The Newest NRA Lawsuits - Texas

[Al Norris]

Now that I've had time to read (and reread) the dissent and digest what it said....

In the en banc poll, 7 judges voted in favor of rehearing (Judges Jolly, Jones, Smith, Clement, Owen, Elrod, and Higginson), and 8 judges voted against rehearing (Chief Judge Stewart and Judges King, Davis, Dennis, Prado, Southwick, Haynes, and Graves).

Judge Edith Jones wrote the dissent. The provisions of law being challenged include 18 U.S.C. § 922(c)(1) and the regulations that implement these statutes: 27 C.F.R. §§ 478.99(b)(1), 478.124(a), & 478.96(b).

In her opening statement, Judge Jones speaks of the errors of the panel in general terms:

There are serious errors in the panel decision’s approach to the fundamental right to keep and bear arms. ... Moreover, the implications of the decision—that a whole class of adult citizens, who are not as a class felons or mentally ill, can have its constitutional rights truncated because Congress considers the class “irresponsible”—are far-reaching.

The Judge is saying that what was acceptable before Heller/McDonald, is now an unacceptable infringement of the Fundamental Right.

Judge Jones doesn't stop there. In directly looking at the panel decision, Jones writes:

The panel states, during that part of the discussion, that “Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter.” Id. at 209. Surely this is hyperbole? 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.

Judge Jones concludes her general opinion of the panel decision with:

Three major points of the 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.

The rest of the dissent has Jones taking the panel decision apart, piece by piece. It is very well written and tailored (whether written that way or not) to helping write the NRA's petition for cert.

In writing about the age of the militia after the resolution of the BOR, and speaking directly to the Militia Act of 1792, we have footnote 9 (page 12):

The choice of eighteen as the militia age for the federal law owed, in large part, to George Washington’s stated belief that the best soldiers were those aged eighteen to twenty-one. Further, it is likely, but not provable, that the right to bear arms was thought still to extend even to those sixteen to eighteen (enrollment in the militia was sufficient, but not necessary, to the right to own a gun), but appellants disclaim any intent to reduce the minimum age below 18.

This pretty much sets the bar (of the dissent) to the age of majority as it now stands - 18. Jones goes ever further in castigating the panel decision for its faulty examples that 21 was the age of militia service by noting that ... "Massachusetts, for example, required “all youth” from ten to sixteen to be trained in gun use."

All in all, this is a very powerful dissent. Which explains why it took so long to publish the denial of the en banc hearing.

[Al Norris]

In a terse 16 page opinion, the 5th Circuit pretty much ruled the same as the other panel in the BATF case. Texas law that 18-20 year olds may not carry handguns in public via a CCW was upheld. The opinion was published today: Natl Rifle Assn of America Inc, et al v. Steven McCraw.

[Al Norris]

It appears that no-one sees the danger that these two decision pose... So a little commentary might get your thoughts moving....

When these two cases were first filed, I. like many others, was filled with hope that a wrong was about to be righted. As the cases progressed, my hope died and I knew that the cases would fail.

What we now have are two very precedential cases that state that a fundamental right can be denied to adults, based merely upon a legislative assumption that a certain age group is not mature enough to exercise that fundamental right.

Using the same logic of these two decisions (as they relate to legislative findings), the age at which two people can marry, can now be increased to the age of 25. Statistics show that after 25 (for both male and females) will more than likely not result in divorce. Statistics also show that cohabitation before marriage (of any age group) results in more divorces than those that do not cohabit. Therefore, cohabitation can be made a criminal offense. Detailed marriage and divorce tables by state

Legislatures can use the same process the court used to restrict driving. It is a curious anomaly that drivers between the ages of 16 to 20 and again from 45 to 75, not only have fewer accidents, but that they consume less alcohol, while driving. Therefore, those of you between the ages of 21 through 44 may not drive. Licensed Drivers and Number in Accidents by Age: 2009

I could go on, but suffice it to say that there is something horribly wrong with the way the courts are treating the RKBA as if it were not just a second-class right, but as if the right does not exist at all.

The lower courts are in full judicial rebellion against the thought that there is a right to defend oneself against confrontation, outside the threshold of your home. We can see this. But what the courts are actually saying, is that the legislatures can impose more restrictions upon your day-to-day life, than merely restricting your right to arms.

