A decision not to grant a retrial in a challenge to the federal law barring handgun sales to out-of-state residents sparked intense debate in one of the nation’s federal appeals courts last week.
The judges on the U.S. 5th Circuit were divided on overturning a decision by a three-judge panel that supported the gun law earlier this year. They narrowly voted 8-7 against granting a rare en banc hearing by the full circuit.
The thin majority agreed that the longtime ban on selling handguns over the counter to out-of-state residents is in the public interest. The minority vehemently disagreed with the concept, which predated today’s modern instant criminal background check process, holding it was against the Second Amendment and was confusing when compared to the ability to sell rifles and shotguns without such prohibitions.
The legal challenge came from Andrew and Tracey Hanson from Washington, D.C. who tried to buy handguns from a federally licensed firearms dealer in Texas but could not due to a federal law adopted in the 1960s. Together with the FFL holder, Frederic Mance, the couple joined with gun rights advocates in taking the government on, arguing that since the advent of the National Instant Check System it makes no sense to perpetuate a ban on interstate transfers of handguns.
A three-judge panel of the 5th Circuit in January disagreed with that concept, holding that handguns often have additional regulatory pitfalls in many states, and that gun dealers cannot be expected to be familiar with those in distant areas. While eight of the 15 members of the Circuit agreed with that ruling last week, those jurists who did not were vocal in their opposition, penning over 20 pages of strong dissent with the majority’s opinion.
Judge James Ho argued that the ban on interstate handgun sales effectively creates a federal waiting period and defacto tax on pistol and revolver sales for those seeking to buy one outside of their home state as the gun has to first be transferred from the seller to a local dealer, which takes both time and money. “For example, in this case, the record establishes that the only dealer with a federal firearms license (FFL) in the District of Columbia imposes a $125 transfer fee,” said Ho, going on to expound that if such a rule was done for other items, it would never pass Constitutional muster.
“Imagine that, to help states enforce their anti-obscenity laws, Congress outlawed the interstate sale of books. No court would uphold such a law,” said Ho. “After all, laws that impose broad, categorical bans—rather than narrow, precise restrictions—are by definition not narrowly tailored. And that is so whether the Government bans books or handguns.” Instead, the judge held that the government could easily adopt less restrictive alternatives to ensure compliance with state handgun laws than an outright ban on sales to those who are from out of state.
“The Government’s proposed prophylaxis—to protect against the violations of the few, we must burden the constitutional rights of the many—turns the Second Amendment on its head,” said Ho, a 2018 appointment by President Trump who formerly clerked for Supreme Court Justice Clarence Thomas. “Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government.”
Others were more candid in their assessment. “The Second Amendment is neither second class, nor second rate, nor second tier,” said Judge Don Willett, who agreed with the notion that the right to keep and bear arms was something of “the Rodney Dangerfield of the Bill of Rights.”
The challenge, Mance vs. Sessions, may be further appealed to the U.S. Supreme Court.