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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 06-21-2011, 12:11 AM
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Default Lane v. Holder: Out of state handgun purchasing

Today, Alan Gura filed a motion for preliminary injunction to find the federal, state, and DC restrictions on purchasing a handgun out of state unconstitutional.

The simple argument is that, since long gun deliveries out of state are already legal, barring out of state handgun purchases where all the rest of the legal requirements (brady check, registration in D.C.) are completed has no rational basis, much less a compelling government interest, to bar non residents from buying handguns. This is especially true while the only FFL in D.C. is currently out of business.



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// Case docket at http://ia700608.us.archive.org/34/it...97.docket.html //
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Last edited by Librarian; 07-20-2011 at 4:08 PM..
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Old 06-21-2011, 12:14 AM
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So to speak in I'm stupid for legaleze, would this mean I can buy a handgun in state "X" and bring it in to California or would the handgun still have to be shipped to a state FFL?
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Old 06-21-2011, 12:16 AM
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sorry make that too tired/lazy to read through that right now as well.
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Old 06-21-2011, 12:21 AM
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HAHAHAHAHAHAHAHAHAHAHA!!!!!!!!!!
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Old 06-21-2011, 1:00 AM
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Quote:
Originally Posted by Falconis View Post
would the handgun still have to be shipped to a state FFL?
No. That's the point.

Aside from California's restriction, in other states it's legal to buy a long gun at an FFL in any state - no matter what state the participants in the sale reside in. One would need a sharp FFL, and rational local state laws on gun transfers, and buyer/seller each from a state with rational laws to make the transaction work, because it's relatively unusual, but it IS legal.

This says "It's legal to do that for long guns. Why not handguns?" - that is, buy at any FFL in whatever state, and take delivery there.
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It is unclear what is so compelling about ensuring that handgun transfers go through a local middleman who does absolutely nothing that the initial federal firearms licensee does not do—other than generate the cost of additional shipping, and charge an exorbitant fee. Federal law already charges gun dealers selling rifles and shotguns with adherence to the laws of other jurisdictions when selling firearms to out-of-state residents. If a federal licensee can follow an out-of-state rifle law, he or she can follow an out-of-state handgun law.
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Old 06-21-2011, 1:43 AM
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We really lucked out on that FFL losing his lease.
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Old 06-21-2011, 2:28 AM
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Heller and McDonald do not signal the end of all gun regulations.
But they do signal the end of these most pointless, burdensome regulations.
Respectfully, Plaintiffs are entitled to a preliminary injunction at this time, and
considering the nature of the case and the lack of a possible factual dispute, suggest the case can
be concluded under Rule 65(a)(2).
Gura strikes again. Sweet.
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Old 06-21-2011, 2:51 AM
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Am I wrong in assuming this would make the CA DOJ Handgun Roster moot, since possession of those handguns is not prohibited, only importation into the state for the purpose of sale?

I would love to hear the screams from Kamala if that happens. You'd never be able to find a parking spot at Cabela's in Reno.
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Old 06-21-2011, 4:06 AM
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Originally Posted by NotEnufGarage View Post
Am I wrong in assuming this would make the CA DOJ Handgun Roster moot, since possession of those handguns is not prohibited, only importation into the state for the purpose of sale?

I would love to hear the screams from Kamala if that happens. You'd never be able to find a parking spot at Cabela's in Reno.
It would not moot the case since the Handgun Roster would still be a substantial burden (especially for those who must drive for hours to get to Nevada).

But you're very correct about it causing great anguish and grinding of teeth on the part of the anti-liberty folk such as Kamala Harris.
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Old 06-21-2011, 4:34 AM
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It would not moot the case since the Handgun Roster would still be a substantial burden (especially for those who must drive for hours to get to Nevada).

But you're very correct about it causing great anguish and grinding of teeth on the part of the anti-liberty folk such as Kamala Harris.
Okay, 90% moot, since about 90% of the CA population lives within a 4 hour drive of Lake Havasu, Las Vegas, Reno or Southern Oregon.

8 hour round trip drive or 10 day wait and restrictions? Your choice.
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Old 06-21-2011, 4:34 AM
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Originally Posted by Librarian View Post
No. That's the point.

Aside from California's restriction, in other states it's legal to buy a long gun at an FFL in any state - no matter what state the participants in the sale reside in. One would need a sharp FFL, and rational local state laws on gun transfers, and buyer/seller each from a state with rational laws to make the transaction work, because it's relatively unusual, but it IS legal.