In the cases above, the courts have unleashed a potential abuse of authority, the like of which they may not have foreseen.

[Tom Servo]

The lower courts are in full judicial rebellion against the thought that there is a right to defend oneself against confrontation, outside the threshold of your home.

The problem is that many are still in rebellion against Heller. I think we'll need a decision from SCOTUS on whether or not the 2A applies past one's doorstep before we can hope to make any headway.

As happy as I was with the 7th Circuit's decision in Moore, it's really an outlier in the current climate.

[Al Norris]

It is believed that the Moore case is the case the SCOTUS wishes to review.

If this is true, then we really need Ms. Madigan to file for cert. Let's hope the IL legislature can provide the impetus.

[maestro pistolero]

Is it still the case, that the cooperation needed from the Illinois legislature is that they do nothing?

[csmsss]

The problem is that many are still in rebellion against Heller. I think we'll need a decision from SCOTUS on whether or not the 2A applies past one's doorstep before we can hope to make any headway.

Indeed they are. And even without the clarification from SCOTUS on 2A beyond the door, we're still going to have lower courts undercutting Heller/McDonald.

[Luger_carbine]

I don't think Illinois AG will file, she might have if it looked like pro-2A folks were going to get a carry bill, but the main guy who was pushing a carry bill sat down with Lisa Madigan's father Speaker of the House, Mike Madigan, and created a compromise bill that severely prohibits carry in Chicago and Cook county.

I've heard Chicago politicians are sneaky but I can't imagine that a guy would sit down for 8 hours wit another legislator to hammer out a bill and then screw the guy over by having his daughter file for cert and ask for an extension on the stay.

In the meantime though, an anti-gun group in Illinois is touting the McCraw decision as clear proof that CA7 is out of sync with the rest of the circuit courts and referencing the McCraw decision to ask Lisa Madigan to appeal Moore to SCOTUS.

[maestro pistolero]

As I understand it, once she filed the petition for an extension of time to the Scotus, she is ethically bound to pursue it unless the case is muted due to a change in the law. It is apparently the worst form for a lawyer to petition for more time to file, then not file, and I understand there can be severe consequences.

[Luger_carbine]

What are the consequences?

Not even counting that according to the press she's probably going to be running for governor, what are the consequences for filing for cert and then telling SCOTUS "Oh never mind..."

[maestro pistolero]

As a lawyer, she could be sanctioned by the court, and lose the ability to bring future SCOTUS cases. It could have adverse effects on future elections beyond planet Chicago.

[esqappellate]

If she files and then the case moots out with new legislation, she would be obligated to inform the court and dismiss her petition. If no legislation is enacted, and she elects to not file, that is her prerogative. Getting an extension of time does NOT bind a party to actually file a petition. And the Court would rather have a party get an extension and NOT file\, as it makes the Court's work easier. Now if Illinois had sought and obtained a Rule 41 stay pending petition, then not to file would certainly be bad form, but I doubt she would get sanctioned for it. In any event, Illinois has not asked for a stay from either the 7th Circuit (where it would go first) or from the SCT). This is sorta fun to watch it play out.

[maestro pistolero]

Thanks for that. For those who may not know, esqapellate is the resident legal expert at Maryland Shooters where he has patiently kept the unwashed masses informed for many years. Good to see you here.

[Al Norris]

Lyle Denniston, over at SCOTUSBlog has listed the NRA v. BATF as having filed for a grant of cert, last Monday: New plea for gun rights

The SCOTUS docket number is 13-137 and the cert petition can be viewed at the link, above.

[esqappellate]

The petition filed in the NRA case by Paul Clement is quite something to read in its choice of language and theme. Sorta like: "Hey Heller majority, wake up, the lower federal courts are completely dissing you and your rulings. What are you going to do about it!" Clement can get away with this.

[Aguila Blanca]

Originally Posted by esqappellate

The petition filed in the NRA case by Paul Clement is quite something to read in its choice of language and theme. Sorta like: "Hey Heller majority, wake up, the lower federal courts are completely dissing you and your rulings. What are you going to do about it!" Clement can get away with this.

It's about time somebody did so. Although I find it difficult to accept the notion that the Heller majority aren't already aware that they are being routinely ignored, misquoted and misinterpreted by the lower courts. IMHO it is well beyond the point where some lower court judges need their hands slapped.

