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View Full Version : Dearth (Hodgkins) v Holder Reversed/Remanded


krucam
04-15-2011, 8:51 AM
USC 922 rule on handgun purchases being made by state residents only is being challenged in this one. It was dismissed at the DC District level Jan 2010 due to Plaintiff having a lack of standing. Some silliness that the Plaintiff has to break laws in order to have standing to challenge constitutionality...pfft...

Appealed to the DC Circuit, today it was reversed/remanded. Nice win for SAF/Gura :)

http://www.cadc.uscourts.gov/internet/opinions.nsf/A18B77CBD1198828852578730050498A/$file/10-5062-1303429.pdf

J.D.Allen
04-15-2011, 8:54 AM
I've no idea what this is about, but if it's a Gura/SAF win, I really don't care, I know it's a good thing. :D:D:D

The Director
04-15-2011, 8:57 AM
What does this mean in english?

krucam
04-15-2011, 8:58 AM
I've no idea what this is about, but if it's a Gura/SAF win, I really don't care, I know it's a good thing. :D:D:D

US Citizen, living in Canada (or UK). Unable to purchase a handgun. Challenging the state residency requirement of the GCA for handgun purchases.

sandman21
04-15-2011, 9:00 AM
Means if we win we can buy guns out of state, if I recall correctly.

Southwest Chuck
04-15-2011, 9:09 AM
USC 922 rule on handgun purchases being made by state residents only is being challenged in this one. It was dismissed at the DC District level Jan 2010 due to Plaintiff having a lack of standing. Some silliness that the Plaintiff has to break laws in order to have standing to challenge constitutionality...pfft...

Appealed to the DC Circuit, today it was reversed/remanded. Nice win for SAF/Gura :)

http://www.cadc.uscourts.gov/internet/opinions.nsf/A18B77CBD1198828852578730050498A/$file/10-5062-1303429.pdf

Here's the web address converted to a link:
http://www.cadc.uscourts.gov/internet/opinions.nsf/A18B77CBD1198828852578730050498A/$file/10-5062-1303429.pdf

OleCuss
04-15-2011, 9:12 AM
Assuming that DC does us the favor of appealing to the Supremes - and the Supremes agree with the Circuit Court - does that suggest that our current roster will have a big hole blown in it?

Does this have any effect on Pena?

hvengel
04-15-2011, 9:23 AM
Means if we win we can buy guns out of state, if I recall correctly.
A win may not mean this depending on how the court rules. It may only require that the law be changed to make an allowance for individuals that do not "live in a state" to buy a gun such as those living abroad and those living is US territories that are not states. Remember that the court will likely keep it's ruling as narrow as possible.

Glock22Fan
04-15-2011, 9:24 AM
Assuming that DC does us the favor of appealing to the Supremes - and the Supremes agree with the District Court - does that suggest that our current roster will have a big hole blown in it?

Does this have any effect on Pena?

IANAL and this is just a WAG but I think the whole case was that the plaintiff could not buy a firearm in any state because he did not have residency in any state. Presumably it has now been ruled that he must be allowed to buy a handgun somewhere.

However, we are already, as residents of California, permitted to buy handguns (albeit limited), so the restriction he asked for relief from isn't a restriction for us. So, it might not give us cart blanche to simply shop anywhere - unless you want to move to Canada :D

OK, I think I've just agreed with Hvengel, but he hadn't posted his post at the time I was writing the above.

Big Ben
04-15-2011, 9:32 AM
The Circuit Court used some very narrow language in remanding the case, and I suspect the District Court would use similarly narrow language if the case were to go our way.

Specifically, in the Background section, the Court on two occasions refers to people living outside the U.S. not having the ability to purchase firearms - i.e. "impossible for a person who lives outside the United States lawfully to purchase a firearm" and "does not reside in any State to receive any firearms" (emphasis mine).

I suspect that if the case ends up as a win for us, the final opinion will be narrowly drafted as addressing someone who is not a resident of any State, and would not have a direct or immediate impact on anyone who is a resident of California.

While a win here would be a step in the right direction, it certainly won't allow a resident of California to travel to Nevada and purchase an off-roster firearm, or to put an end to the CA roster. It may help set a nice precedent that will pave the way for other cases, but this case won't accomplish much of anything for us (as California residents) on its own merits.

