Nonresident’s Fight for Gun Rights Advances

     (CN) – A divided D.C. Circuit reinstated a Second Amendment lawsuit brought by a nonresident U.S. citizen who lives in Canada but wishes to buy firearms here.
     Stephen Dearth is a U.S. citizen but permanently resides in Winnipeg, Canada.
     Dearth says he attempted to purchase a firearm on two visits to the States, in 2006 and 2007, and was unable to do so.
     He filed a federal lawsuit in Washington, joined by the Second Amendment Foundation, claiming that the federal law preventing a nonresident from purchasing a firearm violates his Second Amendment rights.
     A federal judge found for the government, but the D.C. Circuit reinstated the suit Tuesday, finding that Dearth’s complaint lacked the factual information necessary for the court to rule.
     “Here there are too many unanswered questions regarding Dearth’s particular situation even though he seeks to mount an as applied challenge,” Judge Raymond Randolph wrote for panel’s 2-1 majority.
     Judge Thomas Griffith reluctantly joined the six-page opinion to allow the case to proceed, though he said he agreed with the dissent’s argument that the court already has enough information to decide the case.
     Randolph’s opinion calls it is unclear whether Dearth has ever been a resident of any state for tax purposes, or if he pays federal taxes or votes in federal elections.
     Dearth’s affidavit does not state where he attempted to purchase the firearms, what kind of firearm he sought to buy, or whether he intended to use the weapon for sport or self-defense, the opinion states.
     “Where Dearth sought to engage in these transactions he neglects to mention,” Randolph said. “The omission may be significant. The laws of many states bar non-state residents like Dearth from buying a handgun so that no matter what the outcome of this case, Dearth still could not purchase a handgun in such a state.”
     Dearth claims he holds a valid Utah permit to publicly carry a handgun, but it is unclear whether the permit is recognized by the same state in which he attempted to buy a firearm, or if he qualifies as a Utah resident in order to renew the license, the opinion states.
     The court said the lawsuit seemed “deliberately ambiguous,” and claimed to be reciting a class action allegation without telling the court much about Dearth’s specific situation.
     “In short, for the foregoing reasons, we exercise our discretion to require that the case proceed to trial on the subjects we have mentioned and any others that bear on Dearth’s claims,” Randolph said.
     Judge Karen Henderson dissented, finding no need for additional information, and writing that that court should affirm the constitutionality of a ban on the sale of a firearm to a nonresident citizen.
     “The government has demonstrated that the challenged provisions are tailored to the specific interests identified: preventing international firearms trafficking and circumvention of state firearms regulations,” Henderson said.

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