On Friday, the 5th Circuit Court of Appeals raised the stakes for the upcoming confirmation fight over Supreme Court nominee Judge Brett Kavanaugh. In Mance v. Sessions, by an 8-7 vote, the New Orleans-based federal appellate court denied the plaintiffs’ request for full court review of their challenge to a federal law that prohibits firearms dealers from selling handguns to out-of-state consumers.
A three-judge panel had previously rejected the Second Amendment challenge to the law, holding the federal ban did not infringe on the plaintiffs’ right to bear arms. Now, with the full court refusing to rehear the case, a petition for Supreme Court review is inevitable.
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Last term, the Supreme Court rejected two high-profile Second Amendment appeals. First, the justices refused to review the 4th Circuit’s decision upholding Maryland’s ban on semi-automatic rifles and high-capacity magazines. And then less than six-months ago, the Supreme Court rejected an appeal from the 9th Circuit that challenged the liberal-leaning federal appellate court’s decision upholding California’s 10-day waiting period to purchase firearms. The Supreme Court’s refusal to intervene in the latter case prompted Justice Clarence Thomas to chastise his fellow justices for once again relegating the Second Amendment to a second-class right.
The 5th Circuit’s decision in Mance v. Sessions provides a fresh opportunity for the justices to intervene and, for several reasons, provides an ideal vehicle for the Supreme Court to clarify Second Amendment jurisprudence.
First, a fundamental dispute in Mance concerned the appropriate standard for evaluating laws that impact Second Amendment rights. Currently, the federal appellate courts are split on the controlling standard. The 5th Circuit applied the difficult-to-satisfy strict scrutiny standard, which asks whether the law is narrowly tailored to achieve a compelling governmental purpose. “Disagreement abounds, however,” as Judge Jennifer Elrod noted in her Mance dissent, “on a crucial inquiry: What doctrinal test applies to laws burdening the Second Amendment—strict scrutiny, intermediate scrutiny, or some other evaluative framework although.” Taking the Mance case would allow the Supreme Court to clarify this core question.
Further, the procedural posture of the 5th Circuit case provides the justices with well-developed arguments: In denying full-court review in Mance, 7 of the 15 active judges dissented in three separate opinions. These dissents provide the Supreme Court with a thorough analysis of the issues involved.
And finally, Mance concerned a challenge to a federal law and, as such, would involve briefing and argument by the Solicitor General of the United States. The Solicitor General’s participation offers the justices the federal government’s view on the controlling Second Amendment standard. These factors all recommend the Mance case for review by the Supreme Court.
With the Second Amendment now teed-up for the Supreme Court’s upcoming term, Kavanaugh’s views on the right to bear arms will become a focal point when confirmation hearings begin. Senate Democrats and gun-rights’ opponents have already registered opposition to President Trump’s pick to replace retiring Justice Anthony Kennedy because of his dissent in Heller v. District of Columbia (Heller II).
In Heller II, in a 2-1 decision, the D.C. Circuit Court of Appeals held Washington D.C.’s ban on semi-automatic weapons did not violate the Second Amendment. Kavanaugh disagreed, and in dissent he dissected the Supreme Court’s Second Amendment decisions. Those opinions made clear, Kavanaugh explained, that courts must assess the constitutionality of “gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” And because semi-automatic weapons are commonly owned for lawful purposes, Kavanaugh concluded the ban violated the Second Amendment.
The dissents in Mance relied heavily on Judge Kavanaugh’s analysis in Heller II, providing further proof of Kavanaugh’s stellar qualifications. But merit is unlikely to matter when it comes to the Second Amendment, any more than it does when it comes to abortion.
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner’s Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