Edit: So Hvengel and Glock22Fan said the same thing. They just type faster than I do.

krucam
04-15-2011, 9:35 AM
There's no online docket (Recap) available for cases in the Appeals Courts (Circuit). Many of these filings ARE at mdshooters if someone wants a refresher:
http://www.mdshooters.com/showthread.php?p=1073677#post1073677

nick
04-15-2011, 10:03 AM
Funny, we were just discussing it yesterday.

I wonder how it may affect the people without a permanent residence as defined by the state (people living in hotels, travelling, homeless, etc.).

Librarian
04-15-2011, 10:51 AM
Note that the opening brief was filed July 21, 2010 - it has been nine months from that to the opinion (and the case is far from over).

Fighting through the courts takes time.

Blackhawk556
04-15-2011, 10:56 AM
^^If you're homeless you might want to think about buying food first :). A homeless person won't be able to buy ammo probably. What about carrying it around? UOC? :)

Maestro Pistolero
04-15-2011, 11:08 AM
It seems they did a lot more than reverse and remand. They offer extensive guidance to the lower court that strengthens the case immensely, in my view.

IANAL

Munk
04-15-2011, 11:16 AM
How about people who have recently moved, or who move often, or who have non-permanent adresses? Many of these people are unable to satisfy residency requirements.

How about people who try to live a low-impact lifestyle who have no standard bills, who have no car etc...

It's possible to live inside of a camp-site (or various sites) all year (for a rather small fee actually), make use of public internet access and make a living without having any permanent adress, yet still needing to defend yourself.

These are a few of the reasons I object to residency requirements.

yellowfin
04-15-2011, 11:35 AM
It'll help out DC residents immensely as they don't have any shops and aren't residents of a state either.

nick
04-15-2011, 11:47 AM
^^If you're homeless you might want to think about buying food first :). A homeless person won't be able to buy ammo probably. What about carrying it around? UOC? :)

You might want to read this thread first, since you don't seem to be familiar with the subject:

http://www.calguns.net/calgunforum/showthread.php?t=420947

safewaysecurity
04-15-2011, 11:48 AM
Basically all the court has decided is that Dearth has standing as a plaintiff. Now the case goes back down for the actual case.

J.D.Allen
04-15-2011, 11:50 AM
^^If you're homeless you might want to think about buying food first :). A homeless person won't be able to buy ammo probably. What about carrying it around? UOC? :)

This makes me think of something, there are all kinds of .gov programs to give people food and money. Sounds like we need one to give the homeless guns and ammo. :43:

CHS
04-15-2011, 12:00 PM
This also sets precedent to destroying the idea that I can only exercise my 2A in my state of residence the way my state requires.

If I'm on vacation and I find a cool gun that I want, or something even collectible, current combination of state and federal law essentially bars me from purchasing that gun.

Or even better, what if I'm on a trip of some sort and due to things out of my control am not able to bring a firearm with me. While on that trip, I'm effectively barred from exercising my 2A entirely because I cannot lawfully purchase a firearm during it.

This residency crap needs to stop. If I want to buy a gun, I should be able to buy a gun in any state at any time assuming I obey the laws of that state (as long as such laws do not bar out of state residents from purchasing).

Southwest Chuck
04-15-2011, 12:07 PM
Even if a future decision ends up being narrowly defined, problems will still arise. For instance, if Dearth was allowed to buy firearms without State residency, then residency is no longer a requirement. Look at it this way. If a fellow American living outside the U.S. is not restricted by residency and has free reign to purchase a firearm in any state, then why am I restricted from doing so? Equal Protection, remember? Why on earth would a court rule an American living outside the U.S. can leagally do something here, that Americans actually living here cannot?

Ironically, it WOULD be his residency (non-U.S.) that would enable him to purchase firearms in any State, while I would be denied. Gee, would I really have to leave the country to buy a firearm in Nevada or Arizona?

jrr
04-15-2011, 12:08 PM
Im not an expert in the law in question... but generally speaking unless there is a specific provision of a law that can be removed without upsetting the rest of the law, a court's finding that a law is unconstitutional will strike the whole thing.

In other words; If there is no separate provision (like USC 922(a) vs paragraph (b))that covers people in this plaintiff's situation, the court will have to strike the residency requirement in its entirety. The court does not have the power to re-write the law to make it pass muster. So if there is simply a provision in USC 922 that state you must be a resident of a State to purchase a handgun there, then its out for everyone. The court can't carve out an exception to the law to fix it. Could be something in the code that could be fixed to prevent that though, IAAL, but not in this area so I don't know.

Window_Seat
04-15-2011, 12:27 PM
Hasn't the decision already been made, or does it have to go back to the DC for a re-trial? I realize that this would be persuasive to the other regions, but how long will it be until a person can actually go OOS and buy the gun they want to buy, especially since some states have no sales tax?

