Federal Interstate Handgun Sales Ban Ruled Unconstitutional

[Midwest]

Federal Interstate Handgun Sales Ban Ruled Unconstitutional

Could someone elaborate on this? It seems the part about 1968 GCA Handgun Ban on Interstate sales has been overturned?


https://www.firearmspolicy.org/news...ate-handgun-sales-ban-ruled-unconstitutional/

"In another excellent victory for civil rights by attorney Alan Gura, United States District Court Judge Reed O’Connor struck down the federal interstate handgun sales ban earlier today, finding it unconstitutional (both facially and as-applied) under the Second Amendment and the Fifth Amendment’s Due Process Clause.

As the Court explained, “[t]o prevail on a facial challenge, Plaintiffs must show that either no set of circumstances exists under which the law would be valid or that the statute lacks any plainly legitimate sweep.” That high bar was met by the Plaintiffs’ legal team. The decision explained that “Defendants [United States Attorney General Eric Holder and BATFE director B. Todd Jones] fail[ed] to provide reasonably current figures to show the federal interstate handgun sale ban is narrowly tailored.”

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[Thermactor]

Is this for real?!

 

[Jim K]

In the unlikely event that the decision stands, can we count on anti-gun governors to commit joint suicide?

Jim

 

[Midwest]

I was hoping Frank or one of the other legal scholars would weigh in on this.
.

 

[Frank Ettin]

Before anyone gets too excited --

This is a trial court decision and is not precedent anywhere. It applies only to the parties and to this particular lawsuit. It is likely to be appealed.

On the other hand, it's a nicely reasoned decision for our side, and it's good to see this sort of routine application of Heller and the individual rights model of the Second Amendment. The more of these sorts of decision we see the more theses concepts will take hold.

This is one more brick added to the foundation of favorable Second Amendment rulings we need to build.

 

[Frank Ettin]

And here's a link to the entire decision. It's worth reading.

 

[climbnjump]

Federal Interstate Handgun Sales Ban Ruled Unconstitutional

Could someone elaborate on this? It seems the part about 1968 GCA Handgun Ban on Interstate sales has been overturned?

I'm not a lawyer nor have I played one in the InterTubes, but as the article at the link points out, the government will most likely appeal this decision to the next level up, the Fifth Circuit Court of Appeals. So it's not yet a permanently "done deal".

 

[denton]

There is little doubt that it will be appealed. But the attorney on the case is Alan Gura. I'd be reluctant to bet against him.

It's also nice that the court reasoned the case three times, once with intermediate scrutiny, once with strict scrutiny, and once on 5A equal protection grounds. In each line of reasoning, they reached the same conclusion. So that gives an appellate court three ways to sustain the ruling.

Also, it's a summary judgment. As I understand it, that means that there was no dispute as to the facts, and the law on the issue was clear, so no trial was necessary. I suppose the appellate court might require the district court to go through a trial before accepting the case for appeal.

It will be fun to see how the media spins this.

 

[Ryanxia]

Fantastic start! Now if we can just get the machine gun registry reopened I'll be quite happy.

 

[calaverasslim]

I'm just, an old man who is confused. What is this law and how does it affect people? The way I read it, if I go to New Mexico, federal law prohibits me from paying my money and taking the gun out the door. If this deal holds up, will that law be overturned?

 

[morcey2]

I'm just, an old man who is confused. What is this law and how does it affect people? The way I read it, if I go to New Mexico, federal law prohibits me from paying my money and taking the gun out the door. If this deal holds up, will that law be overturned?

My guess is that it would change it to match the laws regarding long-guns, that being that you would have the ability to buy a gun through an FFL in any state as long as the all laws in both states were followed.

I read the entire decision and it's very well written. It strikes it down under strict scrutiny under the 2A, both for facial (on its face unconstitutionality) and as-applied judgement and then goes on to show that intermediate scrutiny also fails again for both facial and as-applied. It then goes on to 5A equal protection basis and strikes it down that way.

The judge also goes into great detail with regard to standing-to-sue of the plaintiffs. Hopefully it will hold up through appeal.

Matt

 

[MAKster]

Interstate handgun sales were never banned. They just had to be shipped to an FFL in the buyer's home state. This decision if it stands just means you can buy handguns in a state in which you are not a resident and it won't have to be shipped to a home state FFL. You still would have to buy it in person from an FFL and comply with any state laws in your home state. This would make the handgun rule the same as the rule for a shotgun or rifle.

 

[Quiet]

Since 1968, Federal laws have allowed a FFL dealer in transferring a rifle or shotgun to a non-resident, as long as the transfer complies with both the State laws of the FFL dealer and the non-resident. Handguns and other firearms can only be transferred through a FFL dealer in the recipient's State of residence.

