Handguns - State Lines - Constitutionality

[Praxidike]

A recent ruling in California has stated that California’s 10-day waiting period for gun purchases was ruled unconstitutional because it burdens the Second Amendment rights. The ruling stated that CA must change its systems to accommodate the unobstructed release of guns to gun buyers who pass a background check and possess a California license to carry a handgun, or who hold a “Certificate of Eligibility” issued by the DOJ and already possess at least one firearm known to the state.

My question is, in applying this logic to interstate gun purchases, how is it constitutional to allow long gun purchases, but forbid handgun purchases especially in cases where the purchaser has a reciprocated gun permit and passes the background check? Even in the absence of the gun permit, if they can verify that the person if legally able to own and buy a certain long gun in their respective state, why can't they use the same technique to verify the eligibility of a hand gun purchase?

If I live 10 minutes away from my neighboring state, I'm legally about to conceal carry in both states, and I pass a background check, how on earth could it be constitutional to keep me from making a purchase in that state?

 

[CosmicArkie]

Amen, Brother

But you're preaching to the choir.....

 

[Frank Ettin]

...My question is, in applying this logic to interstate gun purchases, how is it constitutional to allow long gun purchases, but forbid handgun purchases especially in cases where the purchaser has a reciprocated gun permit and passes the background check?...

And that might very well be an excellent question to bring up in some further RKBA litigation.

If you think that the government has exceeded its powers and have a whole bunch of extra money sitting around to fund RKBA lawsuits, the courts are open for business. With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. There are approximately 70 cases in various stages of litigation in various federal courts around the country challenging various law purporting to regulate the RKBA.
   
   
8. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

 

[lilguy]

Thanks for the fine points on the 2nd amendment to date. I can carry concealed in any state I may visit in my life time through the 3 state permits I hold. I can
walk into any gun dealer and buy and walk out with any non full auto gun that's at least 50 years old or a C+R because of my C+R license. In my wallet I have
the above mentioned 3 carry permits, a copy of my collectors lic and my Illinois
FOID card. I hope that one day a single ID will allow me to move freely through
The firearms world nation wide. Probably, hopefully through legislation but a court order will do also.

 

[Twiki357]

On a practical application, the various laws related to long arms from one state to another are somewhat similar, other than those nasty black ones. I’m not sure if it is incumbent upon the FFL seller or the purchaser to ensure that a long gun is legal in the purchaser’s state. When it comes to handguns, it’s a whole different story because it’s not only state laws but hundreds, if not thousands of local laws.

For example; Handguns can only, generally, but with a number of exceptions, be brought into California if they are on CA’s approved list. And all guns are required to be registered, including long guns starting in 1/1/14. In Los Angeles, many of the CA state approved handguns (Considered as Saturday night specials) are prohibited from being sold, but may be possessed. Cross a state line into Arizona (And I think Nevada) and the only restriction on the types of firearms are those imposed by Federal law.

And that, I believe, is why the Federal prohibition on interstate handgun sales was passed and are required to go to and through an FFL in the purchaser’s state of residence.

 

[mgkdrgn]

Because, as per the constitution, those duties not -specifically given-to the federal government fall to the states.

That is why there are 50 different marriage licenses, 50 different drivers licenses, 50 sets of voting regulations, and 50 different sets of gun laws.

 

[Red Wind]

Even 50 different sets of hunting and fishing regulations! It's all so complicated! Can't we all just get along?

 

[Praxidike]

Because, as per the constitution, those duties not -specifically given-to the federal government fall to the states.

That is why there are 50 different marriage licenses, 50 different drivers licenses, 50 sets of voting regulations, and 50 different sets of gun laws.

But isnt it federal law that is banning interstate gun purchases across all 50 states?

 

[Frank Ettin]

But isnt it federal law that is banning interstate gun purchases across all 50 states?

Federal law isn't "banning" interstate gun transfers. It's regulating them. You may, under federal law, buy a gun from someone in another State; but in general the transfer must be done through an FFL.

I've purchased a number of guns from people in other States. And in each case the gun was shipped to an FFL here. I then did the usual paperwork and in due course took home my gun.

 

[Praxidike]

Federal law isn't "banning" interstate gun transfers. It's regulating them. You may, under federal law, buy a gun from someone in another State; but in general the transfer must be done through an FFL.

I've purchased a number of guns from people in other States. And in each case the gun was shipped to an FFL here. I then did the usual paperwork and in due course took home my gun.

