The Supreme Court Continues To Be A Doormat

In the usual course of events, when the Supreme Court issues definitive rulings on an area of constitutional law, it fully expects lower courts to abide by their ruling. If these lower courts don’t, they get slapped down for their impertinence. However, when it comes to the Second Amendment, the Supreme Court in the post-McDonald era has allowed lower courts to treat it like a doormat. Their submissive posture in the face of decisions coming out of especially the 4th and 9th Circuits that ignore Heller and McDonald is, to be blunt, nauseating. The only justice that seems to have a spine and recognizes the danger to the powers of the court is Justice Clarence Thomas.

I write this as a prelude to the announcement today that the Supreme Court decided to deny certiorari in Silvester et al v. Becerra et al. It was on appeal from the 9th Circuit which found the 10-day waiting period for those with a California CCW, a California Certificate of Eligibility, or already had firearms registered to them had a valid government purpose. While supposedly deciding it on intermediate scrutiny, it was in fact decided on a rational basis. The problem with that is that rational basis cannot be used when it comes to an enumerated right. This case was originally a win in the District Court but reversed by 9th Circuit.

Justice Thomas noted in his 14 page dissent that:

This deferential analysis was indistinguishable from rational-
basis review. And it is symptomatic of the lower courts’
general failure to afford the Second Amendment the re-
spect due an enumerated constitutional right.

If a lower court treated another right so cavalierly, I
have little doubt that this Court would intervene. But as
evidenced by our continued inaction in this area, the
Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of
choosing which constitutional rights are “really worth
insisting upon,”
Heller, supra, at 634, I would have granted
certiorari in this case.

He concluded his dissent by saying:

Nearly eight years ago, this Court declared that the
Second Amendment is not a “second-class right, subject to
an entirely different body of rules than the other Bill of

Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one

below, we undermine that declaration. Because I still
believe that the Second Amendment cannot be “singled out
for special—and specially unfavorable—treatment,” id., at
778–779 (majority opinion), I respectfully dissent from the
denial of certiorari.

I don’t know if any other justices voted to grant certiori but I do know that there weren’t the required four votes. Decisions like that go to illustrate just how much we miss the late Justice Scalia and his leadership.

The Calguns Foundation which supported this lawsuit along with the Second Amendment Foundation issued the following statement:

WASHINGTON, D.C. (February 20, 2017)­­­­­­ — The Calguns Foundation has issued the following statement regarding the Supreme Court’s decision to not review a Ninth Circuit Court of Appeals decision that upheld California’s 10-day waiting period for existing gun owners who pass a background check:

We are disappointed, but not entirely surprised, that the Court has once again decided against taking up a Second Amendment challenge to plainly unconstitutional laws.

In his important 14-page dissent from the Court’s denial of certiorari, Justice Clarence Thomas detailed why the Ninth Circuit applied an improper “deferential analysis” that was “indistinguishable from rational-basis review,” showing “the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.”

We agree with Justice Thomas that the Ninth Circuit’s “double standard is apparent from other cases,” like one where it invalidated an Arizona law partly because it “delayed” women seeking an abortion, and another where it struck down a Washington county’s 5-day waiting period for adult dancing licenses because it “unreasonably prevent[ed] a dancer from exercising first amendment rights while an application [was] pending.”

As Justice Thomas explained, the “Ninth Circuit would not have done this for any other constitutional right, and it could not have done this unless it was applying rational-basis review.” He is, of course, correct—just as we have maintained throughout the course of this appeal and in our briefing to the Supreme Court. But in the Ninth Circuit, it appears, “rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text.”

From the bottom of our hearts, we wish to thank every single supporter who generously helped us litigate this long-running case through trial and up to the Supreme Court. We also want to thank amici Cato Institute, Crime Prevention Research Center, Firearms Policy Coalition, Madison Society Foundation, Gun Owners of California, and Firearms Policy Foundation for their excellent briefs in support of our case and the cause of individual liberty.