The decision changes all that, so a FFL dealer can transfer a firearm (handgun, other, rifle, shotgun) to a non-resident, as long as the transfer complies with both the State laws of the FFL dealer and the non-resident.

 

[Frank Ettin]

...The decision changes all that, so a FFL dealer can transfer a firearm (handgun, other, rifle, shotgun) to a non-resident, as long as the transfer complies with both the State laws of the FFL dealer and the non-resident.

Actually, the decision doesn't do anything yet. Judgement hasn't been entered, nor has the injunction been issued. And we need to see if the government appeals (which they probably will) and things get stayed while the appeal goes forward.

 

[Praxidike]

Interstate handgun sales were never banned. They just had to be shipped to an FFL in the buyer's home state. This decision if it stands just means you can buy handguns in a state in which you are not a resident and it won't have to be shipped to a home state FFL. You still would have to buy it in person from an FFL and comply with any state laws in your home state. This would make the handgun rule the same as the rule for a shotgun or rifle.

Sales banned, no. Taking possession is banned which is a de facto ban in my book. Also, does DC really only have 1 public FFL that charges over $125 per transfer? I'm guessing that the ATF only approved this one business, "Sykes", to transfer guns in DC, and the $125 was meant to deter gun purchases. No one can go to a FFL or gun shop to buy a gun in DC being that none exist for that purpose. Everyone in DC has to have a firearm purchase go through Sykes at a $125 fee each. Too bad that if not for that fact, this case would have been thrown out in it's infancy. Came back to bite them just like Heller did.

Even if this case stands, I don't see how the ruling in this case would affect people who live in the 50 states, and who have multiple FFLs to choose from that actually sale firearms. If this law stands, it would only affect DC residence would it not? DC will either have to start allowing FFL dealers to sell guns to the public, or the residence in DC will have the option to buy and take possession in another state.

 

[Frank Ettin]

I'm going to close this, at least for now.

 

[Frank Ettin]

I'll re-open this thread with the caveat that it's still not over. It's very likely that the government will appeal, and it's also a strong possibility that the judgement will be stayed pending appeal.

To help keep discussion focused, I'll point out the following:

• The judgement enjoins (orders not to) the enforcement of 18 USC 922(a)(3), 18 USC 922(b)(3), and 27 CFR 478.99(a). 18 USC 922(a)(3) makes it illegal (with minor exceptions) for a non-licensee to obtain a gun in another State and receive or transport it to his State of residence. 18 USC 922(b)(3) makes it illegal (with minor exceptions) for an FFL to transfer a gun to someone he knows or has reasonable cause to believe is a resident of another State. 27 CFR 478.99(a) is merely the substance of 18 USC 922(b)(3) in a regulation. That is all it enjoins. It does not invalidate all the federal interstate transfer laws.
  
  
  • 18 USC 922(a)(2) remains valid and enforceable. Under 18 USC 922(a)(2) it is illegal (with minor exceptions) for an FFL to ship a gun to a non-licensee in another State.
    
    
  • 18 USC 922(a)(5) remains valid and enforceable. Under 18 USC 922(a)(2) it is illegal (with minor exceptions) for a non-licensee to transfer, sell, trade, give, transport, or deliver a gun to someone he knows or has reasonable cause to believe is a resident of another State.
    
    
  • The judgement of the District Court in Mance v. Holder doesn't apply to, nor does it have any effect on, state laws. So all state law regarding the receipt, transfer, or possession of firearms remain in effect and valid and enforceable.
  
  
• The District Court's decision in Mance v. Holder is worthwhile reading. Judge O'Connor provides an excellent analysis and is very well reasoned.
  
  
  • But as a District Court decision, it is not precedent anywhere, and the legal conclusions drawn by Judge O'Connor aren't binding on other courts. They may be used in other cases and for other purposes for any persuasive value they might have.
    
    
  • If the case goes up to the Fifth Circuit, Judge O'Connor's opinions will be superseded by whatever the Fifth Circuit has to say.
  
  
• For an excellent summary and analysis of Judge O'Connor's decision see lawyer Andrew Branca's article at Legal Insurrection.
  
  
  • As to the practical question of whether someone can now go and buy a handgun at an FFL in another State, Lawyer Branca answers:

    ...As a practical matter, however, I’m sure you’ll find the answer to be “no.” I very much doubt any FFL is going to be willing to do direct out-of-state transfers until this matter has been thoroughly litigated, and even then only if the ATF(E) issues a letter assenting to such transfers. Given this order came from a “mere” federal District Court, we are a many years from having this be settled law.
    
    And absent settled law it’s hard to imagine an FFL incurring the risk of prosecution on a 10-year Federal felony for the profit he’d make selling a Glock 19 to an out-of-state buyer....

    
    
  • As to the practical question of whether this decision offers a way around the restrictive gun laws of one's home State, Lawyer Branca answers:

    ...The answer is almost certainly, “No!”
    
