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

NO. 18-663

In the Supreme Court of the United States

FREDRIC RUSSELL MANCE, JR.;

TRACEY AMBEAU HANSON; ANDREW HANSON;

AND CITIZENS COMMITTEE FOR THE RIGHT

TO KEEP AND BEAR ARMS,

Petitioners,

–v–

MATTHEW G. WHITAKER,

ACTING U.S. ATTORNEY GENERAL; AND

THOMAS E. BRANDON, DEPUTY DIRECTOR,

HEAD OF THE BUREAU OF ALCOHOL, TOBACCO,

FIREARMS, AND EXPLOSIVES,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE AND BRIEF

OF AMICUS CURIAE THE NATIONAL SHOOTING SPORTS

FOUNDATION, INC. IN SUPPORT OF PETITIONERS

MICHAEL L. RICE

LAWRENCE G. KEANE

HARRISON LAW LLC

THE NATIONAL SHOOTING

SPORTS FOUNDATION, INC.

COUNSEL OF RECORD

1 N. LASALLE STREET

SUITE 2001

CHICAGO, IL 60602

(312) 638-8776

MIKERICE@HLAWLLC.COM

OF COUNSEL

FLINTLOCK RIDGE OFFICE CENTER

11 MILE HILL ROAD

NEWTOWN, CT 06470

(203) 426-1320

COUNSEL FOR AMICUS CURIAE

DECEMBER 21, 2018

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

Motion-i

MOTION FOR LEAVE TO FILE BRIEF

OF AMICUS CURIAE THE NATIONAL

SHOOTING SPORTS FOUNDATION, INC.

IN SUPPORT OF PETITIONERS

This case involves the prohibition on the sale of

handguns by law-abiding and licensed retailers to

law-abiding citizens who do not reside in the same

state as the licensed retailer. The Court should grant

the petition to address whether 18 U.S.C. §§ 922(a)(3),

(a)(5) and (b)(3), and 27 C.F.R. § 478.99(a) (together, the

“interstate handgun sales ban”) impermissibly burden

the Second Amendment rights of law-abiding citizens.

As the trade association for the firearms, ammunition,

hunting, and shooting sports industry, Amicus The

National Shooting Sports Foundation, Inc. (“NSSF”)

is deeply concerned with this case. As explained in

the attached brief, the full realization of the fundamental right embodied in the Second Amendment to keep

and bear arms, including handguns, requires the recognition of a protected right for law-abiding citizens to

acquire such handguns. Since this Court’s decisions in

District of Columbia v. Heller, 554 U.S. 570 (2008),

and McDonald v. City of Chicago, 561 U.S. 742, 778

(2010), however, the lower courts have failed to give

Second Amendment rights full standing within the

Constitution. That relegation of the Second Amendment

to the “second class” status it was afforded prior to

Heller continued in the decision below, where the Fifth

Circuit stretched to justify the burden imposed on lawabiding citizens by the interstate handgun sales ban.

Amicus’s participation will aid the Court by addressing more broadly the existing regulatory framework

that demonstrates why the interstate handgun sales

Motion-ii

ban is not narrowly tailored to the professed government compelling interest.

Through counsel, Amicus notified the Office of

the Solicitor General by emailed letter on December

10, 2018, of its request for consent to submit this

amicus brief. Petitioners separately provided their

consent to the filing of this brief by email the same day.

Respondents have not responded to Amicus counsel’s

letter, either to consent or object. Therefore, pursuant

to Supreme Court Rule 37.2(b), Amicus respectfully

moves the Court for leave to file the attached amicus

brief in support of Petitioners.

NSSF is a Connecticut non-profit tax-exempt corporation with several thousand member-firearms

manufacturers, distributors, and retailers; sportsmen’s

organizations; shooting ranges; gun clubs, and publishers. With a mission to promote, protect and preserve hunting and shooting sports, NSSF provides

trusted leadership in addressing industry challenges;

advances participation in and understanding of hunting

and the shooting sports; reaffirms and strengthens

its members’ commitment to the safe and responsible

use of their products; and promotes a political environment that is supportive of America’s traditional hunting

and shooting sports heritage and firearms freedoms.

