SAF Challenges Ban on Interstate Handgun Sales (VA/DC)

[krucam]

Josh Blackman speaks out on Lane v. Holder: http://joshblackman.com/blog/?p=6958

He talks about his belief (and mine) that the standards should be different for "Law Abiding" citizens. Many of the laws out there are a result of bad guys doing bad things.

This ex ante deprivation of her rights should require a higher showing from the government.

An opinion written off a "bad guy" offense should differ from a more clear vision for us "good guys" in a non Judiciary environment. I have no idea how they will do that outside of the "Law Abiding citizen" moniker being thrown around lately.

It would be good for that moniker to take root IMHO.

Blackman calls out what I was wondering (albeit briefly after reading), that of the Equal Protection clause of the 5th Amendment. Oops...

By maintaining and enforcing these provisions, banning andotherwise burdening access to handguns whose possession is protected by the SecondAmendment, Defendant Holder is propagating customs, policies, and practices that violate theFifth Amendment to the United States Constitution, facially and as applied against Ms. Lane andSAF’s membership.

 

[press1280]

I would think Dearth v. Holder may play a role here too. If the Feds can't prohibit an American non-resident from purchasing arms, then there's no point to not allow American residents from buying outside their state of residence.

 

[Patrick]

I would think Dearth v. Holder may play a role here too. If the Feds can't prohibit an American non-resident from purchasing arms, then there's no point to not allow American residents from buying outside their state of residence.

A most excellent observation.

 

[JRBENJR]

I don't know much about this, so educate me. Is it illegal to go out of state and purchase a firearm? Just wondering because I am planning a trip to Florida and I had planned on making the rounds of some of the gun dealers while down there.

 

[Patrick]

Handguns must transfer in Maryland if you are a Maryland resident. Non-regulated long guns are no problem, but good luck finding a Florida dealer to sell you one cash and carry. I own a place in Florida and the local dealers all tell me to come back with a FL Driver's License, or the name of an FFL in Maryland.

It could be a local phenomenon, or it could be FL law. Maybe they see "Maryland" and decide they'd rather avoid the drama. Not sure.

FWIW, I have bought long guns out of state cash and carry (PA, VA) with no issues. But if I want a HD gun in Florida I either need to get tight with a dealer there, or bring one myself. Like I said, this could be a local thing for me (Sarasota/Tampa area), and I have surely not talked to every shop in the area. But I figured after being told "Sorry" five times, that calling the sixth was not worth much effort.

 

[pcfixer]

http://www.facebook.com/SecondAmendmentFoundation




GCA (922) is slowly being chiseled away folks.

I wonder if this has ANYTHING to do with Mr Sykes (FFL) lease problems in DC...

The Future's so Bright, I gotta wear Shades...

This will go to the Supreme court. I don't see Holder ie government in this administration rolling over on this.

 

[krucam]

Assuming "best case scenario" in this, the Federal state residency requirement who is a Citizen will vanish (Dearth) AND Intra-state purchase for a resident who is Citizen (Lane).

What will remain in places like MD are the remnants, which are the State laws. As was pointed out, MD Public Safety § 5-137 would still be left standing.

§ 5-137.
(a) A person who seeks to own a regulated firearm and purchases the regulated firearm from an out-of-state federally licensed gun importer, manufacturer, or dealer shall:

(1) have the federally licensed importer, manufacturer, or dealer ship the regulated firearm to a licensee for processing; and
(2) comply with §§ 5-103, 5-104, 5-117 through 5-129, and 5-136 of this subtitle.
http://michie.lexisnexis.com/maryla...f=templates&fn=document-frame.htm&2.0#JD_pst5​

(b) If a person purchases a regulated firearm for use within the scope of the person's official duties, the Secretary may waive the 7-day waiting period under § 5-124 of this subtitle for:

(1) law enforcement personnel of any unit of the federal government;
(2) members of the armed forces of the United States or the National Guard; or
(3) law enforcement personnel of the State or any local agency in the State.​

​

Without any Federal preemption, this will leave many states having to have State laws on regulated firearm transfers reversed, either Legislatively or Judicially....correct?

 

[paulstitz]

I don't know much about this, so educate me. Is it illegal to go out of state and purchase a firearm? Just wondering because I am planning a trip to Florida and I had planned on making the rounds of some of the gun dealers while down there.