The Calguns Foundation will continue to challenge unconstitutional gun control laws until the Second Amendment takes its place as a peer among fundamental rights, like those in the First Amendment, rather than the “constitutional orphan” and “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees” that it is in the Ninth Circuit today.

The State Of The Union Address As I Heard It

This is how I heard President Trump’s first State of the Union address:

Mr. Speaker, Mr. Vice President, Members of Congress, the First Lady of the United States, and my fellow Americans:

blah, blah, blah…


Working with the Senate, we are appointing judges who will interpret the Constitution as written, including a great new Supreme Court Justice, and more circuit court judges than any new administration in the history of our country.


We are defending our Second Amendment, and have taken historic actions to protect religious liberty.


blah, blah, blah….


Thank you, and God bless America.

You may have heard it differently but that is what I remember hearing.

50 Female Gun Owners Set Sights on Washington DC

The DC Project started by retired police officer and 3-Gun champion shooter Dianna Muller will once again descend on Congress this June. Composed of women from each of the 50 states (or darn close to it), they visit Congressional offices promoting a pro-Second Amendment message.

While they have some sponsorships, they are seeking funding through a GoFundMe page. Their goal is to raise $25,000 and they could use your support in their efforts.

The Girl and A Gun Women’s Shooting League is a presenting sponsor. Their announcement on the event is below:

AUSTIN, TX — Women from around the country are preparing to travel to the U.S. Capitol as part of the DC Project, a nonpartisan initiative that brings 50 women, one from each state, to Washington, DC, to meet with their legislators about issues addressing the Second Amendment. The women, who will be meeting with Congressional members and staff from June 20-23, 2018, have diverse professional experiences, ethnicity, and political beliefs, but share a common interest centered on the appreciation of America’s gun culture.

The DC Project was started by champion shooter Dianna Muller in 2016 to encourage female shooters to meet with legislators in order to give politicians a direct connection to the fastest growing demographic of gun owners. Females provide unique stories and perspectives on the attraction of the 2nd Amendment, including competition shooting sports, commerce, self-defense, hunting, and conservation.

“The Second Amendment is part of the United States Constitution and does not belong to one party,” said Muller. “Female gun owners are diverse, and have individualized stories and accounts of why this Amendment is so important to them. These stories need to be shared as they are representative of many within legislators’ constituencies.”

A Girl & A Gun Women’s Shooting League (AG & AG) is the presenting sponsor of the DC Project. With a nationwide network of firearms instructors and female gun owners, AG & AG is a strong voice for the Second Amendment. Robyn Sandoval, Executive Director, is making her third trip with the DC Project to meet with lawmakers on Capitol Hill.

“A Girl & A Gun is honored to be a part of this initiative. As a mother who was a supporter of gun control for decades, I now devote my life to empowering women with the safe use and storage of firearms,” said Sandoval. “It is important that our lawmakers learn our stories and have access to our resources for education on gun-related issues.”

The DC Project will host several events during the week as participants give speeches and meet with lawmakers to address the rising demographic of female gun ownership; the value of the 2nd Amendment in today’s society; and the importance of the preservation of America’s gun culture, from conservation and commerce to competitive sports, hunting, and self-defense.

For more information on the DC Project visit: http://dcproject.info

About A Girl & A Gun

A Girl & A Gun Women’s Shooting League (AG & AG) is a membership organization whose events have been successful stepping stones for thousands of women into the shooting community and fostered their love of shooting with caring and qualified instructors to coach them. AG & AG breaks barriers for women and girls in the area of self-defense and in pistol, rifle, and shotgun shooting sports by welcoming beginners to learn the basics of safe and accurate shooting and providing experienced shooters with advanced-level opportunities. The club has more than 5,000 members in 48 states, with chapters that host recurring Girl’s Nights Out at more than 150 ranges throughout the nation.

A Great Letter To The Editor

The Wall Street Journal ran an op-ed commentary on the 100th anniversary of Communism this past Tuesday. It was entitled, “100 Years of Communism – 100 Million Dead.” The article discussed the consequences of the Bolsheviks’ turning Marxist-Leninist ideology into reality.

