For years and years, Gun Owners of America, Gun Owners Foundation and Gun Owners of California have been arguing in amicus brief after amicus brief, in cases throughout the country, as well as with the Supreme Court of the United States, that court decisions should follow the late, great Justice Antonin Scalia’s warning that courts should refrain from using judicial balancing tests or two-step analysis (i.e. rational basis, intermediate scrutiny, and strict scrutiny) when considering Second Amendment cases. He said that the only standard that should be applied is using the text, history, and tradition of the meaning of the words at the founding. That means what did “shall not be infringed” mean back then when they wrote it. We believe it is abundantly clear what our founding fathers meant.
We have been a lonely voice on this topic. Since 2008, when Scalia made that admonition in Heller v. DC, courts have regularly ignored him and all of the other Second Amendment groups have relied on encouraging the courts to use the heaviest of the “judicial balancing tests”, strict scrutiny.
But that is changing thanks to our persistence and the help from other “originalist” jurists like Judge Brett Cavanaugh. In 2011, in Heller II v DC, Cavanaugh, in a brilliant decent he wrote: “We need not squint to divine some hidden meaning from Heller I about what tests to apply. Heller I was up-front about the role of text, history, and tradition in Second Amendment analysis—and about the absence of a role for judicial interest balancing or assessment of costs and benefits of gun regulations.”
Gun Owners Foundation believes that there is a growing glimmer of hope that more and more judges are seeing it as we do. On April 21, 2020, the 5th Circuit Court, in its opinion in the case of United States v. McGinnis, said that in applying the two-step analysis, the panel upheld the conviction of the person subject to a protective order. HOWEVER, the panel opinion, written by Judge Duncan, indicates that if it could, it would have reconsidered the two-step analysis “in favor of the historical-traditional analysis described by then-Judge Kavanaugh in his impressive dissent in Heller II.'” (GOA/GOF/GOC filed the only amicus brief supporting Dick Heller in Heller v. District of Columbia, known as Heller II.)
To see the full report from our GOF Attorneys, see below.
Years of persistence is paying off. We are slowly but surely changing the framework of the argument in favor focusing strictly on the words written by our founding fathers in the Second Amendment.
United States v. McGinnis
A ray of sunshine. We wanted to let you know about an interesting and potentially helpful federal court decision on the Second Amendment that was just decided.
On April 21, 2020, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in a criminal case involving a Second Amendment challenge to a conviction for possession of ammunition by a prohibited person.
The panel consisted of Senior Judge Patrick Higgenbotham, and Judge Edith Jones (who missed by a whisker being appointed to the Supreme Court by George H.W. Bush instead of David Souter), and Judge Kyle Duncan (a Trump appointee who had argued the Hobby Lobby case). The panel explained that it was bound to use the two-step balancing analysis because it had been adopted by an earlier Fifth Circuit panel, and one panel cannot overrule another panel; only the en banc Fifth Circuit can do that.
Of course, we are hoping that the U.S. Supreme Court soon will reject that two-step analytical framework in New York State Rifle and Pistol Association v. New York City, as urged by our GOA/GOF amicus brief supporting the petition for certiorari and our amicus brief on the merits.
Applying the two-step analysis, the panel upheld the conviction of the person subject to a protective order. HOWEVER the panel opinion, written by Judge Duncan, indicates that if it could, it would have reconsidered the two-step analysis “in favor of the ‘historical-traditional analysis described by then-Judge Kavanaugh in his impressive dissent in Heller II.'” Decision at 6, n.3 (quoting the defendant’s brief). (GOA/GOF/GOC filed the only amicus brief supporting Dick Heller in Heller v. District of Columbia, known as Heller II.)
The panel also indicates that seven members of the Fifth Circuit would have granted rehearing en banc in Mance v. Sessions in 2018 to adopt the “text, history, and tradition” analysis articulated by Justice Scalia in Heller I, but rehearing was denied in that case by a vote of 8-7. (Our GOA/GOF/GOC amicus brief in Heller I urged the court to adopt a test we had called “text, context, and historic setting.”)
The Fifth Circuit does not point out that, since Mance, Trump has appointed another judge to the Fifth Circuit — and there is even one more nominee pending before the Senate Judiciary Committee. If confirmed, and assuming both of those would support the “text, history, and tradition” approach, there would be a majority of active Fifth Circuit judges in favor of overturning the flawed two-step test.
Even more exciting, Judges Duncan and Jones issued a concurring opinion — concurring in their own panel opinion — stating they would support en banc review to retire the two-step framework. They note that retiring two-step “would also further cabin judicial application of the ‘tiers-of-scrutiny approach to constitutional adjudication,’ an exercise which ‘is increasingly a meaningless formalism.'” McGinnis at 21 (quoting Justice Thomas dissenting in Whole Woman’s Health).
We will track the case to see if a petition for rehearing is filed, where we could AGAIN attack the two-step test.
It is encouraging to see the positive effect of “Trump judges” in improving the method of analyzing Second Amendment cases.William J. Olson, P.C., Attorneys at Law