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Mance v. Sessions

United States Court of Appeals, Fifth Circuit

January 19, 2018

FREDRIC RUSSELL MANCE, JR.; TRACEY AMBEAU HANSON; ANDREW HANSON; CITIZENS COMMITTEE FOR THE RIGHT TO KEEP AND BEAR ARMS, Plaintiffs-Appellees,
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL; THOMAS E. BRANDON, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendants-Appellants.

         Appeal from the United States District Court for the Northern District of Texas

          Before PRADO, OWEN, and HAYNES, Circuit Judges.

          PRISCILLA R. OWEN, CIRCUIT JUDGE.

         Federal laws that include 18 U.S.C. §§ 922(a)(3) and 922(b)(3), and 27 C.F.R. § 478.99(a), generally prohibit the direct sale of a handgun by a federally licensed firearms dealer (FFL) to a person who is not a resident of the state in which the FFL is located. In a suit brought by Fredric Russell Mance, Jr. and others, the federal district court enjoined the enforcement of these laws, concluding that they violate the Second Amendment and the Due Process Clause of the Fifth Amendment.[1] We reverse the district court's judgment and vacate the injunction.

         I

         Andrew and Tracy Hanson, who are residents of the District of Columbia and members of the Citizens Committee for the Right to Keep and Bear Arms (the Committee), travelled to Texas desiring to purchase two handguns from Mance, an FFL in Arlington, Texas, who is also a member of the Committee. It is undisputed that the Hansons would be eligible under the laws of Texas and the District of Columbia to own and possess the handguns that they selected from Mance's inventory. However, federal law prevents Mance from selling a handgun directly to the Hansons since they are not residents of Texas. Federal law would have permitted Mance to transfer the handguns to the FFL in the District of Columbia so that the Hanson's could purchase the firearms from that FFL. The federal laws do not impose or even allude to a fee if such a transfer occurs, but the FFL in the District of Columbia would have charged the Hansons a transfer fee of $125 for each handgun, above and beyond the purchase price. The Hansons declined to pursue this method of obtaining the firearms because they objected to the additional fees and to shipping charges. They could not purchase the handguns of their choosing from the sole FFL in the District of Columbia because that dealer has no inventory and only sells firearms transferred from FFLs outside of the District.

         Mance, the Hansons, and the Committee initiated suit in Texas challenging the federal laws that restrict the sale of handguns by an FFL to residents of the state in which the FFL is located, asserting that the federal laws contravene the Second and Fifth Amendments. The plaintiffs sought an injunction prohibiting the enforcement of these laws. The district court denied the Government's Motion to Dismiss for Lack of Standing, granted the plaintiffs' motion for summary judgment, and denied the Government's competing motion for summary judgment. The district court enjoined the enforcement of the challenged laws, concluding that they violated both the Second Amendment and the equal protection component of the Fifth Amendment's Due Process Clause. The Government has appealed.

         II

         Because the Hansons are not Texas residents, Mance, a Texas FFL, cannot lawfully sell handguns to them. Such a transaction is prohibited by 18 U.S.C. § 922(a)(3) and (b)(3), which provides:

(a) It shall be unlawful- . . .
(3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter . . . .
* * *
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver- . . .
(3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee's place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes . . . .[2]

         Regulations promulgated to implement these prohibitions are set forth in 27 C.F.R. § 478.99(a), which provides:

(a) Interstate sales or deliveries. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall not sell or deliver any firearm to any person not licensed under this part and who the licensee knows or has reasonable cause to believe does not reside in (or if a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business or activity is located: Provided, That the foregoing provisions of this paragraph (1) shall not apply to the sale or delivery of a rifle or shotgun (curio or relic, in the case of a licensed collector) to a resident of a State other than the State in which the licensee's place of business or collection premises is located if the requirements of § 478.96(c) are fully met, and (2) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes (see § 478.97).[3]

         The question is whether these federal laws violate the Second Amendment.

