…under both strict and intermediate scrutiny!
Yesterday a federal district court in the 5th Circuit ordered summary judgment in favor of several plaintiffs who challenged existing restrictions on handgun transfers across state lines; the court found that the federal government’s existing handgun transfer ban was unconstitutional both on its face and applied to the facts of this case, under both strict scrutiny and intermediate scrutiny, and on 5th Amendment Due Process grounds.
The order in the case of Mance v. Holder (PDF at bottom of post) is refreshingly clearly written, and I encourage even non-lawyers to “read the whole thing.” ™ In this post I’ll touch upon the high points of the decision, as well as some reasonably likely (and unlikely) practical consequences.
First things first: a huge congratulations to Attorney Alan Gura for another tremendous win for the Second Amendment. While the immediate practical effects of this order are likely to be limited, it is yet another ratcheting of the law in the right direction. Everyone remembers, of course, that it was Alan who successfully litigated both of the groundbreaking Second Amendment cases Heller and McDonald before the US Supreme Court.
The Parties and the Uncontested Facts
The plaintiffs in the case were two Washington DC homeowners (the Hansons), a Texas FFL (Mance) and a prominent Second Amendment advocacy group to which the Hansons belonged (the Committee for the Right to Keep and Bear Arms).
The defendants were the federal government, personified here as Attorney General Eric Holder and B. Todd Jones, Director of the ATF(E).
The Hansons, residents of Washington DC, sought to purchase a pair of handguns directly from the FFL Mance. The Hansons were legally entitled to possess the handguns under both Texas and Washington DC law. Nevertheless, Mance was unable to give them possession of the handguns directly because federal law prohibits an FFL in one state from legally transferring handguns directly to a buy who is a resident of another state (for purposes of this analysis DC is deemed another state).
For purposes of simplicity the court order refers to these federal requirements—found at 18 USC § 922(a)(3) and § 922(b)(3)—as the “federal interstate handgun transfer ban,” and I’ll do the same in this post.
In order for Mance to transfer possession of the handguns to the Hansons in compliance with Federal law he must ship the firearms to an FFL in DC, for which the Hansons would incur a transfer fee of $125/pistol plus shipping costs, and that DC-based FFL could then transfer possession of the handguns.
The defendants filed their action challenging these restrictions as unconstitutional infringements on their Second Amendment and Fifth Amendment Due Process rights on July 14, 2014, less than seven months before they were rather swiftly granted yesterday’s summary judgment.
Challenge to Plaintiffs’ Legal Standing Fails
Holder initiates his attack on the Plaintiffs’ action by making the argument (common in such cases) that the Plaintiffs’ lacked legal standing. Essentially, “the doctrine of standing asks ‘whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.’”
Four distinct lines of attack on standing are presented to the court by Holder, and each one is promptly put out of its misery, such that all four plaintiffs are found by the court to possess the required legal standing.
For those interested in the court’s analysis on standing, it can be found on pages 4 through 9 of the order. More interesting, however is the court’s Second Amendment analysis, which begins on page 10.
Plaintiffs’ Second Amendment Challenges to Handgun Transfer Ban
The plaintiffs’ challenged the handgun transfer as unconstitutional both “on its face”—meaning it is generally unconstitutional in application—and “as applied” to the particular facts of their case, and the court duly conducts both analyses.
To determine whether a law restricting gun rights is unconstitutional on its face, a two-step analysis is conducted:
the first step is to determine whether the challenged law impinges upon a right protected by the Second Amendment—that is, whether the law regulates conduct that falls within the scope of the Second Amendment’s guarantee; the second step is to determine whether to apply intermediate or strict scrutiny to the law, and then to determine whether the law survives the proper level of scrutiny.
Does Federal Handgun Transfer Ban Impinge on Second Amendment?
Here the court looks to see if the type of restriction imposed by the law in question was of a type recognized and accepted during the time of the founders’ adoption of the Constitution. An example of such a restriction is the restriction of gun possession as a function of age. Such age-based restrictions existed even during the Revolution, and thus are deemed to be an acceptable infringement of the Second Amendment.
