A federal judge in Texas has held that the federal interstate handgun transfer ban is unconstitutional on its face. This is a strong holding, coming one day after a federal judge in New York held that firearms transportation restrictions do not violate the Second Amendment.

Judge Reed O’Connor found in favor of the Plaintiffs in every aspect of the litigation. In fact, Judge O’Connor also found the ban unconstitutional as applied to the plaintiffs, and held that it violates the Due Process Clause of the Fifth Amendment to the United States Constitution. To see the entire opinion, click here.

We have touched on the federal interstate handgun transfer ban briefly in some of our previous posts [see My Firearms: To Mail or Not to Mail?]. Per 18 USC 922, in order to transfer handguns interstate, the use of a Federal Firearms Licensee (FFL) is required.

When a couple from Washington D.C. purchased a handgun in Texas, they were met with this requirement. They could only receive their new firearm through an FFL in their home state. Shortly thereafter, they filed suit.

In determining constitutionality, the courts apply one of the “three tiers of scrutiny.” [For additional constitutional discussions, see Proposed Bill Banning Human Silhouette Targets: Constitutional?; Rep. Mike Honda, Home Builds and H.R. 376, 377, 378: Can Congress Do That? and Is There A Federal Concealed Carry Permit?] These tiers are: strict scrutiny, intermediate scrutiny, and rational basis. While these tests are not provided in the Constitution, the Supreme Court has developed these tests over the years. Ultimately, the Supreme Court is the ultimate arbiter of what is, or is not constitutional.

In this case, the court applied strict scrutiny in order to determine the law’s constitutionality. Strict scrutiny requires the government to prove that the law is necessary to achieve a compelling government interest. As the court said it in this case, the law must be “narrowly tailored to be the least restrictive means of achieving a compelling government interest.” The court found that the government does have a compelling interest in preventing handgun crime. However, the court also found that the ban was not narrowly tailored to serve this interest. The court noted that the government “fail[ed] to provide reasonably current figures to show the federal interstate handgun sale ban is narrowly tailored.” It additionally found that nationwide utilization of the National Instant Check System (NICS), which was unavailable when the ban was enacted, serves as a less restrictive alternative to the ban. As a result, the court found the ban to be unconstitutional.

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The court went even further to state that the ban could not even withstand intermediate scrutiny. To withstand intermediate scrutiny, the government must show that “the law is substantially related to an important government interest.” The court held that the ban is not. Again, while the interest in preventing crime is important, the court found the means to be over inclusive. For instance, the ban does not regulate interstate transfers by a certain class of people (such as convicted felons, or the “mentally infirm”). Rather, the ban completely restricts everybody except Federal Firearms Licensees.

In light of this decision, many Penn LAGOs have written asking how this will affect them. Unfortunately, as of now it will not. While this decision is well-reasoned, and the findings are legally sound, it does not serve as binding authority for Penn LAGOs. In fact, even if the appellate court affirms the decision, it still will not provide binding authority in Pennsylvania. If the Supreme Court of the United States decides to hear the case, we could potentially have a nationwide change in the law. Until then, the ban on interstate handgun transfers still applies for Penn LAGOs.