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Holder Backs Interstate Gun Sale Ban

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More Gun Grabbing by the Obama Administration... just for the sake of Grabbing Gun's as near as I can tell

 

 

 

FORT WORTH (CN) - The federal ban on sale of handguns outside of a person's state of residence does not violate the Second Amendment, U.S. Attorney General Eric Holder said in a legal brief.

Federally licensed firearms dealer Frederic Russell Mance Jr. of Texas, and gun buyers Tracey and Andrew Hanson of Washington, D.C., sued Holder and Bureau of Alcohol, Tobacco, Firearms and Explosives Director B. Todd Jones in Federal Court in July.

They claimed the federal ban stops the formation of a national handgun market, "reduces competition, raises prices and limits consumer choices ."

The plaintiffs claimed citizens are allowed to purchase rifles and shotguns across state lines under federal law so long as the sales comply with laws of the seller's and purchaser's states.

On Friday, Holder responded to the plaintiffs' motion for summary judgment, and in support of the defendants' motion to dismiss or for summary judgment.

Holder cited a two-test step applied by the 5th Circuit: first, a law is constitutional if it burdens conduct that falls outside of the Second Amendment's scope; and second, an appropriate level of means-end scrutiny is applied if the law burdens conduct that falls within the Second Amendment.

"Here, the court's inquiry can end at step one because the challenged laws do not impose any burden, let alone a substantial burden, on conduct historically protected by the Second Amendment," the 60-page motion states.

"However, even if the court were to proceed to the second step in an abundance of caution, the laws readily pass muster under intermediate scrutiny, the appropriate level of review. The court should thus dismiss plaintiffs' claims or enter summary judgment for defendants."

Holder contends the Second Amendment is "silent" as to the ability to sell or buy firearms "in any particular forum" and that the federal judiciary has "repeatedly declined" to rule that the amendment protects such a right.

Holder says he opposes the plaintiffs' request to create two new unenumerated constitutional rights - "the right to buy firearms from a licensed dealer operating outside one's state of residence without using an in-state dealer, and the right of licensed dealers to sell firearms outside the state in which they operate without using an intermediary dealer in the purchaser's home state."

No court has recognized such rights, Holder says.

"Even if viewed at a higher level of generality, any contention that the Second Amendment extends its protection to buying and selling firearms cannot be squared with Heller's conclusion that 'laws imposing conditions and qualifications on the commercial sale of arms" are 'presumptively lawful regulatory measures," the motion states. (Citing District of Columbia v Heller, 554 U.S. 570 (2008).)

"At the outset, plaintiffs confuse the relevant issue by arguing that, because the Second Amendment protects the right to keep a handgun, it must protect the right to acquire a handgun."

Holder also disputes the plaintiffs' claim that the law does not represent a type of "longstanding, presumptively lawful measure" regulating firearms that would likely fall outside of the Second Amendment.

"Because at least 16 states enacted laws between 1909 and 1939 restricting the acquisition, possession, carrying, or purchase of one or more types of firearms to state residents, such laws are longstanding," the motion states. "Though plaintiffs raise several objections to this evidence, none has merit."

The plaintiffs claim the ban shields in-state dealers from competition from a national handgun market and makes the handguns more expensive for out-of-state buyers. Mance claimed the Hansons visited his store in June from out of town, and were unable to buy the guns because of the ban.

"In the District of Columbia, where the Hansons reside, only one federally licensed firearms dealer, Charles Sykes, is currently in the business of transferring handguns purchased at retail to District residents," the complaint stated.

"Sykes carries no inventory himself, but charges $125 per transfer for handguns received from other dealers. Thus, the federal interstate handgun transfer ban increases the cost of handgun purchases by District of Columbia residents by $125, plus the costs of shipping the handguns to Sykes from other dealers," according to the lawsuit.

