What Wonderful Dissents In Mance V. Holder (now Sessions)

Mance et al v. Holder et al was a case brought in Texas that sought to overturn the Gun Control Act of 1968's ban on the sale and immediate transfer by FFLs of handguns to out of state purchasers. It was a win at the District Court level when Judge Reed O'Connor of the Northern District of Texas ruled that part of the Gun Control Act unconstitutional.

Unfortunately, the government appealed their loss to the 5th Circuit Court of Appeals and won in January. The plaintiffs including the Citizens Committee for the Right to Keep and Bear Arms appealed and sought an en banc review.  This was turned down in an 8-7 vote that was released on Friday.

What is most notable about this loss are the dissents from this decision. They make it abundantly clear that there are still some appellate level judges who value the Second Amendment.

Judge Jennifer Walker Elrod, a George W. Bush appointee, had this to say in part:

Simply put, unless the Supreme Court instructs us otherwise, we should apply a test rooted in the Second Amendment’s text and history—as required under Heller and McDonald— rather than a balancing test like strict or intermediate scrutiny.

Judge Elrod then ends her dissent with a quote from Judge Brett Kavanaugh's dissent in the Heller II case.

Following Judge Elrod's dissent is one from Judge Don Willett that is, in my opinion, absolutely wonderful. I won't quote the whole thing but I feel like it.

Constitutional scholars have dubbed the Second Amendment “the Rodney Dangerfield of the Bill of Rights.” As Judge Ho relates, it is spurned as peripheral, despite being just as fundamental as the First Amendment. It is snubbed as anachronistic, despite being just as enduring as the Fourth Amendment. It is scorned as fringe, despite being just as enumerated as the other Bill of Rights guarantees.

The Second Amendment is neither second class, nor second rate, nor second tier. The “right of the people to keep and bear Arms” has no need of penumbras or emanations. It’s right there, 27 words enshrined for 227 years.
The core issue in this case is undeniably weighty: Does the federal criminalization of interstate handgun sales offend We the People’s “inherent right of self-defense?” This merits question turns upon a method question: What level of judicial scrutiny applies to laws burdening the Second Amendment? In other words, when the government abridges your individual gun-ownership rights, how generous is the constitutional strike zone?

Judge Willett goes on to note that this case deals with a matter of exceptional importance and that it adds a significant methodological component in how Second Amendment cases should be decided - tiers of scrutiny vs. "text, history, and tradition".

Finally, Judge James Ho takes issue with what he calls a prophylactic ban saying it is not narrowly tailored to a compelling government interest. He also states that he would have voted to affirm the District Court's judgement. His dissent may also be one of the first times the word "hoplophobia" was used in a decision.

No one disputes that the Government has a compelling interest in preventing dangerous individuals from purchasing handguns. But as the district court held, and the panel properly assumed, handgun restrictions must be narrowly tailored to serve that interest. Law-abiding Americans should not be conflated with dangerous criminals. Constitutional rights must not give way to hoplophobia.

The ban on interstate handgun sales fails strict scrutiny. After all, a categorical ban is precisely the opposite of a narrowly tailored regulation. It applies to all citizens, not just dangerous persons. Instead of requiring citizens to comply with state law, it forbids them from even trying. Nor has the Government demonstrated why it needs a categorical ban to ensure compliance with state handgun laws. Put simply, the way to require compliance with state handgun laws is to require compliance with state handgun laws.

The Government’s defense of the federal ban—that state handgun laws are too complex to obey—is not just wrong under established precedent, it is troubling for a more fundamental reason. If handgun laws are too complex for law-abiding citizens to follow, the answer is not to impose even more restrictive rules on the American people. The answer is to make the laws easier for all to understand and follow. The Government’s proposed prophylaxis—to protect against the violations of the few, we must burden the constitutional rights of the many—turns the Second Amendment on its head. Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government.

I would love to see this case come before the Supreme Court with a Justice Kavanaugh on it. I doubt he would need to recuse himself just because his own words were quoted in the dissents.

Fat Chance Of This Happening

According to the National Shooting Sports Foundation's Bullet Points for November 18th, a coalition of groups has requested that Attorney General Eric Holder apply the "'sporting purposes' exemption to the definition of armor piercing ammunition set forth in the Gun Control Act of 1968 (GCA)."

The letter accuses ATF of sitting on petitions from ammunition manufacturers for exemptions for ammo made from materials such as brass and copper. While these materials fail the composition test set forth by the Gun Control Act of 1968, the law does provide an exemption for products clearly intended for sporting purposes. Long range target shooting and hunting would both clearly be sporting purposes.

The letter from these groups (seen below) makes a good case for why such ammo should be granted an exemption. That said, I don't think there is a chance in hell of Eric Holder pushing ATF to act on these petitions. Not only is Holder anti-gun, he tries to portray himself as pro-cop which would cause him to rule out any ammo that could be considered "armor piercing". It is a sham but it is what it is.

AWCP HolderLetterRE Ammo by jpr9954

The NRA, Gun Manufacturers, and GCA '68

I was alive when the Gun Control Act of 1968 was enacted. However, given I was an 11-year old, I don't have any memories of its enactment and the debate around it. I do remember Bobby Kennedy and Martin Luther King being assassinated and the riots after Dr. King's death. I do remember the war in South Vietnam because my Dad was "in country" at the time. However, policy debates on firearms just were not on my radar at the time.

Fortunately, Sebastian at Snowflakes In Hell has done an excellent job of examining some of the myths around the passage including those that the NRA and major gun manufacturers were complicit in its passage. He also looks at some of the other myths regarding the enactment of  the National Firearms Act of 1934.

Sebastian is correct that much more research using original documents is needed to get a better handle on all the issues surrounding the passage of this legislation. Rather than relying on undersourced modern accounts of the bill's passage, using the original documents will give a clearer picture of the forces involved in the bill's passage as well as the forces that opposed it.