Mance v. Sessions

• Citation: 896 F.3d 390 (Mem)
• Decision Date: 20 July 2018
• Docket Number: No. 15-10311,15-10311
• Parties: Fredric Russell MANCE, Jr. ; Tracey Ambeau Hanson; Andrew Hanson; Citizens Committee for the Right To Keep and Bear Arms, Plaintiffs-Appellees, v. Jefferson B. SESSIONS, III, U.S. Attorney General ; Thomas E. Brandon, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

896 F.3d 390 (Mem)

Fredric Russell MANCE, Jr. ; Tracey Ambeau Hanson; Andrew Hanson; Citizens Committee for the Right To Keep and Bear Arms, Plaintiffs-Appellees,

v.Jefferson B. SESSIONS, III, U.S. Attorney General ; Thomas E. Brandon, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendants-Appellants.

No. 15-10311

United States Court of Appeals, Fifth Circuit.

FILED July 20, 2018

Alan Gura, Gura, P.L.L.C., Alexandria, VA, William Bryan Mateja, Esq., Polsinelli, P.C., Dallas, TX, for Plaintiffs-Appellees.

Lindsey E. Powell, Esq., Tara S. Morrissey, Esq., U.S. Department of Justice, Michael S. Raab, Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendants-Appellants.

Sean A. Lev, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, Amicus Curiae BRADY CENTER TO PREVENT GUN VIOLENCE.

John Sorrenti, Covington & Burling, L.L.P., Washington, DC, Amicus Curiae LAW CENTER TO PREVENT GUN VIOLENCE.

Michael L. Rice, Harrison Law, L.L.C., Dallas, TX, Amicus Curiae NATIONAL SHOOTING SPORTS FOUNDATION, INCORPORATED.

Charles Justin Cooper, Cooper & Kirk, P.L.L.C., Washington, DC, Amicus Curiae NATIONAL RIFLE ASSOCIATION OF AMERICA, INCORPORATED.

Before OWEN, and HAYNES, Circuit Judges.^*

PER CURIAM:

The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( Fed. R. App P. 35 and 5th Cir. R. 35 ), the Petition for Rehearing En Banc is DENIED.

In the en banc poll, seven judges voted in favor of rehearing (Judges Jones, Smith, Elrod, Willett, Ho, Duncan, and Engelhardt) and eight judges voted against rehearing (Chief Judge Stewart and Judges Dennis, Owen, Southwick, Haynes, Graves, Higginson, and Costa).

STEPHEN A. HIGGINSON, Circuit Judge, concurring in denial of rehearing en banc:

With respect for colleagues who have been thoughtful sharing reasons why they perceive the panel decision warrants full court review, I offer several reasons why I do not.

Unlike the dissentals, I do not read the panel opinion as demoting the Second Amendment to second-class status or "subject[ing it] to an entirely different body of rules than other Bill of Rights guarantees." McDonald v. City of Chicago , 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Rather, the panel applied the two-step analytic framework adopted by our circuit and all nine other circuits to have considered the issue. See NRA v. ATF , 700 F.3d 185, 194–98 (5th Cir. 2012).¹ Mirroring First Amendment doctrine, this test asks: does the regulated conduct fall within the scope of the right? Id. at 194. And if it does, is the challenged law appropriately tailored to serve a sufficiently important purpose? Id . Severe burdens on core Second Amendment rights—rights of "law-abiding, responsible citizens to use arms in defense of hearth and home," District of Columbia v. Heller , 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) —merit strict scrutiny. NRA , 700 F.3d at 195. Less onerous laws, or laws that govern conduct outside the Second Amendment’s "core," receive intermediate scrutiny. Id.

Neither the rehearing petition nor the lengthiest dissental takes umbrage with this two-step framework; neither one disputes Congress’s compelling interest in combating crime by assisting the states’ public-safety enforcement of their own legitimate handgun regulations; and neither one contests that the laws challenged here directly further that purpose. The petition and the dissental instead challenge only the panel opinion’s fact-bound narrow-tailoring analysis.

That issue does not warrant en banc review. This is especially so because, rather than neglect Second Amendment rights, the panel opinion gave petitioners the benefit of the doubt at every step of this analysis. At step one, the panel assumed out of an abundance of caution that federal laws governing the time, place, and manner of interstate gun sales are not among the longstanding "conditions and qualifications on the commercial sale of arms" that the Supreme Court has deemed "presumptively lawful." Heller , 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783. And at step two, the panel again cautiously assumed that the "burdens" of which petitioners complain—namely, the extra days it takes to ship out-of-state firearms to the District of Columbia, plus the attendant shipping costs and fees—are so onerous, and the right to out-of-state gun purchases so near the Second Amendment’s "core," that strict scrutiny is required. In my view, the panel opinion needed not concede either step. See United States v. Focia , 869 F.3d 1269, 1286–87 (11th Cir. 2017) (upholding 18 U.S.C. § 922(a)(5) as within Heller ’s "presumptively lawful" categories); United States v. Decastro , 682 F.3d 160, 168 (2d Cir. 2012) (declining to apply heightened scrutiny because § 922(a)(3)"does not substantially burden [the] right to keep and bear arms").