As the guardian of the industry that supports our

nation’s rich hunting and shooting traditions, NSSF

believes that lawful commerce in firearms and

firearms-related products is and must be protected—

and that, in particular, no law or regulation should

unreasonably limit the lawful transfer of firearms to

law-abiding adults who have a constitutional right

guaranteed by the Second Amendment to the United

Motion-iii

States Constitution to purchase, own, possess and use

such firearms. NSSF has regularly advocated in federal and state courts with respect to issues that

affect its membership.

Amicus is well-suited to address the importance

of commerce related to arms to the exercise of the

Second Amendment right and the regulatory framework within which licensed retailers and manufacturers operate, including the changes in the law and

regulatory system implemented by the Gun Control Act

of 1968, Pub. L. No. 90-618, 82 Stat. 1213, as well as

changes since, particularly the National Instant Criminal Background Check System put in place as part of

the Brady Handgun Violence Prevention Act, Pub. L.

No. 103-159, 107 Stat. 1536 (1993). Amicus is also able

to address the unsupported assumption by the government that a licensed retailer can sell long guns

consistent with the laws of its own state and the laws

of the buyer’s home state, but cannot do the same

with respect to handguns. Amicus therefore respectfully requests leave to file the attached amicus brief

urging this Court to grant the petition.

Motion-iv

Respectfully submitted,

MICHAEL L. RICE

COUNSEL OF RECORD

HARRISON LAW LLC

1 N. LASALLE STREET

SUITE 2001

CHICAGO, IL 60602

(312) 638-8776

MIKERICE@HLAWLLC.COM

LAWRENCE G. KEANE

THE NATIONAL SHOOTING

SPORTS FOUNDATION, INC.

FLINTLOCK RIDGE OFFICE CENTER

11 MILE HILL ROAD

NEWTOWN, CT 06470

(203) 426-1320

COUNSEL FOR AMICUS CURIAE

DECEMBER 21, 2018

i

TABLE OF CONTENTS

Page

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

BRIEF FOR AMICUS CURIAE THE NATIONAL

SHOOTING SPORTS FOUNDATION, INC. IN

SUPPORT OF PETITIONERS................................... 1

STATEMENT OF INTEREST OF AMICUS

CURIAE ...................................................................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I.

THE SECOND AMENDMENT GUARANTEE OF

THE RIGHT OF LAW-ABIDING CITIZENS TO KEEP

AND BEAR HANDGUNS FOR SELF-DEFENSE

MUST INCORPORATE THE RIGHT OF QUALIFIED

PURCHASERS TO ACQUIRE THOSE HANDGUNS ... 6

II. THE INTERSTATE HANDGUN SALES BAN IS

AN UNCONSTITUTIONAL INTERFERENCE WITH

THE RIGHTS GUARANTEED BY THE SECOND

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

A. Speculation That Interstate Handgun

Sales Undermine Enforcement of State

Firearms Laws Does Not Justify the

Ban ............................................................ 14

1. Criminals and Juveniles Crossing

State Lines ........................................... 15

2. Licensed Retailers’ Assumed Inability to Comply with Other States’

Law ......................................................... 20

ii

TABLE OF CONTENTS – Continued

Page

B. Law Abiding Citizens Cannot Be Barred

from Exercising Their Constitutional

Rights in Forty-Nine States ..................... 22

CONCLUSION.......................................................... 25

iii

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

Page

CASES

Carey v. Population Servs. Int’l,

431 U.S. 678 (1977) ........................................ 9, 19

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................... passim

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ............... 7, 8, 13, 23

Griswold v. Connecticut,

381 U.S. 479 (1965) .............................................. 9

IAFR v. City of Chicago,

961 F. Supp. 2d 928 (N.D. Ill. 2014) ......... 7, 9, 23

Jackson v. City & Cnty. of San Francisco,

746 F.3d 953 (9th Cir. 2014) ............................... 8

Lewis v. United States,

445 U.S. 55 (1980) ............................................. 12

Mance v. Holder,

74 F. Supp. 3d 795 (N.D. Tex. 2015) ............. 7, 19

McDonald v. City of Chicago,

561 U.S. 742 (2010) ..................................... passim

Nat’l Inst. of Family & Life Advocates v.

