By Michael W. Zarlenga*

A Federal District Court in Texas declared unconstitutional a portion of the Gun Control Act of 1968 (“GCA”).  The specific provisions that were declared unconstitutional relate to the ability of the resident of one state to purchase a handgun and take possession of the handgun in another state.  The rules also related to the ability of a dealer in one state from transferring possession of the handgun to a non-dealer from another state.  This decision is another step forward in the process of ending the decades old laws that only serve to make it more difficult for law abiding citizens to obtain firearms.  However, state laws may be the bigger problem.

Under the Federal regime that was declared unconstitutional, a resident of a state, say Virginia, could go to another state, say North Carolina, and purchase a firearm.  However, the dealer in North Carolina was prohibited from transferring possession of the handgun directly to the buyer and the buyer was prohibited from importing the handgun from North Carolina into Virginia.  The dealer in North Carolina was forced to ship the handgun to a dealer in Virginia and the buyer would then be required to comply with the laws of Virginia to pick up the handgun.  Dealers do not provide this service for free and as a result, a transfer fee would be charged to the buyer by the dealer in Virginia.  Because of the import restriction, a buyer was also prohibited from purchasing a handgun in a private sale in another state and bringing it back to their state of residence.

The judge’s decision turned on a couple of key points.  First, the Federal Government argued that these requirements were necessary in order to ensure that the laws of both states were complied with.  In Mance v. Holder, the laws of Texas and the District of Columbia were at issue.  The Government argued that by requiring the handgun to be transferred to a District of Columbia dealer, this ensured that the laws of the District of Columbia would be complied with.  The judge did not find this rationale compelling.  The judge specifically notes, however, that if a dealer in Texas sells a firearm to a resident of the District of Columbia in violation of D.C. law, D.C. may prosecute the Texas dealer.

Second, the judge analyzed the issue under intermediate scrutiny and strict scrutiny.  In simple terms, a strict scrutiny analysis means that the law has to be the least intrusive means by which the Government can accomplish the stated goal of the law.  In Mance, the Government had to prove that the provisions of the GCA were the least intrusive of a person’s Second Amendment Rights for accomplishing the stated goal of reducing crime.  This is the hardest test for the Government to pass.  The judge did not rule that the Government could never meet this test, but that the Government had not met its burden of proof in this case.

The judge also analyzed the issue under the easier test of intermediate scrutiny.  Under intermediate scrutiny, the Government needs to merely show that the law is substantially related to an important governmental interest.  In Mance, the Government set out the governmental interest as preventing an individual that could not acquire a firearm in his own state from crossing state lines to acquire the firearm in another state.  The judge believed this was an important governmental interest.  However, the judge did not believe the Government had mets its burden to show that the restriction on the transfer of possession from a dealer in Texas to a resident of the District of Columbia was substantially related to or is a reasonable fit to the governmental purpose.  The judge recognized that the background check requirements of the Brady Bill had essentially eliminated much of the need for the current law banning interstate transfers.  However, the judge’s decision merely holds that the Government did not meet its burden of proof.

The problem outlined above in this second point is that judges are still stuck analyzing firearms related Constitutional issues under a variety of standards because the U.S. Supreme Court has yet to speak on the issue.  I would expect that other courts in other jurisdictions will arrive at different conclusions because of the lack of a standard for analyzing the issues.

So what does this mean to the average person?  Do not get your hopes up.  This is one opinion in one lower Federal court.  The Government likely will appeal this decision.  There may also be prosecutions or court cases in other jurisdictions.  A court in Maryland may not be as friendly to a firearms dealer in Maryland trying to sell a firearm to a resident of the District of Columbia.  Further, now that the District Court has given the Government a road map as to the proof they would need to meet their burden, do not expect the Government to be so easily beaten in the future.

And the judge was very careful to point out that state laws still apply.  For the District of Columbia resident in the case above, contrary to the way the case sounds, the buyer could not walk out of the Texas dealer with their firearm the same day.  The D.C. Code states that “An application for a registration certificate shall be filed (and a registration certificate issued) prior to taking possession of a firearm from a licensed dealer.”  If the Texas dealer had transferred possession, they could be prosecuted in the District of Columbia for violating D.C. law.

And for you Maryland residents out there; do not get your hopes up.  As you know, handguns are considered “regulated firearms” in Maryland.  Under Maryland law, only a Maryland dealer can transfer a regulated firearm to a Maryland resident.  A dealer, or even a private seller, in another state transferring a regulated firearm to a Maryland resident also risks prosecution.

Finally, this opinion really just helps people in states where very little help is needed.  For the people of Maryland, New York, California, Massachusetts, the District of Columbia and other states that have state laws that trample on our Second Amendment rights, this decision provides little, if any, relief.

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*          Michael W. Zarlenga is an attorney serving as Of Counsel in the Washington, DC office of Arsenal Attorneys.  Mr. Zarlenga is licensed as an attorney in Ohio and the District of Columbia and has been a firearms dealer holding a Federal Firearms License since 2002.  Mr. Zarlenga concentrates on corporate, contract, and regulatory matters for businesses, including businesses in the firearms industry