Blackman: The Second Amendment is Up to the Fifth Circuit Now

supreme court chief justice John Roberts, Jr.

Supreme Court Chief Justice John G. Roberts Jr. (Jabin Botsford/The Washington Post via AP, Pool)

And so it continues. Twelve years after Heller, we are in the exact same place. The government cannot ban the possession of handguns in the home, but all other gun control laws are reasonable. Keep in mind that only D.C. and Chicago banned handguns outright. Those rulings effected (sic) only those two laws. That’s it! I am sympathetic to Robby George’s post, which analogized the judicial conservatives on the Court to the Washington Generals.

There have been a handful of favorable decisions in the lower courts, almost all of which were reversed. Justice Thomas praised these jurists:

Consistent with this guidance, many jurists have concluded that text, history, and tradition are dispositive in determining whether a challenged law violates the right to keep and bear arms. See, e.g.Mance v. Sessions (CA5 2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ., dissenting from denial of reh’g en banc); Tyler v. Hillsdale Cty. Sheriff’s Dept. (CA6 2016) (Batchelder, J., concurring in most of judgment); Gowder v. Chicago (ND Ill. 2012); Heller v. District of Columbia, (CADC 2011) (Heller II) (Kavanaugh, J., dissenting).

In Mance v. Sessions, seven judges on the en banc Fifth Circuit were willing to review federal gun control laws with meaningful scrutiny. Seven! But they were a vote short. The Mississippi seat remained empty for far too long, and that vote failed. Soon that seat will be filled.

I am convinced the only way to change the Second Amendment status quo is for the Fifth Circuit, now at full strength, to give the Chief Justices a petition they have to grant. I would much rather lose a 5-4 decision, or 6-3, and know where the Justices stand, than to keep showing up in a fixed match to the Globetrotters.

– Josh Blackman in Twelve Years After Heller

comments

  1. avatar Dale Menard says:

    SCOTUS is in a pickle. If they interpret the second they way they interpret the first, they have to rule in our favor. After pulling a rabbit out of hat with abortion and gay marriage, this is a real problem.

    1. avatar California Richard says:

      When has inconsistency ever stopped the forward march of leftist ideology? It’s a feature that we’ve all come to expect, but for some reason we all tell ourselves, “Maybe they’ll be different this time,” or, “They aren’t going to do that about that thing, because they said this about this thing.” ….. and we are always wrong. They will say and do what ever it takes to get what they want, and we fight with one arm tied behind our back. They know how to leverage their power and we are too scared to use ours.

    2. avatar Debbie W. says:

      Why argue with people whose Gun Control Agenda Is Rooted in Racism and Genocide? It makes as much sense to argue the Emancipation Proclamation with someone holding a noose. Once Control Zealots were given standing by politely explaining the Second Amendment to them the pissing contest began and now the Second Amendment is in the hands of of the insane 5th Circuit. So how is that polite sht working for you? It’s not.
      Until Gun Control is seen across America as the Racist and Genocide Based Agenda It Is you can argue with Gun Control Zealots until the cows come home and nothing will change for the better. The only thing a Gun Control Zealot needs to hear from those defending freedom is: Your Gun Control Agenda is Rooted In Racism And Genocide And I Do Not Want Any Part Of It.

    3. avatar FiftycalTX says:

      As to abortion and homosexual “marriage”, I don’t agree with them, but taken in light of this: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      Would indicate that not all “rights” are contained in the body of the Constitution. Or do you believe there are ONLY 8 “rights?

      1. avatar PMinFl says:

        Many people. myself included, do NOT consider abortion or homosexual marriage a RIGHT protected by the constitution. I may (or may not) allow a case for abortion or homosexual marriage but don’t ascribe any protection vis a vie the constitution. There may be more than eight protected rights, but not equated to constitutional quality. JMO……………….PM

        1. avatar FiftycalTX says:

          Well, as soon as you and 4 cohorts are appointed to the Supreme Court, your “opinion” will madda. Get back to me then.