Erik.

Crom
04-15-2011, 1:01 PM
Hasn't the decision already been made, or does it have to go back to the DC for a re-trial? I realize that this would be persuasive to the other regions, but how long will it be until a person can actually go OOS and buy the gun they want to buy, especially since some states have no sales tax?

Erik.

There was no trial. The district court dismissed the case. Appellate court is sending the case back and now there will be a trial.


The district court dismissed the suit for lack of standing. Because we conclude Dearth does have standing, we reverse the judgment of the district court and remand the case to the district court for further proceedings.

Crom
04-15-2011, 1:05 PM
From the decision


The plaintiffs challenge 18 U.S.C. §§ 922(a)(9) and (b)(3) and implementing regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which together make it impossible for a person who lives outside the United States lawfully to purchase a firearm in the United States.

Section 922(a)(9) makes it unlawful for “any person ... who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes.” Accord 27 C.F.R. § 478.29a. Section 922(b)(3) prohibits the sale or delivery of a firearm by a licensed dealer to “any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located,” except this prohibition does “not apply to the loan or rental of a firearm ... for temporary use for lawful sporting purposes.”*

* Section 922(b)(3) contains another exception not relevant here. In order to ensure compliance, the ATF requires the seller to obtain from the purchaser a completed form (Form 4473) listing certain personal information. See 27 C.F.R. §§ 478.124(a), (c)(1).

Question 13 on Form 4473 asks for the purchaser’s state of residence. See id. § 478.124(c)(1).

Dearth is an American citizen who resides in Canada and no longer maintains a residence in the United States. In 2006 and again in 2007 Dearth attempted to purchase a firearm in the United States. On both occasions, he “could not provide a response to Question 13” on account of his residing in Canada; therefore “the transaction was terminated.” Compl. ¶¶ 22–23.

Dearth alleges he still intends, if he may do so lawfully, to purchase firearms in the United States for the purposes of sporting and self-defense, and to store those firearms with his relatives in Ohio.

wildhawker
04-15-2011, 1:08 PM
This us a hugely important win to overturn a horrible precedent in the DC circuit (thanks NRA, Stephen Halbrook).

Mobile or i'd explain more.

Southwest Chuck
04-15-2011, 1:39 PM
Is there a legal definition of when I become a non-resident of CA? In other, words if I moved to Arizona, at what point do I become a non-resident of CA? When I (and my household) am no longer physically in the state? If Arizona requires that I live there for 3 consecutive months before I can establish legal residency, and CA immediately interprets my relocation and reclassifies me now as a non-resident, then am I a man with-out a country and have the same legal status as Dearth and technically do not reside in any state (yet)?

In other words, can someone be technically classified as a floater (no, not that kind :eek: :D) and have a period of time where they actually have no state of residence :confused:

Edit: Since State Laws vary, you can plug in any two states in the scenario above. If however there is a State out there that revokes your residency upon leaving (moving) and the State you move to refuses to recognize your residency for a certain period of time, then you would be a man without State residency and have the same standing as holder, right?

JRob
04-15-2011, 2:08 PM
It'll help out DC residents immensely as they don't have any shops and aren't residents of a state either.

And Puerto Rico is still a not a state (?)

yellowfin
04-15-2011, 2:30 PM
Ah yes, Puerto Rico has TONS of laws outside the norm of the rest of the country, as bad or worse than MA and definitely worse than NY and CA.

dfletcher
04-15-2011, 2:47 PM
This also sets precedent to destroying the idea that I can only exercise my 2A in my state of residence the way my state requires.

If I'm on vacation and I find a cool gun that I want, or something even collectible, current combination of state and federal law essentially bars me from purchasing that gun.

Or even better, what if I'm on a trip of some sort and due to things out of my control am not able to bring a firearm with me. While on that trip, I'm effectively barred from exercising my 2A entirely because I cannot lawfully purchase a firearm during it.

This residency crap needs to stop. If I want to buy a gun, I should be able to buy a gun in any state at any time assuming I obey the laws of that state (as long as such laws do not bar out of state residents from purchasing).

What if that gun happens to be a Colt AR 15 or an FN Tactical pistol - I can't buy either one of those in CA. Just wondering how much stretching can be applied to the "I can't buy a gun" line of reasoning. I know, there's a diference between 'I can't buy any gun" and "I can't buy the gun I like" .....:mad:

If I'm a CA resident, but have an apartment in NV, I can not now legally buy a gun in NV - I should be allowed to do that and buy "banned in CA" guns - but keep them at my NV apartment, correct?