In response to this article, Jack Wissner of Atlanta had this to say:

Wanton killing of millions in the name of some bankrupt ideology is a bit more difficult when everybody, not just the elite, are armed.

Mr. Wissner shows an astute understanding of why our Founding Fathers made the right to keep and bear arms part of the Bill of Rights.

Illinois Gun Issues And A Call For Witness Slips

The Illinois General Assembly uses an interesting means to state your support for or opposition to a bill called Witness Slips. While probably not quite as effective as testifying in person at a hearing, it still allows the citizens of the state to comment on bills.

Illinois Carry sent out an email this weekend regarding gun bills, both good and bad, that need witness slips. So if you live in Illinois, please avail yourself of this opportunity to make your voice heard in Springfield.

Call to Action


Witness Slips Needed





With the 100th General Assembly almost in full swing, the coming week brings several threats to our Second Amendment rights and the hope of advancing those rights, with your help.

Brush off the dust from your keyboards, find those old passwords, and let our legislators know that we remain unified in our support of the Second Amendment!
 

File Witness Slips Now!



Log On to the ILGA Dashboard, Create a New Account, or complete the required fields manually:
I,  IDENTIFICATION: Enter your personal information. Enter “NA” for the Firm/Business or Agency and Title fields unless you are officially representing an organization.
 
II. REPRESENTATION: Enter “Myself” unless representing an organization.
 
III. POSITION: Unless instructed otherwise for a particular bill leave the description field at its default value “Original Bill”. Indicate your position by selecting the “Proponent” or “Opponent” radio button.
 
IV. TESTIMONY: Select the “Record of Appearance Only” radio button.
 
If filing manually, complete the Captcha challenge and agree to the ILGA Terms of Agreement.
 
Then click Create Slip.
Oppose



Support



Witness slips can be tracked here:


HB271 Handgun Ammo Serialize – OPPONENT

HB308 Firearm Transport – PROPONENT

HB329 Concealed Carry Prohibit Place – OPPONENT

HB365 Firearms Military Non-Resident – PROPONENT

HB377 Concealed Carry Business License – PROPONENT

HB413 2nd Amendment Preservation – PROPONENT

HB504 FOID Card Terrorist Watchlist – OPPONENT

Quote Of The Day

The Quote of the Day comes from the White House website that has been revamped with the change of administrations. The Trump Administration explicitly considers citizen self-defense as part of law enforcement.


Supporting law enforcement means supporting our citizens’ ability to protect themselves. We will uphold Americans’ Second Amendment rights at every level of our judicial system.

What a change a few days make.

Ezell II Is Another Win For The Second Amendment

The Seventh Circuit Court of Appeals decided in favor of the Second Amendment again today. In a majority decision written by Judge Diane Sykes, the court found that the new zoning restrictions imposed by the City of Chicago on shooting ranges were unconstitutional. It also found that the city’s restriction that limited range use to those 18 years of age or older was unconstitutional.

Judge Ilana Rovner concurred on one of the zoning restrictions and dissented on another one of these restrictions and on the age restriction.

I am in the midst of reading the decision now. In the meantime, here is the response of the Second Amendment Foundation which brought the original and subsequent lawsuit on behalf of Rhonda Ezell and the other plaintiffs.

BELLEVUE, WA — A three-judge panel of the Seventh U.S. Circuit Court of Appeals today handed the Second Amendment Foundation a victory in its challenge of firearms regulations in the City of Chicago, striking down a zoning provision, reversing an earlier ruling that upheld “distancing” restrictions for gun ranges, and reversing an earlier ruling that upheld certain age restrictions.

Writing for the court, Judge Diane S. Sykes noted, “To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.”

“We are delighted with the outcome of this lengthy case,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The extremes to which the city has gone in an attempt to narrow its compliance with the Supreme Court ruling in McDonald v. City of Chicago can only be described as incredible stubbornness. In the 6½ years since the high court ruling in our McDonald case, the city has had ample opportunity to modify its regulations. Instead, Chicago has resisted reasonableness.