  2. avatar Dennis says:

    Do whatever they will, we abide by the Bill of Rights, not a bunch of liberal gun haters in black robes!

    1. avatar Montana Actual says:

      This. We already know it’s a staged game. The problem lies when you infringe on the rules of it. Like a bad referee, it won’t end well for them.

  3. avatar Randy Jones says:

    The SCOTUS seems to lack a set or two. I don’t know what else is on their plate, if more pressing issues take precedent, but they seem to be screwing over the American population. The intent and wording of the first and second Amendment are quite simple and easy to read, but they have gotten away from the original intent. And, in my mind, America has suffered for it and will continue to do so.

    With the current wave of defunding the police and letting rabble set up their own community in a major US city, how can the US expect other nations to respect us? Nobody want to see a LEO in their rear view mirror with his lights flashing, but at 0200 when someone breaks into you home, you don’t instantly dial a Social Worker to come out an counsel them, you call a LEO. And while you wait, you either become a victim or defender of your home and family. So it makes perfect sense to a liberal, take our firearms, that way we can all be victims.

    1. avatar Nickel Plated says:

      I take care of my own security. That’s what the guns are for. The only reason I would call the cops afterwards, is because they would come after ME if I didn’t.
      Otherwise I would just dig a hole in the woods and bury that problem.

      1. avatar Bemused Berserker says:

        Amen!

      2. avatar Rattlerjake says:

        Why would they come after you unless you told them something happened? Do you think that the criminal leaves an address of where he is going? That’s why I own a backhoe!

  4. avatar Ron says:

    The second amendment is up to us.

  5. avatar Skeptical of Relief from the 5th says:

    An interesting theory, but the problem with this thesis is this . . . The Fifth Circuit covers Texas, Louisiana, and Mississippi — some of the strongest states on Second Amendment protections. In order for the Fifth Circuit to change the status quo, the following things would have to occur: (1) One of these states would have to enact an egregious infringement. (2) The plaintiffs would have to lose their case at the district and appeals court levels, or, the infringing state would have to lose at these levels and be motivated to take the case to the Supreme Court rather than providing relief to the petitioners.

    The tragedy of this week is that the liberal states are now even more emboldened to enact additional infringements, knowing that the appeals courts covering those states will uphold virtually whatever they pass. Heller is trampled upon. The judicial branch was the last hope. We now know the judiciary is a dead end. The country needs to change the makeup of the Supreme Court (and the federal appeals courts). Many of us will never live to see the day.

    1. As TTAG’s legal counsel, LKB, mentioned last night when we were talking about this, there’s a bump stock ban case currently bubbling its way up in the Fifth that could give the Circuit Court just the kind of opportunity Blackman is talking about here.

      1. avatar Tom in Oregon says:

        That case in particular would be a great case to go in front of SCOTUS.
        In a perfect world, SCOTUS would b!tch slap anyone involved with that “law”.

        1. avatar John Paul says:

          We don’t live in that world now Tom.

      2. avatar Skeptical says:

        Point well taken. A federal issue like the bump stock ban could make its way through the 5th. If John Roberts is unwilling to expand the scope of the 2A on a carry case, he might do back flips to avoid an expansive ruling on bump stocks.

      3. avatar Binder says:

        The court will never take up the bump stock ban. I have seen to many people in the gun world who know how to set one up so it work effectivly not support them. I see even few people who are trying to get them back willing to demonstrate what they can really do. The 7th circuit court decision on carry outside of the home is likely the best case, but we won that one. You have a better chance going after SBRs or silencers.

        1. avatar rdsii64 says:

          Pistol braces put SBR’s on the back burner.(notice I did not say a moot point) I agree with you with regard to bump stocks. I say going after silencers is the way to go from here.

