Mance v. Sessions

896 F.3d 699

Fredric Russell MANCE, Jr. ; Tracey Ambeau Hanson; Andrew Hanson; Citizens Committee for the Right to Keep and Bear Arms, Plaintiffs–Appellees,

v.Jefferson B. SESSIONS, III, U. S. Attorney General; Thomas E. Brandon, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendants–Appellants.

No. 15-10311

United States Court of Appeals, Fifth Circuit.

FILED July 20, 2018

Alan Gura, Gura, P.L.L.C., Alexandria, VA, William Bryan Mateja, Esq., Polsinelli, P.C., Dallas, TX, for Plaintiffs–Appellees.

Lindsey E. Powell, Esq., Tara S. Morrissey, Esq., U.S. Department of Justice, Michael S. Raab, Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendants–Appellants.

Sean A. Lev, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, for Amicus Curiae Brady Center to Prevent Gun Violence.

John Sorrenti, Covington & Burling, L.L.P., Washington, DC, for Amicus Curiae Law Center to Prevent Gun Violence.

Michael L. Rice, Harrison Law, L.L.C, Dallas, TX, for Amicus Curiae National Shooting Sports Foundation, Incorporated.

Charles Justin Cooper, Cooper & Kirk, P.L.L.C., Washington, DC, for Amicus Curiae National Rifle Association of America, Incorporated.

Before OWEN and HAYNES, Circuit Judges.^*

PER CURIAM:

The petition for rehearing en banc has been denied. We withdraw the prior opinion that issued January 19, 2018, and substitute the following opinion.

Federal laws that include 18 U.S.C. §§ 922(a)(3) and 922(b)(3), and 27 C.F.R. § 478.99(a), generally prohibit the direct sale of a handgun by a federally licensed firearms dealer (FFL) to a person who is not a resident of the state in which the FFL is located. In a suit brought by Fredric Russell Mance, Jr. and others, the federal district court enjoined the enforcement of these laws, concluding that they violate the Second Amendment and the Due Process Clause of the Fifth Amendment.¹ We reverse the district court’s judgment and vacate the injunction.

I

Andrew and Tracy Hanson, who are residents of the District of Columbia and members of the Citizens Committee for the Right to Keep and Bear Arms (the Committee), travelled to Texas desiring to purchase two handguns from Mance, an FFL in Arlington, Texas, who is also a member of the Committee. It is undisputed that the Hansons would be eligible under the laws of Texas and the District of Columbia to own and possess the handguns that they selected from Mance’s inventory. However, federal law prevents Mance from selling a handgun directly to the Hansons since they are not residents of Texas. Federal law would have permitted Mance to transfer the handguns to the FFL in the District of Columbia so that the Hanson’s could purchase the firearms from that FFL. The federal laws do not impose or even allude to a fee if such a transfer occurs, but the FFL in the District of Columbia would have charged the Hansons a transfer fee of $125 for each handgun, above and beyond the purchase price. The Hansons declined to pursue this method of obtaining the firearms because they objected to the additional fees and to shipping charges. They could not purchase the handguns of their choosing from the sole FFL in the District of Columbia because that dealer has no inventory and only sells firearms transferred from FFLs outside of the District.

Mance, the Hansons, and the Committee initiated suit in Texas challenging the federal laws that restrict the sale of handguns by an FFL to residents of the state in which the FFL is located, asserting that the federal laws contravene the Second and Fifth Amendments. The plaintiffs sought an injunction prohibiting the enforcement of these laws. The district court denied the Government’s Motion to Dismiss for Lack of Standing, granted the plaintiffs’ motion for summary judgment, and denied the Government’s competing motion for summary judgment. The district court enjoined the enforcement of the challenged laws, concluding that they violated both the Second Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause. The Government has appealed.

II

Because the Hansons are not Texas residents, Mance, a Texas FFL, cannot lawfully sell handguns to them. Such a transaction is prohibited by 18 U.S.C. § 922(a)(3) and (b)(3), which provide:

(a) It shall be unlawful—...

(3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter....

* * *

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—...

(3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee's place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes....²

Regulations promulgated to implement these prohibitions are set forth in 27 C.F.R. § 478.99(a), which provides:

(a) Interstate sales or deliveries. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall not sell or deliver any firearm to any person not licensed under this part and who the licensee knows or has reasonable cause to believe does not reside in (or if a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business or activity is located: Provided , That the foregoing provisions of this paragraph (1) shall not apply to the sale or delivery of a rifle or shotgun (curio or relic, in the case of a licensed collector) to a resident of a State other than the State in which the licensee's place of business or collection premises is located if the requirements of § 478.96(c) are fully met, and (2) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes (see § 478.97).³

The question is whether these federal laws violate the Second Amendment.

III

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."⁴ The United States Supreme Court held in District of Columbia v. Heller that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation."⁵

After extensive analysis of the historical context of the Second Amendment, the Court concluded in Heller "that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right" to keep and bear arms⁶ and concluded in McDonald v. City of Chicago, Ill. that "the right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered liberty."⁷ The Court reasoned in Heller "that self-defense ... was the central component of the right itself."⁸ With regard to handguns, the Court observed that, "the American people have considered the handgun to be the quintessential self-defense weapon."⁹ In contemplating why a citizen might prefer a handgun over long guns for home defense, the Court held, "[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."¹⁰

The Supreme Court has recognized, however, that "[l]ike most rights, the right secured by the Second Amendment is not unlimited."¹¹ The Court explained in Heller that:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.¹²

The Court added: "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."¹³

In National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives , our court was called upon to apply Heller in determining whether federal statutes¹⁴ that prohibit FFLs from selling handguns to a person under the age of 21 were constitutional in light of the Second Amendment.¹⁵ We first canvased the analytical frameworks that other Circuit Courts of Appeals had utilized in Second Amendment cases, identified "[a] two-step inquiry" employed by some of those...