The Department of Justice is defending the federal law that prohibits out-of-state handgun buyers from taking possession of their new firearm unless and until it's shipped to an FFL in their home state, calling it "at most, a modest burden on the right to keep and bear arms."
The law is an odd one, and though it's not a complete surprise to see the DOJ argue in its defense, it's still disappointing. Under federal law gun buyers can take possession of a rifle or shotgun immediately after passing their NICS check and completing a sale, no matter if the purchase is made in the state where they live or not. If someone is visiting a high crime area, though, and decides that they want a handgun for their personal protection, they're out of luck unless they've already got one on hahd.
What's the difference? Well, the DOJ contends the law "fit[s] comfortably into the nation’s tradition of government regulation over the commercial trade in firearms due to concerns that the arms might fall into dangerous hands."
The challenged laws are significantly less burdensome on the right to keep and bear arms than those from our history, some of which entirely foreclosed commercial transactions in firearms with specific groups of people. Plaintiffs fail to even engage with the principles underpinning our tradition. Instead, they mistakenly dismiss the various historical laws cited by the government as insufficiently similar to the challenged regulatory regime – in essence, requiring the government to identify a historical twin. But it is the challenged laws’ consistency with the principles that underly our regulatory tradition that the Court must consider and, under that inquiry they are constitutional.
Well, no. If all it took to uphold a gun control law was to argue that it was put in place to prevent dangerous people from acquiring guns, then there'd be no need for the "text, history, and tradition" test at all. It would also require the courts to view gun control laws through a rational basis lens; the lowest level of judicial scrutiny.
Instead, the Supreme Court has said that while modern day gun laws don't have to have an historical twin in order to be constitutional, they still must be analogous to longstanding laws adopted or in place around the time the Second Amendment was ratified in 1791 (and maybe to a lesser degree when the Fourteenth Amendment was ratified in 1868). If no such analogue can be found, then the law is constitutionally invalid.
The laws DOJ cites in defense of the ban include 18th century statutes that have nothing to do with transferring firearms, lead shot, or powder. The government claims those statutes show a longstanding tradition of regulating the commercial sales of firearms, which isn't really in dispute. The question is whether this specific regulation comports with the text of the Second Amendment and the national tradition of gun ownership, and as the Firearms Policy Coalition pointed out in an earlier brief, the DOJ's proffered analogues are woefully inadequate.
The closest analogue the government could come up with was a 1776 law adopted in Maryland that DOJ contends “bann[ed] the export of all firearms unless the owner was permanently relocating outside the jurisdiction.” But as FPC noted, that statute was a wartime measure that was meant to be a temporary law designed to ensure that there were "enough firearms in Maryland to carry out the Revolutionary War," not to prohibit dangerous people from acquiring a gun.
The DOJ maintains that the modern-day statute being challenged is no infringement on the right to keep and bear arms in the first place.
Plaintiffs identify two burdens on the right that result from the challenged regime: increased cost and slight delay in taking possession of a newly purchased handgun. But these burdens, which do not prevent Plaintiffs from possessing a handgun in Texas or anywhere else they are legally authorized to do so, in no way destroy or nullify the right to “keep and bear Arms.” The costs, which are set by the FFLs, added by arranging these transfers do not make firearms prohibitively expensive. See Bezet v. United States, 714 F.App'x 336, 341 (5th Cir. 2017) (concluding that a $200 firearms tax is a “relatively light burden[.]”) And, under binding Fifth Circuit precedent, there is no Second Amendment right to take delivery of a firearm without delay McRorey, 99 F.4th at 839 (upholding background checks that include a ten-day delay); see also B&L Productions, Inc. v. Newsom, 104 F.4th 108, 118 (9thCir. 2024) (“[G]un buyers have no right to have a gun store in a particular location.”) (quoting Teixeira v. County of Alameda, 873 F.3d 670, 680 (9th Cir. 2017) (en banc).
Ordinarily I don't include the legal citations when I'm quoting a brief or opinion, just to make it a little easier to read and follow, but I cringed when I saw the DOJ approvingly citing the Ninth Circuit's decision in Teixeira, which upheld an Alameda County zoning law specifically designed to prevent new gun stores from opening.
The DOJ also cites McRorey, and it's true that a Fifth Circuit panel did say that a ten-day delay "does not qualify" as a de facto ban on the possession of firearms. The full quote is important, however:
In short, there is some point at which a background check becomes so lengthy that it is “put towards abusive ends” or subject to Bruen’s historical framework as a de facto prohibition on possession. But a period of 10 days does not qualify.
The ban on interstate transfers of firearms isn't the same as a waiting period. I personally do believe that a ten day waiting period is abusive and ahistorical, but it's also not comparable to the challenged statute. You simply can't take possession of that pistol at all until you return to your home state, go through another background check and pick up the handgun you've already purchased once it's been shipped to a local FFL. It doesn't matter if you're not returning home for ten days or ten weeks; until you're back within the borders of the state you call home you have no way to keep or bear that arm. Whether or not the law was designed to be put towards abusive ends, it most certainly abuses the ability of citizens to protect themselves while traveling, no matter how long that might be.
Let's say someone has to go to New Orleans, Louisiana for several weeks worth of work and gets mugged the first day they're there. They decide that, going forward, they're not leaving their hotel without having a gun on them. Under Louisiana law they can lawfully carry a handgun (so long as they can legally own it), and they could even buy one from a local gun store after passing a NICS check. The federal law in question, though, prohibits them from possessing that gun until they return home. How is that not an infringement on their right to bear arms? Are we not allowed to decide we want to carry a gun for our personal protection if we're not in the state where we live?
Honestly, I don't even think the DOJ's provided a sufficient justification for the statute. It claims that this prohibition is necessary to prevent criminals from getting ahold of a gun, but out-of-state buyers still have to pass a background check The problem is that even if someone gets their NICS approval, they're not able to walk out the door with their handgun if they're in a different state than the one they call home.
I'm no more dangerous in another state than I am where I live, so why can I take immediate possession of a pistol if I buy one in Farmville, Virginia but not Farmville, North Carolina? The law makes no sense, it's not supported by history, and it needs to be struck down. And again, while it's not exactly surprising for the DOJ defend an existing gun law, it's still disappointing to see this from an administration that is supposed to defend our right to keep and bear arms against infringements like this.