         III

         The Second Amendment provides: "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."[4] The United States Supreme Court held in District of Columbia v. Heller that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation."[5] After extensive analysis of the historical context of the Second Amendment, the Court concluded "that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right" to keep and bear arms.[6] The Court reasoned that "self-defense . . . was the central component of the right itself."[7] With regard to handguns, the Court observed that, "the American people have considered the handgun to be the quintessential self-defense weapon."[8] In contemplating why a citizen might prefer a handgun over long guns for home defense, the Court held, "[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."[9]

         The Supreme Court has recognized, however, that "[l]ike most rights, the right secured by the Second Amendment is not unlimited."[10] The Court explained in Heller that:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[11] The Court added: "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."[12]

         In National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, our court was called upon to apply Heller in determining whether federal statutes[13] that prohibit FFLs from selling handguns to a person under the age of 21 were constitutional in light of the Second Amendment.[14] We first canvased the analytical frameworks that other Circuit Courts of Appeals had utilized in Second Amendment cases, identified "[a] two-step inquiry" employed by some of those courts, and "adopt[ed] a version of this two-step approach."[15] We concluded "that the first inquiry is whether the conduct at issue falls within the scope of the Second Amendment right."[16] That undertaking, we said, entails "look[ing] to whether the law harmonizes with the historical traditions associated with the Second Amendment guarantee."[17]

         The district court in the present case undertook such an analysis and determined that "the earliest known state residency restrictions on the purchase or possession of firearms" occurred in 1909.[18] The district court concluded that "these early twentieth century state residency restrictions do not date back quite far enough to be considered longstanding."[19] Because we conclude that the laws and regulations at issue withstand strict scrutiny, we will assume, without deciding, that they are not "longstanding regulatory measures"[20] and are not "presumptively lawful regulatory measures."[21] We will also assume, without deciding, that the strict, rather than intermediate, standard of scrutiny is applicable.

         IV

         The Supreme Court has said in the First Amendment context that to withstand strict scrutiny, a regulation must be "justified by a compelling government interest" and must be "narrowly drawn to serve that interest."[22]When strict scrutiny is applicable, the Government "must specifically identify an 'actual problem' in need of solving, " and the "curtailment of [the constitutional right] must be actually necessary to the solution."[23] Though this is "a demanding standard, " and "'[i]t is rare that a regulation restricting speech because of its content will ever be permissible, '"[24] the Supreme Court has observed that "those cases do arise, "[25] and has said that "we wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'"[26]

         The district court accepted that when Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968[27] and the Gun Control Act of 1968, [28] there was an actual problem in need of solving.[29] The findings and declarations set forth in the Crime Control Act reflect that Congress was of the view that "the existing Federal controls over [widespread traffic in firearms] do not adequately enable the States to control this traffic within their own borders through the exercise of their police power."[30] Congress had concluded that there was a "serious problem of individuals going across State lines to procure firearms which they could not lawfully obtain or possess in their own State, " and these interstate purchases were accomplished "without the knowledge of . . . local authorities."[31] Congress found that individuals circumventing the laws of the state in which they resided included "large numbers of criminals and juveniles."[32] Congress had additionally concluded "that the acquisition on a mail-order basis of firearms other than a rifle or shotgun by nonlicensed individuals, from a place other than their State of residence, has materially tended to thwart the effectiveness of State laws and regulations, and local ordinances . . . ."[33] Similarly, Congress found:

that the sale or other disposition of concealable weapons by importers, manufacturers, and dealers holding Federal licenses, to nonresidents of the State in which the licensees' places of business are located, has tended to make ineffective the laws, regulations, and ordinances in the several States and local jurisdictions regarding such firearms . . . .[34]

         The solution Congress crafted included the in-state sales requirement.

