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Federal court strikes down ban on interstate handgun transfers

BStrong

Penultimate Amazing
B
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http://www.thetruthaboutguns.com/20...rstate-handgun-transfer-ban-unconstitutional/

This will be on the way to SCOTUS, but it will be interesting to watch.

Here in California we have a similar case on the way to SCOTUS on the mandatory 10 day waiting period for all firearm transfers. The lower court here found it unconstitutional for individuals already in lawful possession of firearms under state law (and the state maintains the DROS records, and would have a hard time explaining how they "don't" know who is who) individuals with the state-issued Certificate of Eligibility or with a county issue concealed carry license.

In the answer to court AG Harris admitted that the waiting period was an infringement, but not a big enough infringement to merit court sanction - the court found otherwise.
 
I wish the feds would do something about the $200 making and transfer tax.

Ranb
 
Ranb said:
I wish the feds would do something about the $200 making and transfer tax.

Ranb
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It's going to take some doing to craft a good case against the N.F.A.

Gura was very smart to build a wall between his case in Heller and even a hint of the N.F.A, but the ruling in U.S. v. Staples is going to be a hard lesson for states and municipalities in banning so-called "assault weapons."

Unfortunately, we have no such ruling to stand on wrt the NFA, and the 1934 Group lawsuit might be able to be revived in a new approach post - Heller- That suit involved the CLEO sign off requirements as being used by CLEO's for approval of purchase instead of a simple verification of identity and residence.
 
Hmm, so interstate hand guns currently have to go FFL to FFL? It hadn't occured to me.

So it's long guns that I can sell interstate, , but have to ship to a verified FFL -> customer, or locally, me and the buyer go to an FFL who handles the legal transfer. But interstate handguns have to go ffl-> ffl-> customer? That is dumb.

The case will relieve interstate restraint of trade though. No need to use a local FFL, any dealer across the country can ship to me. So cities that are infringing a buyers right to purchase by outlawing gun shops in their city can go piss up a rope. Cool.

But, umm, how is the dealer in Texas going to verify the I.D. of the buyer in D.C.? Or does this suit only mean the DC resident can go to Maryland and buy a pistol? Ah, that is it. Lately I've heard that LAPD has been skulking around the Las Vegas gun show to catch California residents buying out of state.

And also California has some extreme rules about large capacity magazines. I can own them, but can't sell them in the state. And to sell out of state, I have to go FFL to FFL. Which really seems to me to be so onerous that it is an illegal method of taking without compensation, confiscatory. Plus, it seems to me, California is interfering with MY interstate commerce.

Results of the current spate of court decisions will be one set of national gun laws perhaps?
 
casebro said:
Hmm, so interstate hand guns currently have to go FFL to FFL? It hadn't occured to me.

So it's long guns that I can sell interstate, , but have to ship to a verified FFL -> customer, or locally, me and the buyer go to an FFL who handles the legal transfer. But interstate handguns have to go ffl-> ffl-> customer? That is dumb.

The case will relieve interstate restraint of trade though. No need to use a local FFL, any dealer across the country can ship to me. So cities that are infringing a buyers right to purchase by outlawing gun shops in their city can go piss up a rope. Cool.

But, umm, how is the dealer in Texas going to verify the I.D. of the buyer in D.C.? Or does this suit only mean the DC resident can go to Maryland and buy a pistol? Ah, that is it. Lately I've heard that LAPD has been skulking around the Las Vegas gun show to catch California residents buying out of state.

And also California has some extreme rules about large capacity magazines. I can own them, but can't sell them in the state. And to sell out of state, I have to go FFL to FFL. Which really seems to me to be so onerous that it is an illegal method of taking without compensation, confiscatory. Plus, it seems to me, California is interfering with MY interstate commerce.

Results of the current spate of court decisions will be one set of national gun laws perhaps?
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The court addressed that exact question in their decision in footnote 12:

12
FFLs must also verify and conform to numerous state firearms laws for rifles and shotguns. For example, Texas has no laws restricting semi-automatic assault weapons, whereas California bans most semiautomatic assault weapons and .50 caliber rifles and prohibits the sale and transfer of large capacity magazines. See Cal. Penal Code § 30605 (West 2014).

A Texas FFL must ensure that a Sacramento, California resident who purchases a rifle is legally entitled to do so under federal, Texas, California, and Sacramento law. Compare Tex. Loc. Gov’t Code § 229.001(West 2013) (limiting Texas municipalities’ authority to locally regulate firearms) with Cal. Const. art. XI, § 7 (allowing local authorities in California,
including cities and counties, to regulate firearms). Similarly, a non-Texas FFL must ensure that a Texas resident who purchases a rifle is legally entitled to do so under federal law and the laws of both states.

