Last Friday, the U.S. Court of Appeals for the Fifth Circuit fell one vote short, by an 8-7 count, of rehearing en banc a key Second Amendment case. The judge writing the lead dissental, Judge James C. Ho, wrote a stinging rebuke of the majority decision.
The case under review was Mance v. Sessions, in which a three-judge panel had upheld a federal regulation — 18 U.S.C. § 922(a)(3) — wherein out-of-state purchasers are precluded from directly buying handguns across state lines. The panel even assumed "strict scrutiny," which typically is the most demanding standard of review for the government to meet in order to uphold a regulation.
All four of President Trump's nominated judges on the Fifth Circuit were part of the group of seven dissenting judges. They all joined in Ho’s dissent, in which he wrote, "For decades, the Supreme Court has referred to the Second Amendment as a fundamental civil right, comparable to other provisions of the Bill of Rights." He pointed out that "the Second Amendment continues to be treated as a second-class right" by the federal judiciary.
Ho asserted that "prophylactic laws are inherently suspect under strict scrutiny," adding that the government's regulation necessarily failed due to its simultaneous under-inclusiveness and over-inclusiveness. He wrote bluntly, "Law-abiding Americans should not be conflated with dangerous criminals … constitutional rights must not give way to hoplophobia." Hoplophobia is an irrational aversion to weapons.
Ho noted that rather than the government's over-inclusive prophylaxis regime, "the way to require compliance with state handgun laws is to require compliance with state handgun laws,” concluding, "Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government."
The good news is that Ho will be joined on the Fifth Circuit by Judge Andy Oldham, who was confirmed to the Fifth Circuit by the Senate and is a strict constitutionalist. That should make the Fifth Circuit a truly constitutionalist court.