         However, current burdens on constitutional rights "must be justified by current needs."[35] The overarching question in a strict-scrutiny analysis of the laws and regulations at issue, it seems to us, is whether an in-state sales requirement remains justified by a compelling government interest and is narrowly drawn to serve that interest after the Gun Control Act was amended by the Brady Act[36] and in light of federal regulations promulgated after the instate sales requirement was enacted.[37]

         All concede that there is a compelling government interest in preventing circumvention of the handgun laws of various states. The plaintiffs recognize that current federal laws, including the Brady Act, do not require all information regarding compliance with the various state and local gun control laws to be included in databases accessible by FFLs nationwide. The plaintiffs maintain, however, that the in-state sales requirement is not narrowly tailored because the states could be compelled by federal law to provide all necessary information. We conclude that the Government has demonstrated that the instate sales requirement is narrowly tailored, notwithstanding the information that is available or could, at least theoretically be made available, to all FFLs under federal laws and regulations.

         There are more than 123, 000 FFLs nationwide.[38] It is unrealistic to expect that each of them can 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 district court relied on 27 C.F.R. § 478.24[39] to support the conclusion that FFLs can "ensure that their firearms transactions comport with state and local law."[40] But the compilation of state gun laws by the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives is more than 500 pages long, and it provides the full text of those laws.[41] FFLs are not engaged in the practice of law, and we do not expect even an attorney in one state to master of the laws of 49 other states in a particular area. Additionally, the compilation on which the district court relied is only updated annually.[42]

         The laws of the various states differ as to who may lawfully possess a firearm. All but one state (Vermont) prohibits possession of a firearm by a felon, but the definitions of "felony" differ. Similarly, restrictions based on mental illness vary. Some states prohibit the purchase of a firearm by drug abusers, [43] and some restrict purchases by those who have abused alcohol.[44]

         It is reasonable, however, for the federal government to expect that an FFL located in a state can master and remain current on the firearm laws of that state. The in-state sales requirement is narrowly tailored to assure that an FFL who actually makes a sale of a handgun to someone other than another FFL can reasonably be expected to know and comply with the laws of the state in which the sale occurs.

         The plaintiffs recognize that the Government has an interest in preventing circumvention of the states' varying firearms laws, but they assert that federal law could require all FFLs to comply with the guns laws of the state in which a buyer of a handgun resides, just as federal law requires FFLs to comply with state and local laws throughout the United States when selling long arms.[45] They assert, "[i]f Mance can follow an out-of-state rifle law, he can follow an out-of-state handgun law."

         However, at least some states have regulated the sale of handguns more extensively than they have regulated the sale of long guns. For example, the Government has identified state laws that require a mandatory waiting period for the purchase of handguns, but not for long guns, [46] and state laws that limit the number of handgun purchases, but not long gun purchases, to one per month.[47]

         But there is another reason that the plaintiffs' reliance on the disparate treatment federal law accords handguns and long guns does not carry the day. In the First Amendment context, the Supreme Court has recognized in response to an "underinclusivity" argument that "[a] State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns."[48] The Court observed, "[w]e have accordingly upheld laws-even under strict scrutiny-that conceivably could have restricted even greater amounts of speech in service of their stated interests."[49] In Williams-Yulee v. Florida Bar, the Court held that a Florida statute prohibiting judges and judicial candidates from personally soliciting campaign funds[50] survived strict scrutiny even though Florida law permitted "a judge's campaign committee to solicit money, which arguably reduces public confidence in the integrity of the judiciary just as much as a judge's personal solicitation."[51]

         With regard to the contention that the in-state sales requirement is unconstitutional as applied to Mance and the Hansons, the plaintiffs assert that the District of Columbia requires police pre-approval of any handgun transfer, citing D.C. Code § 7-2502.06(a), so that an FFL in another state would not have to become acquainted with District of Columbia laws because it could rely on a permit issued by police in the District of Columbia. The obvious flaw in this argument is that an FFL in a state would have to ascertain that all that was required under the laws of the District of Columbia was such a permit. There is no logical basis for requiring FFLs across the country to know the gun laws of the District of Columbia but not the laws of the 50 States.