While a California FFL in San Diego might have to research the local handgun restrictions in place for a Sacramento, California resident purchaser, some 500 miles to the north, nothing prevents an out-of-state FFL from Reno, Nevada, from conducting the same research to ensure that a handgun transaction with a Sacramento resident, some 100 miles away, comports with federal, Nevada, California, and Sacramento restrictions. Under current law, an FFL is not authorized to transfer any firearm to anyone until the state or federal authority confirms the transfer is legally permitted under state and federal law. See 18 U.S.C. §
922(t).

As far as looking for California residents violating Ca. state law at gunshows, various agencies pay attention the the big Reno gunshows as well as brick and mortar gunshops, but unless it's a question of NFA stuff the ATF couldn't care less. What Ca. agencies have been doing (including the L.A.P.D. gun squad) is throwing their weight around with out of state FFL dealers, and the CalGuns Foundation has been investigating whether or not certain agencies have attempted to intimidate out-of-state (we already know as a fact that they do it to California dealers - hence the running joke "Two Weeks!") FFL dealers into searching w/o warrant or PC.

This is going to get interesting, and I've already got my popcorn.
 
BStrong said:
The court addressed that exact question in their decision in footnote 12:

12
FFLs must also verify and conform to numerous state firearms laws for rifles and shotguns. For example, Texas has no laws restricting semi-automatic assault weapons, whereas California bans most semiautomatic assault weapons and .50 caliber rifles and prohibits the sale and transfer of large capacity magazines. See Cal. Penal Code § 30605 (West 2014).

A Texas FFL must ensure that a Sacramento, California resident who purchases a rifle is legally entitled to do so under federal, Texas, California, and Sacramento law. Compare Tex. Loc. Gov’t Code § 229.001(West 2013) (limiting Texas municipalities’ authority to locally regulate firearms) with Cal. Const. art. XI, § 7 (allowing local authorities in California,
including cities and counties, to regulate firearms). Similarly, a non-Texas FFL must ensure that a Texas resident who purchases a rifle is legally entitled to do so under federal law and the laws of both states.

While a California FFL in San Diego might have to research the local handgun restrictions in place for a Sacramento, California resident purchaser, some 500 miles to the north, nothing prevents an out-of-state FFL from Reno, Nevada, from conducting the same research to ensure that a handgun transaction with a Sacramento resident, some 100 miles away, comports with federal, Nevada, California, and Sacramento restrictions. Under current law, an FFL is not authorized to transfer any firearm to anyone until the state or federal authority confirms the transfer is legally permitted under state and federal law. See 18 U.S.C. §
922(t).

As far as looking for California residents violating Ca. state law at gunshows, various agencies pay attention the the big Reno gunshows as well as brick and mortar gunshops, but unless it's a question of NFA stuff the ATF couldn't care less. What Ca. agencies have been doing (including the L.A.P.D. gun squad) is throwing their weight around with out of state FFL dealers, and the CalGuns Foundation has been investigating whether or not certain agencies have attempted to intimidate out-of-state (we already know as a fact that they do it to California dealers - hence the running joke "Two Weeks!") FFL dealers into searching w/o warrant or PC.

This is going to get interesting, and I've already got my popcorn.
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The Cal Const, section you quoted might allow local restrictions on gun shops, or restaurants, but Cal does have a state pre-emption of gun laws. San Francisco's hand gun ban is blatantly illegal. But the courts have not spoken on that one in particular yet. Give it a couple years, these things take time.

I found this on smartgunlaws.com:

"

In Doe v. City and County of San Francisco, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982), the Court of Appeal of California held that Gov’t Code § 53071 and Penal Code § 12026 (now section 25605) expressly preempted a local ordinance banning the possession of handguns. Because the ordinance contained an explicit exception for concealed weapons licensees, the court found that the measure had the effect of creating a new class of persons who would be required to obtain a license in order to possess a handgun in their home or place of business.17 The court also stated that:

If we were to find in the San Francisco Handgun Ordinance no “licensing” requirement within the express wording of Government Code section 53071 and Penal Code section 12026 (now section 25605), we would still reach the conclusion that state law preempts the San Francisco ordinance under the theory of implied preemption. It is at least arguable that the state Legislature’s adoption of numerous gun regulations has not impliedly preempted all areas of gun regulation. However, we infer from Penal Code section 12026 (now section 25605) that the Legislature intended to occupy the field of residential handgun possession to the exclusion of local governmental entities. A restriction on requiring permits and licenses necessarily implies that possession is lawful without a permit or license."
 
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casebro said:
The Cal Const, section you quoted might allow local restrictions on gun shops, or restaurants, but Cal does have a state pre-emption of gun laws. San Francisco's hand gun ban is blatantly illegal. But the courts have not spoken on that one in particular yet. Give it a couple years, these things take time.

