Mance v. Sessions
896 F.3d 390
5th Cir.2018Background
- Federal law (18 U.S.C. § 922(a)(3), (b)(3)) prohibits interstate sales/transfers of handguns except through in‑state FFLs; rifles/shotguns are treated differently.
- Plaintiffs (Mance and others) challenged the interstate‑handgun ban as violating the Second Amendment; the district court struck down the ban as not narrowly tailored.
- A Fifth Circuit panel reversed, assuming (but not deciding) strict scrutiny under the circuit's two‑step Second Amendment framework and holding the statute narrowly tailored to a compelling interest in preventing circumvention of state handgun laws.
- Petition for rehearing en banc was denied by vote (7 in favor, 8 against); multiple judges filed concurring and dissenting opinions explaining divergent views on doctrine and outcome.
- Key contested legal questions: the correct analytical framework for Second Amendment claims (two‑step/tiered scrutiny vs. text‑and‑history approach), whether the federal ban is overinclusive/underinclusive, and whether less‑restrictive alternatives (NICS, information‑sharing, state licensing) make the ban unnecessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper doctrinal test for Second Amendment claims (tiers of scrutiny vs text/history) | Heller/McDonald require a text‑and‑history inquiry; do not apply interest‑balancing scrutiny | Circuit precedent uses a two‑step framework mirroring First Amendment tiers (and applies strict/intermediate scrutiny as appropriate) | Panel assumed the two‑step/tiered approach and (without deciding alternative) applied strict scrutiny; rehearing en banc denied so no circuitwide change made |
| Does §922(a)(3)/(b)(3) substantially burden Second Amendment rights? | The ban imposes meaningful burdens (de facto waiting periods, transfer fees, restricted channels) on law‑abiding purchasers | Panel assumed arguendo a burden but proceeded to strict‑scrutiny analysis; Government emphasized public‑safety interest | Panel treated the statute as burdening rights (for purposes of analysis) but upheld it under strict scrutiny |
| Narrow tailoring / over‑inclusiveness of the handgun‑only prohibition | The law is a broad prophylactic ban that is overinclusive (bans many lawful transactions) and underinclusive (exempts long guns); less‑restrictive alternatives exist (NICS, state licensing, information sharing) | Congress reasonably targeted handguns given historical concerns and complexity of state laws; Congress may rely on dealers to enforce state rules and need not compel states to harmonize laws | Panel concluded the statute was sufficiently tailored to serve the compelling interest; dissenters argued it fails strict scrutiny and is both over‑ and underinclusive |
| Role of longstanding tradition / "presumptively lawful" categories from Heller | Because the in‑state sales requirement lacks founding‑era roots, it is not a longstanding tradition and thus inconsistent with the Second Amendment under a text/history test | Even assuming the law is not "longstanding," courts may still apply tiers of scrutiny and uphold regulations that are appropriately tailored | Panel assumed (without deciding) the law is not longstanding but nonetheless upheld it on narrow‑tailoring grounds; dissents urged decisive text/history analysis and potential per se invalidity for non‑traditional burdens |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognized individual right to possess a handgun for self‑defense and explained some regulations are presumptively lawful)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (held Second Amendment incorporated against the states; warned against treating the right as second‑class)
- Nat'l Rifle Ass'n v. ATF, 700 F.3d 185 (5th Cir. 2012) (adopted two‑step/tiered framework for Second Amendment review in Fifth Circuit)
- Williams‑Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (explained tailoring/underinclusivity considerations in strict‑scrutiny context)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (upheld speech restriction under strict scrutiny framework; cited as example that strict scrutiny does not always invalidate regulations)
- United States v. Decastro, 682 F.3d 160 (2d Cir. 2012) (held § 922(a)(3) did not substantially burden Second Amendment right)
- United States v. Focia, 869 F.3d 1269 (11th Cir. 2017) (upheld 18 U.S.C. § 922(a)(5) as falling within Heller's presumptively lawful categories)
- Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) (upheld assault‑weapons and large‑capacity‑magazine bans under Second Amendment analysis)