On Wednesday, Judge Reed O’Conner of the United States District Court for the Northern District of Texas issued an opinion and order in Mance v. Holder, holding provisions of federal law that generally prohibit the interstate sale of handguns to be unconstitutional. Subject to very limited exceptions, the challenged federal law prohibited a federally licensed firearms dealer from transferring a handgun, but not a rifle or shotgun, to any non-licensed individual who resided in a state other than the state where the dealer’s business was located.
The plaintiffs, a husband and wife from the District of Columbia and a Texas firearms dealer, wished to conduct a transfer of a handgun in Texas that the D.C. residents would then take back to their place of residence in D.C. A significant motivation for the plaintiffs in seeking to buy a handgun outside of their state of residence is the complete lack of a stocking firearms dealer in the District. There is only a single dealer in D.C. and, due in large part to D.C.’s byzantine regulatory scheme, he does not maintain any inventory.
After establishing that the plaintiffs had sufficient standing to raise their claim, the court began its analysis of whether the interstate transfer ban violated the Second Amendment. First, the court determined that it would evaluate the ban “facially” and as applied to the plaintiffs specific situation. A successful facial challenge completely prohibits the enforcement of the challenged law, while a successful as-applied challenge only stops the government from enforcing the law against the plaintiff and those similarly situated. Next, the court applied the two-step analytical framework adopted by the Fifth Circuit in National Rifle Association v. Bureau of Alcohol, Tobacco, Firearms and Explosives. Under this framework, the reviewing court must first determine whether the challenged law regulates conduct that falls within the scope of the Second Amendment and only then does the court determine the applicable level of judicial scrutiny and whether or not the law survives this level of scrutiny.
In the case of the interstate handgun transfer ban, the first step of the analysis was relatively easy for the court because the government could not offer evidence of any pre-20th century residency requirements for firearm acquisition and the ban applied specifically to handguns, a class of “arm” that the Supreme Court already clearly identified as being protected by the Second Amendment in District of Columbia v. Heller. For these reasons, and because the ban generally applied to everyone who wished to acquire a handgun rather than a limited subset of the population or a small subset of “arms”, the court applied the highest level of judicial scrutiny at its disposal.