This says "It's legal to do that for long guns. Why not handguns?" - that is, buy at any FFL in whatever state, and take delivery there.
That would almost have to tie in with national reciprocity of concealed carry permits, wouldn't it? Here in FL there's a three day wait if you buy a handgun unless you have a Florida CWFL in which case you can take possession immediately. In California there's a ten day wait irrespective of whether you have a CA CCW permit IIRC. Every state is different. BTW AFAIK in Florida residents of certain states like CA and NY may not buy long guns. Maybe that's just a Wal Mart policy, but there is a map of the US at the gun counter of every WM I've been to here which shows which residents of which states may legally buy a long gun. Gotta ask my LGS about that.
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Old 06-21-2011, 4:55 AM
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NYC will be ******* itself right about now.
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Old 06-21-2011, 5:44 AM
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Originally Posted by NotEnufGarage View Post
Am I wrong in assuming this would make the CA DOJ Handgun Roster moot, since possession of those handguns is not prohibited, only importation into the state for the purpose of sale?

I would love to hear the screams from Kamala if that happens. You'd never be able to find a parking spot at Cabela's in Reno.
My opinion (worth not very much) is that this wouldn't necessarily affect California.
I can drive 2 hours to a gun show in North Carolina, I can buy rifles through an FFL. If I find a deal on a handgun, I have talk the seller into shipping it to a Virginia FFL.
California still requires that purchases must comply with CA law, ie: DROS, 10 day wait. It's the same reason you can't go to Cabela's and buy a shotgun or rifle.

Of course, it's not a stretch that I'm wrong.
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Old 06-21-2011, 5:49 AM
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Very good. It would be really great if the Judge agrees. It's not too hard to see that the fed handgun purchase law is too burdensome.

Last edited by Crom; 06-21-2011 at 6:44 AM..
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Old 06-21-2011, 6:22 AM
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So as long as the one FFL that they had stays closed this should go our way without any problems.
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Old 06-21-2011, 6:38 AM
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They're going to end up building statues with Alan's likeness. Amazing.
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Old 06-21-2011, 6:39 AM
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NYC will be ******* itself right about now.
I sincerely hope so. Once this case goes through it'll probably need to be litigated specifically against NY/NYC to get them to comply, and probably have to go all the way up to SCOTUS to get enforced b/c I doubt the 2nd Circuit will make them obey. I was talking with Mr. Kopel a few days ago and he said he believes the lower courts will fall in line rather quickly, but I personally have my doubts because if they were behaving correctly on their own we wouldn't have the laws in the anti gun states and the rulings that back them in the first place.
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Old 06-21-2011, 6:49 AM
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Feel free to correct me.

Right now it is legal for people to buy long guns in states that they do not reside in; IF the sale goes along with all the laws in both states.

Right now we; Californians, can not buy long guns outside of CA because of the damned DROS system.

How is this gonna change that?

Will this make CA get rid of the DROS system?
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Old 06-21-2011, 7:12 AM
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Originally Posted by morrcarr67 View Post
Right now we; Californians, can not buy long guns outside of CA because of the damned DROS system.

How is this gonna change that?
It won't. It will, however, set the ground work to make changes to Federal law exempting us from California law while we purchase guns outside of the state of California.

But basically if we win this one, everyone OUTSIDE of California benefits.

Quote:
Will this make CA get rid of the DROS system?
Not a chance.
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Old 06-21-2011, 7:24 AM
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It won't. It will, however, set the ground work to make changes to Federal law exempting us from California law while we purchase guns outside of the state of California.

But basically if we win this one, everyone OUTSIDE of California benefits.



Not a chance.
Now I get IT!!!!!!!

Time to do the happy dance

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Old 06-21-2011, 8:09 AM
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Would this lawsuit be mooted if Sykes or any other FFL reopened in DC?

Heller was a DC case because that made it a federal case. But now that McDonald has incorporated the second amendment, is there any need for this type of case to still be in DC? Specifically, was DC chosen because it now has no FFL, or because it, like Heller, is a Federal jurisdiction, not state? Would it be possible to add Plaintiffs from other states, or desirable?

Supposing DC hustled and got a local FFL again -- could this be kept going as is, on account of the unreasonable burden it places on the Plaintiffs? Or would they have to amend the suit, or add Plaintiffs?
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Old 06-21-2011, 8:27 AM
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DC is a good place for these cases because I think the path to SCOTUS is shorter. Also, with such a tiny area, it has to have everything.

If you try this in California, we've got plenty of FFLs. The case wouldn't work even if all but one FFL (let's say it's right up along the Oregon border) get shut down.
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Old 06-21-2011, 8:34 AM
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This wouldn't automatically change anything for CA. The problem with CA is the state laws.

CA law wont even allow a CA resident to buy/take delivery of a long gun out of state.

