It is illegal for a person under the age of 21 to buy beer. Yet, a lawsuit filed by the National Rifle Association wants them to be able to buy a deadly machine that exists for the sole purpose of forcing a high-velocity slug of metal into another human being. Yesterday, one of the most conservative federal appeals courts in the country disagreed.
Two George W. Bush appointees to the United States Court of Appeals for the Fifth Circuit joined a unanimous revised opinion yesterday rejecting the NRA’s claim that 18 year-olds should be allowed to buy handguns from federally licensed firearm dealers. The opinion is complex and relies at least two alternative grounds for upholding the ban on gun sales to young people, but its discussion of how the founding generation would have treated this NRA’s absolutist view of gun rights is particularly significant:
The historical record shows that gun safety regulation was commonplace in the colonies, and around the time of the founding, a variety of gun safety regulations were on the books; these included safety laws regulating the storage of gun powder, laws keeping track of who in the community had guns, laws administering gun use in the context of militia service (including laws requiring militia members to attend “musters,” public gatherings where officials would inspect and account for guns), laws prohibiting the use of firearms on certain occasions and in certain places, and laws disarming certain groups and restricting sales to certain groups. It appears that when the fledgling republic adopted the Second Amendment, an expectation of sensible gun safety regulation was woven into the tapestry of the guarantee. . . .
Scholars have proposed that at the time of the founding, “the right to arms was inextricably and multifariously linked to that of civic virtu (i.e., the virtuous citizenry),” and that “[o]ne implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous citizens (i.e., criminals) or those who, like children or the mentally imbalanced, are deemed incapable of virtue.” This theory suggests that the Founders would have supported limiting or banning “the ownership of firearms by minors, felons, and the mentally impaired.” . . . . Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18.
The NRA will no doubt be distressed to learn that one of their biggest bugaboos — a government-run registry of firearm owners — was commonplace around the time of the founding. They will be even more dismayed to see it described in a judicial opinion strongly suggesting that such registries are constitutional. And this comes from a three-judge panel that includes two Bush-appointees.
Notably, the Fifth Circuit released an order today indicating that seven of the court’s 15 active judges voted to have the full court rehear the case. Had one more judge voted for such a rehearing, it would have taken place. Of these seven, only six actually indicated that they disagreed with the three-judge panel’s decision. The seventh judge, Obama appointee Stephen Higginson, was silent on whether he agreed with the panel’s decision. All six of the judges who called for gun regulation to be less strict than beer regulation were Republicans.
The NRA will no doubt appeal this decision to the Supreme Court, but the Fifth Circuit’s resolution of the case is a good sign that the justices will not strike down the ban on gun sales to young people. Beyond the fact that two Bush-appointees voted to uphold this law, the judges who called for it to be struck down include some of the most severely conservative judges in the country.
Judge Jerry Smith, for example, is the same judge who ordered a Justice Department attorney to write a letter he likely intended to use to embarrass President Obama. Judge Edith Clement sat on the board of a group that used to be one of the leading sponsors of corporate-friendly junkets for judges. And Judge Priscilla Owen once took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court, and then wrote a key opinion reducing Enron’s taxes by $15 million.
The author of the pro-NRA opinion was Judge Edith Jones. Jones once told a liberal colleague to “shut up” during the middle of an oral argument, and she is one of the most frequent attendees of junkets for judges. Jones also wrote a dissenting opinion claiming that a woman who “was repeatedly propositioned, was groped and grabbed, [had] pornography  placed in her locker, and [had] other employees broadcast obscene comments about her over the company’s public address system” did not experience sexual harassment.
So, while it is true that six judges did adopt the NRA’s view in this case, they are the kinds of judges who sit well to the right of even this Supreme Court.