Sunday, October 28, 2012
A three-judge panel of the Fifth Circuit in NRA v. ATF upheld the federal ban on gun sales by federal firearms licensees to those under 21 years of age against a Second Amendment challenge. Notably, the court ruled that the ban didn't even touch activity protected by the Second Amendment (and it therefore didn't violate the Second Amendment). But, the court ruled, even if it did touch activity protected by the Second Amendment, it did not violate the Second Amendment.
This is the first federal circuit court ruling on these federal provisions and only the second federal court ruling on them. (The first, a 2008 district court ruling from the Western District of Texas, held the provisions constitutional under an intermediate scrutiny standard.) Otherwise the ruling breaks no new ground in Second Amendment jurisprudence post Heller and McDonald--it hews closely to the Second Amendment jurisprudential line set by other circuits--and it therefore may be a model and bellwether for other cases challenging these provisions.
The NRA will certainly seek en banc review, and the ultimate loser at the Fifth Circuit will undoubtedly seek cert. The case presents a good candidate for the Supreme Court to set and to apply a Second Amendment standard (on the one hand), but it's almost surely too soon, without any other circuit ruling on the provisions (on the other). At the end of the day, the Supreme Court is unlikely to take this one up, so long as any final ruling from the Fifth Circuit reflects the kind of cautious, well-within-bounds approach of this panel.
The federal provisions, 18 U.S.C. Secs. 922(b)(1) and (c)(1), together prohibit federally licensed firearms dealers from selling handguns to persons under the age of 21. The NRA sued with a couple individual named plaintiffs and argued that the restriction violated the Second Amendment.
The Fifth Circuit disagreed. The court recognized that the Supreme Court has not defined a precise constitutional test for Second Amendment challenges. But in adopting the flexible and "prevailing" two-step inquiry established by the Third, Fourth, Sixth, Seventh, Tenth, and D.C. Circuits, the court drew on language from Heller:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Op. at 10 (quoting Heller at 626-27) (emphasis added). The two-step inquiry asks: (1) Does the challenged law impinge upon a right protected by the Second Amendment? and (2) Does intermediate scrutiny or strict scrutiny apply?
As to the first question, the court carefully surveyed the history and tradition of gun sale regulations and concluded that
the conduct at issue falls outside the Second Amendment's protection. At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups' ability to access and to use arms for the sake of public safety. More specifically, the present ban appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms. In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime.
Op. at 26-27. Thus the court ruled that it didn't even need to get to the second question.
But just in case, it did. On the second question, the court applied intermediate scrutiny and held that curbing violent crime by those under 21 constitutes an important government objective and that the sales ban--not a blunter possession ban--adequately served that end.