Yes, by "banning", I meant you can not go to another state and purchase a handgun without taking ownership in your home state. That would potentially ban someone who would otherwise be allowed to own and carry said firearm legally in both states from exercising their 2nd Amendment Rights while vacationing, working out state, etc.

Being that scotus ruled that the 2nd Amendment does not only pertain to the home and it's for self defense, I do not understand why someone who even has a CCW in their home state, a Non-Residents CCW from the visiting state, can legally own and carry said gun in both states, and can pass a background check can be forced to be defenceless until they return to their home state to take ownership. On a Federal level, I just do not see how this law would be constitutional or could possibly stand if challenged.

 

[Frank Ettin]

...I do not understand why someone who even has a CCW in their home state, a Non-Residents CCW from the visiting state, can legally own and carry said gun in both states, and can pass a background check can be forced to be defenceless until they return to their home state to take ownership...

1. Why would he be defenseless? Why wouldn't be bring a gun from home with him? When I travel, I travel with a gun in my possession.
   
   
2. In any case, the short answer is that things are as they are, at least unless/until Congress of the courts change things. So in the meantime, we need to understand the law and try to find ways to accomplish our purposes within the law.

...I just do not see how this law would be constitutional or could possibly stand if challenged.

Don't know what to tell you that would help you understand. In any case, it's the law unless/until Congress or the courts change it.

 

[HexHead]

Yes, by "banning", I meant you can not go to another state and purchase a handgun without taking ownership in your home state. That would potentially ban someone who would otherwise be allowed to own and carry said firearm legally in both states from exercising their 2nd Amendment Rights while vacationing, working out state, etc.

Being that scotus ruled that the 2nd Amendment does not only pertain to the home and it's for self defense, I do not understand why someone who even has a CCW in their home state, a Non-Residents CCW from the visiting state, can legally own and carry said gun in both states, and can pass a background check can be forced to be defenceless until they return to their home state to take ownership. On a Federal level, I just do not see how this law would be constitutional or could possibly stand if challenged.

Lawmakers dont care if the laws they pass are unconstitutional, unless the SCOTUS deems they are. And that can take decades, if ever.

 

[Jim K]

I advise a bit of caution here. If I understand, what is being said is that the Federal government/courts should void all state firearms laws that interfere with firearms purchase and carry. In other words, end the current federal system where gun rights are concerned.

OK, but remember, increasing the power of the central government can work both ways. If the Feds can expand gun rights, future courts can just as easily degrade or eliminate gun rights altogether, either banning guns completely or imposing laws like the NYS SAFE act on every state.

Not my idea of a gain for us. The phrase "be careful what you wish for" comes to mind.

Jim

 

[Quiet]

A recent ruling in California has stated that California’s 10-day waiting period for gun purchases was ruled unconstitutional because it burdens the Second Amendment rights. The ruling stated that CA must change its systems to accommodate the unobstructed release of guns to gun buyers who pass a background check and possess a California license to carry a handgun, or who hold a “Certificate of Eligibility” issued by the DOJ and already possess at least one firearm known to the state.

Correction.
The recent Court ruling (Sylvester v Harris, 2011) stated that a waiting period for current firearm owners was unconstitutional. A waiting period for first time buyers is allowed, which is why the ruling only gave owners with registered firearms and/or a State issued certificate/license to be exempt from the waiting period.

My question is, in applying this logic to interstate gun purchases, how is it constitutional to allow long gun purchases, but forbid handgun purchases especially in cases where the purchaser has a reciprocated gun permit and passes the background check? Even in the absence of the gun permit, if they can verify that the person if legally able to own and buy a certain long gun in their respective state, why can't they use the same technique to verify the eligibility of a hand gun purchase?

If I live 10 minutes away from my neighboring state, I'm legally about to conceal carry in both states, and I pass a background check, how on earth could it be constitutional to keep me from making a purchase in that state?

Gun Control Act of 1968 regulates firearm transfers between residents of different States. Which is why, firearms must be transferred through a FFL in the recipient's State of residence. There is an exemption that allows FFL dealers to transfer rifles or shotguns to non-residents as long as the transfer complies with the laws of both States involved.

CA laws mandate that firearms must be transferred to CA residents through a CA FFL dealer.

Therefore in order to comply with Federal and CA laws, all firearms must be transferred to CA residents through a CA FFL dealer.