        2. avatar DCO777 says:

          Gong after anything right now is a waste of time. Chief Justice Roberts opposes gun cases, and its turning into the 21st Century “Earl Warren Court” with him in charge.

          If Trump loses in November the Biden Presidency will replace RBG and possibly a conservative justice (People get old and sick and die too!) or more he WILL take a gun case, basically reverse “Heller” and that’s all she wrote.

          If Trump wins and keeps a Republican Senate and he replaces two or more Justices, then it will be a good decision or more than one. He is blocking cases now, and will vote against guns if one is forced on his court.

          He needs two justices to oppose him, because it appears Kavanaugh is a wimp who thinks kissing Leftist butt will mean they’ll leave him and his family alone.

      4. avatar Mark N. says:

        Although the 2A can be raised in that case, it is really a case of the administrative agency overstepping its authority, which is not a 2A issue. Basically the ATF said these things were not firearms and not subject to registration, and then all of a sudden it reversed field at Trump’s behest. But its authority to regulate these items derives from statute, and if the statute does not extend to his subject, then they cannot be regulated. And their classification as “firearms” does not pass the rational basis sniff test. And then there is the whole takings issue bound up with the case and whether the government would owe money to parties who owned or manufactured these items if the regulation is upheld (which seems unlikely).

    2. avatar Ed Schrade says:

      And all these various gun control laws are in violation of the 14 th. amendment as well. The Constitution is for all 50 states, not just the ones that want to recognize it.

  6. avatar Justin says:

    The Supreme court in it’s failure to offer clarity one way or the other has proven it’s impotence and left us to a sliding scale of infringements. Elected officials will keep pushing until they take a step too far and then backup a step (with no real consequences for them). it’s like the analogy of yelling fire in a movie theater except the definition of the word fire keeps changing and additional words get banned from being spoken allowed in public, when they can’t make the word fire mean what they want it to mean.

    The challenge to the California safe gun law is a perfect example. Handguns were not banned outright but only approved handguns can be purchased by civilians and the approval process is designed to insure that only a few manufactures are able or willing to jump through the hoops needed to get on the approved list. while the law was framed as needed for public safety however LEO and government agencies are allowed to purchase whatever they want, list or no list. if it were truly about safety then wouldn’t it make sense that the Government who is more likely to carry and use their weapons be required to adhere to a law that’s all about safety.

    At this point we are gong to have our rights stepped on again and again until they finally cross a line so obvious that even the supreme court will have no choice but the hear a case. Will it be something like gun owners have to wear a star on their clothing to show people what we believe or maybe pay a sizable “tax” to exercise our rights.
    Whatever the case there will likely be blood spilled before this is even close to finished one way or another.

    1. avatar GS650G says:

      AFA the rosters go they seem to feel if you can buy A gun then you have a 2A right. The fact you can’t buy what you want or at a price you prefer isn’t their concern.

      Rather devious. CA will end up with one gun on the roster at some point and they will still feel people have the right.

      1. avatar Hush says:

        GS650Gl is correct. Total elimination and restriction are 2 different things. The left is and has been playing the restriction game. The goal of this ploy is to discourage and limit POTG from the purchase and even access to guns, access in your home or vehicle or at the least slow down the process of accessing. In their mindset they have not denied POTG anything and the problems POTG face just is Not their concern.

      2. avatar Draven says:

        Currently, no *new* guns can get onto the list without being set up for microstamping (certified patent-free by Kamala lying b**** Harris) and since no one is making microstamped firearms, no new guns are being added. They’re also now looking at it having to microstamp in two places even though there are no firearms to buy that microstamp in *one* place.

        Nevermind that their own pet anti-gun scientists at UC Davis told them microstamping was useless and would be erased and illegible by ordinary wear of the firearm…

      3. avatar LarryinTX says:

        Problem there is that these people ave no problem proclaiming their ignorance to the world, pretending they do not understand the meaning of the word “infringed”.