The federal handgun ban, however, limits gun transfers as a function of state residency. When tasked with providing the earliest known evidence of such residency-based restrictions on the Second Amendment, the Defendants were unable to find anything earlier than 1909. As a result:
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.
The Compelling Government Interest
Having determined that the handgun transfer ban burdens Constitutionally protected conduct, the court must then determine whether that burden is nevertheless justifiable.
The first questions to be answered, and one not contested in this case, is whether the law in question seeks to address an important or compelling government interest. In this case this interest is the prevention of handgun crime,
More particularly, the important government interest alleged to be addressed by the federal handgun transfer ban is “the serious problem of individuals going across state lines to procure firearms which they could not lawfully obtain or possess in their own state and without the knowledge of their local authorities.”
This representation of the important government interest at stake is of vital importance to the analysis and outcome of this case, as it defines the “target” against which scrutiny will be applied. That established, the question then becomes which level of scrutiny is to be applied.
Intermediate versus Strict Scrutiny
There are various tests or “degrees of scrutiny” that a court can apply in making such an assessment, each presenting a greater or lesser level (or “heights”) of difficulty for the infringement to survive.
The two tests relevant to the analysis in this case are “strict scrutiny,” the most heightened degree of scrutiny and the one advocated by the Plaintiffs, and “intermediate scrutiny,” a less heightened degree of scrutiny.
Under intermediate scrutiny, a law infringing a Constitutional right can nevertheless survive challenge if the government can merely show that the law is substantially related to an important government interest. It is relatively rare for a law to be found unconstitutional if it is subject merely to intermediate scrutiny.
If strict scrutiny is applied, in contrast, it is almost certain that the law infringing a Constitutional right will not survive challenge—indeed, it is a common legal quip that strict scrutiny is “strict in name, but fatal in practice.” That is because the law must not only meet the conditions of intermediate scrutiny, but it must also be narrowly tailored such that it is the least restrictive means of achieving that important government interest.
The bottom line, then, is that all parties know going in that if strict scrutiny is applied the law will almost certainly fail, and if intermediate scrutiny is applied the law will almost certainly survive. Thus which standard of scrutiny is chosen will likely be decisive in the outcome of the case.
Strict Scrutiny Applies When Law Significantly Infringes a Fundamental Right
In order to apply strict scrutiny the law must either significantly abridge a fundamental right or involve a suspect classification. That latter condition is not relevant to this case, so the question is whether the federal handgun transfer ban significantly abridges a fundamental right.
Thanks to Heller, McDonald and other recent Supreme Court and lower federal court cases, it is now well established that gun possession is a fundamental personal right protected by the Second Amendment. The question then is whether the federal handgun transfer ban is a significant abridgement of that fundamental right.
The Defendants, of course, argue that the restrictions imposed by the federal handgun transfer ban are minor, or de minimis. The Court, however, disagreed, writing that:
To obtain a handgun from an out-of-state FLL 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.
In other words, such a law must pass strict scrutiny. “The Court, therefore, applies strict scrutiny—that is, the law must be narrowly tailored to be the least restrict means of achieving a compelling government interest.”
(Interestingly, the Court also elects to conduct an intermediate scrutiny analysis of the federal handgun transfer ban, with an interesting result we discuss below.)
Strict Scrutiny: Law Must Be Narrowly Tailored/Least Restrictive
Given the court’s decision to apply strict scrutiny to the federal handgun transfer ban, in order for the Defendants to successfully argue that the ban passes Constitutional muster they must show that it is narrowly tailored to be the least restrictive means of accomplishing their compelling government interest of stopping people from unlawfully obtaining handguns by simply crossing state lines and of providing states with the opportunity of notice that one of their residents has purchased a handgun.
And this is where the Court’s analysis becomes really interesting.
The Defendants take the curious position that because Congress believed the federal handgun transfer ban was narrowly tailored and the least restrictive means of achieving their compelling government interest when the law was passed in 1968, that must necessarily remain true today.
The Court points out that, first, a determination by Congress that a law is narrowly tailored and least restrictive is irrelevant to the analysis, as it is the Courts and not the legislature who makes that ultimate analysis.
Second, of course, it’s no longer 1968. A great deal has changed in the handgun market place in the nearly 50 years since the Gun Control Act was passed.
