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View Full Version : 30 day restriction; Restraint of Trade?


Mike's Custom
01-05-2009, 1:06 PM
I have done some searching over the years looking for any lawsuits against the state for "restraint of trade" over the 30 day period of one hand gun a month law. I have had no success in finding any.

To me as a FFL this is income restricting on a perfectly legal product. No other industry would be able to get away with this type of restraint of trade. Can you see a car dealer being told they can only sell a person one car every 30 days or JC Penny being told they can only sell a person one pair of under wear every 30 days? So much for quantity pricing.

I am thinking this law can be striken from the books with a legal challange of this type.

sorensen440
01-05-2009, 1:08 PM
this should be one of the easy ones to challenge post incorp. IMO

Matt C
01-05-2009, 1:12 PM
It's obviously restraint of trade, and post incorporation there will be a 2A issue as well. The state (antis) will try to argue that they have a compelling public interest (preventing gun crime) which outweighs our commercial and civil rights. And they will probably win. Welcome to the NWO, where everything they do to **** you is court approved and sanctioned by both parties in our two party system.

sorensen440
01-05-2009, 1:13 PM
It's obviously restraint of trade, and post incorporation there will be a 2A issue as well. The state (antis) will try to argue that they have a compelling public interest (preventing gun crime) which outweighs our commercial and civil rights. And they will probably win. Welcome to the NWO, where everything they do to **** you is court approved and sanctioned by both parties in our two party system.

You can sure be a party pooper sometimes ;)

hoffmang
01-05-2009, 1:14 PM
Unlike BWO, I'm not sure this will survive scrutiny post Nordyke. However, if scrutiny ends up being low, there are a surprising number of things that are quantity/time barred including the core ingredient in Sudafed.

-Gene

Matt C
01-05-2009, 1:23 PM
Unlike BWO, I'm not sure this will survive scrutiny post Nordyke. However, if scrutiny ends up being low, there are a surprising number of things that are quantity/time barred including the core ingredient in Sudafed.

-Gene

I know, I'm a pessimist. I'm not too optimistic about getting incorporation either, at least with Nordyke.:eek:

weatherman
01-05-2009, 1:29 PM
The 30-day law is stupid after you already own a pistol...

They need to put in a better database in this state. I'll concede to the point that no one "needs" a gun "right now" and if they do, it's probably for the wrong reasons. However, once someone already owns a gun, what difference does it make? :confused:

sorensen440
01-05-2009, 1:31 PM
The 30-day law is stupid after you already own a pistol...

They need to put in a better database in this state. I'll concede to the point that no one "needs" a gun "right now" and if they do, it's probably for the wrong reasons. However, once someone already owns a gun, what difference does it make? :confused:

the 30 day law only affects those who own a pistol...

CCWFacts
01-05-2009, 1:35 PM
The 30-day law is stupid after you already own a pistol...

The 30-day restraint is not so stupid, and they will be able to defend it. They have a legitimate interest in making sure that guns are only sold by licensed dealers. The 30-day thing came because some people would buy, say, a dozen of the same Glock. Obviously that's not an individual buying for himself. That's someone who intends to resell them, probably to non-qualified buyers. So, they came up with a way to limit such supplies.

Sure, maybe there are cases of someone having a legitimate reason for wanting to buy a dozen Glock 22s at the same time, but really, you know that most of the cases when that happens are for non-legitimate sales, and that's what the state would argue in defending that regulation.

I believe that "one handgun per month" type laws will survive challenges. I think that's more defensible than ten-day waiting periods, because the objective, and practical impact, of one-per-month, is to prevent non-FFLs from engaging in the gun business.

I'm not saying that it's the best way or only way to do it, just saying that I think it's defensible.

Fate
01-05-2009, 1:35 PM
...there are a surprising number of things that are quantity/time barred including the core ingredient in Sudafed.Which is a ridiculous, nanny-state, restriction IMO.

