Earlier today my colleague Tom Knighton wrote a piece about the DOJ’s deadline in a case challenging the federal prohibition on retail gun sales to adults under the age of 21, and wondered whether the DOJ would file anything at all since the Office of Legal Counsel recently issued an opinion that concurred with the federal judge who found the law a violation of the Second Amendment.
Well, the DOJ has replied, telling the Fifth Circuit Court of Appeals that any arguments over the scope of the judge’s injunction are now moot, since the agency has no plans to enforce the ban against anyone 18-to-20 who wants to purchase a handgun at a gun store.
The Department ofJustice’s determination that it will not enforce the challenged provisions against anyone, anywhere, demonstrates that there is no longer a live controversy. The Court thus need not, and should not, address the scope of relief questions that otherwise would have been presented. And even if the Court determines that the case is not moot, the OLC opinion demonstrates that there is no basis for expanding the permanent injunction in the manner plaintiffs request. If the Court nevertheless reaches the underlying issue here, it should make clear that ordinary Article III and equitable principles apply to associational plaintiffs, just as they govern the scope of relief available in all other litigation.
The DOJ seems to be trying to thread a legal needle here.
Thanks to the Supreme Court’s decision in CASA, lower courts generally can’t issue universal injunctions that extend relief beyond what’s necessary to provide complete relief to the plaintiffs before them.
The plaintiffs in FPC v. ATF weren’t actually arguing for a universal injunction, but they did (and do) want the Fifth Circuit to go beyond the district court’s injunction, which only granted relief to individuals who were members of FPC and Louisiana Shooting Sports Association at the time the lawsuit was filed, and only those members who live in the Fifth Circuit’s jurisdiction.
By asserting that the agency won’t enforce the statute anywhere, the DOJ is claiming there’s no need for oral arguments over the scope of the injunction, which is probably true so long as President Trump is in the White House. The next time a Democrat moves into the Oval Office, however, that administration could reverse OLC’s position and resume enforcement, at which point the scope of the injunction would once again become an extremely important issue.
The DOJ contends that “[b]ecause OLC has issued a concluding opinion that the challenged restrictions are unconstitutional—an opinion that ‘reflect[s] the legal position of the executive branch,”’and there is ‘no indication that’ the Executive Branch ‘intends to reconsider that decision,’ there is no reasonable prospect that the challenged conduct will recur.”
That might be a reasonable conclusion to draw if you’re convinced that Democrats will never win another presidential election, but if you believe there’s a possibility that a future administration will be opposed to the Second Amendment, I think it’s reasonable to want the permanent injunction to be as broad as possible.
I appreciate the DOJ’s declaration that it will not enforce the ban on young adults purchasing handguns from FFLs. But I also think that even under CASA, FPC and the other plaintiffs have made a legitimate argument that the relief granted to them in the injunction does not provide complete relief to them. The Supreme Court said in CASA that judges are prohibited from providing relief “broader than necessary to provide complete relief to the plaintiffs,” but in this case any FPC or LSSA members between the ages of 18 and 20 when an anti-gun administration takes over are almost certainly going to be denied the ability to purchase a handgun at their local gun shop.
FPC and the other plaintiffs have a strong argument that an injunction encompassing all of their members, including future members and those outside the Fifth Circuit, is necessary to provide them complete relief.
I truly believe the DOJ is trying its best to take a stance that’s favorable to the Second Amendment, but I also think it’s pretty apparent that the agency doesn’t want to open the door to any left-leaning organizations being granted broad injunctions against the Trump administration’s policies going forward. That leads to an inherent conflict with the plaintiffs; not over the scope of the right to keep and bear arms, but over how far a federal court’s power extends when it comes to protecting those rights.
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