The Trump Administration Defends the Federal Ban on Interstate Handgun Sales
In response to a Second Amendment lawsuit, the government says the restriction "serves legitimate objectives" and "only modestly burdens" the right to arms.
A couple of years ago, Steven Cheung, a spokesman for Donald Trump, caused a kerfuffle by erroneously reporting that his boss had bought a Glock pistol while visiting a gun store in Summerville, South Carolina. That claim was striking because it implicated Trump, who was then seeking the Republican Party's 2024 presidential nomination, in a federal crime: Since he was under indictment in state and federal court, he was barred from buying firearms. But even if Trump had not faced felony charges, the transaction that Cheung described would have been illegal because of federal restrictions on interstate handgun purchases.
As a resident of Florida, Trump would not have been allowed to directly buy a pistol from a South Carolina gun dealer. Instead, he would have had to arrange and pay for shipment of the weapon to a licensed dealer in Florida, who could have completed the transaction there, typically in exchange for an additional fee. A lawsuit in the U.S. District Court for the Northern District of Texas takes aim at that rule, arguing that it is inconsistent with the Second Amendment right to keep and bear arms. The Firearms Policy Coalition (FPC) says the ban on interstate handgun sales fails the constitutional test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.
As president, Trump now controls the nation's vast military might, including its nuclear arsenal. But because the dubious New York case against him resulted in felony convictions, he is not allowed to possess firearms, let alone buy new ones. And even if his convictions are overturned on appeal, he still won't be allowed to buy a handgun in South Carolina or any other state he might visit. His administration, which is avowedly committed to protecting Second Amendment rights, nevertheless is defending that restriction against the FPC's challenge, saying it "serves legitimate objectives" and "only modestly burdens the right to keep and bear arms."
That argument sounds suspiciously like the sort of "interest balancing" that the Supreme Court emphatically rejected in Bruen. When a gun restriction affects conduct covered by "the Second Amendment's plain text," the Court said in that case, the government has the burden of demonstrating that it is "consistent with this Nation's historical tradition of firearm regulation." That test typically requires identifying historical analogs that are "relevantly similar" in motivation and scope to a challenged law.
The government's lawyers concede that the ban on interstate handgun sales "unquestionably burdens the fundamental right to keep and bear arms." But they argue that it "aligns with the nation's regulatory tradition," citing several historical precedents that the FPC describes as irrelevant or inadequate.
The government presents the ban at issue in this case, which stems from legislation that Congress approved in 1968, as a sensible safeguard aimed at preventing the sale of handguns to potentially dangerous individuals who are not legally allowed to possess them. On the face of it, that rationale does not make much sense.
The plaintiffs in this case include Elite Precision Customs, a gun dealer in Mansfield, Texas, and two would-be customers of that business, both of whom are firearms instructors who conduct classes across the country: Tim Herron, who lives in New Mexico, and Freddie Blish, who lives in Arizona. If Herron and Blish were allowed to buy handguns directly from Elite Precision Customs, they would still have to complete the forms and background checks required by federal law, which aim to prevent firearm purchases by disqualified buyers. Making Herron and Blish go through that process in their home states after the Texas gun store ships their purchases there does not provide any obvious public safety benefit.
In practice, that requirement merely imposes time and monetary costs on law-abiding gun buyers. It also impedes interstate competition in handgun sales, to the advantage of in-state firearm dealers.
"The upshot of these restrictions," the FPC says, "is that a peaceable American who is not disqualified from owning firearms is nevertheless proscribed from purchasing a handgun unless he is in the state where he resides and, when traveling within the country, can only purchase a handgun from a dealer in another state if he is able to arrange and pay for the out-of-state retailer to ship the handgun to a licensed in-state retailer that can, finally, complete the sale. But this effectively gives in-state dealers a veto on the ability of residents of their state to take their business to another state and buy firearms from competitors elsewhere. Unsurprisingly, this manifests functionally as both a logistical and a monetary tax on the right to keep and bear arms, as not all retailers will agree to perform interstate transfer services, and those that do typically charge a significant fee for the privilege."
In seeking dismissal of this lawsuit, the FPC notes, the government "repeatedly stresses" its view that these rules amount to "only a minor limitation" on the right to arms. But "the Supreme Court has foreclosed exactly that type of argument," the FPC says in its opposing brief. "Only history can excuse the Government's regulation of the right to acquire handguns from licensed dealers, and history does no such thing."
The government says the ban on interstate handgun sales is consistent with "a historical tradition from England, the colonies, and the Founding of government regulation, including commercial regulation, to ensure only law-abiding citizens obtained and possessed firearms" and "to keep potentially dangerous individuals from obtaining them." But as the FPC notes, most of the government's historical examples are far afield from the restriction at issue here.
Perhaps the closest analog cited by the government is a 1776 Maryland law that it says "bann[ed] the export of all firearms unless the owner was permanently relocating outside the jurisdiction." But that law, the FPC says, was "a wartime measure that on its face evinces its concern with ensuring that there were enough firearms in Maryland to carry out the Revolutionary War." That motivation is quite different from the goal that the government says is served by prohibiting interstate handgun sales.
The government also cites four examples of restrictions on intercolonial transfers of firearms. In each case, the FPC questions the law's relevance and/or the government's characterization of it. The FPC also notes that the laws span a period from 1642 to 1677. "None were enacted within 100 years of the Second Amendment's ratification," it says, "and every one of them predates even the English Bill of Rights' more limited guarantee of the right to keep and bear arms." That "timing problem," the FPC argues, would make these laws unreliable as evidence of what the Second Amendment allows even if the government's description of them were completely accurate.
"Far from showing that the American people have historically accepted limitations on the right to purchase firearms across state lines as a means to advance the goal of keeping prohibited persons from acquiring firearms," the FPC concludes, "the Government's evidence demonstrates that to the extent any such laws existed at the Founding, they were much more limited wartime measures passed during the exigencies of the Revolutionary War and that even going back to the early colonial period, before there was a national union, there were few, if any, restrictions that resembled the Ban. The Government has therefore failed to carry its historical burden, and the Ban must be held unconstitutional."