Steven Halbrook notes that the 5th Circuit Court of Appeals got the history wrong, but I hadn’t considered this one silver lining:

The government thus asserted that the plaintiffs were not injured and lacked standing. The court disagreed, finding the inability to purchase a handgun from a dealer to be a concrete, particularized injury.

So the Second Amendment protects some right to purchase a handgun in the 5th Circuit. We think such things are obvious, and they should be, but these are the courts we’re talking about. Halbrook also points out the skewed logic of the decision:

Now for the irony of this exercise, the law allows a person aged 18 to 20 to buy a handgun from a non-dealer and allows a person aged 21 or over to buy a handgun and give it to a person aged 18 to 20. Thus, since persons aged 18 to 20 are too untrustworthy to have Second Amendment rights, they do not have to go through a background check when obtaining a handgun. However, anyone purchasing a firearm from a dealer is subject to a background check for criminal convictions, mental commitments and other prohibited categories giving rise to a denial to purchase firearms. The court rejected the argument that this undermines the reasonableness of the fit between the restriction and the objective to keep firearms out of the wrong hands.

The courts have been basically looking for any excuse not to toss any laws out under the Second Amendment. What other right should work this way?

3 thoughts on “NRA v. BATFE”

  1. Given some of the weird judicial activity in the history of the 2A jurisprudence (Miller decision), a sufficiently paranoid mind might conclude the guarantee of reversal ifs deliberate…

  2. I just read the opinion and boy is it convoluted. I really liked when they were along the lines of, “THe founders and long history have supported disarming certain groups…” O rly? Please, tell me more about how Native Americans African slaves all blacks poor people juveniles, felons, and crazy people have been disarmed. “Certain groups,” indeed.

    I also like how the “evolving doctrine” seems to find any reason to either dismiss cases out of hand, or to set a bar of “intermediate minus” scrutiny whereever possible.

    Before Scalia or Thomas kick the bucket we need another SCOTUS case laying out strict scrutiny or the courts will become essentially meaningless and perhaps actively detrimental to the right. Or, we need another strategy like the LA approach.

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