And–delicious irony here—many of the most substantive of those changes, and in particular the ones that most profoundly undermine the Defendant’s argument that the federal handgun transfer ban is narrowly tailored and least restrictive, were passed as efforts to further restrict the citizenry’s Second Amendment rights.
The Brady Handgun Violence Prevention Act
In 1993 a Democratic controlled Congress passed, and a Democrat President signed, the Brady Handgun Violence Prevention Act.
Among other things, the Brady Act sought to address the compelling government interest in controlling interstate sales of handguns to unlawful individuals by requiring that all transfers first require the buyer to pass a criminal background check using the National Instant Criminal Background Check System (NICS).
The Brady Act also sought to address the compelling government interest of states receiving notice when one of their residents purchased a handgun by permitted states to establish a Point of Contact (POC) system that would sit between the FFL seller and the NICS database, and provide notice to the state of the handgun sale.
The irony is that with this NICS/POC regime now in place for more than 20 years, the federal handgun transfer ban of the Gun Control Act of 1968 can no longer be claimed to be a narrowly tailored and least restrictive means of preventing people from unlawfully acquiring guns and avoiding state notification by simply crossing state lines. No matter in what state a person seeks to buy a handgun they must first be determined to be a lawful buyer and (if their state has exercised the POC option) their state of residence will be notified of the transaction.
Or, as the Court put it:
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. . . . Defendants have not shown that the federal interstate handgun transfer ban is narrowly tailored to be the least restrictive means of achieving the Government’s goals under the current law. The federal interstate handgun transfer ban is therefore unconstitutional on its face. (emphasis added).
(As an aside, the Court also found that the federal handgun transfer ban is unconstitutional under strict scrutiny as applied to the facts of this particular case—those who are interested in this brief analysis can find this analysis on page 24 of the PDF below.)
What About Intermediate Scrutiny? More Boom.
I mentioned earlier that everyone involved could be confident that if the Court chose to apply strict scrutiny the law would fail to pass Constitutional muster, but that if the Court chose intermediate scrutiny it almost certainly would pass.
Well, this Court decided to follow up its strict scrutiny analysis with an intermediate scrutiny analysis—and found, once again, that the federal handgun transfer ban fails to pass Constitutional muster under even this much less heightened degree of scrutiny.
As the Court notes:
To withstand intermediate scrutiny, Defendants must show that the law is substantially related to an important government interest. . . . The Law need not employ the least restrictive means to achieve its goal [as it must under strict scrutiny], but the law must be reasonably adapted to its public safety objective to pass constitutional muster.
Here the Court again raises the matter of the Constitutionally acceptable restriction on firearms possession as a function of age, and points out several reasons why this (and a similar Texas) restriction was “reasonably adapted to its public safety objective.”
First, it applied to a narrowly defined group of individuals—those between the ages of 18 and 21—who were known to have a high risk for intemperate and unlawful conduct with firearms.
Second, the very age-specific nature of the restriction meant that it was not permanent for any individual, as each would age their way out of the restricted group.
Third, it applied only to handguns.
In contrast, the Court notes, the federal interstate handgun ban shares none of these focused characteristics, but applies in an enormously generalized manner:
The federal interstate handgun transfer ban is unique compared to other firearms restrictions because it does not target certain people (such as felons or the mentally ill), conduct (such as carrying firearms into government buildings or schools), or distinctions among certain classes of firearms (such as fully automatic weapons or magazine capacity). Instead, the federal interstate handgun transfer ban targets the entire national market of handgun sales and directly burdens law-abiding, responsible citizens who seek to complete otherwise lawful transactions for handguns. Again, Defendants have failed to carry their burden to show how the federal interstate handgun transfer ban alleviates, in a material way, the problem of prohibited persons obtaining handguns simply by crossing state lines and depriving states of notice that they have under the amended version of the 1968 Gun Control Act. . . . Thus, even under intermediate scrutiny, the federal interstate handgun transfer ban is unconstitutional on its face. (emphasis added)
(As an aside, the Court also found that the federal handgun transfer ban is unconstitutional under intermediate scrutiny as applied to the facts of this particular case—those who are interested in this brief analysis can find this analysis on page 26-27 of the PDF below.)
