There has been a ban on gun dealers from selling handguns to residents who come from different states for a long time.
Today, however, a Federal judge has ruled that this longstanding ban is not only unconstitutional under the Second Amendment, but it also violates fair trade provisions of the United States Constitution.
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.
They then filed suit in federal court in the Northern District of Texas, arguing that the federal prohibition on direct sales of handguns by FFL’s to out of state residents unconstitutionally violated their rights under the Second Amendment and the Due Process clause of the Fifth Amendment.
After finding that the plaintiffs had standing to challenge the federal law, the court found that the residency restrictions of federal law were not “longstanding” (as opposed, e.g., to restrictions on the age of firearms purchasers that had been around for all of US history), but instead were of relatively recent origin.
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 accepted the government’s argument that its interest in preventing handgun crime was compelling. However, it found that the requirement that all sales of handguns to out-of-state residents must go through another FFL (i.e., an FFL in the purchaser’s state of residence) was not narrowly tailored.
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.
As a fallback, the Court also analyzed the federal law under intermediate scrutiny, i.e., that the law be “reasonably adapted” to its public safety objectives. The Court found that the federal law failed this test as well, finding that the requirement of having a second FFL involved in the transaction was not substantially related to the government’s stated goals.
The Court also found that the law violated the Due Process clause of the Fifth Amendment, insofar as it discriminated against non-residents, and failed the strict scrutiny test for this as well.
This case will almost certainly be appealed to the US Court of Appeals for the Fifth Circuit, which has historically been friendly to such Second Amendment challenges, and I strongly suspect it may ultimately be destined for review by the Supreme Court.
Plaintiffs are represented by attorney Alan Gura, who has successfully handled many other recent Second Amendment challenges.
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