Going Postal: Judge Mizelle Acting Very, Very Badly (Again) in Huge Second Amendment Case
In New York State Rifle and Pistol Ass'n v. Bruen, the Supreme Court's conservatives issued a decision that radically upended Second Amendment jurisprudence in a novel and bizarre way by focusing exclusively on history when evaluating gun control legislation. This nightmare of an opinion has paved the way for ambitious lower court judges to write sermons about gun rights so that when a Republican President is back in power, they will have a better chance of promotion. If that statement sounds harsh, there is simply no other explanation (other than possibly incompetence) for the pernicious screed issued by Judge Kathryn Kimball Mizelle striking down a federal law banning guns in United States Post Offices. This opinion is anti-originalist, anti-precedential, and anti-common sense.
Judge Mizelle is the same judge who overturned the CDC's requirement to wear masks on planes and trains before the rule expired. My blogger-in-chief Mike strongly criticized that hugely unpersuasive opinion.
Judge Mizelle was the youngest Trump appointee to the federal bench at the tender age of 33. She clerked for Judge Bill Pryor and Justice Clarence Thomas and, of course, is a longstanding member of the Federalist Society. Before her was a case involving a postal employee who brought a gun to work, which is prohibited by federal law. In District of Columbia v. Heller, the Court said the following about judicial review of gun laws:
Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
One would think that, under this express carveout, the government could ban guns in post office buildings. But Judge Mizelle deemed this language to be dicta. Whether or not that is technically true (the paragraph begins by saying it is interpreting the opinion, so it is likely not dicta), the passage above has not been superseded by Bruen, is clear as clear can be, and should be applied by lower court judges.
But even apart from precedent, the federal government must be allowed to ban guns in post offices to protect the people who use post offices, the valuable contents of that post office, and the people who work there. Alas, Bruen precludes any such judicial balancing, and as I have written previously, is therefore inconsistent with the original meaning of the Constitution, how the Court interprets almost every other constitutional provision, and amounts to terrible judicial aggression.
My criticism of Judge Mizelle, therefore, is not that by avoiding any and all policy balancing she did something wrong. Bruen does not permit policy concerns to be deemed relevant by judges. My criticism is that she should have simply quoted the passage above from Heller and upheld the law as a regulation of guns in a government building. Instead, she worked extremely hard, even under current law, to reach the absurd result that the government cannot ban guns in its own buildings or even more narrowly prohibit its own employees from bringing guns to work.
It gets worse. Judge Mizelle recognized that there is historical precedent for the government's banning of guns in "legislative bodies, polling places, or courthouses." But she reasoned that those government places are not analogous to post offices, and she strongly implied that some government buildings can be gun free zones (like courthouses of course) but the analysis must be done on a case-by-case basis. In addition, she placed an ultra-heavy burden of proof on the government to show similar laws were present at the Founding. Again, she didn't have to do any such analysis but could have simply cited the relevant Heller language and said the government has the power to keep guns off its own property.
Stripping away legal tests, prior cases, and doctrinal conventions, it simply is irrational to prohibit the government from BANNING ITS OWN EMPLOYEES FROM CARRYING GUNS ON THE GOVERNMENT PROPERTY WHERE THEY WORK. Any other conclusion is inconsistent with centuries of gun restrictions, Heller, and elementary notions of the basic relationship between the government and its own workers. This opinion is, quite simply, an unmitigated disaster.