Rehearing denied 8-7 in NRA 18 year old case 5th cir

[esqappellate]

Very close vote. What is worth reading there is the dissent from the denial of rehearing by the 7 (written by Judge Edith Jones). That dissent is quite good and adds to the scholarship on the 2A.

 

[MJD438]

IANAL, but there are some good quips in here...

Also simply wrong is the assumption that the Supreme Court’s reference to
“longstanding” gun regulations entitles a circuit court panel to evolve class-based
Second Amendment restrictions contrary to the Amendment’s original scope. If
this is so, then Heller and McDonald have no point.

Loved the calling out of the other judges here:

With its merely general references to firearms regulations at the founding
and its only support in regulations against 18- to 20-year olds late in the 19th
century, the panel is unable to prove that banning commercial firearms sales to
late teens has any analogue in the founding era. Contrary to the panel’s
equivocation about the existence of a right of self-defense for 18- to 20-year olds
during the historical period most critical to Heller, the record is clear: the right
belonged (at least) to those the federal government decreed should serve in the
militia.

Then, there is the "rational basis" disguised as "intermediate scrutiny" inference here:

Because the panel struck an agnostic pose toward the historical rights of
this age group, and because the panel inappropriately considered as
“longstanding” the regulations that have existed since 1968, i.e. for less than
twenty percent of our history, the panel instead placed the weight of its analysis
on the level of scrutiny to apply and then applied “intermediate scrutiny” of a
very weak sort.

Along with a warning about how dangerous that assumptive change could be in the future to other classes of people:

On such reasoning,
a low level of scrutiny could be applied if a legislature found that other
groups—e.g. aliens, or military veterans with PTSD—were “dangerous” or
“irresponsible.”

Then, the wording gets stronger (using all caps in a dissent...):

Second, restating the Second Amendment right in terms of what IS LEFT after
the regulation rather than what EXISTED historically, as a means of lowering
the level of scrutiny, is exactly backward from Heller’s reasoning.

Me likey...

Nevertheless, under a First Amendment analogy,
which Heller seems clearly to support, the legislature’s objective must be
narrowly tailored to achieve its constitutional purpose. Real scrutiny is different
from parroting the government’s legislative intentions.

Nicely done -

Factually, with forty years of data on these regulations, it is known
that the sales ban has not actually advanced this government interest. In fact,
as the panel concedes, the share of violent crime arrests among the 18- to
20-year age group has increased, and the use of guns by that group is still
disproportionately high. Further, the ban perversely assures that when such
young adults obtain handguns, they do not do so through licensed firearms
dealers, where background checks are required, see 18 U.S.C. § 922(t), but they
go to the unregulated market.

And again with the 1st Amendment analogy:

If any of these phrases were used in connection with a First Amendment
free speech claim, they would be odious. Free speech rights are not subject to
tests of “responsible adults,” speakers are not age-restricted, and class-based
abridgement of speech is unthinkable today. Even if it is granted that safety
concerns exist along with the ownership of firearms, they exist also with regard
to incendiary speech.

 

[esqappellate]

Judge Jones lives up to her reputation for excellence.

 

[Al Norris]

There are some pretty powerful statements made by Judge Jones. This, part of her opening in the dissent, sets the tone:

Moreover, the implications of the decision—that a whole class of adult citizens, who are not as a class felons or mentally ill, can have its constitutional rights truncated because Congress considers the class “irresponsible”—are far-reaching.

The NRA will file a petition for cert, I'm sure.

 

[esqappellate]

There are some pretty powerful statements made by Judge Jones. This, part of her opening in the dissent, sets the tone:



The NRA will file a petition for cert, I'm sure.

I think they will too. Not at all sure that it will be successful. Striking down this federal statute may well be a bridge too far at this stage of the development in the law. Going for cert is risky. AS for Judge Jones, she is dead on in logic. It illustrates that the 2A right is still a second-class right in the eyes of many judges (if not most judges, see e.g. the 8 that voted against rehearing) on the courts of appeals.

 

[fightinbluhen51]

Holy cow! Finally a court takes a big swing at prior restraint (only having read the ^ above quotes and recap).

I might have to read the whole thing.

 

[MJD438]

Holy cow! Finally a court takes a big swing at prior restraint (only having read the ^ above quotes and recap).

I might have to read the whole thing.

It's a relatively quick read, but worth it, IMO!

 

[fightinbluhen51]

It's a relatively quick read, but worth it, IMO!

Read it...pretty impressive.

More judges like that are necessary.

Esq, do you as an elder attorney (elder meant as sign of wisdom and respect) see a generational shift occurring within your profession regarding the 2A jurisprudence? Reading this dissent, one is left feeling that an older generation has too much power to interject their personal feelings upon the amendments scope and breadth. Perhaps my analysis of this is incorrect.

 

[esqappellate]

Read it...pretty impressive.

More judges like that are necessary.

Esq, do you as an elder attorney (elder meant as sign of wisdom and respect) see a generational shift occurring within your profession regarding the 2A jurisprudence? Reading this dissent, one is left feeling that an older generation has too much power to interject their personal feelings upon the amendments scope and breadth. Perhaps my analysis of this is incorrect.

