Ban on Interstate handgun transfers ruled unconstitutional

[southjk]

I don't see this anywhere else online right now but take this for what it's worth. Hopefully it will stick and won't get appealed but for now a federal judge has ruled that banning the tranfer of handguns between people in different states in unconstitutional.

Ruling here.

Article here.

Do you think this will get appealed?

 

[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.

 

[southjk]

Thanks for clearing that up. I knew not to get my hopes up too much but it does sound like a step in the right direction.

 

[spacecoast]

A question -

My understanding is that some background checks are Federal (NICS) and some are state-based, and that shipping to your FFL ensured that the check was done in the "approved" manner for the state in which you reside. Could this ruling result in all checks being done at the Federal level, whatever that means?

 

[Frank Ettin]

A question -

My understanding is that some background checks are Federal (NICS) and some are state-based, and that shipping to your FFL ensured that the check was done in the "approved" manner for the state in which you reside. Could this ruling result in all checks being done at the Federal level, whatever that means?

As I've explained, at this point this ruling will have no effect on anything except the particular litigation in which is was issued.

 

[pax]

Frank,

What's your feel on the likelihood of this one making it all the way up to the Supreme Court? Is it over with this favorable decision, or is the losing party likely to appeal it upward?

pax

 

[HarrySchell]

Accordingly, the Court DECLARES that 18 U.S.C. § 922(a)(3), 18 U.S.C. § 922(b)(3), and
27 C.F.R. § 478.99(a) are UNCONSTITUTIONAL, and Defendants are ENJOINED from enforcing these provisions. The Court will issue its final judgment separately.

SO ORDERED on this 11th day of February, 2015.

An accountant by trade, but it appears to me the federal DOJ is enjoined from enforcing these parts of USC, at least within jurisdiction of the 5th Circuit.

The opinion is well-written (and includes a reference to Peruta, which pleases me) and blows up the DOJ rationale for imposing their ban.

If the relevant state law bans sales of handguns to non-residents, or there is some restriction of what handguns can be brought into a state (such as the CA roster), this may not have any effect.

I could be wrong.

 

[spacecoast]

As I've explained, at this point this ruling will have no effect on anything except the particular litigation in which is was issued.

I'm sorry I wasn't clearer, if it was widely adopted what would/could this mean for the process?

 

[JimDandy]

I'm sorry I wasn't clearer, if it was widely adopted what would/could this mean for the process?

I would imagine we'd end up with no difference between long guns and handguns from FFL's. Private Sales I have no idea, but doubt it would be touched at all by this, and would need a nearly slam-dunk follow-up case.

 

[Frank Ettin]

...What's your feel on the likelihood of this one making it all the way up to the Supreme Court? Is it over with this favorable decision, or is the losing party likely to appeal it upward?

The Federal Government pretty much has to appeal. I don't see how the Administration can let stand without appellate review a District Court ruling that what is essentially the cornerstone of the Gun Control Act of 1964 is unconstitutional on its face.

If the Federal Government loses at the Circuit Court level, I think there's a strong likelihood that they'll appeal. And I seem to recall, although I haven't done the research and could be wrong, that a government appeal from a Circuit Court ruling that a federal statute is unconstitutional must be heard by SCOTUS -- they wouldn't have discretion not to hear the case.

If the plaintiffs lose at the Circuit Court, they will probably petition SCOTUS to hear it. After all, this is a Gura case. But it's anybody's guess whether SCOTUS would take the case.

An accountant by trade, but it appears to me the federal DOJ is enjoined from enforcing these parts of USC, at least within jurisdiction of the 5th Circuit....

Certainly on the surface. But remember that the District Court has not yet entered judgement nor actually issued the injunction.

I'm sure the exact language of the injunction will be a matter of some controversy. And since it's likely the government will appeal, it's quite possible that everything will be put on hold pending the appeal.

A lot can still happen.

I'm sorry I wasn't clearer, if it was widely adopted what would/could this mean for the process?

Beats me. Any discussion of such things is highly speculative and really not worth the trouble.

 

[Tom Servo]

There are a few interesting bits in this one. Quoting Ezell:

(...) it is “a profoundly mistaken assumption” to assume “that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction”

They find that defendants' reliance on data from 1968 isn't enough to prove that the existing ban serves a public-safety purpose. As such, it fails both strict and intermediate scrutiny. They find it flatly unconstitutional both on its face and as applied.

