Taking Liberties
December 7, 2009 8:27 PM

D.C. Court Ruling Could Affect Out-Of-State Gun Buying

By
Declan McCullagh
Topics
Gun Rights
(AP)
You can buy a car from an out-of-state dealer and pick it up there. You can buy a house in another part of the country, as speculators unwisely did during the real estate bubble, sight unseen. But even though the Second Amendment protects an individual right to own firearms -- and presumably to buy them -- you can't purchase a handgun while you're visiting another state.

A gun rights group has sued the Justice Department to overturn this prohibition, which became law as part of the Gun Control Act of 1968, and the case is now in front of U.S. District Judge James Robertson in Washington, D.C.

Narrowly speaking, the Second Amendment Foundation has filed the Hodgkins v. Holder suit on behalf of American citizens who live abroad and would like to buy firearms when they return for a visit (but can't because Form 4473 requires them to list what U.S. state they live in). More broadly, it could restore Americans' right to buy handguns while traveling across state lines as long as they undergo the normal federal background check.

Federal law says that, in general, it is unlawful for a dealer to sell a handgun to "any person who the licensee knows or has reasonable cause to believe does not reside in the state." Rules for buying a rifle or shotgun are a little less strict.

Attorneys for both sides have been arguing over whether the American expats have suffered enough harm to permit them to sue, a legal concept called standing. The Obama administration claims that they haven't, arguing in a brief: "(Plaintiff's) vague allegation of an intention to acquire a firearm on some future visit to the United States does not give rise to a live controversy as required by Article III of the Constitution." In response, the Second Amendment Foundation points out that the expats tried to purchase firearms in the past but were denied permission.

A ruling last Friday by the U.S. Court of Appeals for the District of Columbia could affect how that question is resolved. Two of the judges on the panel said there was no need to change the current rule on standing; the dissent by Judge Janice Brown said it conflicted with Supreme Court precedent: "Our doctrine thereby enables the government to deprive a plaintiff of pre-enforcement standing simply by being silent or deliberately vague about its intentions. Unless declaratory relief is available, prosecutors can act strategically to protect criminal laws or arbitrary enforcement procedures from judicial review. That is essentially what happened here."

For the record, Alan Gura, the attorney who is representing the Second Amendment Foundation, thinks he can win on the standing question one way or another. "In Hodgkins we have enough facts. They tried to buy guns but couldn't. That's more than pre-enforcement standing."

While this may be an intricate legal question that only lawyers might fully appreciate, it offers a glimpse into how the legal system operates in practice. Courts don't always reach -- they're often hesitant to reach -- broad questions about a law's constitutionality. Procedural rules are hugely important.

In this case, for instance, the Obama administration appears to have taken the position that there's no way for anyone to challenge the 1968 Gun Control Act on Second Amendment grounds unless they're arrested for violating it first. Any volunteers?
Declan McCullagh is a senior correspondent for CBSNews.com. He can be reached at declan@cbsnews.com and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed. Before becoming a CBS employee, Declan was chief political correspondent for CNET, a reporter for Time, and Washington bureau chief for Wired.

  • Declan McCullagh is the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

Add a Comment See all 19 Comments
by Ride_Fast December 9, 2009 12:51 PM EST
[...] Gun Control Act comes under fire [...]

Plus all the people living in all the various territories.
Reply to this comment
by patriot5 December 8, 2009 11:39 PM EST
Since the US Constitution is a design of the federal government and it limits and restricts that government, then it stands to reason that the District of Columbia which is totally controlled by the Congress, can make whatever laws they choose and the alleged Bill of Rights is not a protection of those entities that choose to be a resident of D.C. The SCOTUS cannot make any laws that will affect State Citizens since the State Constitutions are the higher law.
Reply to this comment
by mcapek December 9, 2009 1:22 AM EST
You are reaching, but I don't think anybody will buy your theories.
by santeelite December 8, 2009 6:10 PM EST
Brianwb at, 10:09 PM EST, says: "as the needs of the many outweigh the wishes of a few." Thank the maker that we do not live in a democracy or such foolishness would be bantered about all the time. We live in a Constitutional Republic, in which, the MANY cannot run over or force their view on the FEW.

