Fifth Circuit Strikes Down Interstate Handgun Sales Ban
“We reject the Second Circuit’s approach. … Broad similarities between historical precedents and modern regulations are insufficient at Bruen Step 2.”
The Fifth Circuit just killed a federal ban on direct interstate handgun sales that Washington has enforced since 1968.
The case, Elite Precision Customs v. ATF, came out of Texas. Elite Precision Customs is a licensed firearms dealer there. Two of its would-be customers, Tim Herron and Freddie Blish, live in New Mexico and Arizona, respectively. Blish is a retired Marine who travels the country teaching safe firearms handling. They wanted to buy handguns directly from Elite Precision. Federal law said no.
Smith wrote the majority. Engelhardt joined. Haynes dissented.
“The Ban, true to its name, categorically bars an entire class of otherwise lawful firearms purchases. The Ban is not a mere stipulation upon an otherwise safeguarded right to purchase firearms in the course of ‘keeping’ them.”
Sections 922(a)(3), 922(a)(5), and 922(b)(3) are the provisions at issue. The long-gun exception in § 922(b)(3) permits some direct rifle and shotgun sales to nonresidents. Handguns get no such exception.
A buyer can still get one. It just takes another dealer.
Elite Precision, for example, can send the handgun to a licensed dealer back in Herron’s home state. Herron then gets it from that dealer. Nobody requires the second dealer to participate, though. Herron told the court he normally pays another $30 to $40 when one does. There is a delay too.
“Even to the extent that the Ban can be circumvented by the licensee-to-licensee transfer workaround … the Ban invariably calls for the payment of a fee over and above the cost of a handgun. We must pause before endorsing a cost attached to the exercise of a fundamental constitutional right.”
Reese v. ATF supplied the rule Smith used at the first step: the right to “keep and bear arms” “surely implies the right to purchase them.” The direct interstate sale never becomes lawful, so the panel treated the restriction as a purchase ban.
That moved the case to the history part of Bruen.
The government had plenty of old laws to cite. Eighteen of them, according to the opinion.
A Connecticut law from 1642. Another from 1650. Virginia laws. South Carolina. Maryland. New York. Massachusetts. Pennsylvania. New Jersey made the list too. The examples ranged across wartime defense, trade with Indian tribes, gunpowder rules, and firearm quality inspections, a wide spread of very different contexts.
Smith put them into three groups: common defense, foreign commerce, and consumer protection. None matched the 1968 handgun restriction.
War measures kept weapons available for local defense. The Indian-trade laws involved separate sovereigns. The inspection statutes dealt with the product being sold. None barred an ordinary handgun sale based on the buyer living in another state.
That put the Fifth Circuit in direct disagreement with the Second Circuit’s reasoning in United States v. Vereen. The Second Circuit upheld the restriction last year using colonial and founding-era laws as historical support.
A circuit split of this kind is a standard cert trigger. The Supreme Court may not be able to leave this one alone.
Smith was not impressed with that framing.
“We reject the Second Circuit’s approach. … Broad similarities between historical precedents and modern regulations are insufficient at Bruen Step 2.”
Haynes would have affirmed the district court. She wrote that the challenged provisions were “not unconstitutional under the Second Amendment.” In her view, the ban functioned as a reasonable commercial restriction on how handguns could be sold, not a prohibition on possessing them.
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Comments
It’s about time. Any constitutional OR unconstitutional rationale for this law died the day NCIC opened its doors, and 50-state instant checks were possible.
How do you see that? (Honest question, not snark.)
How do you run the check at the gun source and have it be … certain? The CMP does it when you buy a Garand, but it definitely takes more effort than going to my FLGS. How can they be certain which state background checks to run?
I just want to know your thoughts on that.
If the NCIC can run a “certain” BC on an RI man purchasing in RI, and a MA man purchasing in MA, they can run a “certain” BC on a RI man purchasing in MA. The buyer has to show a license and enter his state of residence on the 4473. Everything else is cookbook.
But what about the states that require a state background check? Those do not run through NCIC. The law requires them to meet the standard in the buyer’s state, as is. Right now the dealer in your state will run that check.
I think it would be nice to do away with, but I’m afraid the messiness will cause some dealers/congresscritters to fight it. (Yes, freedom is messy.)
And I’m saying “certain” because how do you really know where that person is a resident? At least without imposing a pretty solid credential check? Because we know how strong the identity check on certain driver’s licenses is nowadays….
States shouldn’t be putting additional restrictions on constitutional rights. I have a FFL and deal with a lot of online transfers. I refuse to send firearms to California because they require my New Mexico business to register with their Department of Justice and get permission to ship a federally legal firearm to their state. I’m not playing their games.
If I understand you correctly you’re discussing application of an extraterritorial burden from the purchasing individual’s State A upon the selling dealer in State B.