Holder contends that the plaintiffs lack standing to sue, that Mance has not suffered an injury that is "fairly traceable" to the law, and that the Hansons failed to establish causation for their alleged injury.

The plaintiffs' attorney, William Mateja with Fish Richardson in Dallas, did not respond to a request for comment late Friday. ATF officials could not be reached for comment

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"At the outset, plaintiffs confuse the relevant issue by arguing that, because the Second Amendment protects the right to keep a handgun, it must protect the right to acquire a handgun."

 

Not only is that common sense (plaintiffs' argument), but I do believe it's recently been upheld by the courts.

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"At the outset, plaintiffs confuse the relevant issue by arguing that, because the Second Amendment protects the right to keep a handgun, it must protect the right to acquire a handgun."

 

Not only is that common sense (plaintiffs' argument), but I do believe it's recently been upheld by the courts.

 

1/8/14 lichum:

 

2 weeks, 5 days ago Posted by fish'nmagician:

 

it doesn't PROTECT it.

 

 

 

2a says nothing about your right to SELL your used guns,

 

yet gun nuts say it's covered.

 

 

 

 

 

2 weeks, 5 days ago lichum:

 

 

 

 

Amendment II

 

 

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

 

 

 

To keep arms (and of course to bear them) one must first acquire them.

 

The Second Amendment protects commerce in firearms.

 

The Second Amendment also protects firearms transfers between private parties because so many individuals acquire their firearms through noncommercial, private transactions.

 

If a state enacted legislation that banned the transfer of firearms by private parties, the SCotUS would strike the statute down as an infringement of the Second Amendment.

 

 

 

 

2 weeks, 5 days ago Posted by fish'nmagician:

 

It does not.......

it really doesn't.

 

the only people who NEED to buy second hand guns, are those who are unable to buy them at a gun store.

 

 

2 weeks, 5 days ago lichum:

 

One of the reasons the federal government and state governments regulate commerce in firearms is to ensure that firearms are lawfully transferred.

 

If, as you claim, the Second Amendment does not protect commerce in firearms, how can firearms be legally acquired so that individuals can lawfully exercise their right "to keep and bear Arms"?

 

 

 

2 weeks, 5 days ago fish'nmagician:

 

NO, I'm just reading 2a and telling the gun nuts it doesn't provide all the tangential protections they claim it does.

 

 

any issue on guns that come up, the nuts start screaming about 2a.

 

 

 

 

 

United States Court of Appeals, Seventh Circuit.

 

Ezell v. City of Chicago 

 

651 F.3d 684 (7th Cir. 2011)

 

Decided July 6, 2011

 

 

 

The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn't mean much without the training and practice that make it effective.

 

 

 

fish'nmagician:

 

The rationale of a corresponding right in Ezell is applicable to the Second Amendment's protection of commerce in firearms.

 

 

A right to lawfully acquire firearms by access to commerce in firearms is a necessarily precedent right that corresponds with the Second Amendment's "right of the people to keep and bear Arms."

 

 

 

1/8/14 lichum:

 

 

 

From CSM January 7, 2014:

 

 

 

“Chicago's ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms,” US District Judge Edmond Chang wrote. In other words, according to Northwestern University constitutional law professor Eugene Kontorovich, the constitutional right to own a gun in turn requires the right to buy a gun.

 

 

 

 

 

 

Professor Kontorovich links the constitutional right to own a gun to a right to buy a gun.

 

How intriguing!

 

Does the Second Amendment protect commerce in firearms?

 

I think it does.

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1/8/14 lichum:

 

2 weeks, 5 days ago Posted by fish'nmagician:

 

it doesn't PROTECT it.

 

 

 

2a says nothing about your right to SELL your used guns,

 

yet gun nuts say it's covered.

 

 

 

 

 

2 weeks, 5 days ago lichum:

 

 

 

 

Amendment II

 

 

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

 

 

 

To keep arms (and of course to bear them) one must first acquire them.