Munk
04-15-2011, 3:48 PM
What if that gun happens to be a Colt AR 15 or an FN Tactical pistol - I can't buy either one of those in CA. Just wondering how much stretching can be applied to the "I can't buy a gun" line of reasoning. I know, there's a diference between 'I can't buy any gun" and "I can't buy the gun I like" .....:mad:

If I'm a CA resident, but have an apartment in NV, I can not now legally buy a gun in NV - I should be allowed to do that and buy "banned in CA" guns - but keep them at my NV apartment, correct?

Any move outside of the state will make you unable to prove the residency requirements for a time.

Here's a classic line for that one:
"A right delayed is a right denied"


for lawful Sporting purposes...for lawful Sporting purposes...for lawful Sporting purposes...for lawful Sporting purposes...for lawful Sporting purposes...for lawful Sporting purposes...for lawful Sporting purposes...for lawful Sporting purposes...for lawful Sporting purposes...
This is running all through the act and I still detest the concept of limiting a right based on an undefined and arbitrary designation.

navyinrwanda
04-15-2011, 4:29 PM
As wildhawker (http://www.calguns.net/calgunforum/showpost.php?p=6208532&postcount=27) has noted, this is a hugely important win.

Although the underlying case concerns the federal regulatory scheme that prohibits the purchase of firearms outside of one's state of residence (specifically, a citizen living outside of the U.S. without a specific “state of residence” attempting to purchase firearms for other than “lawful sporting purposes”), this specific appeal considered only whether or not it was possible to have standing in the federal courts to challenge this scheme.

Standing (http://en.wikipedia.org/wiki/Standing_%28law%29) is an important – and complex – concept in law. Put simply, standing is the legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be an actual case or controversy that can be resolved by legal action. Supreme Court precedent has generally established three requirements for standing in the federal courts, all of which must be met:

injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;
a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and
a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

The case most often cited as clearly establishing these three requirements is Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (http://en.wikipedia.org/wiki/Lujan_v._Defenders_of_Wildlife). The party asking for federal court intervention bears the burden of establishing each of these three elements of standing.

While it might seem clear that someone whose purchase of a firearm was denied because of how he or she answered a question on Form 4473 would certainly satisfy these three requirements, the courts have ruled otherwise. In fact, the circuit appeals courts are in some disagreement on what exactly counts as standing – and the Court of Appeals for the D.C. Circuit has had the most restrictive view of what's needed to have standing (based on what is know as the Navegar line of cases, Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997) (http://scholar.google.com/scholar_case?case=1396125865337798384)). This was made abundantly clear when the district court ruled that Dearth didn't have standing to sue for relief of his inability to purchase a firearm:

Navegar held that gun manufacturers had standing to seek a declaratory judgment against enforcement of the Violent Crime Control & Law Enforcement Act of 1994 where the law, by naming specific brands and models of firearms, “in effect single[d] out the [plaintiffs] as its intended targets.” The manufacturers did not have standing to challenge certain other provisions of the Act, however, because of the absence of “any special priority placed upon preventing these parties from engaging in specified conduct.”

The Court of Appeals has since explained Navegar’s “special priority” language, holding that preenforcement standing will exist only when a plaintiff has been “personally threatened with prosecution or . . . his prosecution has [a] special priority for the government.” Seegars questions whether Navegar’s stringency was consistent with Supreme Court precedent and precedent from other circuits, but nonetheless “faithfully appl” its holding to bar preenforcement challenges to several District of Columbia gun control laws. In [I]Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), the court again questioned whether its standing precedent was consistent with earlier Supreme Court decisions, but reiterated that it “must be faithful to Seegars [and] Navegar.” The court then held that all plaintiffs whose challenges presented only preenforcement issues lacked standing because they had not been singled out for prosecution. (emphasis added and internal citations omitted).


Navegar has been put forth by the federal government in (I believe) every non-criminal Second Amendment court case since Heller (and many before). Essentially, the federal government has claimed that one can't challenge any infringement of their Second Amendment rights unless a specific law or regulation has actually been violated and the government has begun prosecution for that violation. This, of course, makes overturning bad laws almost impossible. And it's in direct conflict with Supreme Court (and other appeals court) precedents.