But even were we required to apply strict scrutiny to this interstate commercial obligation—a far cry from the complete handgun ban at issue in Heller —the panel opinion did so carefully and correctly.

The laws at issue are not an overbroad prophylactic ban. To be clear: § 922(a) is not a ban on interstate gun transfers. It does not prohibit law-abiding individuals in one state from purchasing a gun from another. It simply conditions that the purchase be made through an in-state, federally licensed dealer. The only prohibitions on gun sales are those imposed by state law. Given the diversity and complexity of those laws, Congress reasonably concluded that relying on dealers in one state to ensure compliance with the laws of all 49 other states, the District of Columbia, and the U.S. territories would perpetuate the same under-enforcement and circumvention of state law that § 922(a) was meant to combat.² The rejoinder that dealers would be better able to apply the laws of all states and territories if those laws were less complex has no bearing on whether this federal law is narrowly tailored. Put simply, Congress has no power to compel states to streamline their gun safety regulations.

Nor is the law fatally underinclusive. Instead, its focus on handguns highlights how § 922(a) hews closely to its compelling purpose of reducing gun-related crime and violence by preventing circumvention of state law. Contrary to the dissental’s assertion, we need not speculate why Congress was less concerned with out-of-state purchases of rifles: it’s all there in the congressional record.³ In any event, underinclusivity is not itself fatal: "A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns." Williams-Yulee v. Fla. Bar , ––– U.S. ––––, 135 S.Ct. 1656, 1668, 191 L.Ed.2d 570 (2015).

And it should not be surprising that constitutional challenges sometimes fail, even under strict scrutiny. "Like most rights, the right secured by the Second Amendment is not unlimited." Heller , 554 U.S. at 626, 128 S.Ct. 2783. Nor, contrary to any intimation in the dissentals, is the Second Amendment unique in that regard. See, e.g. , Holder v. Humanitarian Law Project , 561 U.S. 1, 29–39, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (upholding free-speech restriction under strict scrutiny).⁴

Neither do I see a reason for our full court to accept the remaining dissentals’ invitation to jettison the uniformly accepted Second Amendment test in favor of a per se invalidity rule that no party in this case has pressed⁵ and that no federal appellate court has adopted.⁶ Each circuit to have considered this proposal has rejected it for what is, in my mind, a sound reason: it is not what the Supreme Court said. See, e.g. , NRA , 700 F.3d at 197–98 & n.10 ; Heller v. District of Columbia (Heller II ), 670 F.3d 1244, 1264–67 (D.C. Cir. 2011). Although the Supreme Court in Heller rejected Justice Breyer’s "freestanding ‘interest-balancing’ approach," 554 U.S. at 634, 128 S.Ct. 2783, it never suggested that courts should abandon the familiar tiers-of-scrutiny architecture built around analogous provisions like the Equal Protection Clause, Due Process Clauses, and First Amendment. To the contrary, the Court in Heller noted that the Second Amendment’s doctrinal structure "is no different" from that of the First, id. at 635, 128 S.Ct. 2783, and explained that the D.C. handgun ban failed "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights," id. at 628, 128 S.Ct. 2783. Had the Supreme Court meant instead to replace these established standards with a per se invalidity rule unrecognized in the law, it would have done so explicitly, not by hiding "elephants in mouseholes." Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (Scalia, J.).

A decade has passed since the Supreme Court first discovered in the Second Amendment an individual’s right to possess a handgun "in defense of hearth and home." Heller , 554 U.S. at 635, 128 S.Ct. 2783. The dissentals emphasize that the Court has not recently revisited this area of law, and they suggest that our full court must pick up some perceived doctrinal slack. But Heller "was not revolutionary in terms of its immediate real-world effects on American gun regulation." Heller II , 670 F.3d at 1270 (Kavanaugh, J., dissenting). "Indeed, Heller largely preserved the status quo of gun regulation in the United States." Id.⁷ After all, the opinion invalidated an absolute home-possession handgun ban matched in severity by "[f]ew laws in the history of our Nation," Heller , 554 U.S. at 629, 128 S.Ct. 2783, yet it explicitly left intact a "variety of tools" constitutionally available for combating the tragedy of criminal gun violence and killing in the United States, id. at 636, 128 S.Ct. 2783. Whether and how to deploy these tools is the subject of a dynamic debate occurring in...