From the ATF FAQ web site


http://www.atf.gov/firearms/faq/unlicensed-persons.html

Q: From whom may an unlicensed person acquire a firearm under the GCA?
A person may only acquire a firearm within the person’s own State, except that he or she may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee’s premises in any State, provided the sale complies with State laws applicable in the State of sale and the State where the purchaser resides. A person may borrow or rent a firearm in any State for temporary use for lawful sporting purposes.

[18 U.S.C. 922(a)(3) and (5), 922(b)(3), 27 CFR 478.29 and 478.30]

 

[pcfixer]

Assuming "best case scenario" in this, the Federal state residency requirement who is a Citizen will vanish (Dearth) AND Intra-state purchase for a resident who is Citizen (Lane).

What will remain in places like MD are the remnants, which are the State laws. As was pointed out, MD Public Safety § 5-137 would still be left standing.

[/INDENT]

Without any Federal preemption, this will leave many states having to have State laws on regulated firearm transfers reversed, either Legislatively or Judicially....correct?

I think I understand. How will this eliminate the Supremacy Clause??
The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the "Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding." This means of course, that any federal law--even a regulation of a federal agency--trumps any conflicting state law.

 

[Patrick]

I think I understand. How will this eliminate the Supremacy Clause??
The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the "Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding." This means of course, that any federal law--even a regulation of a federal agency--trumps any conflicting state law.

Yup. The 14th Amendment was designed for just this purpose - to make the Supremacy Clause supreme over the states when civil rights are involved.

That be the law of the land.

 

[yellowfin]

Hopefully in all this we get the language necessary to start attacking infringements upon economic rights as well. The degradation of the 2nd Amendment shares roots with all kinds of government evils.

 

[krucam]

Yesterday, SAF/Gura filed a Motion for Preliminary Injunction in Lane v Holder.

Stating:
I. THE BALANCE OF HARMS TIPS DECIDEDLY IN PLAINTIFFS’ FAVOR . . . . . . . . . . . . . 12
II. PLAINTIFFS WILL PREVAIL ON THE MERITS. . . . . . . . . . . . . . . . . . . . . . . 13
A. The Constitution Secures Access to Handguns. . . . . . . . . . . . . . . . . . . 13
B. The Interstate Handgun Transfer Prohibitions Are Subject to Strict Scrutiny. . . 14
C. The Interstate Handgun Transfer Prohibitions Violate Plaintiffs’ Rights. . . . . 16
III. A PRELIMINARY INJUNCTION SERVES THE PUBLIC INTEREST . . . . . . . . . . . . . . . 19

Gura takes plenty of pot shots at perhaps his favorite target, that being the District of Columbia.

Under the interstate handgun transfer ban, Washington, D.C. residents wishing to acquire handguns are required to arrange the shipment of those handguns from federally-licensed dealers in the various states, including Virginia, to an “in-state” District of Columbia firearms dealer.
They must then visit the D.C. dealer twice—first to have him sign a piece of paper and collect an extravagant fee for his “service,” and again, upon police approval, to retrieve the handguns they had shipped to him from a state. The arrangement is ordinarily unconstitutional even when it works, but now, with the loss of the District’s only government-certified middleman, no avenue remains available for District residents, including Plaintiffs Michelle Lane, Amanda Welling, and Matthew Welling, to lawfully take home a handgun.

We allow it for long guns, why not handguns? With Mr. Sykes still out of business, there is NO WAY for DC residents to lawfully register a handgun.

CONCLUSION
Heller and McDonald do not signal the end of all gun regulations.
But they do signal the end of these most pointless, burdensome regulations.
Respectfully, Plaintiffs are entitled to a preliminary injunction at this time, and considering the nature of the case and the lack of a possible factual dispute, suggest the case can be concluded under Rule 65(a)(2).

 

[pcfixer]

I think we can see the SAF going after the NFA or GSA laws too.

quoted on page 22. C.

Federal law already charges gun dealers selling rifles and shotguns with adherence to the laws of other jurisdictions when selling firearms to out-of-state residents. If a federal licensee can follow an out-of-state rifle law, he or she can follow an out-of-state handgun law.

