This is huge

H/T to Sebastian and a tweet from Firearms Policy.

This court victory is not on the scale of Heller or McDonald but it is still huge.

Firearm Policy describes it in a rather obscure manner:

The Court issued its order granting Plaintiffs’ Motion for Summary Judgment. It is therefore ORDERED, ADJUDGED, and DECREED that Plaintiffs’ Motion for Summary Judgment is GRANTED. The Court DECLARES that 18 U.S.C. § 922(a)(3), 18 U.S.C. § 922(b)(3), and 27 C.F.R. § 478.99(a) are UNCONSTITUTIONAL, and Defendants are ENJOINED from enforcing these provisions.

SO ORDERED on this 11th day of February, 2015.

For reference purposes 18 U.S.C 922 is here* and 27 C.F.R. § 478.99  is here**.

But as Sebastian elaborates:

This case challenged the ban on interstate transfers of handguns through an FFL.

The court applied strict scrutiny, and despite the government’s attempts to argue they needed the restriction in order to prevent criminals from circumventing state guns laws, the judge wasn’t buying it. What’s also very interesting is that he argues that the Brady Act changed the game for the GCA ’68 restrictions, with the idea that in an era of instant background checks, some GCA requirements cannot stand up to strict scrutiny.

Furthermore, the court said the interstate sale of handguns would not pass intermediate scrutiny either.

GCA ‘68 is under attack and just lost on a major issue. This has huge implications to Washington State residents and other suffering from repressive regulation in their home state. If you can go to a more free state and buy a handgun then you can bypass home state registration by keeping the gun out of state. You also avoid the expensive and difficult to obtain permission to purchase a gun as you thumb your nose at the local tyrants. All those guns banned by California, Maryland, New Jersey, and New York will now become extremely difficult to enforce.

Assuming this is upheld upon appeal and applied nationwide it will be interesting to see what sort of response the state legislators come up with. Will they attempt to make it illegal for you to purchase a gun in another state? In my case I can easily, and correctly, claim I keep any gun purchased in Idaho in Idaho and don’t “import” it back to Washington state. Then what? How is this different from someone visiting Washington or Colorado and purchasing some Marijuana?

Other GCA ‘68 restrictions that I suspect will soon be subject to attack is the restriction upon imports and the “sporting purpose” restrictions.

Can the government legally prevent you from importing a book when similar books, perhaps differing only in the edition or type of cover, are available for sale in the U.S.? Of course not. It makes no sense. The same with importing of firearms. I could see there being legal grounds for the government to impose taxes on such imports but they couldn’t be exorbitant.

The “sport purpose” test has to be almost in imminent jeopardy of falling. What constitutionally protected right can be dependent upon it having a “sporting purpose”. Constitutionally protected rights are not for sport.


* 18 U.S.C. § 922(a)(3):

It shall be unlawful … for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter;

18 U.S.C. § 922(b)(3):

It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver – … any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

**27 C.F.R. § 478.99:

§ 478.99 Certain prohibited sales or deliveries.

(a) Interstate sales or deliveries. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall not sell or deliver any firearm to any person not licensed under this part and who the licensee knows or has reasonable cause to believe does not reside in (or if a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business or activity is located: Provided, That the foregoing provisions of this paragraph (1) shall not apply to the sale or delivery of a rifle or shotgun (curio or relic, in the case of a licensed collector) to a resident of a State other than the State in which the licensee’s place of business or collection premises is located if the requirements of § 478.96(c) are fully met, and (2) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes (see § 478.97).

10 thoughts on “This is huge

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  2. Well, maybe they could keep the “Sporting Purpose” if the state legislators established a season for politicians similar in duration and scope to the seasons for deer, bear, hogs, and the various waterfowl.

    • Not very long. And it’s a good first step.
      The right next step is for the courts to recognize that “strict scrutiny” amounts to “we can stomp on the Constitution if we have a good excuse”. The reality is that the text of the Constitution gives NO support to the notion of strict scrutiny (or any weaker form of scrutiny, of course). As the saying goes, “what part of ‘shall not infringed’ (or ‘shall make no law’) did you not understand”
      The first amendment doesn’t say “Congress shall make no law unless it claims a compelling government interest” and the second amendment doesn’t say “shall only be infringed if the state has a convincing explanation why it should get away with this”.

  3. …what sort of response the state legislators come up with. Will they attempt to make it illegal for you to purchase a gun in another state?

    Commerce Clause?

    They could still outlaw within ‘Their’ state firearms with certain cosmetic features, but those laws would fall when the next Rosa Parks gets dinged.

  4. I’ve been saying since Heller that the way to get nationwide constitutional carry is to chip away at GCA ’68 and FCA ’34 and other laws bit by bit, the way the NAACP did with Plessey v Ferguson. There is no way Brown v Board in 1954 could have ever been decided as it was in 1910 or 1905 when the first incremental steps were made. It’s human nature to want the big, historic, sudden reversal including the American Joint Chiefs in 1942 who wanted to land in France in 1942, but that’s not the way things work,

    • Good point.
      How often is the “full faith and credence” clause used? I keep expecting to see it used in a gay marriage case (as in: if you’re married by the laws of some state, you’re married in the whole USA). If so, applying it to concealed carry just as it is universally applied to driver’s licenses would be a natural step. (Neil Smith used that in his novel “Hope”.)

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