“We had already sued Chicago successfully to knock down its outright ban on gun ranges within the city,” he recalled. “Then they adopted new regulations that included the zoning, distancing and age restrictions that we contested in this legal action, known as ‘Ezell II.’

“The city tried to severely limit where shooting ranges could be located, and they failed,” he continued. “The city put up arguments about the potential for gun theft, fire hazards and airborne lead contamination, and they failed. Even the judge’s opinion today noted that the city had ‘produced no evidentiary support for these claims beyond the speculative testimony of three city officials.’ This nonsense has got to stop.

“Today’s ruling is a victory for citizens of Chicago who want to exercise their rights,” Gottlieb said, “and particularly for Rhonda Ezell, who has been steadfast in her resolve.”

Also on the panel with Judge Sykes were Judges Michael S. Kanne and Ilana D. Rovner.

As a side note, Judge Sykes is one of the jurists mentioned as a possible successor to Justice Antonin Scalia by President-elect Donald Trump. Given this decision and the earlier Ezell I decision, it is my hope that she be given the strongest consideration for this nomination.

Gov. Cuomo Sued Over NY Ban On Tasers And Stun Guns

Gov. Andrew Cuomo and the State of New York were sued yesterday in US District Court for the Northern District of New York over the state’s ban on tasers and stun guns. The Firearms Policy Coalition and the Firearms Policy Foundation sued the state in conjunction with Middleburgh, NY Mayor  Matthew Avitabile.

The suit is brought on Second Amendment grounds and follows the Supreme Court’s decision on a similar Massachusetts case in which they found that a stun gun is covered by the Second Amendment.

From the Firearms Policy Coalition:

FPC, FPF, and Mayor of Middleburgh Sue Governor Andrew Cuomo, New York Over Ban on Tasers and Nonlethal Weapons in New Second Amendment Legal Challenge
ALBANY, NY and SACRAMENTO, CA (December 6, 2016) — Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and New York resident Matthew Avitabile have filed a federal Second Amendment civil rights lawsuit against New York Governor Andrew Cuomo in an effort to strike down the state’s ban on the acquisition and possession of Tasers and other nonlethal (sometimes called “less-than-lethal”) weapons.
Individual plaintiff Matthew Avitabile is the mayor of Middleburgh, New York and would like to buy and keep a Taser for self-defense. But New York Penal Law § 265.01 states that “A person is guilty of criminal possession of a weapon” if “He or she possesses any….electronic dart gun” or “electronic stun gun,” making the crime punishable as a misdemeanor.
The complaint states that, “Given the [United States Supreme Court] decision in Heller, Defendants may not completely ban the keeping and bearing of arms for self-defense” or “impose regulations on the right to keep and carry arms that are inconsistent with the Second Amendment.”
Earlier this year, the Supreme Court dealt a blow to a similar Massachusetts law, but that case was resolved before a final decision was reached.
Said lead counsel Stephen Stamboulieh about the case, “We are pleased to be working to vindicate Mr. Avitabile’s Second Amendment civil rights and hope to expand the right to keep and bear arms for all law-abiding New York residents through this lawsuit.”
“The Second Amendment absolutely protects the right of law-abiding people to buy and possess all arms in common use for self-defense, like Tasers,” stated Brandon Combs, president of the Coalition and chairman of the Foundation.
“We are more than happy to remind New York that the right to keep and bear arms prevails over paternalistic and unconstitutional statutes like theirs.”
Governor Cuomo and Superintendent of the New York State Police Lt. Col. George Beach are named as defendants in the case.
Stamboulieh is joined on the case by attorney Alan Beck of San Diego. Attorney Stephen Duvernay of Sacramento-based Benbrook Law Group and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments, are consulting on the case. Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.
A copy of the lawsuit’s complaint can be viewed or downloaded at http://www.firearmspolicy.org/legal/avitabile-v-cuomo.
Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization.  FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms.
Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 nonprofit organization. FPF’s mission is to protect and defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms.

Trying To Decide Between #NeverTrump Or #NeverHillary? Ponder This.