 

[Kharn]

If ATF is running your prints and checking local legality themselves, the need for a local FFL is vulnerable.

 

[krucam]

Lane v Holder DOCKET

On 6/9/2011, a Scheduling Order was released in Lane:

2011-06-09 13 0 SCHEDULING ORDER: Initial Pretrial Conference set for 7/6/2011 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Thomas Rawles Jones Jr. Discovery due by 10/14/2011. Final Pretrial Conference set for 10/20/2011 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. Signed by District Judge Gerald Bruce Lee on 6/9/2011. (Attachments: # 1 Pretrial Notice, # 2 Alexandria Magistrate Judge Consent Form)(stas) (Entered: 06/14/2011)

Pretrial Conference was to be 7/6/2011, Discovery to be completed by 10/20/2011.

In spite of that schedule, Plaintiffs filed a Motion for Preliminary Injunction (PI) on 6/20/2011 (shown above). Slightly irregular, perhaps...

Also on 6/20, Plaintiffs submitted Notice of Hearing on the PI, date set for 7/15/2011.

This required vacating the original Scheduling Order #13 on the Docket. Both sides agreed to this and #20 JOINT MOTION TO VACATE SCHEDULING ORDER
AND SET BRIEFING SCHEDULE ON PRELIMINARY INJUNCTION MOTION is filed on 6/21/2011.

#20 is requesting the revised schedule of:

a. Defendants shall file their opposition to plaintiffs’ motion for a preliminary injunction on or before July 8, 2011.
b. Plaintiffs shall file their reply in support of their motion for a preliminary injunction, if any, on or before July 13, 2011.
c. The Court will hear argument on plaintiffs’ motion for a preliminary injunction on July 15, 2011.

Finally, today 6/29/2011 a Discovery Plan is submitted as #22 where the two sides agree to disagree and move forward with this case smartly...

 

[Jaybeez]

Assuming "best case scenario" in this, the Federal state residency requirement who is a Citizen will vanish (Dearth) AND Intra-state purchase for a resident who is Citizen (Lane).

What will remain in places like MD are the remnants, which are the State laws. As was pointed out, MD Public Safety § 5-137 would still be left standing.

[/INDENT]

Without any Federal preemption, this will leave many states having to have State laws on regulated firearm transfers reversed, either Legislatively or Judicially....correct?

Remove the federal handgun transfer ban and MD law falls apart. Its based on the federal law. It already has loopholes in it that i'd like to drive a truck through.

 

[Patrick]

The laws remaining will be temporary. The issues here are being fought on constitutional grounds, and since McDonald they apply to the states in equal measure. To the extent a state law resembles a (former) federal law, it will be of suspect constitutionality.

A good example is the recently departed Florida "contiguous state" purchase rule for long guns. If the federal ban on interstate sales of handguns fell to a constitutional challenge, then the legal basis for banning interstate sales between residents of Florida and say, Maryland, would also be suspect.

I think we are looking at a few butting provisions here in the fight: the Bill of Rights' guarantee of individual liberty and the constitutional allowance for the Congress to regulate commerce between the states. I'd like to think the individual liberties generally trump the commerce clause, but we have seen this not be the case time and time again, regardless of the makeup of the court.

This DC case is carefully crafted. It targets a system that restricts citizen access to a fundamental right. It is a rare opportunity to ask the court to chose one over the other: individual liberty or congressional power.

And once again, we can thank DC for setting up the question. Had they even half a brain between the various council members, they would have prevented this issue from arising and foreclosing a possible loss that ties the hands of themselves and other municipalities forever more.

When this is all done, I am going to offer Daley, Bloomberg and a good portion of the DC Council dinners and drinks. Maybe we'll make a party of it - kind of a "Hapless Gun-Rights Appreciation Dinner". I bet I could get Gottlieb of the SAF to pitch in. He likes rubbing stuff in (a small character flaw which I share in this instance).

 

[Hellphish]

so how long til i can buy a firearm online with a digital version of a 4473? lol

 

[Al Norris]

Some more stuff going on.

D.C. wants to sever & change venues, among them. See the docket.

 

[Patrick]

The court can move the claim if they want. It's more delaying tactics, as the district court in DC is quite friendly to the anti-rights crowd.