 

[Sunray]

"...A recent ruling in California..." A ruling by who? Just curious.
The States with severely restrictive laws don't seem to care what your SCOTUS says. Illinois (or maybe it was Chicago) was told their laws are unconstitutional. They promptly said they'd make a new law.

 

[Ed Ames]

1. Why would he be defenseless? Why wouldn't be bring a gun from home with him? When I travel, I travel with a gun in my possession.

1. 
   
   I once drove to Alaska.
   
   I couldn't bring a carry gun because Canada.
   
   I couldn't buy & take possession of a handgun once I got there because USA.
   
   I couldn't personally ship via UPS, FedEx, or USPS because all require that at least one party be a Government entity (law enforcement, to be more specific) or someone licensed by the government. Licensees based in AK would not have been able to give me my gun if I shipped to them.
   
   In hindsight I perhaps could have gone to an FFL in my home state and asked them to ship my gun to me in Alaska...but I'm not sure about that even.

 

[Frank Ettin]

"...A recent ruling in California..." A ruling by who? Just curious.
...

A Federal District Court (trial court level) judge issued the ruling. The case was Silvester v. Harris (U. S. District Court for the Eastern District of California, Case 1:11-cv-02137-AWI-SKO, August, 2014).

...The States with severely restrictive laws don't seem to care what your SCOTUS says. Illinois (or maybe it was Chicago) was told their laws are unconstitutional. They promptly said they'd make a new law...

There can be, and often is, disagreement about what is or is not constitutional. As I described in post 3, we have process for resolving those disagreements in court.

1. Why would he be defenseless? Why wouldn't be bring a gun from home with him? When I travel, I travel with a gun in my possession.

1. 
   
   I once drove to Alaska.
   
   I couldn't bring a carry gun because Canada....

1. A special circumstance, and your choice of travel method contributed to the result. Had you flown, you would have been able to have a gun in your checked baggage. You'd have similar problems if you were spending some time in New York during the course of your travels. So while sometimes particular travel plans or choices could prevent you from traveling with a gun, traveling doesn't automatically mean that you would necessarily be without a gun in every case.

 

[Praxidike]

Correction.
The recent Court ruling (Sylvester v Harris, 2011) stated that a waiting period for current firearm owners was unconstitutional. A waiting period for first time buyers is allowed, which is why the ruling only gave owners with registered firearms and/or a State issued certificate/license to be exempt from the waiting period.

That is what I said.

Gun Control Act of 1968 regulates firearm transfers between residents of different States. Which is why, firearms must be transferred through a FFL in the recipient's State of residence. There is an exemption that allows FFL dealers to transfer rifles or shotguns to non-residents as long as the transfer complies with the laws of both States involved.

CA laws mandate that firearms must be transferred to CA residents through a CA FFL dealer.

Therefore in order to comply with Federal and CA laws, all firearms must be transferred to CA residents through a CA FFL dealer.

I am aware of this, and I am questioning the constitutionality of that law.

 

[Praxidike]

A Federal District Court (trial court level) judge issued the ruling. The case was Silvester v. Harris (U. S. District Court for the Eastern District of California, Case 1:11-cv-02137-AWI-SKO, August, 2014).

There can be, and often is, disagreement about what is or is not constitutional. As I described in post 3, we have process for resolving those disagreements in court.

A special circumstance, and your choice of travel method contributed to the result. Had you flown, you would have been able to have a gun in your checked baggage. You'd have similar problems if you were spending some time in New York during the course of your travels. So while sometimes particular travel plans or choices could prevent you from traveling with a gun, traveling doesn't automatically mean that you would necessarily be without a gun in every case.

What he could have done in hindsight does not take away from the fact that if he, for what ever reason, found himself in another state without his firearm, he would be unarmed and unallowed to purchase a handgun even if he's known to both states as being otherwise eligible to purchase and own a handgun. Applying the same logic the CA courts applied, this burdens his Second Amendment rights.

 

[Frank Ettin]

...Applying the same logic the CA courts applied, this burdens his Second Amendment rights.

That is not the sole basis of the ruling, nor is "burdening Second Amendment rights" be sufficient to find a law unconstitutional. So read the ruling (which I linked to in post 17), and re-read post 3 in which I referred to the legal standards that apply.

Whether you think a law is unconstitutional really doesn't matter. What matters is whether the Supreme Court thinks it unconstitutional.