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President Barack Obama stood in front of the world on Tuesday, wiping away tears as he discussed the 2012 Sandy Hook shooting and laid out a set of executive actions he hopes will help stave off gun violence in the United States.
Among other things, the president said he would increase federal licensing to bolster background checks and offer up new resources for agencies charged with licensing dealers and enforcing gun laws.
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“Second Amendment rights are important,” Obama said. “But there are other rights that we care about as well. And we have to balance them.”
It was an unprecedented step taken by a commander-in-chief in the face of congressional opposition. But left unsaid for now is how effective this policy will prove thanks to a federal appeals court debate over a pair of 50-year-old laws limiting out-of-state handgun purchases.
A group of gun rights advocates last year successfully argued in Texas’s Northern District federal court that the so-called “handgun transfer ban,” which requires purchases from out-of-state dealers be completed in the buyer’s home state, impinges the constitutional rights of law-abiding citizens. A judge in February agreed, striking down the federal laws as overly burdensome and unconstitutional—a decision the government’s lawyers say undermines states’ rights to administer their own gun laws.
“Many states have requirements that you need to meet in order to have firearms that are separate, in addition to those imposed by federal law,” attorney Mark B. Stern told the Fifth Circuit Court of Appeals on Wednesday, arguing for the feds. “When Congress creates a scheme to protect the ability of the states, the fact that in some instances it’s not going to be of great utility doesn’t undermine the validity of the scheme as a whole.”
Under the two provisions passed during the Lyndon Johnson administration as part of the Omnibus Crime Control and Safe Streets Act of 1968, anyone who purchases a handgun from another state must have the gun shipped to a federally-licensed dealer in their own state. The laws were enacted to reduce gun violence politicians said was plaguing the country: Evidence before Congress at the time showed that firearm trafficking subverted state laws and led to an increase in shootings. In Detroit, for example, law enforcement officials testified that 90 percent of confiscated guns were not purchased or registered in Michigan.
Under President Obama’s proposed executive actions, some smaller sellers would be required to register as a federal firearm licensee—or FFL—and therefore will be federally regulated. But gun-control advocates say federal background checks can only go so far, and that states must be proactive in keeping handguns away from people who shouldn’t have them. To these groups and to the feds, requiring all handgun purchases to be completed in the purchaser’s home state is an important step: Local FFLs can perform not only the required federal background check, but also make sure the purchaser complies with other state laws governing handgun ownership, which are generally more strict than rules on shotguns or rifles.
“If all of a sudden these laws are taken off the books, I think it certainly undermines what the President is trying to do,” said Mike McLively of the Law Center to Prevent Gun Violence, a gun control advocacy nonprofit that filed its own amicus brief in the appeal. “It takes away another tool, and we don’t have that many federal tools right now for combatting illegal gun trafficking.”
One of the greatest problems facing states with strict handgun laws is trafficking from other states that are more lax. A large number of illegal guns used in Chicago, for example, come from nearby Indiana and other states with far less restrictive laws than Illinois. And in Nevada, which has looser gun restrictions than most other states in the US, California residents who are unable to buy a gun in their home state can enlist so-called local “straw buyers” to illegally purchase a gun for them, with little chance of prosecution, according to the Law Center.
Differences in state laws mean it’s crucial for each one to be able to verify as many out-of-state gun purchases as possible. And with a “patchwork” of state laws, it would be extremely difficult for outside dealers to understand every gun law in all 50, according to McLively.
“Dealer oversight in general, some states are very serious about that, and others aren’t,” he said. “And the other thing is background checks. Some states like California are called point-of-contact states, so they do basically the federal system, but they also supplement that by checking their own state records. And so those background checks that are done in California are going to be more thorough than in the states that rely just on the federal system.”
The Fifth Circuit case stems from a June 2014 incident, in which Washington, DC, couple Tracey and Andrew Hanson approached Arlington, Texas, dealer Frederic Mance to purchase a pair of handguns. The Hansons each picked a gun for themselves, but were prevented from completing the sale in Texas under federal law.
Instead, the Hansons were told that they could buy the gun, and have it shipped to another FFL in Washington, DC, But in order to do so, they would be charged a $125 transfer fee, as well as shipping costs. The couple declined to pay the fee, and sued the government along with Mance.
A lawyer for the three argued that the law, which only bans the sale of handguns and not so-called “long guns” like rifles or shotguns, is arbitrary.
“They can certainly sell rifles, and they can certainly sell shotguns to people that live outside their state of residence,” attorney Bill Mateja told VICE on Friday. “But they can’t sell handguns. And why is that, is our question. There’s not a good reason for it.”
The case is not without some political calculus. The three plaintiffs are members of the Citizens Committee for the Right to Keep and Bear Arms, a group that bills itself as “The Common Sense Gun Lobby.” The committee has also signed on as a plaintiff in the case, on behalf of all its members. (Mateja said the trio did not know one another before the attempted purchase.)
Conservative activist Alan Gottlieb, chairman of the Citizens Committee, told VICE the Hansons’ rights were infringed upon in part because, in Washington, DC, there is no dealer that stocks firearms. Instead, there’s one FFL who will assist you in ordering a gun from out of state.
“He’s the only one doing it,” Gottlieb said. “What happens is, he has a cartel. He has a monopoly.”
What the plaintiffs maintain, in part, and what the district court agreed with in February, is that there is no longer a need for such laws after the creation of the federal background check system as part of the the Brady Handgun Violence Prevention Act, passed in 1993.
“The background check that gets done is the same check no matter where you live,” Gottlieb said. “So why does it matter if you buy the gun in Texas or you buy the gun in your home state, so to speak? It’s the same background check.”
Not true, the government argues, thanks among other things to the state “patchwork” described by McLively. But in some cases, there may not even be the proper technology in place to do a proper check.
In California, for example, dealers advertise themselves as experts in the process, and use special equipment to scan information, which then goes to a state agency that performs a unique check. If the laws limiting interstate transfers are struck down, nearby states like Nevada and Arizona cannot be expected to perform the exact same search, the government says.
The US Supreme Court, in its 2008 District of Columbia v. Heller opinion, reaffirmed a personal right to bear handguns for legal purposes such as defending yourself inside your own home. But since that time, most lower courts have upheld federal, state, and local gun rules, leaving the country’s gun regulations mostly intact, according to Martin J. Siegel, a Houston appellate attorney who practices before the Fifth Circuit.
“This case may be a little different, since it’s about how guns are bought and sold rather than limits on this or that type of weapon. And the Fifth Circuit is one of the more conservative federal appellate courts in the United States,” Siegel said. “But generally, challengers to gun rules have found it to be rough sledding.”
The Fifth Circuit will decide this year whether the law is a reasonable response to gun violence, or whether the alleged infringement on Constitutional rights is overly burdensome. But right now, advocates hope the court agrees with its argument that, in reality, this so-called “ban” isn’t really banning anything.
“You can still buy a gun. So what they’re really arguing is, this is inconveniencing them because they want to buy a gun in Texas and not have to pay to ship it back to a DC dealer,” McLively said. “My response to that is, the Second Amendment, as the Supreme Court has said, does not protect an absolute, unlimited right to bear arms.”
Paul DeBenedetto is a journalist in Houston. Follow him on Twitter.