DDT
01-05-2009, 1:47 PM
The problem is that each of these restrictions will have to be challenged in court. We don't get our court costs back when we win. This means that CGF, NRA et. al. are running on restricted budgets to challenge these laws while the Government has the ability to coerce money from the citizens to pay for their end. Plus, they have the right to pass the stupid unconstitutional laws in the first place that stand until challenged and there are no repercussions for knowingly passing a law that is unconstitutional.

Until we can hold the state and/or lawmakers financial responsible for this terrible waste of money and cost to the citizens for the privilege of exercising their rights it will not get any better. I wonder if you can make an "equal protection" claim for court cost renumeration under the 14th?

Mike's Custom
01-05-2009, 2:08 PM
Well, some good replies pretty fast.

I see this as a clear cut case of restraint of trade.

It's obviously restraint of trade, and post incorporation there will be a 2A issue as well. The state (antis) will try to argue that they have a compelling public interest (preventing gun crime) which outweighs our commercial and civil rights. And they will probably win. Welcome to the NWO, where everything they do to **** you is court approved and sanctioned by both parties in our two party system.

This arguement is only good if they also had the same law for vhicles, bath tubs, swimming pools and other things that are involved in people gieing or getting injured.

The 30-day law is stupid after you already own a pistol...

They need to put in a better database in this state. I'll concede to the point that no one "needs" a gun "right now" and if they do, it's probably for the wrong reasons. However, once someone already owns a gun, what difference does it make? :confused:

No one "needs" a vehicle with 300+ HP either. A 40HP VW will get 40mpg and do the same thing as a $100K Mercedes. There is no need for 2 people to live in a 3500 square foot house with 3 bathrooms either living free gives you the choice.

I have always said, why should someone with a CCW and a listed handgun have to wait to pick up another gun. How many people have committed a crime or been murdered with a brand new handgun that was purchased for that specific purpose while they already had one on a CCW.

The 30-day restraint is not so stupid, and they will be able to defend it. They have a legitimate interest in making sure that guns are only sold by licensed dealers. The 30-day thing came because some people would buy, say, a dozen of the same Glock. Obviously that's not an individual buying for himself. That's someone who intends to resell them, probably to non-qualified buyers. So, they came up with a way to limit such supplies.

Sure, maybe there are cases of someone having a legitimate reason for wanting to buy a dozen Glock 22s at the same time, but really, you know that most of the cases when that happens are for non-legitimate sales, and that's what the state would argue in defending that regulation.

I believe that "one handgun per month" type laws will survive challenges. I think that's more defensible than ten-day waiting periods, because the objective, and practical impact, of one-per-month, is to prevent non-FFLs from engaging in the gun business.

I'm not saying that it's the best way or only way to do it, just saying that I think it's defensible.

This was brought about by people thinking about straw purchasers supplying gangs. There are other ways to do this without restraining the trade of a FFL. The FEDs have the Multipule Handgun Purchase form that a FFL must file the Feds and local LEA. They use this to watch traffic. Since in CA all handguns are records are kept they could easily do this and not restrain trade. Also, this comes to the dealers responsibility too. Do you trust your custoerr? When the OLLs first started I had a guy want to buy 7 lowers. In talking to him I was not comfortable selling him 7. He just didn't sound right. In doing gun shows all over central CA I also refused to sell guns to some guys in Fresno that had gang tatoos on the arms and hands.

My borther-in-law and his brother were both with the BATFE (in Fresno) for over a combined 60+ years. I asked about them tracking these multipule sales and if htey evr found those firearms getting into gang members hands. I was told they had never investigated one of the forms at all ever. the forms were filed by the FFLs but nohting was done with them after that.

As for non legitimate sales of a dozen Glocks from a FFL why is a FFL selling a dozens Glocks to a customer any different transfering a more then one handgun via PPTs? As a dealer I have to do PPTs and a PPT buyer is not restricted to 1 handgun per 30 days yet they use the same FFL that is restricted to one per 30 days. What, one gang member can't line up 5 Glocks to buy and transfer as PPTs?