    2. avatar Rad Man says:

      MA does
      something quite similar with their approved handgun roster. Trigger pull weight, manual safety, loaded chamber indicator, mag disconnect, yaddayaddayadda. No real restrictions on what you can own, but many restrictions on what can be sold new retail. For instance you can’t buy a new $600 Glock but you can buy a used cop turn-in Glock for $800.

      1. avatar LarryinTX says:

        Thus handguns like the LC9. Took 15 minutes to remove the mag interlock, manual safety, and loaded chamber indicator.

  7. avatar million says:

    the part about Roberts and Kagan trading 2A for Qualified Immunity, i.e. no action on either, is interesting. I had not heard of that before.

  8. avatar former water walker says:

    2A is in our hands. Not unelected black robed goons. All the talk about Trump appointments is BS…

  9. avatar Steve says:

    Antifa and BLM have made it clear: if you want to compel the government to enact meaningful change, the only way to do that is through violence and the threat of violence.

    1. avatar GS650G says:

      And public shaming and doxing. Eventually they are going to ask us all “Do yuou support BLM and if not why not?”
      The French Revolution went this way until Napolian just took over basically. By then the Jacobins had killed each other.

    2. avatar Kenneth Phillips says:

      Unfortunately true. How ever, there is a reasonable alternative to armed revolt. Most states have recall petition provisions in the state constitutions. If every time one of these idiots start talkin about gun control, we just get a petition started to recall them. It won’t take but about three times for that to sink in to their fat heads.

  10. Can we reanimate justice Scalia?!?
    I agree, let’s put our best case forward and see where SCOTUS stands… dangerous I know.

    1. avatar d says:

      Scalia was not a great help. Heller is a mess and left a LOT to allow gun control

      1. avatar Anymouse says:

        Some assert that the wishy-washy language was put in place to get the 5th vote from Kennedy, but recent activity may point to Roberts.

  11. avatar GS650G says:

    So are gun laws binding and laws against riots, looting, and arson optional? I mean if we aren’t going to punish violence are they going to spend resources rounding up 300 million guns from 150 million people?

    1. avatar Justin says:

      Considering the amount of laws on the books and the fact that anyone can be found guilty of something if a prosecutor is given enough resources to run the case. The law has become a weapon to be used by the government against anyone they choose to use it against, while they (the Government) enjoy a level of immunity the Mafia would kill for. Through selective enforcement/prosecution a law can be applied to some people and not others with no real impact for the government.

    2. avatar Geoff "I'm getting too old for this shit" PR says:

      “…are they going to spend resources rounding up 300 million guns from 150 million people?”

      Simple, guns can only be fired at an approved range. ID is required to enter the range, and the serial numbers of the guns you wish to fire will be checked…

      QED…

    3. avatar LarryinTX says:

      Good question, GS, particularly since that firearm confiscation may well involve a *lot* of violence!

  12. avatar 2aguy says:

    This is why we need to vote for Trump, and every lick spittle, weak spined, rino Republican running for the Senate……..Trump appoints judges but he needs the senate to confirm them….and yes, it is no better than 50-50 at this point in getting a real judge, but if biden gets in it will be 100% that his judges will destroy the 2nd Amendment. He will also attack the gun makers and gun stores….so we need to march out and vote Republican as a holding action, or lose the 2nd Amendment in the next 4 years. So…..you don’t like Trump’s tweets….so what, go out and vote for him. You hate squish republicans who stab us in the back?….so what…go out and vote for them. The Senate is a numbers game and we need a majority to confirm judges…..again, a Trump judge is better than a biden 100% left wing judge who will actively see out to destroy the 2nd Amendment…..this isn’t all we have to do, we have to fight on every front against the gun grabbers, but voting is on aspect of the fight we need to win.

