Sunday, July 22, 2018

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.

1 comment:

  1. It is good that the term has gotten into legal jargon:

    I (Jeff Cooper) coined the term "hoplophobia" in 1962 in response to a perceived need for a word to describe a mental aberration consisting of an unreasoning terror of gadgetry, specifically, weapons. The most common manifestation of hoplophobia is the idea that instruments possess a will of their own, apart from that of their user. This is not a reasoned position, but when you point this out to a hoplophobe he is not impressed because his is an unreasonable position. To convince a man that he is not making sense is not to change his viewpoint but rather to make an enemy. Thus hoplophobia is a useful word, but as with all words, it should be used correctly.