Mance v. Holder

Uncategorized

Supreme Court Decides To Be A Doormat

June 15, 2020 by 1 Comment

In the face of numerous US District and Appeals Courts flat out ignoring its rulings in Heller and McDonald, the Supreme Court has obviously decided they preferred to be a doormat. In today’s Orders of the Court, virtually every single case dealing with the Second Amendment had certiorari denied. The only remaining case is Rodriguez v. San Jose which involves the confiscation of firearms from a non-prohibited person. (Last sentence is a correction from the original post)

With the exception of Rogers v. Grewal, a New Jersey carry case, all the other cases were denied certiorari without any comment or dissent. I don’t count the granting of permission to file an amicus brief and then denying cert as the Court did with Mance and Cheeseman as a comment.

The across the board denial of certiorari could mean a number of things. First, it could be a strategic move by Justices Thomas, Alito, Gorsuch, and Kavanaugh to not bring a case where they weren’t sure they had the vote of Chief Justice John Roberts. He seems more interested in his own legacy as it will be written by the Washington elite and liberal academia. The man has lost all semblance of a spine. You saw it with clarity in his decision in the ObamaCare case. Roberts either sees himself as the successor to Justice Kennedy’s man in the middle or has decided to go full-Souter.

Second, it could mean the more conservative justices are waiting until such time as Justice Ginsberg is off the Court in hopes that President Trump will appoint someone would vote to respect the Second Amendment. This, too, has risk as the presidential election appears to be a toss-up right now and Ginsberg keeps hanging on (and on and on) despite her health issues.

Third, a number of the justices find the Second Amendment “icky” and any attempt to go beyond Heller and McDonald is a bridge too far. Certainly the liberal four are in this camp and they are depending upon the lower courts to continue to emasculate those rulings. They consider the Second Amendment a second-class civil right.

Fourth, it means that the Roberts Court has no self-respect and doesn’t give a big rat’s ass if their rulings are roundly ignored by the lower courts. We all know that if it a lower court ignored a ruling on abortion or some other most favored “right”, the Court would have been all over it and swatted the lower court down like flies.

I will examine Justice Thomas’ dissent on the denial of certiorari in Rogers v Grewal in which Justice Kavanaugh joined in part in a subsequent blog post. There is a lot there. I do find it instructive that the only justice to actually face racial discrimination is the primary supporter on the Court of the Second Amendment.

Uncategorized

What Wonderful Dissents In Mance V. Holder (now Sessions)

July 23, 2018 by 1 Comment

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
the Government.

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.

Uncategorized

Mance v. Holder – Government Requested Stay Denied

March 3, 2015 by 5 Comments

The Justice Department had requested a 60-day stay in Mance v. Holder. They had requested the stay while they decided whether or not to appeal the case.

This is the case that overturned that part of the Gun Control Act of 1968 that banned the purchase and immediate transfer of handguns by FFLs to out of state purchasers. Today, Judge Reed O’Connor denied the government’s request for a stay.

From CCRKBA’s release:

FEDERAL JUDGE DENIES STAY REQUEST IN GUN TRANSFER CASE

Monday, March 2nd, 2015

BELLEVUE, WA – A federal court in Texas has denied a government motion for a 60-day stay in a case involving interstate handgun transfers in which the judge applied strict scrutiny to determine whether a ban on such transfers meets constitutional muster.

The case, known as Mance v. Holder, was filed by the Citizens Committee for the Right to Keep and Bear Arms, and is financially supported by the Second Amendment Foundation. It involves plaintiffs residing in Texas and the District of Columbia, and the ruling last month by U.S. District Judge Reed O’Connor of the Northern District of Texas, Fort Worth Division, found that “the federal interstate handgun transfer ban is unconstitutional on its face.”

The government had asked for a 60-day stay in order to decide whether to file an appeal. But Judge O’Connor ruled today that a stay is not warranted because the government could offer no other reasons for its request other than the court’s “inherent authority to manage its docket.”

“We’re delighted that Judge O’Connor is not going to simply allow the government to stall this ruling,” said CCRKBA Chairman Alan Gottlieb. “This case could have significant ramifications nationwide, and allowing a two-month stay while the government essentially claims it will be thinking about whether to appeal obviously was not warranted.”