[esqappellate]

Gura is doing it too. Clement just raised the bar another notch.

[speedrrracer]

Originally Posted by esqappellate

The petition filed in the NRA case by Paul Clement is quite something to read in its choice of language and theme. Sorta like: "Hey Heller majority, wake up, the lower federal courts are completely dissing you and your rulings. What are you going to do about it!" Clement can get away with this.

Out of curiosity, why can Clement get away with it?

[Glenn E. Meyer]

I wouldn't count on the Heller majority going hell-bent for leather to expand the RKBA. Despite someone's previous babbling about how Scalia was a wily old bird, leaving a trail of crumbs for some to nibble on - on the way to the grand RKBA decision - I'll believe it when I see it.

I think they did their thing and that's that.

Hope I'm wrong.

[maestro pistolero]

Out of curiosity, why can Clement get away with it?

Paul Clement is perhaps the most respected lawyer to appear in front of the current court.

Here's the brief.

http://sblog.s3.amazonaws.com/wp-con...ion-13-137.pdf

Clement writes very powerfully not only for the instant case but against the short-shrift the second amendment is receiving almost universally in the lower courts. The brief points out numerous examples of the '2A two step', and repeatedly notices the court that the reasoning in Heller and McDonald are not being taken seriously.

There are abundant, stinging 'gems' contained within, too many to mention, in fact. Here's one:

Unsurprisingly, the panel identified not a single founding-era law suggesting otherwise. Instead, the panel deemed it sufficient that, “[i]n the view of at least some members of the founding generation, disarming select groups for the sake of public safety was compatible with the right to arms specifically and with the idea of liberty generally.” App. 30–31. The “select groups” it identified include not 18-to-20- year-olds, but rather “law-abiding slaves,” “free blacks,” and “persons who refused to swear an oath of allegiance to the state or to the nation.” . . .

. . . When the best that can be said in defense of a law that abridges a fundamental right is that it is “compatible with” the invidious racial discrimination that our Nation fought a civil war and amended the Constitution to rectify, it should be obvious that something has gone seriously wrong.

[Al Norris]

Here's the latest update:

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jul 29 2013 Petition for a writ of certiorari filed. (Response due August 30, 2013)
Aug 20 2013 Order extending time to file response to petition to and including September 30, 2013.
Aug 21 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
Aug 30 2013 Brief amici curiae of Lincoln Institute for Research and Education, et al. filed.
Aug 30 2013 Brief amicus curiae of Second Amendment Foundation, Inc. filed.
Aug 30 2013 Brief amicus curiae of National Shooting Sports Foundation, Inc. filed.
Aug 30 2013 Brief amici curiae of Alabama and 21 Other States filed.

The Lincoln Institute amicus brief: http://www.lawandfreedom.com/site/fi...TFE_Amicus.pdf

The NSSF amicus brief: http://www.nssf.org/share/pdf/13-137...etitioners.pdf

[Al Norris]

More thanks to Kharn (a member of CalGuns) for procuring the SAF amicus brief.

[Al Norris]

A long overdue update.

In NRA v. BATF, the cert stage is completed on Dec. 3rd. We are now awaiting a conference date.

In NRA v. McCraw, a response was requested from the State and time was extended until Jan 21, 2014 to file that response.

[bt380]

I bounce back and forth on the age thing. I went in the military at 17 w/ parents consent. Interesting I couldn't join on my own at 17, but once I was in I could make my decision to kill at 17. Lots of 17 year old in Nam all killing but in the states can't join or drink. But then again, the military has a way of maturing a person that civilian 17 year olds don't receive as a norm. I think the mid west, rural farm or ranch kids in general are more mature than the tweeting crowds the local community colleges are in their teens. Don't get me wrong, I have seen some who work having great maturity, but not as many in urban areas as a norm. Giving kids who can't drive responsible a gun and conceal carry gives me a pause to make that a blanket law. Like I said, I go back an forth on this so that in itself is enough for me to prefer to err on the side of caution. In my local area, I'm not impressed with the little tweeters I see for the most part.

[Don P]

One might take the road that 18 years are not responsible. Evidence shows not full developed front cortices that inhibit risky behavior. That we let them have guns in the military is ok because they are tightly supervised.

I have to ask Glenn, how is an 18 year old in Afghan, or Iraq out on patrol being tightly supervised in the middle of nowhere?