Over a decade ago the U.S. Supreme Court formally acknowledged the individual right to bear arms in Heller v. District of Columbia, but little ground has been gained by gun rights activists since the landmark decision. Lacking further guidance from the Supreme Court, district courts around the nation continue to restrict citizens’ gun rights by inconsistently defining its scope of protection.
Texas Attorney General Ken Paxton is leading a coalition of 18 states to change that.
In December, Paxton and 17 other state attorneys general filed an amicus curiae brief with the Supreme Court, urging it to review a Texas case that could open the door for a new era of Second Amendment litigation. Should the Court take up the case, it would be presented with a unique opportunity to establish a consistent standard for lower courts to follow when evaluating laws affecting Second Amendment rights.
The Texas case, Mance v. Whitaker, challenges the constitutionality of a federal prohibition on out-of-state handgun sales. Since the passage of the Gun Control Act of 1968, federally licensed firearms dealers have been prohibited from selling handguns to customers from other states. Though a district court initially ruled in favor of Mance by declaring the prohibition unconstitutional, the decision was overturned by a three-judge panel of the Fifth Circuit Court of Appeals.
When the Fifth Circuit subsequently denied a request for rehearing, seven of its 15 active judges dissented in three different opinions, and Paxton took action.
The Texas attorney general’s brief demonstrates that lower court decisions, even after Heller, reflect disagreement over the extent of Second Amendment protections. Often, the courts justify firearms regulations by using the same kind of rational basis or interest-balancing arguments the Supreme Court explicitly rejects for all other constitutional rights.
As noted by the majority decision in Heller, “the very enumeration of the right takes out of the hands of government … the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments … is no constitutional guarantee at all.”
The problem is that lower courts do not know what kind of conduct is protected by the Second Amendment in the first place. Despite Heller incorporating Second Amendment protections to the states under the Due Process Clause of the 14th Amendment, lower courts are inclined to defer to government firearms regulations unless an individual can demonstrate that his right to actually own a weapon is infringed.
As the 18-state brief notes, “If a court of appeals is uncertain that the Second Amendment is even impacted [by a regulation], it will undervalue the individual’s Second Amendment rights.” Uncertainty over the kinds of conduct protected by the Second Amendment opens the door for a whole host of firearms regulations, ranging from waiting periods to excessive taxes and mental examinations.
“The Second Amendment stands alongside rights such as freedom of speech and free exercise of religion as a core fundamental right of the American people; it is not a second-class or a second-tier right,” said Paxton. “We’re asking the Supreme Court to protect the Second Amendment by reaffirming that it is a fundamental, individual right and providing the guidance necessary to instruct lower courts how to decide cases concerning the right to keep and bear arms.”
If the Supreme Court takes up Mance v. Whitaker, it could establish a more consistent standard for evaluating whether firearms regulations affect an individual’s Second Amendment rights. With the increasingly conservative composition of the Supreme Court, that standard will likely be very pro-gun.
Future firearms regulations would have to answer to a new standard. Perhaps more notably, some of the most stringent firearms restrictions already in place — both state and federal — would be open to challenge for the first time in many years.
Paxton should be commended for his continued efforts to lead legal coalitions defending the constitutional rights of Texans and other Americans.