But winning this would be a good start to challenging some of the CA laws merely from the "compelling state interest" perspective......if most other states allow purchase across state line and have no issues.....then CA would have to justify....with actual evidence, not just mere assertions....that such increased restrictions on it's residents is needed and how those restrictions are narrowly tailored to meet that need and are the least restirctive means of doing so.
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Old 06-21-2011, 8:59 AM
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Originally Posted by Librarian View Post
No. That's the point.

Aside from California's restriction, in other states it's legal to buy a long gun at an FFL in any state - no matter what state the participants in the sale reside in.
This says "It's legal to do that for long guns. Why not handguns?" - that is, buy at any FFL in whatever state, and take delivery there.
Yeah, but try going to another state and showing an ID from California and getting a dealer to sell you a rifle. I get laughed at in Florida.

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BTW AFAIK in Florida residents of certain states like CA and NY may not buy long guns. Maybe that's just a Wal Mart policy, but there is a map of the US at the gun counter of every WM I've been to here which shows which residents of which states may legally buy a long gun. Gotta ask my LGS about that.
I have to agree with you. I don't go to Walmart, but I've been to two gun shops in Florida and had them laugh at me when I asked them what I needed to do to buy a rifle.

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Originally Posted by rromeo View Post
California still requires that purchases must comply with CA law, ie: DROS, 10 day wait. It's the same reason you can't go to Cabela's and buy a shotgun or rifle.
I think buying a handgun outside of CA and bringing it back would be importation. If we can get rid of this stupid restriction, at least then you can buy whatever you want in Nevada and keep it there in a safe deposit box.
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Old 06-21-2011, 9:04 AM
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Yeah, but try going to another state and showing an ID from California and getting a dealer to sell you a rifle. I get laughed at in Florida.
You can't buy a rifle in FL because CA state law says the transfer must be done thru a CA FFL. That goes back to that "it can be done if it's legal in BOTH states" thing.
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Old 06-21-2011, 9:18 AM
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Originally Posted by Untamed1972 View Post
This wouldn't automatically change anything for CA. The problem with CA is the state laws.

CA law wont even allow a CA resident to buy/take delivery of a long gun out of state.

But winning this would be a good start to challenging some of the CA laws merely from the "compelling state interest" perspective......if most other states allow purchase across state line and have no issues.....then CA would have to justify....with actual evidence, not just mere assertions....that such increased restrictions on it's residents is needed and how those restrictions are narrowly tailored to meet that need and are the least restirctive means of doing so.
How the hell can your state tell you what to do, when you are not even there lol. I would certainly think rules like this affect commerce and such.
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Old 06-21-2011, 9:19 AM
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Gura's arguments are always amazing to me. Whenever I read motions like this I always try to take the other side and pick the argument apart. Its a fun thought exercise and makes one much more compelling in arguments. With most I can find a few counterarguments that I believe a judge would find convincing. Gura's tend to be rather bulletproof. You don't have to be a gun nut or a legal nut to understand because he writes with a sort of strategic simplicity. Anyone trying to refute his points almost invariably comes out looking like a fool.
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Old 06-21-2011, 9:32 AM
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How the hell can your state tell you what to do, when you are not even there lol. I would certainly think rules like this affect commerce and such.
CA has a leash on you even when you're not here.

The fed law says you can buy a long gun out of state if the sale follows the rules in both states.

CA law says transfer must be done by in-state FFL, with 10day wait. So good ole' CA has you by the balls even when you're out of state.
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Old 06-21-2011, 9:44 AM
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Okay, 90% moot, since about 90% of the CA population lives within a 4 hour drive of Lake Havasu, Las Vegas, Reno or Southern Oregon.
Yeah and the other 10% live that far or less from AZ, Yuma is three hours from San Diego.
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Old 06-21-2011, 10:45 AM
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Say, you're a CA resident who retires, sells everything, and sets out in motor home for points unknown. You get to, say Montana, and you see a shotgun and a Glock that you buy under the new rules (assuming Gura wins this). You don't know if you are ever going back to CA with the firearms.

1. Will the FFL in Montana have to make you wait 10 days?

2. If you never take the guns back into CA does it matter whether the handgun is on the roster, or if the shotgun is an AW under CA state law?

3. Could you buy an assault weapon (non-NFA, garden variety) as long as you don't take it back into CA?
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Old 06-21-2011, 11:07 AM
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Originally Posted by Maestro Pistolero View Post
Say, you're a CA resident who retires, sells everything, and sets out in motor home for points unknown. You get to, say Montana, and you see a shotgun and a Glock that you buy under the new rules (assuming Gura wins this). You don't know if you are ever going back to CA with the firearms.