Today's ruling by the D.C. appeals court in Dearth v. Holder puts an end to this absurdity. It allows this case to move forward, and will prevent similar denials of justice in several other active cases. While the appeals court didn't rule directly on the underlying issue (Dearth's purchase denial), its opinion strongly suggests that the lower court should grant relief (i.e., overturn 18 U.S.C. § 922(a)(9) as an unconstitutional infringement of the Second Amendment). Such a decision would begin dismantling the entire federal framework prohibiting the purchase of firearms outside of one's state of residence.

Because of this decision, it's now possible to see the day when one could directly buy guns from a licensed dealer anywhere in the country, assuming that the purchase was legal in both states. And many, many more challenges to unlawful restrictions on the right to keep and bear arms will finally move forward in the federal courts. Justice delayed in justice denied (http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied) no more.

madmike
04-15-2011, 4:43 PM
Very well explained.

As wildhawker (http://www.calguns.net/calgunforum/showpost.php?p=6208532&postcount=27) has noted, this is a hugely important win.

Although the underlying case concerns the federal regulatory scheme that prohibits the purchase of firearms outside of one's state of residence (specifically, a citizen living outside of the U.S. without a specific “state of residence” attempting to purchase firearms for other than “lawful sporting purposes”), this specific appeal considered only whether or not it was possible to have standing in the federal courts to challenge this scheme.

Standing (http://en.wikipedia.org/wiki/Standing_%28law%29) is an important – and complex – concept in law. Put simply, standing is the legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be an actual case or controversy that can be resolved by legal action. Supreme Court precedent has generally established three requirements for standing in the federal courts, all of which must be met:

injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;
a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and
a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

The case most often cited as clearly establishing these three requirements is Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (http://en.wikipedia.org/wiki/Lujan_v._Defenders_of_Wildlife). The party asking for federal court intervention bears the burden of establishing each of these three elements of standing.

While it might seem clear that someone whose purchase of a firearm was denied because of how he or she answered a question on Form 4473 would certainly satisfy these three requirements, the courts have ruled otherwise. In fact, the circuit appeals courts are in some disagreement on what exactly counts as standing – and the Court of Appeals for the D.C. Circuit has had the most restrictive view of what's needed to have standing (based on what is know as the Navegar line of cases, Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997) (http://scholar.google.com/scholar_case?case=1396125865337798384)). This was made abundantly clear when the district court ruled that Dearth didn't have standing to sue for relief of his inability to purchase a firearm:


Navegar has been put forth by the federal government in (I believe) every non-criminal Second Amendment court case since Heller (and many before). Essentially, the federal government has claimed that one can't challenge any infringement of their Second Amendment rights unless a specific law or regulation has actually been violated and the government has begun prosecution for that violation. This, of course, makes overturning bad laws almost impossible. And it's in direct conflict with Supreme Court (and other appeals court) precedents.

Today's ruling by the D.C. appeals court in Dearth v. Holder puts an end to this absurdity. It allows this case to move forward, and will prevent similar denials of justice in several other active cases. While the appeals court didn't rule directly on the underlying issue (Dearth's purchase denial), its opinion strongly suggests that the lower court should grant relief (i.e., overturn 18 U.S.C. § 922(a)(9) as an unconstitutional infringement of the Second Amendment). Such a decision would begin dismantling the entire federal framework prohibiting the purchase of firearms outside of one's state of residence.

Because of this decision, it's now possible to see the day when one could directly buy guns from a licensed dealer anywhere in the country, assuming that the purchase was legal in both states. And many, many more challenges to unlawful restrictions on the right to keep and bear arms will finally move forward in the federal courts. Justice delayed in justice denied (http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied) no more.

krucam
04-15-2011, 5:34 PM
Very well explained.

What...you didn't like my " Some silliness that the Plaintiff has to break laws in order to have standing to challenge constitutionality...pfft..."?

Pfft....:)

Great read navyinrwanda....

JRob
04-15-2011, 6:59 PM
Navegar has been put forth by the federal government in (I believe) every non-criminal Second Amendment court case since Heller (and many before). Essentially, the federal government has claimed that one can't challenge any infringement of their Second Amendment rights unless a specific law or regulation has actually been violated and the government has begun prosecution for that violation. This, of course, makes overturning bad laws almost impossible.


In part because it tends to filter the plaintiffs into mostly being criminal defendants

hoffmang
04-15-2011, 7:55 PM
1. This is not a case against DC. It's a case against the Federal Government in it's own seat. They can't run away or hide. They ran away and hid in 2 other circuit courts before this, hoping to sabotage this lawsuit in DC based on standing. The Federal Government just lost that last gambit.