It is restraint of trade as long as they do not limit PPTs and allow the multipule PPTs at one time using the same FFL that can only sell that same person 1 per 30 days.

bwiese
01-05-2009, 2:09 PM
There's always an out to the one-new-handgun-per-month law anyway.

Firstly, it does not affect PPTs.
Secondly, if you go get a C&R and a COE it's essentially mooted.

As for the latter, I know that costs a few bucks every so often but when people are paying an extra $60+ for chrome-plated bolt carriers that prematurely wear out their AR uppers, it's a drop in the bucket.

Mike's Custom
01-05-2009, 2:13 PM
The problem is that each of these restrictions will have to be challenged in court. We don't get our court costs back when we win. This means that CGF, NRA et. al. are running on restricted budgets to challenge these laws while the Government has the ability to coerce money from the citizens to pay for their end. Plus, they have the right to pass the stupid unconstitutional laws in the first place that stand until challenged and there are no repercussions for knowingly passing a law that is unconstitutional.

Until we can hold the state and/or lawmakers financial responsible for this terrible waste of money and cost to the citizens for the privilege of exercising their rights it will not get any better. I wonder if you can make an "equal protection" claim for court cost renumeration under the 14th?


I do understand all this but then, how come Prop 8 and the one before it got to go ahead of all the other unconsitutional law cases? If there are other cases like the firearms law cases that are using the same principals of law, how can it be leap-frogged to the head of the courts?

hoffmang
01-05-2009, 3:49 PM
I know, I'm a pessimist. I'm not too optimistic about getting incorporation either, at least with Nordyke.:eek:

And you base that on what?

Have you actually read Gould's concurrence? Do you know who moderated the panel on Heller at the annual Federalist Society meeting?

-Gene

Matt C
01-05-2009, 4:13 PM
And you base that on what?

Have you actually read Gould's concurrence? Do you know who moderated the panel on Heller at the annual Federalist Society meeting?

-Gene

I think the current 3 judge panel that is hearing the case will issue a favorable decision, at which point the other side will obviously request an en banc panel review, which they will almost certainly get (the 9th circuit has been granting these in almost all matters which would set precedent for years). I really don't think that will go well, especially with Reinhardt sitting on the panel.

elSquid
01-05-2009, 5:18 PM
The 30-day restraint is not so stupid, and they will be able to defend it. They have a legitimate interest in making sure that guns are only sold by licensed dealers. The 30-day thing came because some people would buy, say, a dozen of the same Glock. Obviously that's not an individual buying for himself. That's someone who intends to resell them, probably to non-qualified buyers. So, they came up with a way to limit such supplies.

Handguns in CA are registered. Handgun transfers must go through a dealer. Therefore my counter argument is that it is trivial to track down and prosecute the original straw purchaser, in those limited cases.

A 1-handgun-per-30-days obviously doesn't stop straw purchases; at most it limits the volume that a given "straw purchaser" can buy new, from a dealer.

Straw purchasers can participate in multiple PPTs, so the law does nothing to address that.

What's to stop a straw purchaser from going down the C&R/COE route?

It's an ineffectual law, at best.

-- Michael

FreedomIsNotFree
01-05-2009, 5:30 PM
Someone correct me if I'm wrong, but under existing CA law, a person can buy more than one handgun within 30 days, but just can't have it transferred/DROS'ed.

For example, if an FFL wanted to promote a "buy 2 get 1 free" deal its perfectly legal...they just have to follow the 1 handgun a month in regards to transfer.

Of course, this is just addressing the restraint of trade argument. I do not support the law.

TonyM
01-05-2009, 6:45 PM
Secondly, if you go get a C&R and a COE it's essentially mooted.

As for the latter, I know that costs a few bucks every so often but when people are paying an extra $60+ for chrome-plated bolt carriers that prematurely wear out their AR uppers, it's a drop in the bucket.

Exactly.

I don't have a clue why FFLs don't start pushing this on people. Every time I buy 2 or more handguns at a time and someone asks I explain in detail why I can do this, and how they can too.

