If the Gun-nut community wanted a judicial decision about gun rights in their favor, they couldn’t have gone anywhere more likely to help them out than the 5th Circuit, which oversees the federal judiciary in Texas, Mississippi and Louisiana and is considered to be the most conservative Circuit Court in the United States. Not only was a gun case argued in front of this court, but the case had already been decided at the district level in favor of gun rights, it was now being appealed by the Department of Justice run by you-know-who, and all three judges who heard the case were appointed by either George H. W. Bush or his son.
The court not only decided against the gun-rights gang, they dashed the hopes of the gun-loving contingent to get rid of one of the legal issues which pisses off gun nuts more than just about anything else, namely, the prohibition against going across a state line to buy a gun. Actually, the prohibition against buying a pistol or revolver in a state other than where you live has been on the books since 1939, when the feds first required individuals engaged in the ‘business’ of selling guns to purchase a federal firearms license and keep records of their sales. The reason that inter-state handgun purchases required a transfer between dealers was because it was recognized that allowing handguns to be moved across state lines without any form of regulation made it easier for criminals to get their hands on guns.
What gun-rights advocates are claiming, however, is that the prohibition against buying a handgun in a state other than where someone resides is no longer necessary because every purchase from a gun dealer, no matter where he is located, requires a background check. Which means that if I had been convicted of a felony in my home state, the felony and the consequent prohibition on gun ownership would come up no matter where I tried to purchase a gun. In 2015 two gun-rights activists decided to test this law by going to Texas and attempting to buy a handgun. After the purchase was denied, they found a district court judge who decided that their 2nd-Amendment ‘rights’ had been violated; hence, the appeal and decision by the 5th Circuit, effectively standing the district court’s ruling on its head.
Not only did the 5th Circuit reaffirm the prohibition against non-resident handgun purchases, it went further and actually used one of Gun-nut Nation’s most cherished legal principles – strict scrutiny – to find the prohibition constitutionally sound. According to judicial rules, for a law to pass strict scrutiny muster it must be shown that the particular law is justified by a ‘compelling government interest,’ and must be written specifically to ‘serve that interest.’ Lawyers for Gun-nut Nation have frequently used the strict scrutiny argument to attack gun regulations (e.g., New York’s SAFE law’s regulation limiting gun magazines to 7 rounds or less) and they no doubt hoped to do the same thing here.
The 5th Circuit reviewed the discussions leading up to GCA68 which codified the inter-state prohibition and concluded that Congress decided there was every good reason to maintain and strengthen the prohibition because otherwise it would be easy for someone to circumvent the laws and regulations of their home state and hence increase the possibility that an out-of-state purchase would result in a crime gun. The opinion points out that a dealer in one state cannot possibly know the gun regulations which exist in other states (e.g., some states require 10-shot magazine capacities, other states do not) and such knowledge has nothing to do with whether a potential buyer can pass a background check.
The decision by the 5th Circuit is clear on one basic point: the government has a compelling interest to safeguard public safety and a gun even in the hands of a legally-qualified individual could still be a risk. This decision by a conservative court is both a victory for the gun-control movement and a victory for common sense.