One of Alan Gura’s cases, Mance v. Holder just won in district court. This case challenged the ban on interstate transfers of handguns through an FFL. You can find the opinion here.
In the absence of any evidence of founding-era thinking that contemplated that interstate, geography-based, or residency-based firearm restrictions would be acceptable, the Court finds that the federal interstate handgun transfer ban burdens conduct that falls within the scope of the Second Amendment.
Further:
To obtain a handgun from an out-of-state FFL retailer, the federal interstate handgun transfer ban imposes substantial additional time and expense to those who desire to purchase one. Restricting the distribution channels of legal goods protected by the Constitution to a small fraction of the total number of possible retail outlets requires a compelling interest that is narrowly tailored.
The court applied strict scrutiny, and despite the government’s attempts to argue they needed the restriction in order to prevent criminals from circumventing state guns laws, the judge wasn’t buying it. What’s also very interesting is that he argues that the Brady Act changed the game for the GCA ’68 restrictions, with the idea that in an era of instant background checks, some GCA requirements cannot stand up to strict scrutiny.
Pursuant to the Brady Act, before an FFL may sell or deliver a firearm to a non-FFL, he must complete a criminal background check through the National Instant Criminal Background Check System (“NICSâ€) to ensure the purchaser is legally entitled to obtain and possess the firearm. 18 U.S.C. § 922(t). States may also create a Point of Contact (“POCâ€), who acts as a liaison to NICS, to run the background check and receive notice of anticipated firearms purchases by its citizens. See 28 C.F.R. §§ 25.1-.2, 25.6(d). In other words, to complete a background check, the FFL contacts either (1) the state POC, if there is one; or (2) NICS, if the state has not designated a POC. See id. Current law therefore ensures potential purchasers can legally acquire and possess a firearm under state and federal law, and those states that desire to receive notice of firearms purchased by its citizens simply establish a POC.
Obviously, none of this infrastructure existed in 1968. Yet, in this case, it appears Defendants rely on statistics from the 1968 Senate Report to support the continued need for an in-state FFL in every out-of-state handgun transaction.
That could be used to build further cases.
The current law relating to rifles and shotguns provides an example of a narrowly tailored law, especially when it is taken together with instant electronic background checks, face-to-face meeting requirements, state POCs, and published compilations of state and local firearms laws.12 In short, the current statutory scheme presents less restrictive alternatives to achieve the goals that Congress identified in 1968, rendering the federal interstate handgun transfer ban not narrowly tailored.
The court then further argues that even if they applied intermediate scrutiny, the government’s case still fails, and that happens because this court applies intermediate scrutiny correctly, rather than using the concept to institute a standard that is barely, if any more demanding than rational basis scrutiny.
Based on the foregoing, it is ORDERED that Defendants’ Motion to Dismiss for lack of standing (ECF No. 15) is DENIED. It is FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (ECF No. 21) is GRANTED, and Defendants’ Motion for Summary Judgment (ECF No. 15) is DENIED.
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.
I’m sure it will take a while for FFLs to get updated on this, but unless the government appeals the ruling, and the decision is stayed or reversed, the 11th of February will go down as the day we won Interstate sales of handguns through FFLs. This is a great win for us, and one which I would like to congratulate and thank Mr. Gura and his plaintiffs.
I read this from Instapundit Did a quick reading and realized it invalidated the handgun ban in interstate transactions. THIS IS HUGE
Plus it enjoined DOJ and Holder from enforcing this ban
This was a great job setting up the case so standing was not an issue
Holy crap! Huge. Huge! With an extra dose of ironic karma, since the Brady Act effectively destroys part of the GCA 68!
I remember all the phony arguments back in 1993, even from people who should know better like police chiefs, who promoted adaption of Brady by claiming ‘people can evade state law by buying in another state, which is why we need Brady’. My own police chief who in later years became mayor, said this B.S.
FYI, the link doesn’t point to the case.
Yeah, I oopsed. It was meant to link to Instapundit. This has been corrected.