2. If it is unconstitutional to bar a US Citizen with no state residence from buying in a state, it is equally unconstitutional to bar a US Citizen who resides in another state from buying in state X who passes NICS from buying and taking possession. Ruger LCP bought in Reno FTW!

This is big. It's likely to be the first Federal gun control statute to fall post Heller. It utterly undermines much of California law...

-Gene

Apocalypsenerd
04-15-2011, 8:47 PM
1. This is not a case against DC. It's a case against the Federal Government in it's own seat. They can't run away or hide. They ran away and hid in 2 other circuit courts before this, hoping to sabotage this lawsuit in DC based on standing. The Federal Government just lost that last gambit.

2. If it is unconstitutional to bar a US Citizen with no state residence from buying in a state, it is equally unconstitutional to bar a US Citizen who resides in another state from buying in state X who passes NICS from buying and taking possession. Ruger LCP bought in Reno FTW!

This is big. It's likely to be the first Federal gun control statute to fall post Heller. It utterly undermines much of California law...

-Gene

That sounds like reasons for some optimisim. Nice to read something like that after a rough day at work.

Ding126
04-15-2011, 8:59 PM
Thanks Gene...( I'm love'in this )

tiki
04-15-2011, 9:10 PM
The Circuit Court used some very narrow language in remanding the case, and I suspect the District Court would use similarly narrow language if the case were to go our way.

Specifically, in the Background section, the Court on two occasions refers to people living outside the U.S. not having the ability to purchase firearms - i.e. "impossible for a person who lives outside the United States lawfully to purchase a firearm" and "does not reside in any State to receive any firearms" (emphasis mine).

I suspect that if the case ends up as a win for us, the final opinion will be narrowly drafted as addressing someone who is not a resident of any State, and would not have a direct or immediate impact on anyone who is a resident of California.

While a win here would be a step in the right direction, it certainly won't allow a resident of California to travel to Nevada and purchase an off-roster firearm, or to put an end to the CA roster. It may help set a nice precedent that will pave the way for other cases, but this case won't accomplish much of anything for us (as California residents) on its own merits.

Edit: So Hvengel and Glock22Fan said the same thing. They just type faster than I do.

So, then how do you prove non residency? Let's say I have a post office box in Nevada and I go into a gun store with my US passport and my hotel receipt? What are they going to do? I can see having to prove residency, but non residency?

I have a friend from college that traveled for work so much that he put his stuff in storage in his parents garage and left his car at their house. He gave up his apartment and spent a year or so saving up money. What would he have to do, get a letter from every state saying he wasn't a resident?

BigDogatPlay
04-16-2011, 6:44 AM
So, then how do you prove non residency? Let's say I have a post office box in Nevada and I go into a gun store with my US passport and my hotel receipt? What are they going to do? I can see having to prove residency, but non residency?

I have a friend from college that traveled for work so much that he put his stuff in storage in his parents garage and left his car at their house. He gave up his apartment and spent a year or so saving up money. What would he have to do, get a letter from every state saying he wasn't a resident?

Assuming this case ultimately goes in our favor, proving 'non-residency' does not become the issue. The only thing I see needing to be proven post win is:

a) US citizenship

b) Person is not prohibited from owning a firearm

A valid passport establishes a), and passing NICS establishes b).

At least that's the way I feel about it.

Scarecrow Repair
04-16-2011, 7:28 AM
2. If it is unconstitutional to bar a US Citizen with no state residence from buying in a state, it is equally unconstitutional to bar a US Citizen who resides in another state from buying in state X who passes NICS from buying and taking possession. Ruger LCP bought in Reno FTW!

This is big. It's likely to be the first Federal gun control statute to fall post Heller. It utterly undermines much of California law

I am cynical / optimistic / paranoid. I can think of several ramifications.


Whatever I can buy in CA, I can buy out of state without needing to transfer to a CA FFL.
When I buy out of state, the 10 day DROS goes away.
When I guy out of state, the CA roster goes away.
When I buy out of state, the CA AWB goes away.
When I buy out of state, all of CA ownership rules go away. Carry rules remain.


How much of this is possible if this case wins all the way?

Ubermcoupe
04-16-2011, 8:33 AM
Means if we win we can buy guns out of state, if I recall correctly.

That sounds like a great idea to me!

A big middle finger to the roster! :D and my collection may finally be complete. (ok, ok it will never be complete)

loather
04-16-2011, 9:34 AM
Whatever I can buy in CA, I can buy out of state without needing to transfer to a CA FFL.


