- The Washington Times - Wednesday, February 11, 2015

A federal district court in Texas overturned a 1968 gun law prohibiting the sale of handguns to out-of-state residents, granting those who live in Washington, D.C., the ability to travel to an out-of-state gun store, buy a handgun and bring it home without a middleman.

The ruling takes aim at the federal Gun Control Act of 1968, which prohibited handgun sales to out-of-state residents and was defended by Attorney General Eric H. Holder Jr., who argued that the law doesn’t violate the Second Amendment.

Proponents of lifting the ban said the 1968 law had become dated given technological advances in instant background checks, which are performed every time a gun is purchased from a federally licensed firearm dealer. It also prohibited a robust national handgun market from developing, as rifles and shotguns can be purchased regardless of state residency, but handguns are not.

Judge Reed O’Connor said the law had to survive the highest level of scrutiny and ruled that it plainly did not. He granted the gun vendors’ request for a summary judgment striking down the law.

“Based on the foregoing, the Court concludes that 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 current law. The federal interstate handgun transfer ban is therefore unconstitutional on its face,” he wrote.

The decision can be appealed to the 5th U.S. Circuit Court of Appeals in New Orleans, and Justice may ask for a stay.


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But if it stands, the Texas court’s ruling would allow a pistol to be purchased from an out-of-state buyer if that handgun is legal in the buyer’s state of residency.

For D.C. residents, the ruling has particular importance because for the first time they will be able to make handgun purchases in neighboring Virginia or Maryland and bring the guns home.

Before the ruling, because the District has no gun stores, D.C. residents had to go through middlemen who purchased the firearms on their behalf, then resold them with a surcharge.

“This is a tremendous victory for the civil rights of Washington, D.C., residents and Americans in general — the court recognized there’s no need to destroy the national market for handguns,” said Alan Gura, who argued the case for the plaintiffs and is a founding partner at Gura & Possessky Pllc, in the District. “District residents are free to purchase handguns so long as they comply with D.C. law and have those handguns properly registered.”

D.C. Mayor Muriel Bowser did not immediately respond to a request for comment.

“We are reviewing the opinion and considering next steps,” said Nicole Navas, a spokeswoman for the civil division at the U.S. Department of Justice, who declined further comment.

Mr. Gura expects the Justice Department to appeal the decision and perhaps get the ruling stayed, keeping previous law in place until appeals are heard.

“For us, it’s a highly disappointing decision, the court made a number of errors in regard to other Second Amendment case law that’s out there — it overestimated the burden on the plaintiffs and underestimated the evidence the government provided about how this law protects public safety,” said Michael McLively, a staff attorney with the San Francisco-based Law Center to Prevent Gun Violence, which advocates for stronger gun regulations nationwide.

Though his group doesn’t list the District’s gun laws in its state rankings because it isn’t a state, Mr. McLively said, it has some of the country’s most restrictive laws, which Wednesday’s decision would undermine.

“We’re hopeful the government will appeal it,” he said, arguing that restrictions are interstate sales are merely a regulation, and not a denial, of the right to keep and bear arms.

“The 1968 law doesn’t take away your access to firearms. You’re still able to purchase them,” he said.

Amanda Welling, a handgun owner in the District of Columbia, said that because the District has been historically tough on gun owners, she fears the ruling may change the already restrictive handgun registration and training requirements within the District.

“Everything’s a bit wonky in D.C. I’m skeptical because certainly it’s now law [to buy a handgun out of state], but how long is it going to last?” said Mrs. Welling, who had a Second Amendment case considered by the Supreme Court last year. “But any small victory is a victory in the way of being able to have more freedom — to exercise our constitutional rights — and that’s a good thing.

In the federal case, Mance v. Holder, federally licensed firearms dealer Frederic Russell Mance Jr. of Texas and gun buyers Tracey and Andrew Hanson sued Mr. Holder and the Bureau of Alcohol, Tobacco, Firearms and Explosives Director B. Todd Jones claiming the federal ban on the sale of handguns outside of one’s state stops the formation of a national handgun market.

The Hansons, who live in the District, visited Mr. Mance’s Texas store in June and were unable to buy handguns because of the ban.

The ban effectively “reduces competition, raises prices and limits consumer choices,” said their joint lawsuit, which was filed in July.

Alan Gottlieb, the founder of the Second Amendment Foundation, a pro-Second Amendment advocacy organization based in Bellevue, Washington, which helped fund the lawsuit, said he was “on cloud nine.”

“This case shows, if you can’t buy a handgun, you can’t exercise your Second Amendment right, because you can’t acquire it,” he said.

The Texas court applied “strict scrutiny” when evaluating the case, something other courts have been reluctant to do when dealing with the Second Amendment, he said.

For example, if the federal government wanted to prohibit bookstores from selling books to out-of-state residents, those residents could sue, citing a violation of their First Amendment rights, and they would have standing. The same standard historically hasn’t been given to Second Amendment cases, Mr. Gottlieb said.

“You’re allowed to buy a book and now you’re allowed to buy your gun. With this case, we’re able to create that analogy and have it stand,” said Mr. Gottlieb. “It greatly helps those arguing on behalf of the Second Amendment, but really it helps any lawyer defend the whole Bill of Rights.”

The court’s decision is “huge,” Matthew Bergstrom, a managing lawyer at Arsenal Attorneys, a Second Amendment law firm, said in an email. “So a Texan could now walk into a Virginia gun dealer and buy a pistol. Huge decision.”

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