Amicus Curiae Brief — Fredric Russell Mance, Jr., et al., Petitioners v. William P. Barr, Attorney General, et al.

No. 18-663

IN THE

___________

FREDRIC RUSSELL MANCE, JR.; TRACEY AMBEAU HANSON; ANDREW HANDSON; AND

CITIZENS COMMITTEE FOR THE RIGHT TO

KEEP AND BEAR ARMS,

PETITIONERS,

V.

MATTHEW G. WHITAKER,

ACTING U.S. ATTORNEY GENERAL, ET. AL,

RESPONDENTS.

___________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________

BRIEF FOR THE CATO INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

__________

Ilya Shapiro

Counsel of Record

Trevor Burrus

Matthew Larosiere

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

December 21, 2018

ishapiro@cato.org

i

QUESTION PRESENTED

Does prohibiting interstate handgun sales to consumers whose home jurisdictions authorize such

transactions, violate the Second Amendment and the

equal protection component of the Fifth Amendment’s

Due Process Clause?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 1

ARGUMENT ................................................................ 2

I.

INTERSTATE ARMS TRADING WAS OF

PARAMOUNT IMPORTANCE TO THE

FOUNDERS .......................................................... 3

II. THE LAW AT ISSUE HAS PUT THE

NATIONAL FIREARMS MARKET INTO AN

IRRATIONAL STATE .......................................... 4

III. THE LAW AT ISSUE EXCLUSIVELY

REGULATES THE ARMS MOST VITAL TO

AMERICAN LIVES .............................................. 6

A. Limiting Consumer Choice in Handguns

Harms Americans. ........................................... 7

B. The Law Creates a Discriminatory Waiting

Period for Handgun Purchases ....................... 8

IV. THIS CASE PRESENTS AN EXCELLENT

VEHICLE TO CLARIFY THE SCOPE AND

STRINGENCY OF THE SECOND

AMENDMENT .................................................... 10

CONCLUSION .......................................................... 12

iii

TABLE OF AUTHORITIES

Page(s)

Cases

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................. 6, 8

Granholm v. Heald, 544 U.S. 460 (2005) .................... 9

Hughes v. Oklahoma, 441 U.S. 322 (1979) ................ 9

Kev, Inc. v. Kitsap County,

793 F. 2d 1053 (9th Cir. 1986) ................................. 9

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) ........... 11

Konigsberg v. State Bar of Cal.,

366 U.S. 36 (1961) .................................................... 2

Mance v. Sessions,

896 F.3d 390 (5th Cir. 2018) ............................ 1, 2, 8

McDonald v. Chicago, 561 U.S. 742 (2010) .............. 11

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) ...... 11

Peruta v. County of San Diego,

824 F. 3d 919 (9th Cir. 2016) ................................. 11

Planned Parenthood Arizona, Inc. v. Humble,

753 F. 3d 905 (9th Cir. 2014) ................................... 9

Shelby Cty v. Holder, 570 U.S. 529 (2013) .................. 9

Silvester v. Becerra, 138 S. Ct. 945 (2018) ............ 9, 10

Teixeira v. County of Alameda,

873 F.3d 670 (9th Cir. 2017) .................................. 10

Wardair Canada, Inc. v. Fla. Dep’t of Revenue,

477 U.S. 1 (1986) ...................................................... 9

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) .... 3

iv

Statutes

18 U.S.C. § 922(b)(3) ................................................ 5, 7

18 U.S.C. §922(a)(3) ..................................................... 5

27 C.F.R. § 478.24(a) ................................................... 6

27 C.F.R. § 478.96(c) .................................................... 5

27 C.F.R. § 478.99 ........................................................ 5

Other Authorities

1 American Archives, 4th ser.

(Peter Force ed., 1843) ............................................. 3

5 Acts of the Privy Council of England, Colonial

Series, A.D. 1766–1783 (2005) (James Munro &

Almeric Fitzroy eds., 1912) ...................................... 4

Drayton, John, Memoirs of the American

Revolution (1821) ..................................................... 4

Jeff Levant, “6 Steps in Choosing Your First

Handgun,” The Daily Caller,

https://bit.ly/2Bcvc7Z ............................................... 7

Pennsylvania Reporter, Apr. 24, 1775 ........................ 4

Robert Richmond, Powder Alarm 24 (1971) ............... 3

Sources of American Independence: Selected

Manuscripts from the Collections of the William L.