    The plaintiffs in this case, the Hansons, were legally permitted to purchase a firearm in both their home “state” of Washington DC and the state in which the FFL Mance conducted business, Texas. Had they been prohibited from purchasing a gun in either location this Court’s analysis would not apply. The Court addresses this issue in a lengthy footnote on page 22, in speaking to a concern raised by the Defendants that an FFL in one state may not be familiar with the gun laws of a different state, running the risk that the FFL would be selling a handgun to a resident of that other state who is prohibited under that state’s laws:

    A Texas FFL must ensure that a Sacramento, California resident who purchases a rifle is legally entitled to do so under federal, Texas, California, and Sacramento law. Similarly, a non-Texas FFL must ensure that a Texas resident who purchase a rifle is legally entitled to do so under federal law and the laws of both states. While a California FFL in San Diego might have to research the local handgun restrictions in place for a Sacramento California resident purchaser, some 500 miles to the north, nothing prevents an out-of-state FFL from Reno, Nevada, from conducting the same research to ensure that a handgun transaction with a Sacramento resident, some 100 miles away, comports with federal, Nevada, California, and Sacramento restrictions. Under current law, an FFL is not authorized to transfer any firearm to anyone until the state or federal authority confirms the transfer is legally permitted under state and federal law. See 18 USC § 922(t).

    
    As a practical matter, if it turned out that yesterday’s court order represented a way around the Massachusetts restrictions on transfers of restricted handguns, I am confident the legislature would promptly make whatever statutory changes were necessary to bring those restrictions back into effect—and, again, no FFL is going to risk being caught on the wrong side of a volatile set of gun laws for the pittance of a profit they make on a handgun sale.

 

[anothernewb]

okay, sorry.
so laymans terms - IF I understand the principal of this ruling.

If I went to another state, where I'm legal to purchase a handgun, where that state allows FTF handgun sales, and my home state allows me to own that particular handgun - then I can buy that handgun FTF in the other state?

 

[Frank Ettin]

okay, sorry.
so laymans terms - IF I understand the principal of this ruling.

If I went to another state, where I'm legal to purchase a handgun, where that state allows FTF handgun sales, and my home state allows me to own that particular handgun - then I can buy that handgun FTF in the other state?

And then both you and the seller could well have committed federal felonies and earn an entitlement to up to five years in federal prison (plus the associated lifetime loss of gun rights). The seller for violation of 18 USC 922(a)(5) and you for aiding and abetting his crime. 18 USC 922(a)(5) is not affected and remains valid and enforceable.

 

[morcey2]

okay, sorry.
so laymans terms - IF I understand the principal of this ruling.

If I went to another state, where I'm legal to purchase a handgun, where that state allows FTF handgun sales, and my home state allows me to own that particular handgun - then I can buy that handgun FTF in the other state?

No. First, this ruling isn't binding anywhere yet. Second, if and when it becomes binding, FTF purchases outside your home state would still be illegal regardless of the type of firearm.

You would, however, be able to walk into an FFL in another state and buy a handgun there so long as the purchase met all of the regulation of your state, county, and city AND the state, county, and city where you were making the purchase including a proper background check. It would eliminate having to have the gun shipped to an FFL in your home state to complete the transfer.

Matt

 

[cliffhangernlv]

As I understand it, the law in question actually dates back to 1968. And "Another one bites the dust" and lends support to the Constitution. Ooorah.

 

[gbw]

I'm glad to see this re-opened, a gracious choice.

The court's decision's elegantly crafted and written. Clean, straight logic, very thorough, sensible and, wonder of wonders, clear and direct interpretation of founder's intent. A lot of legal scholars reading this, I gotta think, are indignant and offended. Their stock in trade too often seems to be to take the simple and make it impossible, to fold, spindle and mutilate logic until it's ludicrous, and then to find within the resulting morass 'legal' conclusions that make no sense whatever under any level of scrutiny - all under the guise of 'rigorous legal thought and scholarship'. BS.

It will be interesting to watch this case to see how they manage to do that to this decision - I have little doubt many will, but we can hope they won't be the majority.

 

[anothernewb]

No. First, this ruling isn't binding anywhere yet. Second, if and when it becomes binding, FTF purchases outside your home state would still be illegal regardless of the type of firearm.

You would, however, be able to walk into an FFL in another state and buy a handgun there so long as the purchase met all of the regulation of your state, county, and city AND the state, county, and city where you were making the purchase including a proper background check. It would eliminate having to have the gun shipped to an FFL in your home state to complete the transfer.

Matt

Gotcha. I was lost. so, limitations notwithstanding. I can buy from an FFL in another state if this goes through. that's cool. I hope this goes forward.

 

[gc70]

The DOJ requested a 60-day stay on Friday.

 

[Red Wind]

^I suppose that was to be expected.