jennings v. Bureau of Alcohol, Tobacco, Firearms and Explosives. A related case challenging Texas' ban on issuance of concealed handgun licenses to adults in the same age group is still pending before the same court.


  1. Um, no. This was a case of first impression. After all, back in 1968, anyone under 21 was in fact a minor. As a case of first impression, the Judge has an awful lot of leeway.

    Fast forward to today, no one 18 or older is charged as a minor, for purposes of criminal violations. In fact, the vast weight of both criminal and civil law treat 18+ year olds as full adults.

    This is a ban on firearms for an age group that the law and society otherwise consider as adults. Add in that Heller specifically held that "public safety" concerns do not trump an enumerated right. A right that the McDonald Court held as a fundamental right.

    If, as in Ezell, the 7th Circuit held that the corollary right to train at a range cannot be banned, then the corollary right to purchase a handgun for self defense ("in the home") cannot be banned.

    The logic is inescapable. Judge Cummings was flat out wrong.

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