 

The Second Amendment protects commerce in firearms.

 

The Second Amendment also protects firearms transfers between private parties because so many individuals acquire their firearms through noncommercial, private transactions.

 

If a state enacted legislation that banned the transfer of firearms by private parties, the SCotUS would strike the statute down as an infringement of the Second Amendment.

 

 

 

 

2 weeks, 5 days ago Posted by fish'nmagician:

 

It does not.......

it really doesn't.

 

the only people who NEED to buy second hand guns, are those who are unable to buy them at a gun store.

 

 

2 weeks, 5 days ago lichum:

 

One of the reasons the federal government and state governments regulate commerce in firearms is to ensure that firearms are lawfully transferred.

 

If, as you claim, the Second Amendment does not protect commerce in firearms, how can firearms be legally acquired so that individuals can lawfully exercise their right to keep and bear arms?

 

 

 

2 weeks, 5 days ago fish'nmagician:

 

NO, I'm just reading 2a and telling the gun nuts it doesn't provide all the tangential protections they claim it does.

 

 

any issue on guns that come up, the nuts start screaming about 2a.

 

 

 

 

 

United States Court of Appeals, Seventh Circuit.

 

Ezell v. City of Chicago 

 

651 F.3d 684 (7th Cir. 2011)

 

Decided July 6, 2011

 

 

 

The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn't mean much without the training and practice that make it effective.

 

 

 

fish'nmagician:

 

The rationale of a corresponding right in Ezell is applicable to the Second Amendment's protection of commerce in firearms.

 

 

A right to lawfully acquire firearms by access to commerce in firearms is a necessarily precedent right that corresponds with the Second Amendment's "right of the people to keep and bear Arms."

 

 

 

1/8/14 lichum:

 

 

 

From CSM January 7, 2014:

 

 

 

“Chicago's ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms,” US District Judge Edmond Chang wrote. In other words, according to Northwestern University constitutional law professor Eugene Kontorovich, the constitutional right to own a gun in turn requires the right to buy a gun.

 

 

 

 

 

 

Professor Kontorovich links the constitutional right to own a gun to a right to buy a gun.

 

How intriguing!

 

Does the Second Amendment protect commerce in firearms?

 

I think it does.

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A much clearer violation of our Constitutional rights is states like Connecticut and Massachusetts banning non residents from purchasing ammunition.

 

How the hell is that legal?

 

 

:v:

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It's not about the 2A.  Commerce claus. Isn't that the catch-all for whatever is desired?   (insert tongue in cheek smiley)

 

 

 

Its painfully expensive and ridiculously difficult to locate and purchase certain handguns in NJ.  State police did a great job of closing a large % of the mom and pop shops back about a decade ago.  The chains and the larger remaining stores overprice because they can.  Its the market, as modified by gov interference.  

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1/8/14 lichum:

 

2 weeks, 5 days ago Posted by fish'nmagician:

 

it doesn't PROTECT it.

 

 

 

2a says nothing about your right to SELL your used guns,

 

yet gun nuts say it's covered.

 

 

 

 

 

2 weeks, 5 days ago lichum:

 

 

 

 

Amendment II

 

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

 

 

 

To keep arms (and of course to bear them) one must first acquire them.

 

The Second Amendment protects commerce in firearms.

 

The Second Amendment also protects firearms transfers between private parties because so many individuals acquire their firearms through noncommercial, private transactions.

 

If a state enacted legislation that banned the transfer of firearms by private parties, the SCotUS would strike the statute down as an infringement of the Second Amendment.

 

 

 

 

 

2 weeks, 5 days ago Posted by fish'nmagician:

 

It does not.......

it really doesn't.

 

the only people who NEED to buy second hand guns, are those who are unable to buy them at a gun store.

 

 

 

2 weeks, 5 days ago lichum:

 

One of the reasons the federal government and state governments regulate commerce in firearms is to ensure that firearms are lawfully transferred.