Clements Library (Howard Peckham ed., 1978) ..... 5

The Parliamentary History of England, from the

Earliest Period to The Year 1803

(T.C. Hansard: 1813) ................................................ 4

1

INTEREST OF THE AMICUS CURIAE1

The Cato Institute is a nonpartisan public-policy

research foundation dedicated to advancing the principles of individual liberty, free markets, and limited

government. Cato’s Robert A. Levy Center for Constitutional Studies was established to restore the principles of constitutional government that are the foundation of liberty. To those ends, Cato conducts conferences and publishes books, studies, and the annual

Cato Supreme Court Review.

This case interests Cato because it concerns the

fundamental individual right to keep and bear arms.

Its resolution could help curb longstanding abuses of

an important constitutional right.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Closely divided and over strong dissent, the Fifth

Circuit denied en banc rehearing of this case, which

“involves a question of exceptional importance—the

proper scope of the Second Amendment.” Mance v. Sessions, 896 F.3d 390, 399 (5th Cir. 2018) (Ho, J., dissental). Yet federal law criminalizes all interstate

handgun sales, preventing or burdening the ability of

many Americans to obtain handguns—the most common type of arm used for self-defense. The government

claims that allowing such sales would violate state

firearm laws. This interest is not illegitimate, but

when the solution so heavily burdens the ability to buy

a handgun—a purchase essential for many Americans

1 Rule 37 statement: All parties received timely notice of in-

tent to file this brief and have consented. No counsel for any party

authored any part of this brief and no person or entity other than

amicus funded its preparation or submission.

2

to have an effective means of self-defense—it cannot

justify a complete ban in all cases involving all states.

The law has put the national firearms market into

an irrational state, where dealers are trusted to make

transfers and follow the law of multiple states in transactions involving rifles and shotguns, but categorically

forbidden from doing the same with the most common

arms in the country. It regulates commerce in arms as

if the Founders hadn’t literally been driven to war by

arms-trade embargoes, and exclusively limits the

arms which Americans—and this Court—have indicated are the most crucial for their defense.

In an area of the law where the lower courts diverge

substantially on an important civil right, this Court

needs to step in and help set the course. Konigsberg v.

State Bar of Cal., 366 U.S. 36, 49–50 n.10 (1961) (comparing “the commands of the First Amendment” to

“the equally unqualified command of the Second

Amendment”). This case is an ideal vessel in which to

do so, as its resolution would not disturb the nation’s

diverse tapestry of gun laws, but instead help equip

the lower courts with the tools needed to properly map

the metes and bounds of the Second Amendment.

ARGUMENT

I. INTERSTATE ARMS TRADING WAS OF

PARAMOUNT IMPORTANCE TO THE

FOUNDERS

The Fifth Circuit panel seemed to be of the opinion

that Americans should feel lucky that Congress didn’t

ban all interstate firearm sales. Mance v. Sessions, 896

F.3d 699, 708 (5th Cir. 2018) (analogizing to the First

Amendment to find that “the plaintiff’s reliance on the

3

disparate treatment federal law accords handguns and

long guns does not carry the day. . . . [The Supreme

Court has] upheld laws—even under strict scrutiny—

that conceivably could have restricted even greater

amounts of speech in service of their stated interests.’”) (quoting Williams-Yulee v. Fla. Bar, 135 S. Ct.

1656, 1663 (2015)). That is a fine general sentiment—

that Congress need not invade as much of a right as it

can, lest it be forced to restrict “all or nothing at all”—

but it doesn’t address the argument that the justification for restricting part of a right (interstate sale of

handguns) is belied when the asserted harm (violation

of state gun laws) doesn’t occur in the context of the

right left alone (interstate sale of long guns). All the

more so when a historically grounded right is at issue.

Specifically, restricting interstate handgun sales

contravenes the Founding-era understanding that the

Second Amendment protects the right to sell arms in

common use for self-defense. The 1774 English order

to seize gunpowder in Charleston nearly sparked war.

Colonists “began to collect in large bodies, with their

arms, provisions, and ammunition, determining by

some means to give check to a power which so openly

threatened their destruction, and in such a clandestine

manner rob them of the means of their defence.” Unsigned report, Sept. 5, 1774, in 1 Am. Archives, 4th

ser., at 762 (Peter Force ed., 1843). Where “the powder

seizure proved beyond doubt that the colonists were

prepared to fight,” the idea that a total ban on arms

sales would be constitutionally permissible seems foreign. Robert Richmond, Powder Alarm 24 (1971).

