Interstate handgun ban unconstitutional

[jshuberg]

http://www.pagunblog.com/2015/02/11/civ ... ral-court/
http://cdn.pjmedia.com/instapundit/wp-c ... 021115.pdf

IV. CONCLUSION

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

The following are what the district court declared UNCONSTITUTIONAL:

It shall be unlawful for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter;

It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

Interstate sales or deliveries. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall not sell or deliver any firearm to any person not licensed under this part and who the licensee knows or has reasonable cause to believe does not reside in (or if a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business or activity is located: Provided, That the foregoing provisions of this paragraph (1) shall not apply to the sale or delivery of a rifle or shotgun (curio or relic, in the case of a licensed collector) to a resident of a State other than the State in which the licensee's place of business or collection premises is located if the requirements of § 478.96(c) are fully met, and (2) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes (see § 478.97).

The US Justice Dept can no longer enforce the ban on interstate sales of handguns! This is likely to be appealed, but this is another fantastic step in the right direction!

[Ghost]

This is very significant.

[Nougat]

when did they?

the guns I've seen come from internet stores, I'm sure they were from different States?
real question! what was this and how long did it last?

[jshuberg]

Edited original post to include the UNCONSTITUTIONAL statutes.

[yuppiejr]

So today, as a MN resident, I can't walk into a gun store in WI and purchase a firearm directly, I'd have to purchase it and have it shipped to an FFL in MN and can then take possession of it after the standard paperwork and NICS check.

I believe based on the provisions declared unconstitutional (prior to appeal) that this would make it legal for someone to purchase a gun in any state of the union directly from a licensed dealer (or private party?) regardless my/our state of residence, assuming such a transaction is done in compliance with other applicable state and federal laws.

Nice!

[jshuberg]

So today yesterday, as a MN resident, I can't couldn't walk into a gun store in WI and purchase a firearm directly, I'd have to purchase it and have it shipped to an FFL in MN and can then take possession of it after the standard paperwork and NICS check.

Fixed it for ya

[Hmac]

So, even with this injunction, what are the odds that today (or tomorrow) you could walk into a gun store in Wisconsin or Missouri or Texas and that they would a) know about this new US District Court ruling and b) sell the gun to you as an out-of-state resident?

There are Federal laws regarding interstate transfers, and there are state laws regarding who can buy firearms in that state. What do you say when they ask you for your Wisconsin permit-to-purchase? "I'm sorry sir, this is a Minnesota permit, not Wisconsin...the law says you have to be a Wisconsin resident to get a Wisconsin permit to purchase".

This current injunction by a relatively low-level Federal Court is a slightly encouraging step, but it's not groundbreaking. The major stumbling blocks to firearms transfers are State, not Federal. If this survives appeal to higher courts, maybe it will stimulate individual states to loosen firearms transfer laws. I doubt it.

[jshuberg]

It's important not simply on it's face, involving handgun transfers, but also because of how the judge ruled.

Basically, he found that what was once considered constitutional can become unconstitutional as technology advances, when what was once considered a minimal burden is no longer considered minimal. As technology advances, what survives strict scrutiny (or even intermediate scrutiny) can change, and that portions of the Gun Control Act of 1968 can be thrown out as unconstitutional. That's huge. If it survives appeal, it has the potential to get rid of numerous antiquated statutes and regulations.

Alan Gura is smart. While this ruling isn't checkmate by any means, It's definitely a very important move in the game.

[Hmac]

That's huge. If it survives appeal, it has the potential to get rid of numerous antiquated statutes and regulations.

5th Circuit Court will likely hear the appeal, and they have a tendency to be 2A-friendly. Certainly destined for the Supreme Court if that turns out to be the case.

[bstrawse]

Keep in mind that this ruling is only valid in that specific federal court district - until it's ruled upon by a court of higher authority (court of appeals, US Supreme Court)

Bryan

[Hmac]

Keep in mind that this ruling is only valid in that specific federal court district - until it's ruled upon by a court of higher authority (court of appeals, US Supreme Court)

Bryan

Yes. This decision only applies to parts of northern and central Texas. It's only real value would come IF the appeal is upheld and gets heard and then ruled unconstitutional by SCOTUS. A positive step. Maybe. Eventually.

[Ghost]

I was just listening to the Guntalk podcast from yesterday. Tom had Alan Gottleib on from the Second Amendment Foundation. I didn't realize they were the ones that were paying for the suit. Says they spend somewhere between $80,000 and $90,000/month on legal costs if I remember correctly. I just wanted to point out that gun owners need to be part of organizations like this to further our cause. I despise all the junk mail I get from SAF but they seem to be making progress and that makes me happy to be a life member.

I see a lot of posts here about how people just bought a new gun or traded for this or sold that. We need everybody helping to pull this wagon and not just take a ride in it. Get some skin in the game and join the NRA, 2AF, GOCRA, MNGOPAC....

Second Amendment Foundation https://www.saf.org/
NRA http://home.nra.org/
GOCRA http://www.gocra.org/
MNGOPAC http://www.mngopac.org/

[steve4102]

Practical Consequences: Can I Now Buy a Gun From Out-of-State FFL?

One of the frequent questions that has arisen since yesterday’s order was made public is whether an interested purchaser can now buy a handgun from an out-of-state FFL without having to go through the process of transferring the handgun to an in-state FFL to complete the transfer.

As a technical legal matter, in the Northern District of Texas of the 5th District, the answer might be “yes.”

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, and one that is highly likely to be stayed and appealed, 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.

http://legalinsurrection.com/2015/02/fe ... ore-116220

[steve4102]

Attorneys from the department’s civil division filed a motion Friday in the Mance v. Holder case, asking for the 60-day stay in order to have more time to decide whether to appeal the ruling issued Wednesday by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas.

http://www.washingtontimes.com/news/201 ... purchases/


Now we wait and wait and wait.