That’s an interesting point about applying extraterritorial jurisdiction. Many on ‘our side’ would argue in favor of the buyer’s State doing so with mail order delivery of ‘abortion drugs’ but less so re firearms purchase.
@Sanddog
“Shouldn’t” and “don’t” are different, and I’m poking to see how we handle it – beyond just getting angry about “NO infringement.”
What part of “shall not be infringed” do they not get. Additional measures are unconstitutional and therefore should be ignored.
That’s the states’ problem. The federal government isn’t responsible for funding or feeding their whimsical authoritarian bans.
What about the states that don’t let you buy gas lawn mowers, conventionally-raised meat and dairy, or menthol cigarettes? Same answer: “tough.”
The NCICs runs all states at the same time. There is noting in any states check that isn’t already available via the NCICs. That’s how it was set up in the early 90’s.
The reason the home state only via an FFL was created in 1968 was that criminal and derogatory records were only maintained at the local and state level.
The state restriction on sales didn’t need Bruen to be thrown out, as it doesn’t even pass the intermediate scrutiny analysis after the NCICs was created.
Based on several states’ recent laws, they don’t see the NICS as containing all the data. Especially if they broaden the definition of “prohibited person.”
https://www.atf.gov/rules-and-regulations/laws-alcohol-tobacco-firearms-and-explosives/gun-control-act/brady-law/brady-state-lists
“In her view, the ban functioned as a reasonable commercial restriction on how handguns could be sold, not a prohibition on possessing them.”
Let’s say I want to buy an ad in a Virginia newspaper. I live in a different state, so I can’t purchase the ad space directly from them. Instead they have to sell ad space to a broker in my state, and I can purchase the ad space from them with the added cost of paying the middleman. Does the justice agree that this is a reasonable restriction on my right of free speech?
If I want to hold a rally or demonstration but can’t pay a permit fee to that location, but instead have to pay a fee to a broker in my state who will “purchase” that permit for me for a cut. Is that a reasonable restriction on my right of freedom of assembly?
To ask is to have the question answered. They would be pointless rules to make it more costly and inconvenient to make use of those rights. Stop treating certain constitutional rights like 2nd class citizens.
The difficulty with your argument is that the “broker” isn’t really taking a cut. They’re providing you a service for a small fee. (Most places it’s small; some it is not.) They secure the firearm after it is shipped and they do the NICS check and the paperwork when you pick it up. So, it’s a step removed from a “fee” in the governmental sense.
Not when the government REQUIRES me to use a broker — commercial OR governmental.
But the process was imposed by the government. Whether it’s the government or not that actually collects the fee is irrelevant. Government’s action created the additional fee – it made it more costly to exercise a fundamental right. The fact that the “ban” can be circumvented at all (by any legal buyer of a handgun) shows that it performs no LE or public safety function. It was always just an obstruction meant to discourage citizens from exercising their right to arms. (This is the purpose of all firearms laws. Dems’ constant demand for more “gun violence” legislation is an admission that all our gun control has had no practical effect on crime. So what other purpose does it serve?)
The fact that the “ban” can be circumvented at all (by any legal buyer of a handgun) shows that it performs no LE or public safety function.
How can the ban be circumvented? Do you mean the exemption for long guns? If so, your statement is only true if you assume long guns and handguns are not in any way different from each other in usage. (That’s certainly not true in most state law. I think you have a better case if they manage to delete the 21yo restriction, though.)
I generally agree with you. I’m mostly pushing on things because I want to find all the potentially problematic stuff so we can handle that, too. (And just sorting out the arguments for myself.)
(Oh, and it’s more true to say that “All firearms laws are meant to prevent some citizens/subjects from exercising their rights.” After all, the anti-sword laws in England were only meant to keep the Saxon peasants from getting uppity, not the French nobility and the Saxon nobility who bent the knee.)
“How can the ban be circumvented?”
The “ban” isn’t really a “ban” because the transfer is possible by shipping the handgun from a dealer in one state to a dealer in the buyer’s state. It’s not a ban on the sale per se, as it prevents only the direct purchase of a handgun by a citizen of one State from a dealer in another State.
I’m a little baffled by this argument and conclusion. Maybe someone can make it clearer for me.
OK, 922(b)(2) already prohibits selling to someone in whose state it’s illegal for them to have that firearm. So, technically, if 922(b)(3) is tossed the out-of-state dealer will have to run the receiving state’s background check (if any) and the federal.
922(b)(3) starts out with saying nobody can sell to someone who is not a resident of the state were the dealer is located. So, no out-of-towners. THEN it says this doesn’t apply if the requirements for both states are met AND the recipient shows up in person at the dealer – IF it’s a rifle or shotgun.