1. Will the FFL in Montana have to make you wait 10 days?

2. If you never take the guns back into CA does it matter whether the handgun is on the roster, or if the shotgun is an AW under CA state law?

3. Could you buy an assault weapon (non-NFA, garden variety) as long as you don't take it back into CA?
At that point it would be a matter of what state you a legally claiming residency in......which by default would prolly be whatever state your DL is from and where your RV is registered. There is that other lawsuit going, which I always forget the name of, regarding a US citizen who lives outside the country, suing because he in fact has no "state of residence", but as a US citizen has a 2A RKBA when he in the US.
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Old 06-21-2011, 11:21 AM
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Does a citizen have to be a resident of a state? If not, where the hell would they buy a gun?
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Old 06-21-2011, 11:25 AM
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Does a citizen have to be a resident of a state? If not, where the hell would they buy a gun?
that is exactly the issue in the lawsuit I mentioned which I can't remember the name of. Dearth v. Holder?
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Old 06-21-2011, 11:35 AM
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Does a citizen have to be a resident of a state? If not, where the hell would they buy a gun?
Yes.

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Originally Posted by Untamed1972 View Post
that is exactly the issue in the lawsuit I mentioned which I can't remember the name of. Dearth v. Holder?
^ Correct. Dearth v. Holder was remanded back to trial court (litigation is ongoing) The Appeals court found that Dearth has standing to bring suit.
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Old 06-21-2011, 11:49 AM
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Say, you're a CA resident who retires, sells everything, and sets out in motor home for points unknown. You get to, say Montana, and you see a shotgun and a Glock that you buy under the new rules (assuming Gura wins this). You don't know if you are ever going back to CA with the firearms.

1. Will the FFL in Montana have to make you wait 10 days?

2. If you never take the guns back into CA does it matter whether the handgun is on the roster, or if the shotgun is an AW under CA state law?

3. Could you buy an assault weapon (non-NFA, garden variety) as long as you don't take it back into CA?
Taking this a step further, said motor home is never in a single state for more than 2 weeks at a time and the owner does not claim any state as residence.

Where would you get a driver's license, CCW permit, vehicle registration, etc? Kinda the same as being homeless, but your home is on wheels and always on the move.

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Old 06-21-2011, 11:52 AM
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How the hell can your state tell you what to do, when you are not even there lol. I would certainly think rules like this affect commerce and such.
The same way that if you buy a rental property in another state, you setup a bank account in another state, and, the rent gets deposited into that account in another state, you still get taxed income tax in California on the rental income.
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Old 06-21-2011, 11:54 AM
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You can't buy a rifle in FL because CA state law says the transfer must be done thru a CA FFL. That goes back to that "it can be done if it's legal in BOTH states" thing.
I asked to buy an AR-15, have the bullet button added and shipped to my dealer in CA. I forgot the exact words, but it was basically something like there isn't anything I can buy in the store, not even a hat.
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Old 06-21-2011, 11:59 AM
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I thought the idea of bringing a gun purchased elsewhere into California has been examined and will work just fine.

As I've understood it the problem was establishing residency in the other state so that one could purchase in the Non-California state.

But once I've purchased the firearm I can bring it into California and register the handgun within the required time frame and be OK?

Can someone show me how I'm wrong about this? Personally, I'm looking forward to getting a Gen 4 Glock once Gura wins this one and I'd hate to be disappointed.
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Old 06-21-2011, 12:01 PM
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I asked to buy an AR-15, have the bullet button added and shipped to my dealer in CA. I forgot the exact words, but it was basically something like there isn't anything I can buy in the store, not even a hat.
Then the guy at the counter was just being an a-hole.....being an a-hole is legal in all 50-states last I checked.....no permit required.
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Old 06-21-2011, 12:05 PM
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Originally Posted by OleCuss View Post
I thought the idea of bringing a gun purchased elsewhere into California has been examined and will work just fine.

As I've understood it the problem was establishing residency in the other state so that one could purchase in the Non-California state.

But once I've purchased the firearm I can bring it into California and register the handgun within the required time frame and be OK?

Can someone show me how I'm wrong about this? Personally, I'm looking forward to getting a Gen 4 Glock once Gura wins this one and I'd hate to be disappointed.

I think the issue really comes down to what definition of "residency" is used.

If you are renting a motel room in another state.....are you not residing there for the term of your stay?

I think eventually all this stuff is just gonna hafta go away. With the instant background check system what difference does it make what state you do the purchase in.....all the dealers are gonna (well accept for in CA) call the same FBI background check phone number.
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