The raging debate over gun control has many people wondering where members of Congress stand. But the 5th U.S. Circuit Court of Appeals released a per curiam order on April 30, giving the public an idea where 15 judges on the court stand on the issue at least when it comes to a constitutional challenge to laws forbidding licensed gun dealers from selling guns to those under the age of 21. On Oct 25, 2012, a 5th Circuit panel ruled in National Rifle Association, et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al. that federal regulations prohibiting gun sales to those over the age of 18 but under the age of 21 violate neither the Second Amendment, which protects "the right of the people to keep and bear Arms," nor the equal protection component of the Fifth Amendment. Half a year later, the 5th Circuit denied en banc review by one vote. Eight members of the court Chief Judge Carl Stewart and judges Carolyn Dineen King, Eugene Davis, James Dennis, Ed Prado, Leslie Southwick, Catharina Haynes and James Graves voted against reconsidering the decision. Seven of the judges including E. Grady Jolly, Edith Jones, Jerry Smith, Edith Brown Clement, Priscilla Owen, Jennifer Walker Elrod and Stephen Higginson voted to reconsider that decision. Jones wrote a dissent to the April 30 denial of en banc review to consider the constitutionality of the gun laws. "Effectively, these provisions bar law-abiding adults aged 18 to 20 from purchasing handguns in the highly regulated commercial firearms market. I respectfully dissent. There are serious errors in the panel decision’s approach to the fundamental right to keep and bear arms," Jones wrote. "Moreover, the implications of the decision that a whole class of adult citizens, who are not as a class felons or mentally ill, can have its constitutional rights truncated because Congress considers the class ‘irresponsible’ are far-reaching."
Double Entendres Abound
If a litigant presents Fred Biery, chief judge of the Western District of Texas, with a case that offers him the chance to write an opinion loaded with humor, history and double entendres, he’ll take that deal nearly every time. That brings us to Biery’s latest opinion in 35 Bar and Grille, et al. v. The City of San Antonio. In the April 29 decision, Biery considers the plaintiffs’ request for a preliminary injunction against a San Antonio city ordinance that requires dancers at adult clubs to wear bikinis rather than G-strings and pasties if the clubs want to avoid the permitting process as "human display establishments." Biery described the plaintiffs’ fight as one against an "alleged naked grab of unconstitutional power" while the defendant argued that adult clubs must be regulated because they contribute to various "crimes" where they are located and "therefore need to be girdled." Biery even manages to send a shout-out in his opinion to the late "Miss Wiggles" by suggesting patrons would benefit from her exotic but fully clothed dances performed into her eighties and even included a photo in his opinion of a fully-clothed Miss Wiggles doing the splits on top of a chair until she died last year at the age of 90. Ultimately, Biery denied the plaintiffs’ request. "To bare, or not to bare, that is the question. While the Court finds these businesses to be nefarious magnets of mischief, the Court doubts several square inches of fabric will stanch the flow of violence and other secondary effects emanating from these businesses. Indeed, this case exposes the underbelly of America’s Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis. Alcohol, drugs, testosterone, guns and knives are more likely the causative agents than the female breast, proving once again that humans are a peculiar lot. But case law does not require causation between nudity and naughtiness," Biery wrote in denying the motion. "Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending."
