{"id":322,"date":"2018-07-23T01:42:00","date_gmt":"2018-07-23T01:42:00","guid":{"rendered":"https:\/\/onlygunsandmoney.com\/2018\/07\/23\/what-wonderful-dissents\/"},"modified":"2019-08-16T18:29:14","modified_gmt":"2019-08-16T18:29:14","slug":"what-wonderful-dissents","status":"publish","type":"post","link":"https:\/\/onlygunsandmoney.com\/?p=322","title":{"rendered":"What Wonderful Dissents In Mance V. Holder (now Sessions)"},"content":{"rendered":"<div class='__iawmlf-post-loop-links' style='display:none;' data-iawmlf-post-links='[{&quot;id&quot;:7045,&quot;href&quot;:&quot;https:\\\/\\\/onlygunsandmoney.blogspot.com\\\/2015\\\/02\\\/a-part-of-gca68-found-unconstitutional.html&quot;,&quot;archived_href&quot;:&quot;https:\\\/\\\/web-wp.archive.org\\\/web\\\/20260125101321\\\/https:\\\/\\\/onlygunsandmoney.blogspot.com\\\/2015\\\/02\\\/a-part-of-gca68-found-unconstitutional.html&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[{&quot;date&quot;:&quot;2026-04-17 19:04:57&quot;,&quot;http_code&quot;:200},{&quot;date&quot;:&quot;2026-04-22 21:31:28&quot;,&quot;http_code&quot;:200},{&quot;date&quot;:&quot;2026-05-03 00:07:55&quot;,&quot;http_code&quot;:200}],&quot;broken&quot;:false,&quot;last_checked&quot;:{&quot;date&quot;:&quot;2026-05-03 00:07:55&quot;,&quot;http_code&quot;:200},&quot;process&quot;:&quot;done&quot;},{&quot;id&quot;:7046,&quot;href&quot;:&quot;https:\\\/\\\/law.justia.com\\\/cases\\\/federal\\\/appellate-courts\\\/ca5\\\/15-10311\\\/15-10311-2018-01-19.html&quot;,&quot;archived_href&quot;:&quot;&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[],&quot;broken&quot;:false,&quot;last_checked&quot;:null,&quot;process&quot;:&quot;done&quot;},{&quot;id&quot;:7047,&quot;href&quot;:&quot;https:\\\/\\\/www.scribd.com\\\/document\\\/384328522\\\/Mance-v-Holder&quot;,&quot;archived_href&quot;:&quot;&quot;,&quot;redirect_href&quot;:&quot;&quot;,&quot;checks&quot;:[],&quot;broken&quot;:false,&quot;last_checked&quot;:null,&quot;process&quot;:&quot;done&quot;}]'><\/div>\n<p>\n<i>Mance et al v. Holder et al<\/i> was a case brought in Texas that sought to overturn the Gun Control Act of 1968&#8217;s ban on the sale and immediate transfer by FFLs of handguns to out of state purchasers. It was <a href=\"https:\/\/onlygunsandmoney.blogspot.com\/2015\/02\/a-part-of-gca68-found-unconstitutional.html\" target=\"_blank\" rel=\"noopener\">a win at the District Court level<\/a> when Judge Reed O&#8217;Connor of the Northern District of Texas ruled that part of the Gun Control Act unconstitutional.<\/p>\n<p>Unfortunately, the government appealed their loss to the 5th Circuit Court of Appeals and <a href=\"https:\/\/law.justia.com\/cases\/federal\/appellate-courts\/ca5\/15-10311\/15-10311-2018-01-19.html\" target=\"_blank\" rel=\"noopener\">won <\/a>in January. The plaintiffs including the Citizens Committee for the Right to Keep and Bear Arms appealed and sought an <i>en banc<\/i> review.&nbsp; This was turned down in an 8-7 vote that was released on Friday.<\/p>\n<p><a href=\"https:\/\/www.scribd.com\/document\/384328522\/Mance-v-Holder\" target=\"_blank\" rel=\"noopener\">What is most notable about this loss are the dissents from this decision.<\/a> They make it abundantly clear that there are still some appellate level judges who value the Second Amendment.<\/p>\n<p>Judge Jennifer Walker Elrod, a George W. Bush appointee, had this to say in part:<\/p>\n<blockquote class=\"tr_bq\"><p>\n<i>Simply put, unless the Supreme Court<br \/>\ninstructs us otherwise, we should apply a test rooted in the Second<br \/>\nAmendment\u2019s text and history\u2014as required under Heller and McDonald\u2014<br \/>\nrather than a balancing test like strict or intermediate scrutiny.<\/i><\/p><\/blockquote>\n<p>Judge Elrod then ends her dissent with a quote from Judge Brett Kavanaugh&#8217;s dissent in the Heller II case.<\/p>\n<p>Following Judge Elrod&#8217;s dissent is one from Judge Don Willett that is, in my opinion, absolutely wonderful. I won&#8217;t quote the whole thing but I feel like it.<\/p>\n<blockquote class=\"tr_bq\"><p>\n<i>Constitutional scholars have dubbed the Second Amendment \u201cthe<br \/>\nRodney Dangerfield of the Bill of Rights.\u201d As Judge Ho relates, it is spurned<br \/>\nas peripheral, despite being just as fundamental as the First Amendment. It is<br \/>\nsnubbed as anachronistic, despite being just as enduring as the Fourth<br \/>\nAmendment. It is scorned as fringe, despite being just as enumerated as the<br \/>\nother Bill of Rights guarantees.