Since this is being regulated under interstate commerce, it seems that the exemption being only for rifles and shotguns would be the thing that should be wrong. Right? And it should allow the exemption for all firearms, because (by a rational definition, which would not necessarily be the ‘legal’ one) if I show up in TX to buy a gun, then it becomes my possession (part of my baggage – just like import rules allow you to not pay duties on a shirt you bought in Jamaica if you actually wore it before you came home), and no longer “in” interstate commerce. Right? (And, yes, f*** Wickard v. Filburn.)
Would that be the non-hoop-jumping, non-beholden-to-precedent-more-than-actual-law, non-overly-complicated answer?
This sure would put a lot of burden on the original dealer to know what he’s dealing with in all 48 states, though. (48? I saw somewhere in there the word ‘contiguous’, which means only the lower 48 states. Or it means only states right next to each other.) But he already kind of does have to know that.
BTW, the way 922 is written, several places state specifically that if the firearm HAS EVER BEEN in interstate commerce, it’s covered. So, Kentucky Long Rifle shipped to Georgia 1 day after the Constitution was ratified, could be snared by the “interstate commerce” parts of 922, except where there might be a specific exemption (like antique or black powder). It doesn’t matter how many years pass or whether it was originally bought locally or whatnot.
Crazy, right?
And add to this the “chilling effect” that even though interstate sale of long guns is exempted as long as the sale would be valid in the buyer’s home state, there are tons of FFLs who won’t make the sale anyway because they choose not to get tripped up by some arcane codicil in another state’s laws that they haven’t trained on.
Haynes would have affirmed the district court. She wrote that the challenged provisions were “not unconstitutional under the Second Amendment.” In her view, the ban functioned as a reasonable commercial restriction on how handguns could be sold, not a prohibition on possessing them.
Leftists love to put restrictions on actual rights while proclaiming that invented rights must never be restricted.
A Modest Proposal:
Ban handguns from interstate commerce altogether. (No exemptions)
This has 3 effects…
Since any manufacturer would have to make handguns in the state in which they were sold, and there would continue to be demand for the major brands, they would open manufacturing plants (or importation companies for foreign-built firearms) in every gun friendly state, increasing manufacturing capacity and jobs.
Since there would be no interstate commerce, but (as numerous courts have pointed out) having firearms available is necessary for the 2A, no state could ban you making your own. 80% and 3D-printed lowers galore!
Since some places (looking at you, California) would try to prevent local manufacture and importation, they would be caught in a quandary of not being able to buy handguns for their police, unless they made an unconstitutional exemption. The big question there is whether any manufacturer would start a business there with the sorts of restrictions that would be placed on them.
(And, if you don’t know what “A Modest Proposal” is, check out Jonathan Swift. It’s sort of a sarc tag for an Appeal to Extremity argument.)
LOL, downvoted for a Swiftian proposal? Wow.
What’s even crazier is this: I am in possession of a handgun in California and want to get my handgun to my residence in Maine but don’t want to fly back with it due to the rules for checking the gun in a locked case as baggage and all the risks (theft by airline employees and baggage handlers, for example). I’m not going to drive since I need to get back and don’t want to drive it through NY, NJ, RI, or MA. Do I have to pay an FFL in California to send it, shipping fees, and an FFL in Maine to ship it. Now imagine doing that with three handguns. We’re talking maybe $500 in some cases just to move my own property, mine, between two states. Forms 4473 all over again. Nuts.
Kudos to Freddy! I’ve done training with him through Aimpoint and Gunsite.
There are lots of pieces to this puzzle that I see as a FFL/SOT. Under NICS and the 1994 Brady law a CCW that is valid for 5 years can be used to waive the NICS check. Now not every state uses NICS or have their CCW valid for 5 years.
Another issue will be the standard capacity magazines that come with the pistol will be legal in most states but illegal in others…
I have a friend in Maryland who faced the magazine issue when wanting to buy a new handgun. The gun was legal in Maryland, but it shipped (in the box) with “large capacity” magazines. She was told that she could order it and have it shipped to her FLGS in MD, but they would have to take the magazines out before shipping it. (They evidently had no provision to ship it with smaller capacity mags, which I found weird.) She was pondering going to a Virginia store, purchasing it to be shipped (without the mags) to her MD FLGS, and hand-carrying the mags home, but the VA store couldn’t let her open the box to take out the mags – because she was a MD resident.
In Georgia it is the Weapons Carry License. I keep mine to streamline any firearms purchase.
Besides the magazine capacities there is also ammo requirements. I got some blem 9mm JHP bullets, ten 90 pound kegs that yielded just over 5k bullets. They were more than three grains above and below than the 124 gr standard. I sorted lighter and heavier and loaded accordingly. Some states ban HP ammo and I have practiced with it for years.
, shall not be infringed.” But politicians infringe with every law or rule.
Good on Washingtonians for fighting. Those guys need more support because the state government there is at war with the 2A.