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February 11, 2015, 02:42 PM | #1 |
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Ban on Interstate handgun transfers ruled unconstitutional
I don't see this anywhere else online right now but take this for what it's worth. Hopefully it will stick and won't get appealed but for now a federal judge has ruled that banning the tranfer of handguns between people in different states in unconstitutional.
Ruling here. Article here. Do you think this will get appealed? |
February 11, 2015, 03:16 PM | #2 |
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Before anyone gets too excited --
This is a trial court decision and is not precedent anywhere. It applies only to the parties and to this particular lawsuit. It is likely to be appealed. On the other hand, it's a nicely reasoned decision for our side, and it's good to see this sort of routine application of Heller and the individual rights model of the Second Amendment. The more of these sorts of decision we see the more theses concepts will take hold. This is one more brick added to the foundation of favorable Second Amendment rulings we need to build.
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February 11, 2015, 03:31 PM | #3 |
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Thanks for clearing that up. I knew not to get my hopes up too much but it does sound like a step in the right direction.
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February 11, 2015, 03:34 PM | #4 |
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A question -
My understanding is that some background checks are Federal (NICS) and some are state-based, and that shipping to your FFL ensured that the check was done in the "approved" manner for the state in which you reside. Could this ruling result in all checks being done at the Federal level, whatever that means? |
February 11, 2015, 03:40 PM | #5 | |
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February 11, 2015, 04:22 PM | #6 |
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Frank,
What's your feel on the likelihood of this one making it all the way up to the Supreme Court? Is it over with this favorable decision, or is the losing party likely to appeal it upward? pax |
February 11, 2015, 04:53 PM | #7 | |
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The opinion is well-written (and includes a reference to Peruta, which pleases me) and blows up the DOJ rationale for imposing their ban. If the relevant state law bans sales of handguns to non-residents, or there is some restriction of what handguns can be brought into a state (such as the CA roster), this may not have any effect. I could be wrong.
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February 11, 2015, 04:59 PM | #8 | |
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February 11, 2015, 06:28 PM | #9 | |
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February 11, 2015, 08:24 PM | #10 | |||
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If the Federal Government loses at the Circuit Court level, I think there's a strong likelihood that they'll appeal. And I seem to recall, although I haven't done the research and could be wrong, that a government appeal from a Circuit Court ruling that a federal statute is unconstitutional must be heard by SCOTUS -- they wouldn't have discretion not to hear the case. If the plaintiffs lose at the Circuit Court, they will probably petition SCOTUS to hear it. After all, this is a Gura case. But it's anybody's guess whether SCOTUS would take the case. Quote:
I'm sure the exact language of the injunction will be a matter of some controversy. And since it's likely the government will appeal, it's quite possible that everything will be put on hold pending the appeal. A lot can still happen. Quote:
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February 11, 2015, 10:06 PM | #11 | |
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There are a few interesting bits in this one. Quoting Ezell:
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It's a well-argued case (which I'd expect from Gura). I'd like to see it grow legs.
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February 11, 2015, 10:09 PM | #12 |
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The thrust of the decision is that a citizen of the United States could buy a handgun in another state from an FFL there. NICS, etc same as usual.
It's not rampant speculation, the decision says treat it just like a long gun sale. In that regard it lifts an annoying complication, and the likely consequence is that you don't have to arrange for transfer to your FFL in your home state and pay his fee. As patiently spelled out, approach this with caution and reserve, nothing has happened yet as it will likely get appealed and that's going to take time. This Administration is in the business to keep things as complicated as possible. It's a nice victory but my no means a major earthshaking victory for gun rights. Just another one of the little battles that have made a huge improvement over the last two decades. |
February 12, 2015, 11:28 AM | #13 | |
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February 12, 2015, 12:00 PM | #14 | |
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February 12, 2015, 12:34 PM | #15 |
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I would suspect so. If I remember correctly those states bordering Illinois? New Jersey? Can't sell ammo to one of their residents without their FOID.
