FORT WORTH (CN) - The federal ban on sale of handguns outside of a person's state of residence does not violate the Second Amendment, U.S. Attorney General Eric Holder said in a legal brief.
Federally licensed firearms dealer Frederic Russell Mance Jr. of Texas, and gun buyers Tracey and Andrew Hanson of Washington, D.C., sued Holder and Bureau of Alcohol, Tobacco, Firearms and Explosives Director B. Todd Jones in Federal Court in July.
They claimed the federal ban stops the formation of a national handgun market, "reduces competition, raises prices and limits consumer choices ."
The plaintiffs claimed citizens are allowed to purchase rifles and shotguns across state lines under federal law so long as the sales comply with laws of the seller's and purchaser's states.
On Friday, Holder responded to the plaintiffs' motion for summary judgment, and in support of the defendants' motion to dismiss or for summary judgment.
Holder cited a two-step test applied by the 5th Circuit: first, a law is constitutional if it burdens conduct that falls outside of the Second Amendment's scope; and second, an appropriate level of means-end scrutiny is applied if the law burdens conduct that falls within the Second Amendment.
"Here, the court's inquiry can end at step one because the challenged laws do not impose any burden, let alone a substantial burden, on conduct historically protected by the Second Amendment," the 60-page motion states.
"However, even if the court were to proceed to the second step in an abundance of caution, the laws readily pass muster under intermediate scrutiny, the appropriate level of review. The court should thus dismiss plaintiffs' claims or enter summary judgment for defendants."
Holder contends the Second Amendment is "silent" as to the ability to sell or buy firearms "in any particular forum" and that the federal judiciary has "repeatedly declined" to rule that the amendment protects such a right.
Holder says he opposes the plaintiffs' request to create two new unenumerated constitutional rights - "the right to buy firearms from a licensed dealer operating outside one's state of residence without using an in-state dealer, and the right of licensed dealers to sell firearms outside the state in which they operate without using an intermediary dealer in the purchaser's home state."
No court has recognized such rights, Holder says.
"Even if viewed at a higher level of generality, any contention that the Second Amendment extends its protection to buying and selling firearms cannot be squared with Heller's conclusion that 'laws imposing conditions and qualifications on the commercial sale of arms" are 'presumptively lawful regulatory measures," the motion states. (Citing District of Columbia v Heller, 554 U.S. 570 (2008).)
"At the outset, plaintiffs confuse the relevant issue by arguing that, because the Second Amendment protects the right to keep a handgun, it must protect the right to acquire a handgun."
Plaintiffs' attorney William Mateja, with Fish Richardson in Dallas, said Monday the ban "doesn't make any sense whatsoever."
"Simply put, there is no doubt the Second Amendment covers handguns post-Heller," Mateja said. "Other arguments have been made that it does not, but it's been ruled that it does. It's kind of silly that people can buy rifles and long arms out of state and they can't do that with handguns."
Holder's memo also disputes the plaintiffs' claim that the law does not represent a type of "longstanding, presumptively lawful measure" regulating firearms that would likely fall outside of the Second Amendment.
"Because at least 16 states enacted laws between 1909 and 1939 restricting the acquisition, possession, carrying, or purchase of one or more types of firearms to state residents, such laws are longstanding," the motion states. "Though plaintiffs raise several objections to this evidence, none has merit."
The plaintiffs claim the ban shields in-state dealers from competition from a national handgun market and makes the handguns more expensive for out-of-state buyers. Mance claimed the Hansons visited his store in June from out of town, and were unable to buy the guns because of the ban.
"In the District of Columbia, where the Hansons reside, only one federally licensed firearms dealer, Charles Sykes, is currently in the business of transferring handguns purchased at retail to District residents," the complaint stated.
"Sykes carries no inventory himself, but charges $125 per transfer for handguns received from other dealers. Thus, the federal interstate handgun transfer ban increases the cost of handgun purchases by District of Columbia residents by $125, plus the costs of shipping the handguns to Sykes from other dealers," according to the lawsuit.
Holder contends that the plaintiffs lack standing to sue, that Mance has not suffered an injury that is "fairly traceable" to the law, and that the Hansons failed to establish causation for their alleged injury.
Mateja said his clients "clearly have standing" and that the defendants "have basically forgotten" a controlling decision in the 5th Circuit on the issue and a non-controlling decision by the DC Circuit.
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