         In resolving an as-applied challenge, we consider only whether the rule advances government interests in the aggregate and not whether the rule advances government interests in the individual case before us.[52] The "overall problem the government seeks to correct" with the in-state sales requirement is the circumvention of the laws of a state in which a person desiring to obtain a handgun resides that impose restrictions more stringent than those of some other states.[53] We cannot look only to Texas or District of Columbia law; we must ask whether the federal regulation advances the Government's interests in the aggregate. It does. The in-state sales requirement is not unconstitutional as applied to Mance and the Hansons.

         V

         The district court held that the in-state sales requirement violated the equal protection guarantee in the Due Process clause of the Fifth Amendment. The court reasoned that "the federal law not only creates a discriminatory regime based on residency, but it also involves access to the constitutional guarantee to keep and bear arms."[54]

         To succeed on an equal protection claim under the Due Process Clause of the Fifth Amendment, a plaintiff is required to "show that two or more classifications of similarly situated persons [are] treated differently."[55] If we determine that the classification "impermissibly interferes with the exercise of a fundamental right or operates to the peculiar advantage of a suspect class, " we subject the classification to strict scrutiny.[56] Otherwise, we will uphold the classification if it is "rationally related to a legitimate state interest."[57]

         The in-state sales requirement does not discriminate based on residency. So we do not subject it to any scrutiny-strict or otherwise-under the equal protection component of the Due Process Clause. The cases on which the district court relied in concluding that the federal laws at issue "impinge[] on residency"[58] involved state laws that granted benefits to state residents.[59] The in-state sales requirement does not favor or disfavor residents of any particular state. Rather, it imposes the same restrictions on sellers and purchasers of firearms in each state and the District of Columbia.

         We REVERSE the district court's judgment and VACATE the order granting injunctive relief.

          PRISCILLA R. OWEN, Circuit Judge, concurring.

         I write separately to provide additional context and explication.

         I

         The Government contends that the laws and regulations under consideration are "presumptively lawful" because they are "longstanding prohibitions" that impose "conditions and qualifications on the commercial sale of arms, " within the contemplation of the Supreme Court's decision in District of Columbia v. Heller.[1] This argument is not well-taken.

         The Government asserts that between 1909 and 1939, at least fifteen states had enacted laws restricting the acquisition, or carrying of one or more types of firearms to state residents.[2] The Government contends that evidence of "founding-era thinking" is not required. This court said in National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives (NRA), that "a regulation can be deemed 'longstanding' even if it cannot boast a precise founding-era analogue."[3] In that case, our court nevertheless extensively considered founding-era "[a]ttitudes" regarding gun laws and regulations.[4] This court observed in NRA that "[s]cholars have proposed that at the time of the founding, " there was an implication that only "'the virtuous citizen'" had the right to possess and use arms and that criminals, children and the mentally ill were "'deemed incapable of virtue, '"[5]which was relevant to whether the federal law at issue in that case, prohibiting the sale of a handgun to someone under the age of 21, was constitutional.

         More importantly, in Heller, the Supreme Court exhaustively canvassed laws extant at the time of, and predating, the Bill of Rights in determining the meaning of the Second Amendment, [6] though it also considered pre-Civil War commentators and case law, [7] post-Civil War legislation, [8] post-Civil War commentators, [9] and a limited analysis of some of the restrictions recognized in an era spanning from "Blackstone through the 19th Century."[10] The Government asserts that in Heller, the Supreme Court described "prohibitions on the possession of firearms by felons" as "longstanding prohibitions" that are "presumptively lawful, "[11] though the District of Columbia Circuit subsequently concluded that "states did not start to enact [prohibitions on the possession of firearms by felons to which the Supreme Court referred in Heller] until the early 20th century."[12] But, as this ...


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