Indeed, the arms trade itself was manifestly dear

to the Founders. On October 19, 1774, King George

prohibited the importation of arms and ammunition

4

into America. 5 Acts of the Privy Council of England,

Colonial Series, A.D. 1766–1783, at 401 (2005) (James

Munro & Almeric Fitzroy eds., 1912). These import restrictions sparked Americans to reclaim previously

confiscated arms by force. Gov. Wentworth, letter to

Gov. Gage, Dec. 14, 1774, in 18 The Parliamentary

History of England, from the Earliest Period to The

Year 1803, at 145 (T.C. Hansard: 1813). The restrictions were then summarily ignored, with Benjamin Franklin working in secret to import arms from

the Spanish, French, and Dutch. Pennsylvania Reporter, Apr. 24, 1775, at 2, col. 1 (report from London,

Feb. 16, 1775 (three ships recently sailed from Holland, and three more from France “with arms and ammunition and other implements of war, for our colonies

in America, and more preparing for the same place.”))

Following this drama, South Carolina’s legislature

declared that “by the late prohibition of exporting

arms and ammunition from England, it too clearly appears a design of disarming the people of America, in

order the more speedily to dragoon and enslave them.”

1 John Drayton, Memoirs of the American Revolution

166 (1821). The British plan to ban commerce in arms

completely was no secret, as it was published in their

plan to prevent future rebellions (if they won the Revolutionary War):

The Militia Laws should be repealed and none

suffered to be re-enacted, [and] the Arms of all

the People should be taken away ... nor should

any Foundery or manufactuary of Arms, Gunpowder, or Warlike Stores, be ever suffered in

America, nor should any Gunpowder, Lead,

Arms or Ordnance be imported into it without

Licence.

5

William Knox, Considerations on the Great Question,

What Is Fit to be Done with America, Memorandum to

the Earl of Shelburne, in 1 Sources of American Independence: Selected Manuscripts from the Collections

of the William L. Clements Library 140 (Howard Peckham ed., 1978).

American colonists took up arms, sacrificed their

homes, their lives, and their relationship with their

mother country in no small part because of restrictions

in the commerce of arms. Severe restrictions on the interstate traffic of the most common arms in use would

strike the founding generation as eerily similar to the

policies of King George III.

II. THE LAW AT ISSUE HAS PUT THE

NATIONAL FIREARMS MARKET INTO AN

IRRATIONAL STATE

As it stands, federal law prohibits individuals from

receiving firearms “purchased or otherwise obtained”

out-of-state. 18 U.S.C. §922(a)(3). The law prohibits

holders of a Federal Firearms License (FFLs) from

transferring any firearms to non-residents but carves

out an exception for interstate sales of long guns (rifles

and shotguns), so long as the transactions are accomplished in person and comply with the laws of the

dealer’s and the buyer’s respective states. 18 U.S.C. §

922(b)(3); 27 C.F.R. §§ 478.96(c), 478.99.

In interstate transactions involving long guns,

however, the law presumes that the involved FFLs

have “actual knowledge of the State laws and published ordinances of both States.” 27 C.F.R §

478.96(c)(2). To assist FFLs in following these laws,

the ATF Director “shall annually revise and furnish

[FFLs]…with a compilation of [relevant] state laws

6

and published ordinances.” 27 C.F.R. § 478.24(a).

These books—which are now of dubious utility in an

era where the average person has virtually instant access to the entire body of the nation’s laws through her

phone—were thought to be enough to allow FFLs to

remain compliant in interstate firearm sales, but

somehow not for handguns.

As a result, if an individual cannot find a handgun

that suits his needs in his home jurisdiction—or happens to find a handgun he wants to buy while out-ofstate—he must either live without it or be prepared to

jump through expensive hurdles. First, the out-ofstate FFL must be willing to work with him, which is

often not the case. Then the individual must find an

FFL in his home jurisdiction who will accept the transfer. He must then pay the out-of-state FFL to ship the

handgun to the in-state FFL and then pay the in-state

FFL a transfer fee. The in-state FFL will then perform

the same background check and release the firearm

through the same procedures the out-of-state FFL

would have performed had the purchase been of a boltaction hunting rifle or a .22 caliber “squirrel gun” rifle.