 

If, as you claim, the Second Amendment does not protect commerce in firearms, how can firearms be legally acquired so that individuals can lawfully exercise their right "to keep and bear Arms"?

 

 

 

 

2 weeks, 5 days ago fish'nmagician:

 

NO, I'm just reading 2a and telling the gun nuts it doesn't provide all the tangential protections they claim it does.

 

 

any issue on guns that come up, the nuts start screaming about 2a.

 

 

 

 

 

 

United States Court of Appeals, Seventh Circuit.

 

Ezell v. City of Chicago 

 

651 F.3d 684 (7th Cir. 2011)

 

Decided July 6, 2011

 

 

 

The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn't mean much without the training and practice that make it effective.

 

 

fish'nmagician:

 

The rationale of a corresponding right in Ezell is applicable to the Second Amendment's protection of commerce in firearms.

 

 

A right to lawfully acquire firearms by access to commerce in firearms is a necessarily precedent right that corresponds with the Second Amendment's "right of the people to keep and bear Arms."

 

 

 

1/8/14 lichum:

 

 

 

From CSM January 7, 2014:

 

 

 

“Chicago's ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms,” US District Judge Edmond Chang wrote. In other words, according to Northwestern University constitutional law professor Eugene Kontorovich, the constitutional right to own a gun in turn requires the right to buy a gun.

 

 

 

 

 

Professor Kontorovich links the constitutional right to own a gun to a right to buy a gun.

 

How intriguing!

 

Does the Second Amendment protect commerce in firearms?

 

I think it does.

 

 

7/3/2016 posted by lichum:

 

 

The Second Amendment does provide implicit,  "tangential protections."

 

Teixeira is replete with support for the propositions that the right to sell arms, and the right to purchase arms,  are rights derivative of the Second Amendment "right of the people to keep and bear Arms."

 

 

TEIXEIRA V. COUNTY OF ALAMEDA (2016)

 

 

 

Edited excerpts:

 

OPINION

 

O’SCANNLAIN, Circuit Judge

 

 

 

We must decide whether the right to keep and to bear arms, as recognized by the Second Amendment, necessarily includes the right of law-abiding Americans to purchase and

to sell firearms.

 

In other words, we must determine whether the Second Amendment places any limits on regulating the commercial sale of firearms.

 

Therefore it is incumbent upon us to take a fresh look at the historical record to determine whether the right to keep and to bear arms as understood at the time it was enshrined in the Constitution, embraced a right to acquire firearms.

 

 At the time the Fourteenth Amendment was ratified, which McDonald held applied the Second Amendment against the States, at least some American jurists simply assumed that the “right to keep arms, necessarily involved the right to purchase them.”

 

As our predecessors recognized, logic compels such an inference. If “the right of the people to keep and bear arms” is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear.

 

Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well.

 

The Supreme Court recognized this principle in very different contexts when it held that “limiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives,” and when it held that a tax on paper and ink products used by newspapers violated the First Amendment.

 

“Fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined” because such “unarticulated rights are implicit in enumerated guarantees.”

 

 One cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it; one cannot keep arms when the State prevents him from purchasing them.

 

Without bullets, the right to bear arms would be meaningless.

 

“The right to possess firearms for protection implies a corresponding right to . . . maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.”

 

Thus, the Second Amendment “right must also include the right to acquire a firearm.”

 

As the District Court for the Northern District of Illinois noted in striking down a Chicago ordinance that abridged such right, a “ban on gun sales and transfers prevents [citizens] from fulfilling . . . the most fundamental prerequisite of legal gun ownership—that of simple acquisition.”

 

History and logic aside, our Second Amendment jurisprudence compels such a conclusion.

 

In Jackson we held that the Second Amendment protects the sale of ammunition.

 

It would be truly bizarre if the Second Amendment did not extend similarly to the sale of firearms.

Edited by lichum

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