A pure democracy is when you have 3 wolves and 1 sheep discussing what they will have for dinner, the results are not usually favorable to the sheep. We are a nation of laws and those laws are derived from our founding document, the Constitution. More and more today the Constitution is being circumvented this is the origin of those laws which infringe upon the right of the citizen to own and use firearms to protect themselves, their family, their property, as well as, the nation itself. It is also the protection for the people against an over-reaching government that violates the inalienable rights of the citizenry.

Any person who can pass, the unconstitutional, federal background check or NICS, in one state can also pass it in another, and so should be allowed to purchase a firearm regardless of the place of their residence. Just because law abiding citizens abide by unconstitutional laws does not make the law any less unconstitutional.
Reply to this comment
by Jarhead1982 December 8, 2009 11:38 AM EST
It is illogical for a person to claim that a decision in 1976 was democratically chosen (council vote, not a vote by the people) and then turn around and deride the democratic process as it looks to redress the mistakes and fallacy that gun control and its infringements are democratically moral, and effective when they are not.

To put it in simpler allegorical terms, WHY SHOULDNT Washington D.C. have to recognize the results of a proper democratic process? If you feel so strongly that a vote is needed, and that the majority of the people supoport the draconian gun laws of Washington D.C., we will expect to see your petition drive to bring a vote to the people on this issue. After all, it is the democratic process eh, and based on your claims, the majority is in favor of gun control. Should be a slam dunk and easy process eh brianbwb-2009?

To do anything else, would be hypocritical!
Reply to this comment
by quapawsix December 8, 2009 8:20 AM EST
Enough enough leave the 2nd amendment alone. Gun control does not work. and as far as the government goes if they want to really take the guns away look at what happened in New Orleans after Katrina the police and the national Guard outlawed weapons and confiscated the honest citizens weapons including searching their homes to remove any chance of them defending your self from the bad guys.
Reply to this comment
by pensacola8-2009 December 7, 2009 10:00 PM EST
Some states disqualify prospective buyers from gun purchases over offenses that in other states, are not a problem. The proposed change in the law enables citizens prohibited from weapons purchase in their home state to go shopping for weapons in another and then circumvent the law of their home state.

It is perfectly logical why states to restrict gun purchases from out of state buyers - most states don't desire a reputation for contributing to the irresponsibility of less than ideal citizen over a weapon.

Case in point...Lee Harvey Oswald of Texas bought his weapon from a mail order catalog in 1963....Today, Mexican warlords, buy their guns in Texas and simply drive over to California and cross at Tijuana where no traffic is stopped crossing into Mexico...

It seems to me that some greedy gun sellers don't care how much easier their ideas make weapons easier to attain by disqualified buyers.
Reply to this comment
by ffoulkes-2009 December 8, 2009 7:31 AM EST
If that is your concern, then allow citizens of states that are allowed firearms within their own states to purchase them in the others.

Perform the checks on ALL purchasers, and bust those who don't do the checks.
by 1American December 8, 2009 8:03 AM EST
Mexican warlords, buy their guns in Texas and simply drive over to California and cross at Tijuana where no traffic is stopped crossing into Mexico...pensacola8-2009
Another "gun myth" fabricated by the MSM!
Texas, like the other 49 States prohibits the sale of full auto weapons, IE. AK's, M14's, M16's, to anyone without a proper "class 3" license. Since Mexican citizens cannot qualify for a "class 3" license or pass a US background check, and the above mentioned weapons are prefered by the Mexican warlords, it's obvious they're getting them shipped in from South America and China, among others, using the black market.
by brianbwb-2009 December 7, 2009 10:00 PM EST
So what you are saying is legalize a crime that could result in people dying, so that it won't be a crime anymore. Great logic there, typical of a neo. I will address that point last.

The plaintiffs, have not demonstrated harm, and so cannot allege harm.

To establish residence in a state, one only needs to check into a motel, then print a name card with the address, which can be done within minutes. Shown with a valid passport, with a resident witness to certify that the person is known to reside at the address, could be sufficient to qualify as a resident.

