Category: 2nd Amendment

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.

The case of Tyler v. Hillsdale, from Michigan, filed in federal court challenging the prohibition on individuals with who have been involuntarily committed or adjudicated mentally defective, as applied to the plaintiffs circumstances. There’s a reason that Dave Hardy is calling this a major case, because I believe this could result in Congress having to restoring funding (denied since 1992) the relief from disabilities program, since the Circuit Court ruled that his rights could not hinge on whether or not a state has implemented its own relief from disabilities program as enacted through the NICS Improvement Amendment Act of 2007.

Note that this is an as applied challenge to the prohibition, not a facial challenge, meaning it’s still presumptively constitutional to prohibit individual with a mental health commitment or adjudication from obtaining firearms. Mr. Tyler, the plaintiff in this case, had a very brief mental health crisis after a messy divorce, and has been fine for years since. The Circuit Court ruled that a lifetime prohibition was a violation of his rights under the Second Amendment.

Violence Policy Center was originally the driving force behind the FOPA restoration of rights provision getting defunded by Congress back in 1992. Sugarmann managed to accomplish this by pointing out cases where felons had their rights restored, then went on to commit heinous crimes. He’s been trying a similar tactic with his “Concealed Carry Killers” campaign. So this ruling will undoubtedly make Josh Sugarmann a very sad panda.

h/t to Robb Allen for the icon.

No, they didn’t throw out Malloy’s new gun control law, but it’s still very good news. The Connecticut Suprem Court has ruled that Connecticut’s law making transport of firearms between residences is unconstitutional per the Second Amendment. The decision was 7-0, so not even close! They squashed a conviction for someone who was arrested, tried and found guilty on two counts of having weapons in a motor vehicle. He spent 15 months in prison. Now he’ll have his gun rights back.

Eugene Volokh reports that one to the judges of the Ninth Circuit has made the request, and Peruta will go to an en banc hearing. How will this turn out? Hard to say. In other federal circuit court, en banc means it gets heard in front of the every judge for the circuit court. The Ninth Circuit is so large that they only do limited en banc hearings, which includes Chief Judge Kozinski (who is friendly to the cause) and ten other judges selected at random. It’s a crapshoot basically. You can see here the list of federal judges by seniority, and who appointed them.

Prof. Volokh notes that this is specifically on the Second Amendment matter. The decision about the State of California and the Brady Campaign intervention is being considered as a separate matter.

UPDATE: I’m told that Judge Alex Kozinski is no longer Chief Judge. As of Dec 1st, that’s now Sidney Thomas, a Clinton appointee.

At least as applied to firearms carried in a vehicle in the parking lot of the licensed establishment:

As written, the clear language of § 13:95.3 prohibits the possession of firearms in any parking lot of an establishment that sells alcohol. Thus, any law abiding citizen who exercises his or her right to keep or bear arms within the confines of his or her personal vehicle will violate § 13:95.3 anytime he or she, for example, stops to refuel a vehicle at a service station that sells alcohol, or stops to purchase groceries at a grocery store that sells alcohol.

Indeed, Defendants concede in their memorandum that § 13:95.3 “could be unconstitutional ‘as applied’ to a person within the parking lot of a grocery store.” Similarly, the ordinance prohibits law-abiding citizens from purchasing and possessing firearms at any establishment that sells alcohol, thereby rendering the sale of firearms at establishments like Wal-Mart a criminal act. Indeed, even Defendants concede that § 13:95.3 impinges upon a right protected by the Second Amendment.

A step in the right direction. I tend to think the only restrictions of this manner that would be constitutional are on carrying while intoxicated. I’d also note if you can drive a 2 ton bludgeon down the road at 70MPH while sporting a 0.07BAC, carrying a gun being inherently less dangerous than operating a vehicle, people who carry are owed at least the same amount of deference.

That’s not the say the courts would go for that. The state will probably argue when it comes to vehicles there’s implied consent. Even if they set a BAC level for carrying, it couldn’t be enforced, since the cops can’t get any leverage over you to get you to blow. Not that I agree with implied consent when it comes to vehicles, but the state treats driving as a privilege, and at least in Louisiana, carrying a firearm is a right subject to strict scrutiny.