Additionally there are still remnants of the "Contiguous State" restrictions, where you could only buy long guns out of state in a bordering state. That wasn't touched on by this decision either I'd guess. The ATF also has a Tip/FAQ sheet on the Contiguous State issue. We also are still running into the giant mess that is the legal status of Washington D.C. as not-a-state. Which is probably why Gura keeps using DC residents, with an eye towards incorporation after it's settled Federally. I'm curious if the Government will respond by claiming DC residents are not residents of a state, and therefore can't buy an out of state long gun either. |
February 12, 2015, 12:42 PM | #16 |
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Thanks for your comments, Frank.
"A long and winding road..."
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February 12, 2015, 01:24 PM | #17 |
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From JimDandy:
"New Jersey? Can't sell ammo to one of their residents without their FOID." Not yet, anyway, JD. I live 20 minutes over the bridge(s) to Philly and (used to) frequent the gun shows there, and still buy ammo when I'm over there if I need it. No problem at Cabela's in DE either. Long guns, I need to show my FOID card, but not ammo. |
February 12, 2015, 02:58 PM | #18 |
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OK, Non-lawyer here asking questions.
1. If DC still requires handgun registration, how do this help the plaintiffs? DC is not covered by the Northern District Court of Texas. Would DC have to abide by this ruling? 2. The court pretty much slammed the DOJ (Everything you say about gun control is not a fact sorta thing). Would anyone care to speculate on what the DOJ will use in its argument when it appeals. (I am pretty certain they will appeal. Because of improve technology (NCIC) the old gun bill, as written, does not really hold water. Could the implementation of federal background checks mean the end of the out of state transfer hassles. Sort of like the old blue laws each state had?
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February 12, 2015, 03:05 PM | #19 | |
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These questions are very premature. First we need to see how the case actually concludes. Then we can starting thinking about what it means. Speculating is a waste of time. Therefore, I'm going to close this for now. We'll be able to take a further look at the case after something worth noting has happened.
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February 13, 2015, 01:14 PM | #20 | |||
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Judgement has apparently now been entered. I'll re-open this thread with the caveat that it's still not over. It's very likely that the government will appeal, and it's also a strong possibility that the judgement will be stayed pending appeal.
To help keep discussion focused, I'll point out the following:
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper Last edited by Frank Ettin; February 29, 2016 at 01:19 PM. Reason: correct typo |
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February 13, 2015, 02:06 PM | #21 |
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Thanks, Frank, for providing the link to Branca's very informative article.
Analyzing the case on both a facial and as applied basis, and then using strict and intermediate scrutiny in both instances, shows a lot of determination on the judge's part to not be side-stepped or second-guessed on appeal. I did not catch the four-way analysis in my initially hurried and piecemeal reading of the ruling. |
February 13, 2015, 02:09 PM | #22 |
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I think the plaintiffs very purposely chose the 5th Circuit for this case, it is seen as very pro-2nd Amendment and once a favorable trial court ruling is obtained odds are very good it will be upheld by the appeals court. And of course if that happens they will appeal to the SCOTUS which is where we all want it.
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February 13, 2015, 03:09 PM | #23 |
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Question Frank, that I'm not clear on.
The government is enjoined from enforcing X, Y, and Z. You've said earlier it only applies to the Hanson's buying from Mance. Why would the government appeal it? Right now, it's very limited. If they appeal and lose, then it's a thing. Was the decision about the Army Corps of Engineers land from a higher court? i.e Circuit instead of District? That was a Federal court telling a Federal Agency so it went nationwide even though it was just from one circuit wasn't it? |
February 13, 2015, 03:45 PM | #24 | |||
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I don't know if the ACE has appealed. They might not. The ACE might not see this as that significant, since federal legislation already required that the National Park Service iallow the carrying of firearms in national parks as permitted by the laws of the State in which land is located.
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February 13, 2015, 06:29 PM | #25 | |
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Thanks, the second two questions became moot as soon as you said
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