By a vote of 8-7, the Fifth Circuit denied en banc review in NRA v. ATF, leaving in place the panel opinion holding that Congress could bar those between the ages of 18 and 20 from owning a firearms. Judge Jones has a dissental, joined by 6 other members of the Fifth Circuit, in which she notes the unprecedented reach of the court’s opinion.
Here is the introduction to her dissental:
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 ofthe 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.
Jones takes exception to the majority’s originalist inquiry, and in what may be the biggest insults, compares it to Breyer!
The panel’s resort to generalized history is not only uninformative of the issue before this court, but it would render Heller valueless against most class-based legislative assaults on the right to keep and bear arms. The panel has employed Justice Breyer’s scattershot approach to history, while Heller rejected that in favor of a targeted study.
She repeats this theme in her conclusion, noting that First Amendment rights cannot be denied to adults under the age of 21:
Congress has seriously interfered with this age group’s constitutional rights because of a class-based determination that applies to, at best, a tiny percentage of the lawbreakers among the class. Of course, the lawbreakers obtain handguns, butthe law-abiding young adults are prevented from doing so, which adds an unusual and perverse twist to the constitutional analysis. I stress again the panel’s incredibly broad language approving these restrictions. The class is “irresponsible”; the Second Amendment protects “law-abiding responsible adults”; the Second Amendment permits “categorical regulation of gun possession by classes of persons” (citing Booker, 644 F.3d at 23) irrespective oftheir being within the core zone of rights-holders; and finally, “Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter.” 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. Some reasonable regulations are surely permissible,34 but the panel’s approval of banning young adults from the commercial and federally regulated market for “the quintessential self-defense weapon” is class-based invidious discrimination against a group of largely law-abiding citizens.
One of these recent Second Amendment cases will certainly wind its way up to the Court next term. Enough with health care and voting rights already. Let’s get back to guns!
Unrelated, but does anyone else really dislike the font used by the 5th Circuit? It is almost as bad as the 1st Circuit, which uses Courier New, or the 2nd Circuit, which has line-numbering. Ugh.