CCRKBA and the individual plaintiffs are represented by Virginia attorney Alan Gura and Texas attorney William B. “Bill” Mateja of Fish & Richardson in Dallas.

Uncategorized

A Part Of GCA’68 Found Unconstitutional

February 12, 2015 by 1 Comment

A Federal judge in Ft. Worthy yesterday said that the ban on the interstate sale of handguns was unconstitutional. By interstate, I mean where the purchaser both buys and takes possession of his or her handgun in a non-resident state. The Gun Control Act of 1968 allowed the interstate sale of long guns but expressly forbid it for handgun. This is a big win for gun rights. It is also a win for Alan Gura as well as the Citizens Committee for the Right to Keep and Bear Arms.

From CCRKBA on the win:

CCRKBA WINS SAF-FUNDED CASE ON INTERSTATE HANDGUN TRANSFER BAN

Wednesday, February 11th, 2015

BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms today won a major federal court ruling in a case involving interstate handgun transfers in which the judge applied strict scrutiny to determine whether a ban on such transfers meets constitutional muster.

The case, which was financially supported by the Second Amendment Foundation, is known as Mance v. Holder. It involves plaintiffs residing in the District of Columbia and Texas, and could have far-reaching ramifications, according to CCRKBA Chairman Alan Gottlieb.

“Our lawsuit strikes at the heart of a debate that has been ongoing for several years, since the creation of the National Instant Check System (NICS),” Gottlieb said. “With the advent of the NICS system, it makes no sense to perpetuate a ban on interstate transfers of handguns.”

Indeed, in his ruling, U.S. District Court Judge Reed O’Connor of the Northern District of Texas, Fort Worth Division, writes, “(T)he Court finds that the federal interstate handgun transfer ban burdens conduct that falls within the scope of the Second Amendment.”

The judge later added, “By failing to provide specific information to demonstrate the reasonable fit between this ban and illegal sales and lack of notice in light of the Brady Act amendments to the 1968 Gun Control Act, the ban is not substantially related to address safety concerns. Thus, even under intermediate scrutiny, the federal interstate handgun transfer ban is unconstitutional on its face.”

CCRKBA and the individual plaintiffs are represented by Virginia attorney Alan Gura and Texas attorney William B. “Bill” Mateja of Fish & Richardson in Dallas.

“It is bizarre and irrational to destroy the national market for an item that Americans have a fundamental right to purchase,” Gura observed. “Americans would never tolerate a ban on the interstate sale of books or contraceptives. And Americans are free to buy rifles and shotguns outside their state of residence, so long as the dealers respect the laws of the buyer’s home state. We’re gratified that the Court agreed that handguns should be treated no differently.”

From Sebastian at Shall Not Be Questioned:

I’m sure it will take a while for FFLs to get updated on this, but unless the government appeals the ruling, and the decision is stayed or reversed, the 11th of February will go down as the day we won Interstate sales of handguns through FFLs. This is a great win for us, and one which I would like to congratulate and thank Mr. Gura and his plaintiffs.

Sebastian has more on the case here.

Attorney Dave Hardy at Arms and the Law has this to say about the reach of the ruling:

UPDATE: it’s not clear to me how the ruling applies geographically. Clearly it applies in the Northern District of Texas. But it orders the Attorney General (any by extension anyone working under him) to stop enforcing the requirement, so may apply anywhere: if he enforced it in Maine or in Washington, he’d have violated the injunction, and could be held in contempt by the Texas court. Citizens’ Committee for the Right to Keep and Bear Arms was an organizational plaintiff (the court cites to it without the first word in its name), suing on behalf of its members, so the ruling would protect, at the very least, its members.

The lead plaintiff in the lawsuit, Fredric Russell Mance, Jr aka Rick Mance is a fellow gun blogger and blogs at Traction Control. His response is summed up in his headline: Heh. He also has links to other posts about the decision.

I have not had a chance to read the full decision yet as I was podcasting last night. I hope to have another post up after I read through the decision. In the meantime, you can find the opinion and order from US District Court Judge Reed O’Connor here.