If I had a shop I would keep copies of the COE application printed and I would order copies of the C&R application and guide them through the process of filling them out and point them to a livescan center.... or, get setup as a livescan center as well.

Too many times I've heard an FFL tell someone they can only get 1 every 30 days and never mention how to disable that stupid law. This is money they are losing in the coming months.

Mike's Custom
01-05-2009, 7:18 PM
Handguns in CA are registered. Handgun transfers must go through a dealer. Therefore my counter argument is that it is trivial to track down and prosecute the original straw purchaser, in those limited cases.

A 1-handgun-per-30-days obviously doesn't stop straw purchases; at most it limits the volume that a given "straw purchaser" can buy new, from a dealer.

Straw purchasers can participate in multiple PPTs, so the law does nothing to address that.

What's to stop a straw purchaser from going down the C&R/COE route?

It's an ineffectual law, at best.

-- Michael

Exactly my arguement. So pre 30 day restriction one straw purchaser bought 5 guns. Post 30 day restriction you have 5 straw purchasers each buying one. Plus, the PPTs can be mutipule using the SAME FFL that can only sell you one every 30 days. It isn't hard to see that this law is a restraint of trade especially when the state forces the FFL to do PPTs for the same strw purchaser transfering multipule handguns.

yellowfin
01-05-2009, 8:04 PM
They need to put in a better database in this state. I'll concede to the point that no one "needs" a gun "right now" and if they do, it's probably for the wrong reasons.

Repeat that to us after your next door neighbor has been assaulted, robbed, or raped. You're sure the same perp won't go after you within 10 or 30 days, aren't you? Or if a riot breaks out, surely they won't move over to your neighborhood and you'll be able to get safely home without a problem, right?

halifax
01-05-2009, 8:04 PM
Exactly my arguement. So pre 30 day restriction one straw purchaser bought 5 guns. Post 30 day restriction you have 5 straw purchasers each buying one. Plus, the PPTs can be mutipule using the SAME FFL that can only sell you one every 30 days. It isn't hard to see that this law is a restraint of trade especially when the state forces the FFL to do PPTs for the same strw purchaser transfering multipule handguns.

Seems to me that if the 30-day restriction didn't exist it would be easier to catch straw purchases. The DROS would indicate that so-and-so bought five Glocks...red flag...dispatch local investigator to find out why and where the guns are now.

Again another law that seeks to make it difficult for LACs.

hoffmang
01-05-2009, 9:28 PM
I think the current 3 judge panel that is hearing the case will issue a favorable decision, at which point the other side will obviously request an en banc panel review, which they will almost certainly get (the 9th circuit has been granting these in almost all matters which would set precedent for years). I really don't think that will go well, especially with Reinhardt sitting on the panel.

1. The en-banc voting panel is drawn in the 9th (due to size) so it isn't even certain that Reinhardt will be on the vote to take the case en-banc.

2. Have you read what Reinhardt said about Incorporation in Silveira?

3. If we lose en-banc, which side gets to appeal to SCOTUS? Ever thought the anti gun judges can think that question through also?

-Gene

DDT
01-05-2009, 10:45 PM
1. The en-banc voting panel is drawn in the 9th (due to size) so it isn't even certain that Reinhardt will be on the vote to take the case en-banc.

2. Have you read what Reinhardt said about Incorporation in Silveira?

3. If we lose en-banc, which side gets to appeal to SCOTUS? Ever thought the anti gun judges can think that question through also?

-Gene

Item 3 might be a big issue. 9th circuit might try to give a victory to Nordyke while incorporating as narrowly as possible just to keep this off the SCOTUS docket. I think I posted that somewhere before. Now I have to go read Reinhardt on Silveira.

