714 F.3d 334 (5th Cir. 2013), 11-10959, National Rifle Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives

Docket Nº:11-10959.
Citation:714 F.3d 334
Opinion Judge:PER CURIAM:
Party Name:NATIONAL RIFLE ASSOCIATION, INCORPORATED; Andrew M. Payne; Rebekah Jennings; Brennan Harmon, Plaintiffs-Appellants v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; B. Todd Jones, In His Official Capacity as Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Eric H. Holder, Jr., U.S. Attorney General, Defendants-App
Attorney:Charles Justin Cooper, Peter A. Patterson, David H. Thompson, Cooper & Kirk, P.L.L.C., Washington, DC, Fernando Manuel Bustos, Bustos Law Firm, P.C., Lubbock, TX, Brian Stuart Koukoutchos, Mandeville, LA, for Plaintiffs-Appellants. Anisha Sasheen Dasgupta, U.S. Department of Justice, Civil Divisi...
Judge Panel:Before KING, PRADO, and HAYNES, Circuit Judges. EDITH H. JONES, Circuit Judge, joined by E. GRADY JOLLY, JERRY E. SMITH, EDITH BROWN CLEMENT, OWEN, and JENNIFER WALKER ELROD, Circuit Judges, dissenting from denial of rehearing en banc.
Case Date:April 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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714 F.3d 334 (5th Cir. 2013)

NATIONAL RIFLE ASSOCIATION, INCORPORATED; Andrew M. Payne; Rebekah Jennings; Brennan Harmon, Plaintiffs-Appellants

v.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; B. Todd Jones, In His Official Capacity as Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Eric H. Holder, Jr., U.S. Attorney General, Defendants-Appellees.

No. 11-10959.

United States Court of Appeals, Fifth Circuit.

April 30, 2013

Charles Justin Cooper, Peter A. Patterson, David H. Thompson, Cooper & Kirk,

Page 335

P.L.L.C., Washington, DC, Fernando Manuel Bustos, Bustos Law Firm, P.C., Lubbock, TX, Brian Stuart Koukoutchos, Mandeville, LA, for Plaintiffs-Appellants.

Anisha Sasheen Dasgupta, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendants-Appellees.

Christopher Paul Johnson, Meredith Anne Wholley, Kasowitz, Benson, Torres & Friedman, L.L.P., New York, NY, for National Shooting Sports Foundation Inc., Amicus Curiae.

Scott Charles Medlock, Texas Civil Rights Project, Austin, TX, for Brady Center to Prevent Gun Violence, Graduate Student Assembly and Student Government of the University of Texas at Austin, Mothers Against Teen Violence, Students for Gun-Free Schools in Texas, Texas Chapters of the Brady Campaign to Prevent Gun Violence, Amici Curiae.

Appeal from the United States District Court for the Northern District of Texas; Sam R. Cummings, Judge.

ON PETITION FOR REHEARING EN BANC

(Opinion October 25, 2012, 700 F.3d 185)

Before KING, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:

The court having polled at the request of a member of the court ( see Internal Operating Procedure accompanying 5TH CIR. R. 35, " Requesting a Poll on Court's Own Motion" ), and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( see FED. R.APP. P. 35(a) and 5TH CIR. R. 35.6), rehearing en banc is DENIED.

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).

EDITH H. JONES, Circuit Judge, joined by E. GRADY JOLLY, JERRY E. SMITH, EDITH BROWN CLEMENT, OWEN, and JENNIFER WALKER ELROD, Circuit Judges, dissenting from denial of rehearing en banc.

By a one-vote margin, this court declined to consider en banc the constitutionality, under the Supreme Court's recent Second Amendment decisions, of federal laws barring licensed gun dealers from selling handguns or handgun ammunition to people less than 21 years old (and similar provisions). See 18 U.S.C. § 922(b)(1).1 Effectively, these provisions bar law-abiding adults aged 18 to 20 from purchasing handguns in the highly regulated commercial firearms market.

I respectfully dissent. There are serious errors in the panel decision's approach to the fundamental right to keep and bear arms. McDonald v. City of Chicago, __ U.S. __, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). 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.