III. THE LAW AT ISSUE EXCLUSIVELY

REGULATES THE ARMS MOST VITAL TO

AMERICAN LIVES

By focusing on handguns, the transfer ban targets

“an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose [of

self-defense,” which is “central to the Second Amendment right.” D.C. v. Heller, 554 U.S. 570, 628 (2008).

So important are handguns for self-defense that “the

American people have considered the handgun to be

the quintessential self-defense weapon.” Id.

7

The code sections at issue here provide that holders

of a Federal Firearms License may only transfer rifles

and shotguns to interstate customers. 18 U.S.C. §

922(b)(3). Handguns, those arms deemed so vital to

self-defense, though, must be purchased through an

in-state intermediary, regardless of what state law has

to say on the matter.

A. Limiting Consumer Choice in Handguns

Harms Americans

Just in terms of new guns, there are hundreds of

models of handgun available for sale in the United

States. Additionally, there are thousands of firearm

models in used and surplus markets. The interstate

handgun sale ban necessarily limits consumer choice

by penalizing consumers who might look outside their

jurisdiction. With handguns, which Americans use for

self-defense, consumer choice is most important. Selecting a firearm for self-defense is an important choice

in which Americans should not be so limited.

Not only are there myriad handgun models to

choose from, but different chamberings, configurations, and sizes. Handguns, particularly, are so nuanced and varied that the process of selecting one has

inspired the writing of numerous lengthy articles and

guides. See, e.g., Jeff Levant, “6 Steps in Choosing

Your

First

Handgun,”

The

Daily

Caller,

https://bit.ly/2Bcvc7Z. The mass and diversity of firearms available means there is no way a single jurisdiction could provide a complete selection—especially

where some firearms, such as those designed for people with disabilities, are understandably rare.

By requiring out-of-state dealers to ship customers’

desired firearms to dealers in their home jurisdictions,

8

who will then charge arbitrary—and sometimes prohibitive—prices to transfer them to the end users, the

federal government punishes Americans for selecting

the guns best suited to their needs if those guns happen not to be available in their home states. This dynamic is difficult to square this with Heller’s discussion of handguns. Heller, 554 U.S. at 629

While consumers can contact an out-of-state dealer

to ship the firearm in-state, the added cost, time, and

complexity in doing so places a discriminatory burden

on residents of jurisdictions like D.C., where licensed

dealers are limited. Mance, 896 F.3d 701–02.

B. The Law Creates a Discriminatory

Waiting Period for Handgun Purchases

One effect of the interstate handgun transfer ban

is clear: it functions as a mandatory waiting period on

handgun transfers for all D.C. residents and for anyone else who wishes to legally procure a handgun in

interstate commerce. Anyone who wants to buy a

handgun from outside their home jurisdiction must

tolerate what seems to be an arbitrary—and costly—

inhibition in having the firearm transferred from one

FFL to another, solely on the concern that out-of-state

FFLs might not be competent in the laws they are

nonetheless obligated to follow.

There are two primary problems with this. First,

whether a jurisdiction has an additional waiting period on firearm sales should be a question for the state

legislature, not a function of which businesses choose

to operate there. This is especially true where courts

have already recognized that waiting periods related

to exercises of constitutional rights must be justified

by a compelling government interest. See, e.g.,

9

Planned Parenthood Arizona, Inc. v. Humble, 753 F.

3d 905, 917 (9th Cir. 2014) (invalidating an Arizona

abortion law partially because “many women will be

delayed in” seeking an abortion); Kev, Inc. v. Kitsap

County, 793 F. 2d 1053, 1060 (9th Cir. 1986) (invalidating a 5-day waiting period for a nude-dancing license because it “unreasonably prevents a dancer from

exercising first amendment rights while an application [was] pending” and the county “failed to demonstrate a need for [the] five-day delay period.”); see, also,

Silvester v. Becerra, 138 S. Ct. 945, 951–52 (2018)

(Thomas, J., dissental) (comparing 10-day handgun

waiting period to “10-day waiting period for abortions,”

“10-day waiting period on the publication of racist

speech,” or “even a 10-minute delay of a traffic stop”).

