President Trump’s impact on the federal courts was on display Friday when the Fifth Circuit appeals court fell shy of rehearing a case to strike down a federal gun control law, with a unanimous bloc of Trump judges calling the Second Amendment a “fundamental civil right” and suggesting that supporters of this gun-control law were plagued by “hoplophobia” – the medical term for the irrational fear of guns. The president is on the verge of making America’s first pro-MAGA court – but only if he fills its final open seat with another reliable conservative.
Federal law found at 18 U.S.C. § 922(a)(3) makes it illegal to buy handguns across state lines. Several plaintiffs sued, arguing that this restriction violates the Second Amendment right to keep and bear arms.
The challengers drew one of the most conservative federal trial judges in America, Judge Reed O’Connor of the Northern District of Texas, who ruled in their favor. But they then lost before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. That panel included both Republican- and Democrat-appointed judges, a reminder that if supporters want to see this president’s agenda sustained in court, the solution is originalist judges, not Republican judges.
The losing side petitioned the full Fifth Circuit to rehear the case in a rare en banc rehearing, where all 15 judges would reconsider the case. (The New Orleans-based Fifth Circuit actually has 17 seats, but a 16th judge was confirmed just days ago, and President Trump has not yet nominated someone to fill the final seat, so this vote took place with only 15 judges.)
The vote to rehear the case en banc failed by an 8-7 vote, with a couple Republican-appointed judges voting with the more liberal Democrat-appointed judges against en banc review. However, all four of President Trump’s judges voted as a bloc to rehear the case, along with three other Republican-appointed judges, including Judge Edith Jones, a longtime hero to constitutional conservatives appointed by President Ronald Reagan.
The primary dissental – which is a legal term for “dissent from denial of rehearing” – was written by Judge Jim Ho, who was appointed by President Trump. All the other Trump appointees on the Fifth Circuit – Judges Kyle Duncan, Don Willett, and Kurt Engelhardt – joined the opinion in full, for a total of seven judges calling for interpreting the Second Amendment according to its original public meaning.
“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,” Ho began for the seven judges, citing a 1950 wartime habeas corpus case.
The Supreme Court “has reminded lower courts that fundamental constitutional rights like the Second Amendment ‘are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.’” Ho continued, quoting Justice Antonin Scalia’s historic Heller decision. “And it has rejected attempts to disregard the Second Amendment as ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”
“Yet the Second Amendment continues to be treated as a ‘second-class’ right—as at least three Justices have noted in recent years,” he added. “This case warrants en banc review. It involves a question of exceptional importance—the proper scope of the Second Amendment.”
“Federal law criminalizes all interstate handgun sales, and requires anyone who wants a handgun to obtain it from an in-state dealer,” the seven dissenting judges noted. “As a result, anyone wishing to purchase a handgun from an out-of-state dealer must first have it transferred to an in-state dealer,” infringing upon “the ability of countless law-abiding citizens … to obtain a handgun.”
Ho compared this restriction to a waiting period on gun sales because it takes time to transfer the firearm. He also compared it to a tax “in the form of shipping costs and transfer fees,” noting as an example that “the only dealer with a federal firearms license (FFL) in the District of Columbia imposes a $125 transfer fee.”
The opinion reasoned that in addition to ensuring that a gun law must be consistent with the text and history of the Second Amendment to be permissible, the statute must also satisfy “strict scrutiny,” the most demanding court-imposed standard for protecting rights. “Under strict scrutiny, the Government must establish that the challenged law is narrowly tailored to serve a compelling government interest.”
Ho compared banning sales on handguns across state lines to banning the sales of books across state lines, which the First Amendment would not allow.
While “preventing dangerous individuals from purchasing handguns” is a compelling public interest, any “restrictions must be narrowly tailored to serve that interest” to satisfy strict scrutiny.
The seven judges added:
The Government’s defense of the federal ban—that state handgun laws are too complex to obey—is not just wrong under established precedent, it is troubling for a more fundamental reason. If handgun laws are too complex for law-abiding citizens to follow, the answer is not to impose even more restrictive rules on the American people. The answer is to make the laws easier for all to understand and follow. The Government’s proposed prophylaxis—to protect against the violations of the few, we must burden the constitutional rights of the many—turns the Second Amendment on its head. Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government.
“Law-abiding Americans should not be conflated with dangerous criminals,” Ho concluded, declaring that the federal statute fails strict scrutiny and, therefore, violates the Second Amendment. “Constitutional rights must not give way to hoplophobia.”
Judges Jennifer Elrod and Don Willett also wrote separate dissentals in addition to joining the primary one. All seven dissenting judges joined these opinions as well.
While the Trump-judge-led group of seven judges fell short of the number needed to secure en banc review, reinforcements are on the way. The Senate confirmed Judge Andy Oldham to the Fifth Circuit on Wednesday, a 39-year-old with a reputation as a brilliant constitutional conservative.
This leaves the Fifth Circuit only one vote shy of becoming a court that might reliably protect the Second Amendment, religious liberty, and other fundamental rights that President Trump promised to protect through his judicial appointments.
Conservative leaders are concerned, however, because rumor in D.C. has it that establishment leaders are pushing the president to nominate Halil Suleyman Ozerden to the remaining open seat on the Fifth Circuit, a Republican with no record as an originalist and thus is not expected to be a reliable conservative vote.
President Trump is only one judge away from creating the first reliably pro-MAGA court majority on any federal appeals court, and Friday’s en banc denial in this Second Amendment case is a pointed reminder of the stakes.
The case is Mance v. Sessions, No. 15-10311, in the U.S. Court of Appeals for the Fifth Circuit.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.