<\/p>\n<p><b><br \/>\nThe Second Amendment is neither second class, nor second rate, nor<br \/>\nsecond tier. The \u201cright of the people to keep and bear Arms\u201d has no need of<br \/>\npenumbras or emanations. It\u2019s right there, 27 words enshrined for 227 years.<\/b><br \/>\nThe core issue in this case is undeniably weighty: Does the federal<br \/>\ncriminalization of interstate handgun sales offend We the People\u2019s \u201cinherent<br \/>\nright of self-defense?\u201d This merits question turns upon a method question:<br \/>\nWhat level of judicial scrutiny applies to laws burdening the Second<br \/>\nAmendment? In other words, when the government abridges your individual<br \/>\ngun-ownership rights, how generous is the constitutional strike zone?<\/i><\/p><\/blockquote>\n<p>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 &#8211; tiers of scrutiny vs. &#8220;text, history, and tradition&#8221;.<\/p>\n<p>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&#8217;s judgement. His dissent may also be one of the first times the word &#8220;hoplophobia&#8221; was used in a decision.<\/p>\n<blockquote class=\"tr_bq\"><p>\n<i>No one disputes that the Government has a compelling interest in<br \/>\npreventing dangerous individuals from purchasing handguns. But as the<br \/>\ndistrict court held, and the panel properly assumed, handgun restrictions must<br \/>\nbe narrowly tailored to serve that interest. Law-abiding Americans should not<br \/>\nbe conflated with dangerous criminals. <b>Constitutional rights must not give<br \/>\nway to hoplophobia.<\/b><\/p>\n<p>The ban on interstate handgun sales fails strict scrutiny. After all, a<br \/>\ncategorical ban is precisely the opposite of a narrowly tailored regulation. It<br \/>\napplies to all citizens, not just dangerous persons. Instead of requiring citizens<br \/>\nto comply with state law, it forbids them from even trying. Nor has the<br \/>\nGovernment demonstrated why it needs a categorical ban to ensure compliance<br \/>\nwith state handgun laws. Put simply, the way to require compliance with state<br \/>\nhandgun laws is to require compliance with state handgun laws.<\/p>\n<p><b><\/p>\n<p>The Government\u2019s defense of the federal ban\u2014that state handgun laws<br \/>\nare too complex to obey\u2014is not just wrong under established precedent, it is<br \/>\ntroubling for a more fundamental reason. If handgun laws are too complex for<br \/>\nlaw-abiding citizens to follow, the answer is not to impose even more restrictive<br \/>\nrules on the American people. The answer is to make the laws easier for all to<br \/>\nunderstand and follow.<\/b> The Government\u2019s proposed prophylaxis\u2014to protect<br \/>\nagainst the violations of the few, we must burden the constitutional rights of<br \/>\nthe many\u2014turns the Second Amendment on its head. <b>Our Founders crafted a<br \/>\nConstitution to promote the liberty of the individual, not the convenience of<br \/>\nthe Government.<\/b><\/i><\/p><\/blockquote>\n<p>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.<\/p>\n<div style=\"margin-top: 0px; margin-bottom: 0px;\" class=\"sharethis-inline-share-buttons\" ><\/div>","protected":false},"excerpt":{"rendered":"<p>Mance et al v. Holder et al was a case brought in Texas that sought to overturn the Gun&hellip;<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"iawp_total_views":0,"footnotes":""},"categories":[1],"tags":[841,842,843,844,845,846,19],"class_list":["post-322","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-gun-control-act-of-1968","tag-handgun-sales","tag-judge-don-willett","tag-judge-jame-ho","tag-judge-jennifer-walker-elrod","tag-mance-v-holder","tag-second-amendment"],"_links":{"self":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/322","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=322"}],"version-history":[{"count":1,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/322\/revisions"}],"predecessor-version":[{"id":11522,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=\/wp\/v2\/posts\/322\/revisions\/11522"}],"wp:attachment":[{"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=322"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=322"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/onlygunsandmoney.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=322"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}