Right!


When I buy out of state, the 10 day DROS goes away.


It certainly wouldn't apply unless the state in which you made the purchase also has a waiting period. DROS also wouldn't apply because that's a California thing (though some other states have cockimamey registration schemes as well).


When I guy out of state, the CA roster goes away.


The stupid roster would certainly not apply, and because of how the roster is worded you could bring your shiny new purchase back home with you as long as you registered it as per the personal handgun importer exemption.


When I buy out of state, the CA AWB goes away.


Not so fast. While you'd be able to purchase these kinds of firearms legally in the other state, California still restricts possession of such firearms, so you wouldn't be able to bring it back with you.


When I buy out of state, all of CA ownership rules go away. Carry rules remain.


Not really -- see above.

Munk
04-16-2011, 9:36 AM
all plaintiffs whose challenges presented only preenforcement issues lacked standing because they had not been singled out for prosecution.

Their logic amounts to entrapment in my eyes. So, you're legally denied the ability to do something, and you sue as a result, but are told you have to break the law in some fashion and be prosecuted for breaking it to fight that law.

Prosecution should not be the only standard for injury.

I await the results of this case with bated breath... along with nordyke... pena... and gene's scheme.

kcbrown
04-16-2011, 9:36 PM
1. This is not a case against DC. It's a case against the Federal Government in it's own seat. They can't run away or hide. They ran away and hid in 2 other circuit courts before this, hoping to sabotage this lawsuit in DC based on standing. The Federal Government just lost that last gambit.

2. If it is unconstitutional to bar a US Citizen with no state residence from buying in a state, it is equally unconstitutional to bar a US Citizen who resides in another state from buying in state X who passes NICS from buying and taking possession. Ruger LCP bought in Reno FTW!

This is big. It's likely to be the first Federal gun control statute to fall post Heller. It utterly undermines much of California law...



I'm really liking the sound of this.

You can see the strategy starting to work here. While the issue of purchase is being worked on in this case, the issue of importation is also being worked on in parallel.


Yes, I like the sound of this very much indeed! :43:

mdimeo
04-16-2011, 10:31 PM
Assuming this case ultimately goes in our favor, proving 'non-residency' does not become the issue. The only thing I see needing to be proven post win is:

a) US citizenship
b) Person is not prohibited from owning a firearm
A valid passport establishes a), and passing NICS establishes b).
At least that's the way I feel about it.

That is a vanishingly unlikely outcome from this case. The judge isn't going to issue a ruling wider than necessary to solve Dearth's problem. The Prayer for Relief in the original Complaint is only asking to stop enforcement of laws preventing transfers to citizens who don't live in the U.S., which isn't going to help many people.

It's a useful case strategically, and it'll be great for Dearth and a handful of other people when its won, but a win isn't going to have any immediate benefit for Californians.

The best thing that will come from it is (I think) it'll be the first federal statute struck down on 2nd amendment grounds. The practical good stuff comes later.

510dat
04-16-2011, 11:57 PM
I read something quoted from the decision that made me wonder

Section 922(a)(9) makes it unlawful for “any person ... who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes.” Accord 27 C.F.R. § 478.29a. Section 922(b)(3) prohibits the sale or delivery of a firearm by a licensed dealer to “any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located,” except this prohibition does “not apply to the loan or rental of a firearm ... for temporary use for lawful sporting purposes.”*

* Section 922(b)(3) contains another exception not relevant here. In order to ensure compliance, the ATF requires the seller to obtain from the purchaser a completed form (Form 4473) listing certain personal information. See 27 C.F.R. §§ 478.124(a), (c)(1).

Question 13 on Form 4473 asks for the purchaser’s state of residence. See id. § 478.124(c)(1).

Sooo....

The 4473 (at least in part) exists to ensure that the purchaser verifies his state of residence. If the courts decide that residency is irrelevant, does that also mean the 4473 goes away?

I'm presuming all kinds of legal challenges and decisions along the way, but based on the wording of this courts decision, it seems like that this document could become void.

Here's hoping, anyway.

hoffmang
04-16-2011, 11:58 PM
That is a vanishingly unlikely outcome from this case. The judge isn't going to issue a ruling wider than necessary to solve Dearth's problem. The Prayer for Relief in the original Complaint is only asking to stop enforcement of laws preventing transfers to citizens who don't live in the U.S., which isn't going to help many people.

It's a useful case strategically, and it'll be great for Dearth and a handful of other people when its won, but a win isn't going to have any immediate benefit for Californians.

