Last week in Mance v. Sessions, the United States Court of Appeals for the Fifth Circuit denied, by one vote, a request for a rehearing of the case by the full panel of the court, and confirmed the reversal of a lower court decision that had ruled the interstate handgun sale ban to be unconstitutional.
The individual plaintiffs, Frederic Russell Mance, Jr. and Tracey and Andrew Hanson, were the parties to proposed handgun purchases. The Hansons, residents of the District of Columbia, each sought to purchase a handgun from Mance, an FFL doing business in Arlington, Texas. Texas law did not forbid the sale of handguns to persons residing outside of Texas, and the District of Columbia did not prohibit the importation of firearms.
Despite the Hansons being fully qualified under federal, D.C., and Texas laws to purchase and possess handguns, they decided not to proceed with the sale because they could not immediately take possession of the guns. A federal law makes it a crime for an FFL to sell or deliver a handgun (but not shotgun or rifle) to any non-FFL resident in a state other than the state in which the dealer’s place of business is located. Another federal law prohibits individuals from transporting into or receiving in their state of residence any firearm acquired outside of that state, although it excludes long guns purchased out-of-state in compliance with state and federal laws. Unlike long guns, handguns purchased out-of-state must be shipped to, and transferred through, an FFL operating in the state where the purchaser resides. The rationale is to prevent consumers from circumventing any handgun laws imposed by their home states by going across state lines.
The plaintiffs in Mance alleged this interstate handgun sale and delivery ban was obsolete and unconstitutional. Since the time the ban was imposed, the Supreme Court had recognized a fundamental individual right to keep and bear handguns. The sale, delivery, and receipt of rifles and shotguns outside a consumer’s state of residence weren’t similarly prohibited, and not all states restrict interstate handgun sales. “Responsible, law-abiding Americans do not become less so merely by shopping across state lines.” The result of this prohibition of a “national handgun market” and direct sales was to unnecessarily burden access to the “quintessential self defense weapon,” raise consumers’ costs, in both time and money, and drive down competition, as amply demonstrated by the facts of the case.
The District of Columbia has only one FFL. He maintains no inventory himself, handguns or otherwise, but charges $125 for every transfer of a handgun received from other dealers. In addition to this transfer fee, purchasers must pay the costs of shipping the gun from one FFL to another. Such fees and costs are not unique to the District – FFLs that provide interstate transfer services typically charge a fee, as do entities who provide shipping and delivery services.
A federal district judge hearing the case ruled, in 2015, that the interstate handgun transfer ban violated the Second Amendment. Applying strict scrutiny (which requires that the law be narrowly tailored as the least restrictive means of achieving the compelling government interest of reducing violent handgun crime caused by interstate sales), Judge Reed O’Connor concluded that the evidence failed to support the requisite fit between the law and its intended objective. The law prevented all legally responsible and qualified persons from directly acquiring handguns from FFLs in every state other than their state of residency. This could not be “narrowly tailored” when compared to the law relating to rifles and shotguns, “taken together with instant electronic background checks, face-to-face meeting requirements, state [point of contacts], and published compilations of state and local firearms laws.” This “current statutory scheme presents less restrictive alternatives to achieve the goals that Congress identified in 1968, rendering the federal interstate handgun transfer ban not narrowly tailored.”
A three-judge panel of the U.S Court of Appeals for the Fifth Circuit reversed that decision early this year. The federal law was narrowly tailored because it was “unrealistic to expect” that each FFL could become and remain “knowledgeable about the handgun laws of the 50 states and the District of Columbia, and the local laws within the 50 states.”
The plaintiffs sought a rehearing of the case by the full panel of the Fifth Circuit. On July 20, the court denied the petition for rehearing in an 8-7 vote, while expanding on its previous opinion upholding the interstate handgun ban. The majority assumed, “without deciding, that the strict, rather than intermediate, standard of scrutiny is applicable.” The ban remained justified “notwithstanding the information that is available to all FFLs under federal laws and regulations” because, as the court had concluded previously, it was not realistic to expect that because an FFL can “follow an out-of-state rifle law, he can follow an out-of-state handgun law.”
The seven dissenting judges, who would have enjoined the enforcement of the law, provided compelling reasons why the handgun sales ban failed the strict scrutiny test, and why the time was ripe for the court to resolve, definitively, the question of “exceptional importance” – the level of judicial scrutiny that applies to laws burdening the Second Amendment. The most comprehensive of these was authored by Judge James Ho. The reach of the federal law exceeded its grasp, as ostensibly, the government’s intent was to prohibit only the “fraction of interstate handgun sales that would violate a legitimate state handgun law.” In reality, though, the law prohibited all interstate handgun sales, without restricting sales of other firearms. Such broad, categorical bans “are by definition not narrowly tailored.” The proffered justification (“firearm laws are too complex for FFLs”) was inadequate in law and in fact: “courts have generally rejected the notion that citizens are incapable of learning the laws of other states—or that such inability would justify otherwise unconstitutional laws,” and the government presented no evidence that FFLs were unable to comply with the laws of multiple states.
If, as claimed, handgun laws were too complicated for ordinary citizens to comprehend, it made no sense to add, as the federal government did, even more legal restrictions. More fundamentally, in restricting the rights of all so as to protect against the transgressions of a few, the government’s legal solution “turns the Second Amendment on its head.” “Law-abiding Americans should not be conflated with dangerous criminals. Constitutional rights must not give way to hoplophobia.”
The next step in Mance would be a petition seeking U.S. Supreme Court review. The Supreme Court has a poor track record in this regard, having recently declined to hear the appeals in several Second Amendment cases: Kolbe v. Hogan, Peruta v. California, and in February, Silvester v. Becerra. There, Justice Clarence Thomas pointedly dissented, noting that the Court’s “continued refusal to hear Second Amendment cases” serves to perpetuate and reinforce the second class status of the Second Amendment. Mance would provide a new opportunity for the Court to revisit its gun-rights jurisprudence, and emphasizes the importance of confirming Judge Brett Kavanaugh as the newest member of the Supreme Court.