  13. avatar Shire-man says:

    When your opinions are repeatedly inconsistent it means you’re either full of shit or mentally deficient.
    When you are either full of shit or mentally deficient you fall back on force to impose your inconsistent opinions.
    Anyone whose best or only argument is force isn’t worth entertaining mostly because that person won’t entertain your argument. Rather you should be training up, tooling up and grouping up to put that full of shit mental deficient down.

  14. avatar Steve Eisenberg says:

    Obama: “A penalty is actually a type of tax.”
    Roberts: “No it isn’t.”
    Obama: “In that case I will have your grandchildren killed.”
    Roberts: “What did you say a penalty is again?”
    Obama:”Exactly.”

    1. avatar Jimmy Beam says:

      Obama: “A penalty is actually a type of tax.”
      Roberts: “No it isn’t.”
      Obama: “What were you doing in that hotel room with those two guys?”
      Roberts: “What did you say a penalty is again?”
      Obama:”Exactly.”

  15. avatar Ross says:

    In my humble opinion Clarence Thomas needs to be the chief justice of the United States Supreme Court .

    1. avatar Mark N. says:

      The Chief Justice position is an administrative post only, not one of authority.For example, once a case is decided by majority vote, the chief Justice decides who is going to write the opinion. On every case, each Justice gets exactly one vote, and that includes the Chief Justice. It takes four votes to grant certiorari, five to have a majority opinion.

      1. avatar Ralph says:

        “once a case is decided by majority vote, the chief Justice decides who is going to write the opinion”

        I think that’s true when the CJ is in the majority. When the CJ is not in the majority, the senior Justice in the majority gets to choose.

        Burger was famous for switching his vote so that he could choose the Justice who would author the opinion. Burger was a snake.

  16. avatar Kendahl says:

    The Supreme Court is looking at this fall’s election and quaking in its boots. The Democrats have made it clear that the Court is to rubber stamp anything the Democrats enact. If it doesn’t go along, they will expand the Court and pack it with enough Democratic justices to get the same result.

    1. avatar PMinFl says:

      There it is, plain and simple !!The court is bullied by the progressives.

  17. avatar Jimmy Beam says:

    Sounds to me like someone needs to game the system. Create a fake gun control group, get some hapless Democrat to propose absolutely outrageous infringement on the 2nd, raise money and otherwise encourage the bill’s passage, then turn around and sue to send it to the Fifth Circuit. Hopefully, the proposed infringement will be so gross that the Supreme Court will have to take it.

    Risky, I know, but it would break the log-jam.

  18. avatar Department of Redundancy Department says:

    Now, you say?

  19. avatar bob says:

    You’re doing it wrong.

    riots resulted in change, statues coming down, manufacturers changing labels, senate leaders bowing down, NFL taking knees…..

    We’ve been asking politely to abolish the restraints of the NFA and ATF for decades….

    take a lesson, violent force makes things happen.

    You ask politely, nobody cares….

    1. avatar Montana Actual says:

      RIght. This is why nothing comes from our protests, when we just go home at the end of the day. I am all for showing up and doing my part, but it’s hard to imagine much change coming from it. It is good to see people coming around though… to understand the self defense has violent nature, especially in the defense against a government. What needs to be done is to dig in… the same way they have in “Chaz”. Inside all the local government offices, and over the white house fence. You are a fool if you believe ANY President is on your side. He will need to be convinced the same way. Otherwise it’s the constant give and take, and now the opposing side is trying to take it all.

    2. avatar Justin says:

      The problem is the target of the Riots/violence. The current targets seem to be random or items that will not generate a significant response. The Government will allow acceptable collateral loss however if you target something they want to protect the response will be completely different. Look at the response when the riots threatened to spill into more financial/political affluent areas vs places they were willing to let burn.