Telperion
01-05-2009, 10:48 PM
I think the current 3 judge panel that is hearing the case will issue a favorable decision, at which point the other side will obviously request an en banc panel review, which they will almost certainly get (the 9th circuit has been granting these in almost all matters which would set precedent for years). I really don't think that will go well, especially with Reinhardt sitting on the panel.
Reinhardt's decision in Silveira is quite interesting with the added twist of Heller. Here's what he wrote:


In Hickman, we did not rely on our earlier decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the states, although we noted in dictum that had standing existed, Fresno Rifle would be applicable. We undoubtedly followed that approach in Hickman because, as noted above, we must decide standing issues first. Fresno Rifle itself relied on United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886), decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment’s Due Process Clause. Following the now-rejected Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights did not apply to the states), Cruikshank and Presser found that the Second Amendment restricted the activities of the federal government, but not those of the states. One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited. See Emerson, 270 F.3d at 221 n.13. Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states.

Reinhardt acknowledged both Cruikshank and Presser are garbage, and then launched into a long diatribe about how the 2nd is not an individual right, so we can just deny standing and not have to consider those pesky incorporation questions. Now that Heller has gutted Reinhardt's decision, the only precedent holding back incorporation are Cruikshank and Presser, which are both noted above and in Heller to be bad law.

Matt C
01-05-2009, 10:52 PM
1. The en-banc voting panel is drawn in the 9th (due to size) so it isn't even certain that Reinhardt will be on the vote to take the case en-banc.

It seems to me there is about a 50/50 chance, but I have the feeling he will make sure he is on it.



2. Have you read what Reinhardt said about Incorporation in Silveira?


Specifically?


3. If we lose en-banc, which side gets to appeal to SCOTUS? Ever thought the anti gun judges can think that question through also?


Who says SCOTUS will take it?

DDT
01-05-2009, 10:58 PM
Who says SCOTUS will take it?

History says SCOTUS will take it. Do you really think that they would appreciate lower courts ignoring their precedence? Local judges I know get really pissy if they are not shown proper deference. I can only imagine how SCOTUS would react to being ignored. Actually we may find out how they are likely to respond before Nordyke ever gets there (assuming we lose in the 9th which I don't feel we will.) It is highly likely that D.C. will be back in front of the Justices if they don't quickly change their tune. SCOTUS's treatment to D.C.'s attempt to minimize the Heller decision's impact on their regulations will tell us a lot about what to expect if Nordyke gets that far.

elSquid
01-06-2009, 12:45 AM
Seems to me that if the 30-day restriction didn't exist it would be easier to catch straw purchases. The DROS would indicate that so-and-so bought five Glocks...red flag...dispatch local investigator to find out why and where the guns are now.

Yup, if someone is dumb enough to buy 20 Hipoints openly... well, there you go.

-- Michael

hoffmang
01-06-2009, 1:12 AM
It seems to me there is about a 50/50 chance, but I have the feeling he will make sure he is on it.

He can't "make sure he's on it." Random draw. It's issues like this where I'm concerned that faulty inputs to your opinion lead to faulty outputs.


Specifically?

Look at the Telperion post above.


Who says SCOTUS will take it?
As strongly as sitting justices can, both Scalia and Kennedy have said that they "look forward" to adjudicating the Incorporation issue.

We're either going to win or its wrongly decided and SCOTUS takes it. They'll take it for exactly the same reason they took Heller.

I'm mildly at a loss as to why this isn't a little more obvious to you. You post as if you have reasons to your opinion, but I don't see much more than sheer assertion from you to support it while being under read and under exposed to the process.

Did you expect us to lose Heller too?

-Gene

nick
01-06-2009, 1:29 AM
Seems to me that if the 30-day restriction didn't exist it would be easier to catch straw purchases. The DROS would indicate that so-and-so bought five Glocks...red flag...dispatch local investigator to find out why and where the guns are now.

Again another law that seeks to make it difficult for LACs.

Hmm, imagine how common the "I was visited by the investigators" threads would be on this board in that scenario :)

TonyM
01-06-2009, 4:16 AM
The DROS would indicate that so-and-so bought five Glocks...red flag...dispatch local investigator to find out why and where the guns are now.


Hmm, imagine how common the "I was visited by the investigators" threads would be on this board in that scenario :)

I think I'd be getting a regular visit. I've bought four new Glocks in one month.