It's a well-argued case (which I'd expect from Gura). I'd like to see it grow legs.

 

[tirod]

The thrust of the decision is that a citizen of the United States could buy a handgun in another state from an FFL there. NICS, etc same as usual.

It's not rampant speculation, the decision says treat it just like a long gun sale.

In that regard it lifts an annoying complication, and the likely consequence is that you don't have to arrange for transfer to your FFL in your home state and pay his fee.

As patiently spelled out, approach this with caution and reserve, nothing has happened yet as it will likely get appealed and that's going to take time. This Administration is in the business to keep things as complicated as possible.

It's a nice victory but my no means a major earthshaking victory for gun rights. Just another one of the little battles that have made a huge improvement over the last two decades.

 

[JimDandy]

In that regard it lifts an annoying complication, and the likely consequence is that you don't have to arrange for transfer to your FFL in your home state and pay his fee.

Assuming you can get to a face to face transfer or find an FFL insane enough to be willing to do a 4473 by mail/affadavit, which STILL requires someone to physically pick up the gun, making the eventual interstate transfer still problematic if it aint you.

 

[FlyFish]

Assuming you can get to a face to face transfer or find an FFL insane enough to be willing to do a 4473 by mail/affadavit, which STILL requires someone to physically pick up the gun, making the eventual interstate transfer still problematic if it aint you.

True enough, but for those of us who live in tiny eastern states (I'm within a 2-hour drive of 4 or 5 other states), it sure would be nice to be able to buy a handgun FTF out-of-state without the additional shipping/transfer hassle and cost. But that raises another issue - if the federal restriction is lifted would state restrictions still apply? For example, without a Massachusetts non-resident LTC, Mass regulations prohibit me (a NH resident) from buying or possessing a handgun in Mass, and I suspect something similar would also be the case in NY.

 

[JimDandy]

I would suspect so. If I remember correctly those states bordering Illinois? New Jersey? Can't sell ammo to one of their residents without their FOID.

Additionally there are still remnants of the "Contiguous State" restrictions, where you could only buy long guns out of state in a bordering state. That wasn't touched on by this decision either I'd guess. The ATF also has a Tip/FAQ sheet on the Contiguous State issue.

We also are still running into the giant mess that is the legal status of Washington D.C. as not-a-state. Which is probably why Gura keeps using DC residents, with an eye towards incorporation after it's settled Federally. I'm curious if the Government will respond by claiming DC residents are not residents of a state, and therefore can't buy an out of state long gun either.

 

[HarrySchell]

Thanks for your comments, Frank.

"A long and winding road..."

 

[2ndsojourn]

From JimDandy:
"New Jersey? Can't sell ammo to one of their residents without their FOID."

Not yet, anyway, JD. I live 20 minutes over the bridge(s) to Philly and (used to) frequent the gun shows there, and still buy ammo when I'm over there if I need it. No problem at Cabela's in DE either.

Long guns, I need to show my FOID card, but not ammo.

 

[Uncle Buck]

OK, Non-lawyer here asking questions.

1. If DC still requires handgun registration, how do this help the plaintiffs?
DC is not covered by the Northern District Court of Texas. Would DC have to abide by this ruling?

2. The court pretty much slammed the DOJ (Everything you say about gun control is not a fact sorta thing). Would anyone care to speculate on what the DOJ will use in its argument when it appeals. (I am pretty certain they will appeal.

Because of improve technology (NCIC) the old gun bill, as written, does not really hold water. Could the implementation of federal background checks mean the end of the out of state transfer hassles. Sort of like the old blue laws each state had?

 

[Frank Ettin]

OK, Non-lawyer here asking questions....

Judgement hasn't been entered, nor has the actual injunction been issued. And the government is almost certain to appeal with a strong possibility of a stay pending appeal.

These questions are very premature. First we need to see how the case actually concludes. Then we can starting thinking about what it means. Speculating is a waste of time.

Therefore, I'm going to close this for now. We'll be able to take a further look at the case after something worth noting has happened.

 

[Frank Ettin]

Judgement has apparently now been entered. 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)(5) 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.