Too excited to hit the right key sequence to actually copy the link, so it pasted the link in the clipboard from the previous post I was working on.
http://cdn.pjmedia.com/instapundit/wp-content/uploads/2015/02/guraop021115.pdf#page=1&zoom=auto,-13,793
Here is the link
I guess I should note, since it’s out there now, that a lot of us bloggers know Rick Mance, because he’s a fellow blogger. Hell of a nice guy, if you’ve ever met him. I had Bitter’s CZ452, that I got her for her birthday years ago, ordered through him, and transferred to an FFL up here. He called a few minutes ago to say “You’re welcome” :)
I’m still not quite believing that we may just have achieved one of our primary legislative goals through the courts. That leaves us free to push something else. Of course, the ruling has to stand. But I’ll enjoy the victory for now. Whatever happens tomorrow isn’t happening today.
Well, hell. I’ve followed Traction Control for a long while. Didn’t realize he was the lead plaintiff. Even more power to him along with a big dose of thanks!!!
I noticed the suit a few months back, I forget in what context. But I didn’t say anything because I know Alan Gura is pretty big about ensuring his plaintiffs stay quiet about that kind of stuff.
It’s definitely good, but it’s only a District Court – the ruling is only binding in that part of Texas, and other federal courts, even in other parts of Texas, can still rule differently.
IOW, we still have a long way to go to get this ban fixed.
I have word from an attorney that it would apply to the entire 5th circuit.
I’ll defer to the attorney’s opinion – though IIRC, the other district courts are supposed to follow the ruling, but are not absolutely bound to if they can find some “flaw” in the reasoning – in which circumstance that case would be pretty much guaranteed to be appealed. The circuit court, of course, is not bound to the ruling at all unless they uphold it on appeal or in a later case.
I haven’t read it. It might apply nationwide depending on how it was drafted.
Can we get Gura, or some lawyer, to explain how this plays out? That law having been declared unconstitutional & void, how should an FFL outside the 5th Circuit proceed when faced with an out-of-state customer wanting a handgun? On one hand, just note the “equal protection” clause and proceed with the sale at risk of local jurisdiction disagreeing; other hand, refuse the sale even though it’s legal.
Right now, you shouldn’t do the transfer. Wait for guidance from ATF.
Excellent news. Wasn’t this one of the items they were looking to bribe us with in order to get UBCs after Sandy Hook?
YAY Rick!! And Alan, of course! But RICK FTW!!
Oh man, if this stands up the California ‘safe handgun roster’ is dead, Dead, DEAD!
“Oh man, if this stands up the California ‘safe handgun roster’ is dead, Dead, DEAD!”
Not necessarily true, from the opinion:
“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.”
If the California and Massachusetts bans are bans on sales of non-approved handguns this may kill them but if you can not own/posses a non-approved handgun an out of state FFL could not legally sell you one.
(Standard ‘Not A Lawyer” disclaimer)
The only thing that prevents a California resident from evading the California handgun roster is the Federal ban on interstate handgun sales.
In California it is already legal to buy a handgun not on the roster, but only from a private party California resident not from an FFL California dealer.
California law prohibits you, as a California resident, from purchasing a firearm from another state and bringing it back to California. So no dealer is going to sell you a gun unless California changes that law, or it is struck down.
“California law prohibits you, as a California resident, from purchasing a firearm from another state and bringing it back to California.”
What California law? Please be specific. I am aware of all kinds of restrictions on importation of various firearms or accessories (primarily relating to the CA AWB), but none on purchase.
If California had a such a law restricting interstate commerce, or passed such a law, it would violate the U.S. Constitutions delegation of the power to regulate interstate commerce to the Federal Government.
I agree that CA’s ban on bringing in a gun you purchased elsewhere is flagrantly unconstitutional, but given their “handgun importer registration requirement” you try to circumvent this at your peril, with said peril being inversely proportional to your term of residence in CA and the age of the handgun in question.
You cannot possess an unregistered unapproved handgun in CA, regardless of how you obtained it.