      I imagine that any action taken by the 2nd Amendment crowd would be view as a direct threat to their power. Look at what Happened in Richmond VA during the lobby day. The Governor declared a state of emergency, fenced off the area and allegedly had snipers stationed on roofs (I never saw them or heard any traffic about them on the police comms I was monitoring). If he was willing to go that far for a group that historically leaves the area better than we find it what actions would he take if there was a an actual threat of violence.
      I fear that tear gas and rubber bullets would be the least of our worries and I doubt the media would paint just about any action by the taken government as excessive.

  20. avatar Alan says:

    The latest antics of The Court, as in U.S. Supreme Court, their denying cert. in the ten (10) firearms related issues is a flat disgrace. Additionally, in my view, The Court’s sitting idly by in the face of lower courts playing hob with Heller is, if possible, worse.

  21. avatar Mark N. says:

    The Fifth hearing a case will make no difference in terms of a grant or denial of cert. As it is, there is, as Justice Thomas pointed out in his dissent, a clear split of authority among the circuits on the interpretation and application of the Second amendment. The refusal to grant cert is political within the court itself. There are four conservative justices to vote for cert, but two withheld their votes probably because the chief Justice, nominally a conservative, is wishy washy, and two of the four are concerned that he may not end up on the right side of the question.

  22. avatar Huntmaster says:

    The 2nd Amendment is twenty seven words long an written in plain English. There is a very important reason they only wanted twenty seven words. They didn’t want tyrants to twist it into something it wasn’t. Which is exactly what they have been doing for over a hundred years. History and custom aren’t really supposed to play into this. Knock it off. It’s only twenty seven words for a reason.

  23. avatar Old Barn says:

    I would read between the lines that, in light of the excellent dissent from Justice Thomas on the cert denial, SCOTUS is going to take up a case that will allow them to backtrack on Heller without looking like they are doing so. I expect Thomas, Kavanaugh, Alito, and perhaps even Gorsuch (depending on how far his political virus disease has progressed) to dissent, but it will not matter. It’s all politics now, and they are more concerned about the left and the manipulated middle than 2A supporters. Just buying time until they can redefine the right to bear arms to mean the right to carry the arms of a bear on your person provided the claws do not scare anyone and it is clear you are not actually a bear.

  24. avatar Chris says:

    This has been a terrible year for so, so many reasons, and the news just keeps getting worse. For lack of better words, it looks like Roger Benitez is a one-man army now. He might be the last person left in America who actually gives a shit about us.

  25. avatar Ralph says:

    Anyone who expects the rule of law to be respected by a judge is p!ssing into the wind. Judges are @ssh0les, and the Constitution is toilet paper.

  26. avatar Tom says:

    “Keep in mind that only D.C. and Chicago banned handguns outright.” Yeah, that’s working well.

    https://youtu.be/dsxybedbvMg

  27. avatar 4VFK20629 says:

    When are all you people going to get it. The Second Amendment never did nor never will give you the the ‘right to bare arms’. There is not a single word in it giving us that right.

    The ‘right to bear arms‘ is and has always been a god given unalienable right that man has always possessed and the founding fathers knew that well.

    The Second Amendment only prohibits the Federal Government with the words, …“…shall not be infringed.”

    It is a restriction only on the government. Thus there is no so-called “right to bare arms” anywhere in the Second Amendment and never was. If, in fact, the Second Amendment actually gave us that ‘right’ then they could also take it away. Any ‘right’ the government gives you then can take away.

    The politicians in DC, a foreign nation state with regards to us, full well know that and that’s the reason they are so upset. They know there is noting they can do because of those four little words, “…shall not be infringed.”

    If you only knew that anyone born within the boundaries of any one of the 50 independent nation states is an American National and not the least bit subject to any Federal Laws, Rules, Statutes, Code, etc.… They just want you to think your subject to them, but your not. Federal rules only apply to Federal Citizens and this are either “citizens of the United States” (Territorial US Possessions) or “United States citizens” (District of Columbia).

    American state nationals are exempt, period.

    I rest my case and defy anyone to prove any different

    Thanks for listening. Do your homework and you’ll understand.

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