I found this on smartgunlaws.com:

"

In Doe v. City and County of San Francisco, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982), the Court of Appeal of California held that Gov’t Code § 53071 and Penal Code § 12026 (now section 25605) expressly preempted a local ordinance banning the possession of handguns. Because the ordinance contained an explicit exception for concealed weapons licensees, the court found that the measure had the effect of creating a new class of persons who would be required to obtain a license in order to possess a handgun in their home or place of business.17 The court also stated that:

If we were to find in the San Francisco Handgun Ordinance no “licensing” requirement within the express wording of Government Code section 53071 and Penal Code section 12026 (now section 25605), we would still reach the conclusion that state law preempts the San Francisco ordinance under the theory of implied preemption. It is at least arguable that the state Legislature’s adoption of numerous gun regulations has not impliedly preempted all areas of gun regulation. However, we infer from Penal Code section 12026 (now section 25605) that the Legislature intended to occupy the field of residential handgun possession to the exclusion of local governmental entities. A restriction on requiring permits and licenses necessarily implies that possession is lawful without a permit or license."
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S.F. has lost in court twice on handgun bans, once on banning firearms possession for residents in public housing, and it hasn't slowed them down in the slightest. The B.O.S. passed a bunch of lesser laws, ban on the sale of those devilish hollow point bullets, limits on ammunition purchases and prohibiting ammo sales online or through the mail, but the funny thing is that when they tried to export those laws to the next county south and the incorporated cities therein, nobody went along with it - South San Francisco City Council members and the Mayor had some good points (I had the video of the CC meeting, but can't find it) here's the quotes:

“This particular attempt at legislation might have been a little bit more window dressing than a real effort to address the violence….in political circles, we would call it more window dressing than substance,” admitted City Council Member Mark Addiego, the bill’s sponsor.

Clearly understanding the virtual certainty of federal civil rights litigation were the Council to have passed the measure, Council Member and Mayor Pro Tem Karyn Matsumoto asked, “Can we make [the proposed ordinance] go away forever?” Later in the discussion she said, “I am opposed to knee-jerk legislation. I was not comfortable [with the proposed ordinance], not by a long shot.”

Especially insightful were comments by Council Member Richard Garbarino, who said, “I look questionably at laws that prohibit me to do things that I consider not illegal… Nobody asked Dr. King why he marched for people’s rights either, he did it because he cared. So, to ask ‘why does somebody have to have these things?’ That’s not a question for me.”
 
casebro said:
San Francisco's hand gun ban is blatantly illegal. But the courts have not spoken on that one in particular yet. Give it a couple years, these things take time.
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Which ban are you referring to? The last one I was aware of was Proposition H, which was struck down for good in 2008.
 
Doghouse Reilly said:
Which ban are you referring to? The last one I was aware of was Proposition H, which was struck down for good in 2008.
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May not be a ban by legislation, but from the gun boards the local caps are confiscating without any cause. And I believe no guns shops allowed in the city?
 
Doghouse Reilly said:
Which ban are you referring to? The last one I was aware of was Proposition H, which was struck down for good in 2008.
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http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3823&context=lcp

A. The San Francisco Handgun Control Ordinance

San Francisco's controversial Handgun Control Ordinance was a response to the assassination of the mayor and a city councilman. A California appellate court struck the ordinance down on statutory grounds before it was to go into effect.(8) For present purposes, however, the ordinance provides a valuable example of the type of gun control thought socially desirable and politically achievable in contemporary American society and the kinds of exemptions that are likely to arise under legislation prohibiting handgun ownership.

8. Doe v. City & County of San Francisco, 136 Cal. App. 3d 509, 186 Cal. Rptr. 380 (1982); 65 Cal. Op. Att'y Gen. 457 (1982). The Court in Doe held that the legislature preempted the field of licensing and regulating handguns by virtue of Government Code § 53071. 136 Cal. App. 3d at 515-18, 186 Cal. Rptr. at 383-85. Since the state has occupied the field, an ordinance that requires a larger class of citizens to seek a discretionary license in order to keep their handguns (Penal Code§ 12050) is invalid as a licensing ordinance. Id.

Copyright © 1986 by Law and Contemporary Problems

JAMES B. JACOBS Professor of Law and Director, Center for Research in Crime and Justice, New York University.

Interestingly, I can find no detailed account of the first S.F. city handgun ban online other than this piece quoted, even on pro-Second Amendment sites.

In both the above instance of handgun ban legislation and the later Prop. H suit, the city lost, and paid plaintiff's attorney fees, and believe it or not the past failures have not deterred the city supervisor's interest in banning anything and everything pertaining to firearms - as I noted San Francisco residents are forbidden to purchase ammunition online or otherwise through non face-to-face purchases and they're not done yet. It's my understanding that next up will be a proposal limiting the amount of ammunition that can possessed at any one time, in the owners own residence.
 
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