This presidential election may be historic if for no other reason than both presumptive nominees are grossly unpopular. Now if you like Donald Trump or you like Hillary Clinton and you object to that statement, then you are probably in the minority. Both candidates had unfavorability ratings of over 50% as of late June. Frankly, I don’t see that changing.

I’ll admit right up front that Donald Trump was not my first choice. Heck, he wasn’t even my fourth choice. At the start of the primary season, I considered Rand Paul, Marco Rubio, and Ted Cruz as potential recipients of my vote. I added Carly Fiorina to that list after I saw how she handled the press.

As to Hillary Clinton, oh, please. Her primary qualification to me seems that she married the right guy to have pulled her along with him to national prominence. Without Bill Clinton, she’d be just another Yale educated lawyer with political ambitions. It is doubtful that she would have ever been elected a US Senator from any state especially given she had held no prior elected offices. She would never have been Secretary of State as she wasn’t one of the “wise old men” like a Warren Christoper, a college professor specializing in foreign policy like  Kissinger or Madeleine Albright, or a general like George Marshall.

To those who would say I’m forgetting about Gary Johnson, I’m not. While he has gathered more support than prior Libertarian candidates, his role in this election is that of a spoiler. He will either take just enough #NeverTrump Republican votes from Donald Trump for Hillary to win or he will take just enough Bernie supporting Millennials from Hillary for Trump to win. I’ve participated in every election since 1976 and have studied American presidential politics at the graduate level. Gary Johnson being elected President just isn’t going to happen.

Justice Ruth Bader Ginsburg was interviewed by the New York Times on Friday. What she said should clarify for any gun owner or any Second Amendment supporter what this race for President is really about. This holds true for both the deer hunters in Gun Culture 1.0 with their .30-06 Remington 700s and the non-hunting concealed carriers in Gun Culture 2.0 with their Glock 19s.

This election is about the Supreme Court which now stands in a four to four split between conservatives and liberals. Another way of putting it is that neither the Originalists nor the Living Constitutionalists hold a majority.

Justice Ginsburg was asked whether there were any cases of recent memory that she would like to see overturned. Here is what she said:

Asked if there were cases she would like to see the court overturn before she leaves it, she named one.


“It won’t happen,” she said. “It would be an impossible dream. But I’d love to see Citizens United overruled.”


She mulled whether the court could revisit its 2013 decision in Shelby County v. Holder, which effectively struck down a key part of the Voting Rights Act. She said she did not see how that could be done.


The court’s 2008 decision in District of Columbia v. Heller, establishing an individual right to own guns, may be another matter, she said.


“I thought Heller was “a very bad decision,” she said, adding that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.


Should Judge Garland or another Democratic appointee join the court, Justice Ginsburg will find herself in a new position, and the thought seemed to please her.


“It means that I’ll be among five more often than among four,” she said.

Rest assured that Michael Bloomberg would spend big bucks to get a gun control case before a Supreme Court in which Justice Ginsburg was now among the five who believe there is no individual right to own a weapon of any sort (firearm, knife, sharp stick). The Wall Street Journal noted yesterday in an editorial that Justice Ginsburg thinks the Second Amendment obsolete and that there isn’t even a need for the militia anymore.

So unless something untoward happens this week or next at the Republican National Convention, Donald Trump, warts and all, will be the nominee. He is on record as supporting the Second Amendment as an individual right and is on record as opposing gun-free zones.

The coronation of Hillary Clinton will take place in Philadephia the following week. She is on record as saying she’d “change the gun culture”. To think that a President Hillary Clinton would appoint anyone to replace Justice Scalia that believed as he did that the Second Amendment guarantees an individual right is ludicrous.

I still don’t really like Donald Trump. However, I am adult enough to realize that stomping my feet and saying I’m not going to vote or that I’ll vote for Gary Johnson is giving aid and comfort to Hillary. This election has become a zero-sum game for the Second Amendment. If Hillary wins, we lose.

I’ll boil it down to the essentials:  If you are #NeverTrump, then you are #NeverGuns.

