Interesting concurrence in the 5th Circuit
The case is US v. McGinnis, an appeal from a conviction for possessing a short-barreled rifle and possession of ammunition while subject to a domestic restraining order. The three-judge panel sustains the convictions, using a traditional standard of scrutiny approach. But two of the three judges write a concurrence (see p. 20), suggesting that the Circuit ought to scrap that approach and go with “text and history,” an approach taken by Justice Gorsuch.
“Not only would this approach provide firmer ground for evaluating restrictions on the right to bear arms, but it would also further cabin judicial application of the “tiers-of-scrutiny approach to constitutional adjudication,” an exercise which ‘is increasingly a meaningless formalism.’”
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