Second, the law’s interstate discrimination is suspect, even absent its Second Amendment implications:

[A] central concern of the Framers that was an

immediate reason for calling the Constitutional

Convention: the conviction that in order to succeed, the new Union would have to avoid the

tendencies toward economic Balkanization that

had plagued relations among the Colonies and

later among the States under the Articles of

Confederation.

Granholm v. Heald, 544 U.S. 460, 472 (2005) (quoting

Hughes v. Oklahoma, 441 U.S. 322, 325–26 (1979)).

See also Wardair Canada, Inc. v. Fla. Dep’t of Revenue,

477 U.S. 1 (1986).

Our Constitution looks down on playing favorites

between residents of different states. See, e.g., Shelby

Cty v. Holder, 570 U.S. 529, 544 (2013). Yet that is the

very effect the transfer ban has had on the District of

10

Columbia and the national handgun market. That is

not to say Congress lacks the power to regulate the interstate trade in arms; it most certainly does. But

arms regulations that subject certain Americans,

based on their residences, to cumbersome restrictions

on a constitutional right must be justified by compelling reasons that the government has failed to offer.

IV. THIS CASE PRESENTS AN EXCELLENT

VEHICLE TO CLARIFY THE SCOPE AND

STRINGENCY OF THE SECOND AMENDMENT

It is no secret that this Court has been gun-shy as

of late. See, e.g., Silvester v. Becerra, 138 S. Ct. 945 (denial of certiorari on challenge to 10-day waiting period

for subsequent gun purchases); Teixeira v. County of

Alameda, 873 F.3d 670, 681 (9th Cir. 2017) (en banc)

(rejecting a gun seller’s argument for his right to sell

arms), cert. denied, 138 S. Ct. 1988 (2018). While letting lower courts wrestle with arms-related questions

made sense in 2008, a decade later it is clear that the

only thing to emerge from the lowers courts in this context has been further confusion. Silvester, 138 S. Ct. at

951 (“Our continued refusal to hear Second Amendment cases only enables . . . defiance. We have not

heard argument in a Second Amendment case for

nearly eight years. And we have not clarified the

standard for assessing Second Amendment claims for

almost 10.”) (Thomas, J., dissental) (cleaned up).

The issue presented here is narrow—a federal ban

on interstate handgun purchases—and thus its resolution would not disturb the nation’s diverse and expansive tapestry of firearm laws. The strictness or laxity

of any given state’s firearm regulations would not be

11

affected one whit. This case thus presents an opportunity for this Court to assist the circuit courts in deciding an increasing number of Second Amendmentbased challenges to state and federal gun laws.

And of course, as this Court knows well, the circuit

courts have applied wildly divergent analyses to laws

that impinge on a right this Court has affirmed to be

fundamental. McDonald v. Chicago, 561 U.S. 742,

767–70 (2010). The right is clearly important, but the

circuit courts have been unable to harmonize fundamental threshold issues—such as whether the Second

Amendment even applies in some situations—and

thus have come to different conclusions in similar

cases that purport to apply the same level of scrutiny.

Compare Peruta v. County of San Diego, 824 F. 3d 919,

939 (9th Cir. 2016) (“[T]he right to keep and bear arms

does not include, in any degree, the right…to carry

concealed firearms in public.”) with Moore v. Madigan,

702 F.3d 933, 936 (7th Cir. 2012) (“[O]ne doesn’t have

to be a historian to realize that a right to keep and bear

arms for personal self-defense . . . could not rationally

have been limited to the home.”); see also Kolbe v. Hogan, 849 F.3d 114, 155 (4th Cir. 2017) (Traxler, J., dissenting) (chiding the majority’s failure to apply the

Second Amendment to a ban on certain types of rifles).

This case presents an excellent vehicle for the

Court’s intervention: it is procedurally sound and does

not turn on either particular factual findings or the

misapplication of a properly stated rule of law. Unlike

the state of the legal landscape before Heller, there is

no need to vindicate a previously unexplored right. Instead, its resolution depends only on the clarification

of the proper analysis to be applied to the clearly established Second Amendment right to bear arms.

12

CONCLUSION

For the reasons above, this Court should grant the

petition for a writ of certiorari. This Court should give

federal courts needed guidance in an important, yet

barren, area of the law.

Respectfully submitted,

Ilya Shapiro

Counsel of Record

Trevor Burrus

Matthew Larosiere

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

December 21, 2018