Transfer Ban Also Unconstitutional on 5th Amendment Due Process Grounds
Finally the Court also found that the federal handgun transfer ban is unconstitutional, under strict scrutiny, on 5th Amendment Due Process grounds, on the basis that it discriminates among US citizens based on their state of residence. This brief analysis can be found on pages 27-8 of the PDF below.)
Plaintiffs Win Summary Judgment
Based on its conclusion that the federal handgun transfer ban was, both facially and as applied to the facts of this case, unconstitutional under both strict scrutiny and intermediate scrutiny, the Court granted the Plaintiff’s motion for Summary Judgment (thus granting them victory without having to go to trial), and enjoined the Defendants (AG Holder and ATF(E) Director Jones) from enforcing those provisions of the federal handgun transfer ban.
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.
Practical Consequences: Can I Avoid Some of My Home State’s Gun Restrictions?
A number of states have unusually tight restrictions on gun purchasing, and often these restrictions are founded upon the FFL transfer process. For example, there are a great many handguns which are technically legal to own in my home state of Massachusetts, but which cannot legally be transferred here.
How’s that work? Say Joe Gunowner currently lives in Florida and buys a Glock 19 handgun, totally lawfully. If he moves to Massachusetts he can bring that pistol with him, and maintain his possession of it. It is, however, unlawful for any Massachusetts FFL to do a transfer of that model of handgun. Thus while Joe can keep the gun himself, he can not sell it to anyone else in the Commonwealth, as that would require an (unlawful) transfer by an in-state FFL.
By extension, of course, someone already living in Massachusetts (yah!) simply cannot acquire a Glock 17 by any lawful means, as the federal handgun transfer ban mandates that they conduct the transfer of that firearm through a Massachusetts FFL, which would be unlawful for them to process. (This is a bit of a generalization, but the point remains.)
This Massachusetts restriction has been in place about 20 years now, and there are many gun owners in the state who would love to be able to lawfully purchase a prohibited model pistol from an FFL outside of Massachusetts who is, presumably, not constrained by these Massachusetts transfer restrictions.
The question, then, is does yesterday’s Court order open the way for working around such state-specific restrictions?
The answer is almost certainly, “No!”
The plaintiffs in this case, the Hansons, were legally permitted to purchase a firearm in both their home “state” of Washington DC and the state in which the FFL Mance conducted business, Texas. Had they been prohibited from purchasing a gun in either location this Court’s analysis would not apply. The Court addresses this issue in a lengthy footnote on page 22, in speaking to a concern raised by the Defendants that an FFL in one state may not be familiar with the gun laws of a different state, running the risk that the FFL would be selling a handgun to a resident of that other state who is prohibited under that state’s laws:
A Texas FFL must ensure that a Sacramento, California resident who purchases a rifle is legally entitled to do so under federal, Texas, California, and Sacramento law. Similarly, a non-Texas FFL must ensure that a Texas resident who purchase a rifle is legally entitled to do so under federal law and the laws of both states. While a California FFL in San Diego might have to research the local handgun restrictions in place for a Sacramento California resident purchaser, some 500 miles to the north, nothing prevents an out-of-state FFL from Reno, Nevada, from conducting the same research to ensure that a handgun transaction with a Sacramento resident, some 100 miles away, comports with federal, Nevada, California, and Sacramento restrictions. Under current law, an FFL is not authorized to transfer any firearm to anyone until the state or federal authority confirms the transfer is legally permitted under state and federal law. See 18 USC § 922(t).
As a practical matter, if it turned out that yesterday’s court order represented a way around the Massachusetts restrictions on transfers of restricted handguns, I am confident the legislature would promptly make whatever statutory changes were necessary to bring those restrictions back into effect—and, again, no FFL is going to risk being caught on the wrong side of a volatile set of gun laws for the pittance of a profit they make on a handgun sale.
Mance v. Holder, Civil Action No. 4:14-cv-539-O (February 11, 2015)
And, as promised, here’s the PDF of the Court’s order of summary judgment:
[Note: Updated 2/13/15 to correct clarify ambiguity about the jurisdictional scope of the federal court issuing the order.]
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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.