Even though recent news regarding post-Bruen Second Amendment challenges has been quite encouraging, things aren’t entirely bad. The ruling in Reese v. ATF (PDF), a test case challenging the provision of the 1968 Gun Control Act that forbids the sale of handguns and handgun ammunition to adults under the age of 21, serves as an example of that.
The State of Texas gave up its appeal of a ruling that invalidated a Texas statute that forbade adults under the age of 21 from carrying pistols in public earlier this week. But in Reese, Judge Robert Summerhays (a Trump nominee for judge) determined that the federal ban on sales to people between the ages of 18 and 20 is adequately established by past precedents.
Before anyone calls Judge Summerhays a RINO, traitor, scoundrel, etc., they should know that the core of his opinion held that the plaintiffs’ arguments were precluded by a 2012 Fifth Circuit ruling, National Rifle Association v. United States, in which a panel of the Fifth Circuit found (over a vocal dissent) that this section of the ’68 GCA was constitutional under both intermediate scrutiny and the “text, history, and tradition” test outlined in Heller and subsequently adopted in Bruen.
The argument made by Judge Summerhays, according to which he is constrained by a Fifth Circuit decision that addresses the problems raised in the lawsuit, is not absurd. I interpreted his conclusion as essentially suggesting that the Fifth Circuit should issue a statement to the effect that a district court’s earlier ruling on this particular subject is no longer valid.
Even while I don’t agree with him that the pertinent part of NRA v. US maintains sound legal precedent in light of Justice Thomas’ Bruen judgment, I must admit that it exhibits a refreshing level of judicial modesty.
The Fifth Circuit will now take action, and we shall see what that entails. That court had a very different composition in 2012, with a slight majority of active duty judges being chosen by Democratic presidents (and some of the GOP-appointed ones being, shall we say, less than stalwart on Second Amendment issues).
Today, however, such is not the case because PDT selected a number of strong originalist judges to the court, including James Ho, a rising star judge. The Fifth Circuit is currently thought to be the most favorable court of appeals for Second Amendment disputes as a result.
Although I believe there is a fair likelihood that a three-judge Fifth Circuit panel will simply find that Judge Summerhays’ interpretation of Bruen is incorrect and will therefore reverse him, I won’t be surprised if such an initial panel decides that NRA v. US stays the law. This is due to the fact that, according to Fifth Circuit law, a later panel is bound by the rulings of earlier panels (unless a later change in the law by Congress or the Supreme Court supersedes that earlier decision), and that only the full court (en banc) has the authority to overturn such precedent.
A dissent or concurrence, however, will almost probably be included in such a decision, encouraging the court as a whole to take the case and reevaluate NRA v. US in light of Bruen. For such a ruling to be made, the Fifth Circuit would need to receive the support of the majority of its serving judges.
Does the Fifth Circuit have enough votes to take the Reese case en banc and categorically overturn NRA v. US? I believe so as I count the noses in the Court. Additionally, if they decide to en banc rehear Reese, we might see language indicating that earlier Fifth Circuit Second Amendment rulings from before Bruen are no longer valid.
For instance, the petition for review en banc was rejected by one vote in Mance v. Sessions, where a Fifth Circuit panel reversed a ruling finding that the ’68 GCA prohibition on handgun sales by FFL’s to out-of-state citizens was unconstitutional. There is no doubt that the votes on the petition for a rehearing en banc would have been considerably different had Mance been heard today.
Keep watching what happens, since this case is still very much open.