I myself am an expat, and have no, nor forsee any possible circumatance where I would need to obtain a gun at the airport upon my arrival. If I am carrying extremely valuable items, I should have the common sense to hire armed escorts, who are legal residents and trained gun owners, until such a time as the valuables are delivered to wherever they might be destined.

So the assertion of harm done to the plaintiffs, not only having not been proven, is based purely on hysterical and highly improbable speculation of what "might happen" is therefore no basis for any ruling grounded in "what has happened," or "what is happening".

In fact, a gun registered in someone's name but not in their presence, which shouldn't happen in the first place, because the registrant is not present to affix a signature before a witness, might well be used before I am able to claim it, therein lies the potential for harm to others.
Reply to this comment
by PavePusher December 8, 2009 5:14 PM EST
Most states don't require registration of firearms.

First you wrote this: "So the assertion of harm done to the plaintiffs, not only having not been proven, is based purely on hysterical and highly improbable speculation of what "might happen" is therefore no basis for any ruling grounded in "what has happened," or "what is happening".


Then you wrote this "In fact, a gun registered in someone's name but not in their presence, which shouldn't happen in the first place, because the registrant is not present to affix a signature before a witness, might well be used before I am able to claim it, therein lies the potential for harm to others."


So I guess speculation IS O.K..... as long as it is done with the correct amount of hypocracy, right?
by JimInMT December 9, 2009 10:24 PM EST
You are completely wrong in this "The plaintiffs, have not demonstrated harm, and so cannot allege harm." It is harm when someone has attempted to do something LEGAL and been denied, which is exactly what is being alleged in the complaint. READ the article, and get off your high ass horse.
by brianbwb-2009 December 7, 2009 10:00 PM EST
So what you are saying is legalize a crime that could result in people dying, so that it won't be a crime anymore. Great logic there, typical of a neo. I will address that point last.

The plaintiffs, have not demonstrated harm, and so cannot allege harm.

To establish residence in a state, one only needs to check into a motel, then print a name card with the address, which can be done within minutes. Shown with a valid passport, with a resident witness to certify that the person is known to reside at the address, could be sufficient to qualify as a resident.

I myself am an expat, and have no, nor forsee any possible circumatance where I would need to obtain a gun at the airport upon my arrival. If I am carrying extremely valuable items, I should have the common sense to hire armed escorts, who are legal residents and trained gun owners, until such a time as the valuables are delivered to wherever they might be destined.

So the assertion of harm done to the plaintiffs, not only having not been proven, is based purely on hysterical and highly improbable speculation of what "might happen" is therefore no basis for any ruling grounded in "what has happened," or "what is happening".

In fact, a gun registered in someone's name but not in their presence, which shouldn't happen in the first place, because the registrant is not present to affix a signature before a witness, might well be used before I am able to claim it, therein lies the potential for harm to others.
Reply to this comment
by mcapek December 7, 2009 9:06 PM EST
It is illogical to deny a gun purchase to those not living in the state of purchase. What difference should it make whether the purchaser lives few or many miles across the border in another state, as long as he or she passes the Federal background check? We are drowning in ineffective and illogical laws.
Reply to this comment
by porcine_aviator December 7, 2009 9:32 PM EST
What's even more amazing is that all these laws do is make life more difficult for the law abiding. The existence of these byzantine regulations will not do one flippin thing to stop criminals form obtaining and using weapons.

If the US wants to end gun crime, then enforce existing laws and stop letting violent felons out on parole. Liberal judges do more to contribute to making the streets dangerous than any gun manufacturer ever could. I can't count how many times I read about rapists, murderers, molestors, and robbers that do 5 years in the joint and are out to commit their next crime within a week of parole.
by brianbwb-2009 December 7, 2009 10:09 PM EST
it is illogical to allow a person living in an area where the residents have democratically agreed to regulate firearms, to go to another state, and bring firearms back into the area where the majority of the residents have already declared they don't want them. Is that person feels the need to own such weapons, it is more logical that that person leave the area, and relocate to the state where that person'e wishes are prevalent among the residents.

To put it in simpler allegorical terms, why should the city of Washington DC, having recognized the need for gun control, have to put up with miscreants who would go to Virginia, buy a gun then bring it back to Washington DC? Better that person move to virginia, as the needs of the many outweigh the wishes of a few.
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