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
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.