From Third Circuit Judge Cheryl Krause's dissent from denial of rehearing en banc yesterday in Lara v. Commissioner; Judges Shwartz, Restrepo, Freeman, Montgomery-Reeves, and Chung also voted to rehear the case en banc, but didn't write an opinion or join Judge Krause's:
When they ratified the Second Amendment, our Founders did not intend to bind the nation in a straitjacket of 18th-century legislation, nor did they mean to prevent future generations from protecting themselves against gun violence more rampant and destructive than the Founders could have possibly imagined. At a minimum, one would think that the states' understanding of the Second Amendment at the time of the "Second Founding"—the moment in 1868 when they incorporated the Bill of Rights against themselves—is part of "the Nation's historical tradition of firearms regulation" informing the constitutionality of modern-day regulations.
Indeed, since the Supreme Court tethered their constitutionality to the existence of historical precedent in District of Columbia v. Heller (2008), we and the other Courts of Appeals have consistently looked to Reconstruction-era, as well as Founding-era sources, and, even as the Supreme Court has acknowledged the "ongoing scholarly debate" about their relevance, it too has relied on Reconstruction-era sources in each of its recent major opinions on the right to bear arms. Notably, the Supreme Court is expected within the next few months, if not weeks, to issue its next seminal opinion, clarifying its historical methodology in the absence of Founding-era analogues.
Yet despite our own precedent acknowledging the relevance of Reconstruction-era sources, our recognition in an en banc opinion just last year that the Supreme Court relies on both Founding-era and Reconstruction-era sources, and an imminent decision from the Supreme Court that may prove dispositive to this case, the panel majority here announced— over Judge Restrepo's compelling dissent—that all historical sources after 1791 are irrelevant to our Nation's historical tradition and must be "set aside" when seeking out the "historical analogues" required to uphold a modern-day gun regulations. The panel majority then held—based exclusively on 18th-century militia laws and without regard to the voluminous support the statutory scheme finds in 19th-century analogues—that Pennsylvania's prohibition on 18-to-20-year-old youth carrying firearms in public during statewide emergencies is unconstitutional.