I. The Panel Decision

Like other circuits,2 the panel adopted a two-step approach to interpretation of the

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Second Amendment. The first consideration is whether " the conduct at issue falls within the scope of the Second Amendment right" as shown by " historical traditions." NRA v. ATF, 700 F.3d 185, 194 (5th Cir.2012). The second level of consideration is to apply a type of intermediate scrutiny based on the panel's conclusion that " [a] less severe regulation— a regulation that does not encroach on the core of the Second Amendment— requires a less demanding means— ends showing." Id. at 195. The panel held that " a longstanding, presumptively lawful regulatory measure— whether or not it is specified on Heller 's illustrative list— would likely fall outside the ambit of the Second Amendment; that is, such a measure would likely be upheld at step one of our framework." Id. at 196. Such a measure " would not threaten the core of the Second Amendment guarantee." Id.

After conducting an overview of " Founding-Era Attitudes" and 19th century laws that allegedly regulated firearms use by people under 21, the panel was " inclined" to hold that the challenged federal laws are " historically rooted," and thus the conduct they regulate has no constitutional protection. Id. at 200, 204. " In an abundance of caution," however, the panel went on to uphold these provisions under a version of intermediate scrutiny. Id. at 204. 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.

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.

II. Heller and the Proper Role of History

A. The Supreme Court's Historical Inquiry

The panel decision purports to follow Heller 's originalist inquiry, but its first step does not take seriously Heller 's methodology and reasoning. Heller, of course, held that there is an individual Second Amendment right to keep and bear arms, and that the D.C. law banning handgun possession for self-defense in a person's home is accordingly unconstitutional.

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To determine whether the Second Amendment conferred an individual right " to keep and bear arms," and to explain the meaning and implicit limits of that constitutional right, the Court majority embarked on a meticulous textual and historical review. Rather than generalizing about " founding era attitudes," as the panel did, Justice Scalia's review proceeded in precise stages, each of which addressed relevant historical materials. First, the text of the Constitution was interpreted in light of historical documents bearing on each phrase and clause of the Second Amendment as those were understood at the time of its drafting. Second, the conclusion, that the Second Amendment codified a pre-existing right of the people to bear arms for self defense, was then " confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment," covering the period from 1789 to 1820. Dist. of Columbia v. Heller, 554 U.S. 570, 600-01, 128 S.Ct. 2783, 2802, 171 L.Ed.2d 637 (2008). Finally, the Court examined interpretations of the Second Amendment from its adoption through the 19th century in " a variety of legal and other sources to determine the public understanding of [the] legal text." Id. at 605, 128 S.Ct. at 2805.

But these sources are not all equal. Text, structure, and contemporary drafting indications are the primary historical sources for originalist inquiry. After that, Heller devoted attention to pre-Civil War case law and commentators, whose intellectual foundations were close to those of the founding generation. Post-Civil War sources, the Court noted, " do not provide as much insight into its original meaning as earlier sources." Id. at 614, 128 S.Ct. at 2810.

Significantly, the opinion stated that, " [l]ike most rights, the right secured by the Second Amendment is not unlimited.... [T]he right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626, 128 S.Ct. at 2816. For example, bans on concealed carrying were common in the 19th century, and private ownership of military-type weapons and short-barreled shotguns was long forbidden. Further, listing " non-exclusive examples," the Court did not " cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at 626-27, 128 S.Ct. at 2816-17.

Notably, in referring more than once to permissible historic limits on gun ownership, the Court never mentions a minimum age requirement for exercise of the right. On the contrary, to explain the " militia clause," the Court quoted the first federal Militia Act, which provided that " each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years ... shall ... be enrolled in the militia." Id. at 596, 128 S.Ct. at 2800 (quoting Act of May 8, 1792, 1 Stat. 271). Further, the Court explained, the right of able-bodied citizens to keep and bear arms for self defense was constitutionally codified " to prevent elimination of the militia," which some feared the newly created Federal Government, like past tyrants, might do by...

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