It is not so much a matter of age (Judge Jones is no spring chicken), but judicial philosophy. There are those judges who read the words, apply logic and reason, and are content to let the chips fall where they may with the result. Then there are those who reason backwards, viz., start with the result they want and then pick the premises and reasoning that supports that result. You might guess which kind of judge has my respect. BTW, I take no offense to "elder." It is a whole lot better than "old fart"

 

[press1280]

I believe we also have a first here. Judge Stephen Higginson, an Obama appointee, voted for re-hearing(but did not join in the dissent). First Dem appointee voting with us for ANYTHING.
It is about time this whole dressed up intermediate scrutiny was called out for what it really is; Justice Breyer's "interest balancing approach" rejected in Heller.

 

[danb]

does this get appealed to SCOTUS?

 

[esqappellate]

does this get appealed to SCOTUS?

Up to to the NRA whether to file for cert

 

[Al Norris]

In the en banc poll, 7 judges voted in favor of rehearing (Judges Jolly, Jones, Smith, Clement, Owen, Elrod, and Higginson), and 8 judges voted against rehearing (Chief Judge Stewart and Judges King, Davis, Dennis, Prado, Southwick, Haynes, and Graves).

Judge Edith Jones wrote the dissent. The provisions of law being challenged include 18 U.S.C. § 922(c)(1) and the regulations that implement these statutes: 27 C.F.R. §§ 478.99(b)(1), 478.124(a), & 478.96(b).

In her opening statement, Judge Jones speaks of the errors of the panel in general terms:

There are serious errors in the panel decision’s approach to the fundamental right to keep and bear arms. ... Moreover, the implications of the decision—that a whole class of adult citizens, who are not as a class felons or mentally ill, can have its constitutional rights truncated because Congress considers the class “irresponsible”—are far-reaching.

The Judge is saying that what was acceptable before Heller/McDonald, is now an unacceptable infringement of the Fundamental Right.

Judge Jones doesn't stop there. In directly looking at the panel decision, Jones writes:

The panel states, during that part of the discussion, that “Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter.” Id. at 209. Surely this is hyperbole? Never in the modern era has the Supreme Court held that a fundamental constitutional right could be abridged for a law-abiding adult class of citizens.

Judge Jones concludes her general opinion of the panel decision with:

Three major points of the panel’s opinion, in my view, are incorrect. First, the panel’s treatment of pertinent history does not do justice to Heller’s tailored approach toward historical sources. A methodology that more closely followed Heller would readily lead to the conclusion that 18- to 20-year old individuals share in the core right to keep and bear arms under the Second Amendment. Second, because they are partakers of this core right, the level of scrutiny required to assess the federal purchase/sales restrictions must be higher than that applied by the panel. Finally, even under intermediate scrutiny, the purchase restrictions are unconstitutional. I will address each of these concerns.

The rest of the dissent has Jones taking the panel decision apart, piece by piece. It is very well written and tailored (whether written that way or not) to helping write the NRA's petition for cert.

In writing about the age of the militia after the resolution of the BOR, and speaking directly to the Militia Act of 1792, we have footnote 9 (page 12):

The choice of eighteen as the militia age for the federal law owed, in large part, to George Washington’s stated belief that the best soldiers were those aged eighteen to twenty-one. Further, it is likely, but not provable, that the right to bear arms was thought still to extend even to those sixteen to eighteen (enrollment in the militia was sufficient, but not necessary, to the right to own a gun), but appellants disclaim any intent to reduce the minimum age below 18.

This pretty much sets the bar (of the dissent) to the age of majority as it now stands - 18. Jones goes ever further in castigating the panel decision for its faulty examples that 21 was the age of militia service by noting that ... "Massachusetts, for example, required “all youth” from ten to sixteen to be trained in gun use." One among several other examples.

All in all, this is a very powerful dissent. Which explains why it took so long to publish the denial of the en banc hearing.

As much as I'd like to see cert granted, I feel that esqappellate is correct. Too far, too soon for the Court.

 

[press1280]

Perhaps too far for the court, BUT perhaps a GVR in light of a Moore getting cert?

 

[esqappellate]

Perhaps too far for the court, BUT perhaps a GVR in light of a Moore getting cert?

Way different issues. Possible, I suppose, but I would not count on that one.

 

[Kharn]

Even though we lost, I'm glad we got a close split and a good roasting of the majority.

 

[krucam]

For you 2A junkies and wanna-be's ( ), doesn't this remind you of another 2A en banc denial?

Hint: CA9
Hint 2: Kozinski
Hint 3: Doomsday Provision
Giveaway: Silveira_v_Lockyer, and: http://www.mdshooters.com/showthread.php?t=101719&highlight=doomsday

Well-written dissent.

 

[fightinbluhen51]

For you 2A junkies and wanna-be's ( ), doesn't this remind you of another 2A en banc denial?

Hint: CA9
Hint 2: Kozinski
Hint 3: Doomsday Provision
Giveaway: Silveira_v_Lockyer, and: http://www.mdshooters.com/showthread.php?t=101719&highlight=doomsday

Well-written dissent.

Very good point.

What is astonishing and disgusting is the fact that these historical facts are plainly ignored, or explained away by superficial supposition.

If words are supposed to have meaning, then jurisprudence can't be had in a vacuume without historical or precedental context.