Month: February 2015

Despite today’s ruling, I’m fairly certain that most Federal Firearm Licensees are not going to sell to out of state buyers until they have guidance from ATF telling them it’s OK to do so. I don’t know whether or not that guidance will be forthcoming, and the government is almost certain to appeal the ruling and ask the Court of Appeals to stay the judges injunction until the appeals court rules. So celebrate, because we did win a victory, but don’t run off to a neighboring state to buy a handgun just yet. The current ruling enjoins the federal government from enforcing that provision of the Gun Control Act, but they could be permitted to enforce it again in the not too distant future. FFLs will wait until this case is fully litigated before beginning sales of handguns to out-of-state residents.

I saw someone ask whether this ruling would mean the approved handgun roster in Massachusetts would become dead letter in effect, if not in law. Keeping in mind I’m a lay person and not a lawyer, by my reading of the law, it may. Massachusetts law allows for purchasing firearms out of state, provided that you register them within seven days. The law about selling only handguns on their roster only applies to Massachusetts licensed dealers. So a New Hampshire dealer, not being a Massachusetts licensee, would not violate Massachusetts state law by selling an unapproved handgun. Federal law requires that the sale not violate the laws of either state. In this case it does not. California is another story, since it prohibits residents from buying out of state. Of course, all Massachusetts would have to do is, in the definition of licensee, add federally licensed dealers, and then out-of-state dealers would be forced to comply. So in short, it could endanger the handgun roster, but I’d be surprised of the legislature doesn’t change the law to preserve it. Of course, given the lack of guidance from ATF, chances are no out-of-state dealer would be willing to sell an off roster gun to a MA resident.

While private sales were not specifically challenged in this case, because of how federal law is worded, 922 (a)(3), which prohibits interstate transfers between non-licenseees, had to be struck in order to allow interstate sales through an FFL after 922(b)(2) was struck, since it would have been illegal to bring a firearm back after you purchased it. However, 922 (a)(5) was not enjoined, so it remains illegal to sell a firearm to someone from out of state, and so under conspiracy would also be illegal to buy from a seller if you’re not a resident of the same state as the seller. Again, I would ensure that everyone is aware that just because they are enjoined today does not mean they will be enjoined tomorrow, so there would be risk in conducting any interstate transfer that wouldn’t have been legal yesterday.

UPDATE: I’ve revised this post to incorporate some new information, and to make it more accurate. I’d also note on the scope of the ruling, Dave Hardy says that it’s unclear. I had previously thought it was worded such that it applied nationally, but then was told by someone who is an attorney that it would only apply in the 5th circuit. But Dave Hardy isn’t so sure.

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 (“NICS”) 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 (“POC”), 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.