By Robert Laurie ——Bio and Archives--February 13, 2015
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...A federal judge has declared that the longstanding ban on gun dealers selling handguns to residents in different states is not only unconstitutional under the Second Amendment, but also violates other fair trade provisions of the United States Constitution. The full decision is available here, but from what I can tell this looks to be a major win for the Citizen’s Committee for the Right to Keep and Bear Arms. Louis Bonham, one of TTAG’s consulting lawyers, wrote the following analysis of the ruling: The suit was brought by a Texas gun dealer, two District of Columbia residents, and the Committee for the Right to Keep and Bear Arms. In what appears to have been a test case, the DC residents wished to purchase a handgun from the Texas dealer, but federal law prohibited them from doing so without having the Texas dealer ship the gun to DC’s only FFL, who would have charged them a $125 transfer fee. ....The court thus reasoned that because such residency restrictions affected the right to keep and bear arms as understood at the time the Second Amendment was ratified, the federal residency restrictions burdened conduct that fell within the scope of the Second Amendment. The Court thus then determined that because the federal law imposed a burden on a constitutional right, and that the burden was not de minimis, the law must be evaluated under a standard of strict scrutiny. Under this standard, the government must show that it had a compelling interest and that the law was “narrowly tailored” – that is, the law was the least restrictive means of addressing the compelling interest.
The Court noted that FFL’s could sell long guns to out of state residents without involving a second FFL, and that there was no evidence that the involvement of a second FFL in handgun purchases served any particular purpose. The Court also noted FFL’s are required to run a NICS check on all handgun purchasers, that federal law prohibited FFL’s from selling to persons not authorized to purchase handguns under their state or local law, and that nothing prevented states from prosecuting out-of-state FFL’s who illegally sold handguns to their residents. In short, there was nothing achieved by having a second FFL involved that could not also be achieved by simply applying the same laws that apply to interstate sales of long guns.This is yet another defeat for the decidedly anti-2A Eric Holder, who was a staunch supporter of the ban - probably for the precise reason that it made it more difficult for people to exercise their Second Amendment rights. That's the good news. The bad news is that we're still a long way from doing a victory dance. As Bearing Arms reports, there are still a few hurdles to go. The first is the appeal. Everyone involved assumes that the government will appeal, and you can bet they'll request a stay while they do so. Even if they don't, the rules for FFLs who wish to conduct these types of sales don't exist. So, even if they're eager to start selling across state lines, they can't - yet. We're probably looking at a few more years before this one shakes out completely. Still, any time a judge shores up the 2nd Amendment it's an encouraging development. ...And did we mention it's another high-profile loss for Eric Holder? Because that's nice too.
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