A Win In The 4th Circuit (Updated)

The 4th Circuit Court of Appeals has not been too good for gun rights in the past few years. However, a case involving Maryland make signal a change. Kolbe v. Hogan (formerly Kolbe v. O’Malley) challenged Maryland’s ban on certain semi-auto firearms and standard capacity on Second Amendment and Equal Protection Clause grounds. The District Court for Maryland agreed with the state’s arguments and found the bans were constitutional using intermediate scrutiny.

Today, the 4th Circuit overturned that decision in part and remanded it back to the District Court to be reconsidered using strict scrutiny. The court affirmed the District Court’s dismissal of the Equal Protection claims involving retired law enforcement and the vagueness claims that “copies” of certain firearms were not specific enough.

From the synopsis of the decision:

TRAXLER, Chief Judge, wrote the opinion for the court as to
Parts I, II, and III, in which Judge Agee joined.

In April 2013, Maryland passed the Firearm Safety Act
(“FSA”), which, among other things, bans law-abiding citizens,
with the exception of retired law enforcement officers, from
possessing the vast majority of semi-automatic rifles commonly
kept by several million American citizens for defending their
families and homes and other lawful purposes. Plaintiffs raise
a number of challenges to the FSA, contending that the “assault
weapons” ban trenches upon the core Second Amendment right to
keep firearms in defense of hearth and home, that the FSA’s ban
of certain larger-capacity detachable magazines (“LCMs”)
likewise violates the Second Amendment, that the exception to
the ban for retired officers violates the Equal Protection
Clause, and that the FSA is void for vagueness to the extent
that it prohibits possession of “copies” of the specifically
identified semi-automatic rifles banned by the FSA. The
district court rejected Plaintiffs’ Second Amendment challenges,
concluding that the “assault weapons” and larger-capacity
magazine bans passed constitutional muster under intermediate
scrutiny review. The district court also denied Plaintiffs’
equal protection and vagueness claims.

In our view, Maryland law implicates the core protection of
the Second Amendment—“the right of law-abiding responsible

citizens to use arms in defense of hearth and home,” District of
Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are
compelled by Heller and McDonald v. City of Chicago, 561 U.S.
742 (2010), as well as our own precedent in the wake of these
decisions, to conclude that the burden is substantial and strict
scrutiny is the applicable standard of review for Plaintiffs’
Second Amendment claim.
Thus, the panel vacates the district
court’s denial of Plaintiffs’ Second Amendment claims and
remands for the district court to apply strict scrutiny. The
panel affirms the district court’s denial of Plaintiffs’ Equal
Protection challenge to the statutory exception allowing retired
law enforcement officers to possess prohibited semi-automatic
rifles. And, the panel affirms the district court’s conclusion
that the term “copies” as used by the FSA is not
unconstitutionally vague.

 The decision from the 4th Circuit was not unanimous and contains dissents, concurrences, and multiple parts. Indeed, the full decision is 90 pages long. Needless to say, it will take some time to read and digest this decision. That said, having the case sent back to the District Court to apply strict scrutiny to the Second Amendment claims is a definite win.

It will be interesting to see what legal legerdemain that Judge Catherine C. Blake will employ to assert that Maryland can still ban the most popular firearm in common use in America today even if strict scrutiny is applied.

UPDATE: Sebastian has more on this case at Shall Not Be Questioned. He is correct in saying that the ban on semi-auto rifles and standard capacity magazines still remains in place. The 4th Circuit didn’t find the law unconstitutional. It merely said that it needs to be reheard using the correct level of scrutiny. This is a win but not a complete win.

UPDATE II: Attorney Andrew Branca (Law of Self Defense) has his take on the case here.

UPDATE III: Gun rights scholar and attorney David Kopel examines the case in detail in the Washington Post’s Volokh Conspiracy blog. As he notes, the Second Amendment protections should extend to gun parts (magazines) and that strict scrutiny is appropriate in this case.

UPDATE IV: Dave Hardy weighs in on Kolbe. He makes note of the dissent and the response from Judge Traxler to it.