In what could turn out to be the most important legal decision since the SCOTUS affirmed private gun ownership as a Constitutional right in 2008, a Federal District Judge in Texas, Reed O’Connor, has just issued a ruling which basically invalidates, actually it really demolishes the entire Federal gun regulatory infrastructure that has been growing and growing since the feds got into the business of regulating gun ownership back in 1938. The 1938 law not only set licensing standards for gun dealers, but also required that dealers and gun customers reside in the same state. Congress re-visited the law in 1968 and at that time not only defined certain groups of ‘prohibited persons’ who could not purchase guns, but ultimately granted ATF the authority to manage the whole regulatory system from end to end.
The ban on requiring gun purchasers to only patronize dealers in their home state was partially lifted in 1986 with a further revision of the law that allowed individuals to purchase long guns in states other than where they lived, but the limitation on in-state handgun purchases remained in effect until Judge O’Connor found that it not only violated the 2nd Amendment’s right to bear arms, but was also an unreasonable limitation on interstate commerce and trade.
What O’Connor pointed to in his decision to allow interstate purchase of handguns was the implementation of the Brady bill, which requires all gun dealers to perform a background check (NICS) at the point of sale before transferring a gun. And since any dealer, no matter where he’s located, can perform such a NICS check, what rationale could still exist for forcing a buyer to only do business with a dealer in his own state? And while the whole purpose of the in-state purchase requirement was to make it more difficult for the ‘bad guys’ to get their hands on a gun such as by crossing the Potomac River to go from gun-nasty District of Columbia to gun-friendly Virginia, the whole regulatory system, as O’Connor pointed out, regulates purchases by the ‘good guys,’ who aren’t buying guns for the wrong reasons anyway.
Unfortunately for gun nuts like myself and the two gun buyers who brought this suit in Federal court, I have a strong feeling that Judge O’Connor’s decision will be overturned either at the Circuit level or if the case goes up to the Supreme Court. Because if this ruling were allowed to stand, it would throw open the whole issue of whether the feds should be regulating gun ownership at all. And while folks who believe that regulating guns is an essential requisite for the ongoing effort to reduce gun violence, I can tell you that, opinion polls notwithstanding, there’s not a single gun guy out there who would be at all upset if he never had to fill out another ATF form 4473 (which is how the background check is performed.)
The other problem with O’Connor’s ruling is that some of the reasons proferred for his decision seem to be quite a reach. He criticized the government, for example, for using data from the 1968 GCA to support the idea that the current ban on interstate handgun sales should be allowed to stand, but he has to know that more recent data shows exactly the same thing. And while this is the first court test on government gun regulation in which the decision was based on strict, rather than intermediate scrutiny (meaning that the law in question has to respond exactly to whatever issue is being addressed), O’Connor’s argument will probably not displace the government’s ability to show a “compelling interest” in the regulation of guns.
This decision does not throw into question recent efforts to promote comprehensive background checks at the state, rather than the federal level. If anything, it forces us to ask whether a national regulatory system outdated by advances in technology serves any useful purpose at all. That’s a conversation we should always be willing to hold – and not just when it concerns guns.
Kindle edition is here.