Except that said CA resident buying in TX could, completely legally, then re-sell it outside CA (say, GA or TX). That he _might_ break a law by returning to CA with it is insufficient reason to refuse the sale as there _are_legal_ alternative activities which the FFL has no business knowing about or rendering legal judgement on.
Practical example: a CA resident seeking training or competition may leave the state, buy a non-CA-legal gun to participate in the activity, then sell it when complete and before returning to CA.
There’s a huge objective difference between making a legal sale in accordance with local law, vs having to know all 20,000 gun laws throughout the country and whether any could apply in a reasonable hypothetical.
The first federal law invalidated under the second ammendment, right?!?!
Yes, I believe that is the case. The handgun ban at issue in Heller was part of the DC Code, which is sort of federal law, but it’s not what most people think. This is the first time, I think, a federal judge has struck down part of the Gun Control Act of 1968 on Second Amendment grounds.
I’m just a knuckledragger, so in layman’s terms this means what, exactly? That a resident of Minnesota could buy a handgun in person from an FFL in South Dakota provided they pass a NICS check?
If all this pans out, yes. You could also do a private sale between out-of-state persons.
Yeah but nothing in this ruling prevents individual states from restrictions on guns purchased out of state. THAT could be challenged on Commerce Clause grounds, I think……
Most state never banned the sale of guns imported into the state. They did not need to since it was banned by Federal law. The states would have to enact legislation if the want to stop this providing the case stands on appeal
My read of this seemed pretty clear on the issues of rosters and permits and whatnot: the transaction must be legal in both quarters for it to be legal in one.
The couple in the suit were DC residents. They had their DC purchase permits and they were buying handguns that were legal in DC. All they challenged was having to pay extra (time and money) to transfer that firearm to DC prior to taking possession.
The judge left open some interesting doors (regulations increasing the time to possess being a hindrance to the right), but these were all framed around Federal law. He did not rule on firearms rosters, lists, bans or even state-imposed waiting periods. Likewise, he made no ruling on any state law, anywhere.
If this were to be upheld, the effect on places like CA would be minimal to zero without a follow-up on the state laws that also impose burdens.
I am not minimizing this. It’s pretty big, for reasons I hope everyone sees in a few years. It’s one of the cornerstones of gun control, and Alan Gura is taking it apart. Also, did anyone catch the 5th Amendment angle?
I think the biggest win here is the potential to get a 5th Amendment wrapper for gun laws: that the right must be treated the same regardless of residency. Anytime we can get existing jurisprudence that protects other rights applied to 2A, we get to adopt all of those precedents in our favor and also create a firewall that puts 2A in league with our other rights. That’s huge.
Here the 5th was applied to those purchasing while out of state, but taken to its logical conclusion an argument can be made (and eventually will, I am sure) that the exercise of a fundamental right must be uniform for all people everywhere. That means the people of DC must not face greater encumbrances than the people of TX. Your right to religious exercise does not change by jurisdiction, so why your right to self-defense?
Add 5A to a strong 1A Prior Restraint doctrine, then apply to 2A and we are starting to have some fun.
Good point. CA resident could purchase an unapproved unregistered handgun out-of-state for out-of-state storage and use, say at a vacation home, in-use RV, or storage locker, remaining in full compliance with all laws … then sue for the “right to keep” in one’s state of residence, overturning state prohibitions based on product specs.
Might that apply to NFA? as in BATFE would be compelled to approve a Form 4 for an out-of-state purchase? There are certainly legal scenarios such as storing the item out-of-state where all laws are abided by. Then leverage that to overturn state prohibitions on NFA items.
The hard part will be here: “nor be deprived of … property, without due process of law”. State law prohibiting certain products by specification may be construed as “due process of law”.
Observation: the ruling starts with “Plaintiffs’ Motion for Summary Judgment is GRANTED”. That strike anyone else? Not only is the case ruled in our favor, the ruling occurs in a context of “this is so obvious & clear that there is no need for a trial per se”. Am I getting this right?
Yes. No trial.
Wow. Summary judgement on a 2A issue. Judge has some brass.