The best thing that will come from it is (I think) it'll be the first federal statute struck down on 2nd amendment grounds. The practical good stuff comes later.

Uhm, I think you skipped this part:

An order permanently enjoining Defendant, his officers, agents, servants, employees, and all persons in active concert or participation with him who receive actual notice of the injunction, from enforcing 18 U.S.C. § 922(a)(9) and 27 CFR 478.29a;

That's not just against the stateless..

-Gene

FullMetalJacket
04-17-2011, 2:04 AM
Hmmm.

Anyone know of a good place for a California resident to get secure, cheap storage for assault weapons (as defined by California) in Nevada?

;)

OleCuss
04-17-2011, 4:56 AM
Personally, I see a 4th generation Glock in my future.

I don't claim to know exactly how it is going to sort out that I get to do that, but I think it will be possible in two weeks (aka two years?). And with Gene in the magazine selling business I'll be able to buy decent capacity magazines to put in it.

CHS
04-17-2011, 11:17 AM
The 4473 (at least in part) exists to ensure that the purchaser verifies his state of residence. If the courts decide that residency is irrelevant, does that also mean the 4473 goes away?


The 4473 isn't going anywhere, but you would no longer be required to put down your state of residency.

hoffmang
04-17-2011, 11:39 AM
It's a useful case strategically, and it'll be great for Dearth and a handful of other people when its won, but a win isn't going to have any immediate benefit for Californians.

My post above wasn't entirely correct and mdimeo is correct - wanted to point my error out.

However, there will be very little ground for ATF to stand on to prohibit purchase by non state residents who are otherwise qualified after this.

That's what I get for posting in a hurry...

-Gene

Taxidave
04-17-2011, 1:40 PM
I wonder if this will be a positive for someone like me that doesn't have a physical residence address? I do have a street address at the UPS store on all my documents. Homeless doesn't always mean penny-less. I have a lot more money for ammo since I stopped paying rent. Am I actually a resident if I can't prove my residency with a physical residence address?

nick
04-17-2011, 3:48 PM
I wounder if this will be a positive for someone like me that doesn't have a physical residence address? I do have a street address at the UPS store on all my documents. Homeless doesn't always mean penny-less. I have a lot more money for ammo since I stopped paying rent. Am I actually a resident if I can't prove my residency with a physical residence address?

Maybe you should apply for being the next plaintiff :)

glockwise2000
04-17-2011, 7:16 PM
This also sets precedent to destroying the idea that I can only exercise my 2A in my state of residence the way my state requires.

If I'm on vacation and I find a cool gun that I want, or something even collectible, current combination of state and federal law essentially bars me from purchasing that gun.

Or even better, what if I'm on a trip of some sort and due to things out of my control am not able to bring a firearm with me. While on that trip, I'm effectively barred from exercising my 2A entirely because I cannot lawfully purchase a firearm during it.

This residency crap needs to stop. If I want to buy a gun, I should be able to buy a gun in any state at any time assuming I obey the laws of that state (as long as such laws do not bar out of state residents from purchasing).

Agreed.

Quser.619
04-18-2011, 10:03 AM
Wow, this is great news. It seems almost dream like that I might be able to, some day, walk into a gun store & purchase the pistol I want & actually get it without having to wait 10 days.

I'm guessing that we'll still have to register w/ the CADOJ as an out-of-state importation, right? Or will that no longer apply?

Wrangler John
04-23-2011, 2:43 AM
Yes, purchase out of state and bring into California. Maybe don't bring into California - the state will still expect to collect use tax for your purchase. I seem to recall a fellow that purchased a vacation home in another state and wound up with a large use tax bill for his trouble ($14,000). Remember that California collects a use tax for all those out of state Internet purchases that avoid paying sales tax.

Next step = firearms use tax of 100% (or more) of retail price for all out of state firearms purchases. Then additional fees for registration of handguns, and an import fee for long guns. Trust Sacramento, they'll concoct some scheme constitutional or not.

Gray Peterson
04-23-2011, 6:46 AM
Next step = firearms use tax of 100% (or more) of retail price for all out of state firearms purchases. Then additional fees for registration of handguns, and an import fee for long guns. Trust Sacramento, they'll concoct some scheme constitutional or not.

That's not a 2A violation. That's a commerce clause and equal protection violation.

socal2310
04-23-2011, 7:51 AM
That's not a 2A violation. That's a commerce clause and equal protection violation.

Not even our current AG is going to think California can win the case.

Ryan