Becerra, 138 S.Ct. 2361,

201 L.Ed.2d 835 (2018)....................................... 11

Peruta v. Cal.,

137 S.Ct. 1995, 198 L.Ed.2d 746 (2017) ..... 10, 11

Reed v. Town of Gilbert,

576 U.S. ___, 135 S.Ct. 2218,

192 L.Ed.2d 236 (2015) ..................................... 11

iv

TABLE OF AUTHORITIES—Continued

Page

Reliable Consultants, Inc. v. Earle,

517 F.3d 738 (5th Cir. 2008) ............................. 10

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781, 108 S.Ct. 2667,

101 L.Ed.2d 669 (1988) ..................................... 12

Schad v. Borough of Mt. Ephraim,

452 U.S. 61 (1981) .............................................. 23

Shelby Cty. v. Holder,

570 U.S. 529 (2013) ............................................ 15

Springfield Armory, Inc. v. City of Columbus,

29 F.3d 250 (6th Cir. 1994) ............................... 21

United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010) ................................... 8

United States v. Miller,

307 U.S. 174 (1939) ........................................... 12

Wash. v. Glucksberg,

521 U.S. 702 (1997) ............................................ 19

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... 12, 23

U.S. Const. amend. II ......................................... passim

U.S. Const. amend. V............................................ 5, 24

U.S. Const. amend. XIV ............................................... 6

v

TABLE OF AUTHORITIES—Continued

Page

STATUTES

18 U.S.C. § 922(a)(3) ............................................. i, 4, 5

18 U.S.C. § 922(a)(5) .............................................. i, 4, 5

18 U.S.C. § 922(b)(3) ........................................ i, 4, 5, 20

18 U.S.C. § 922(d) ..................................................... 16

18 U.S.C. § 922(g) ..................................................... 16

18 U.S.C. § 922(s) ...................................................... 16

18 U.S.C. § 922(t) ................................................ 16, 17

18 U.S.C. § 923(g)(4) ................................................. 17

18 U.S.C. § 923(g)(7) ................................................. 18

Brady Handgun Violence Prevention Act,

(1993) Pub. L. No. 103-159,

107 Stat. 1536 ......................................... iii, 15, 16

Gun Control Act of 1968,

Pub. L. No. 90-618, 82 Stat. 1213 .... iii, 12, 14, 15

Omnibus Crime Control and Safe Streets Act

of 1968, Pub. L. No. 90-351, 82 Stat. 197 ... 12, 14

JUDICIAL RULES

Sup. Ct. R. 37.2(b) ....................................................... ii

Sup. Ct. R. 37.6 ........................................................... 1

vi

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS

27 C.F.R. § 478.22 ...................................................... 18

27 C.F.R. § 478.25a ................................................... 18

27 C.F.R. § 478.57 ..................................................... 17

27 C.F.R. § 478.99(a) ............................................. i, 4, 5

27 C.F.R. § 478.121 ................................................... 18

27 C.F.R. § 478.124 ................................................... 16

27 C.F.R. § 478.125 ................................................... 18

27 C.F.R. § 478.127 ................................................... 17

27 C.F.R. § 478.129(b)............................................... 17

OTHER AUTHORITIES

Allen Rostron,

Justice Breyer’s Triumph in the Third

Battle over the Second Amendment,

80 Geo. Wash. L. Rev. 703 (2012) ...................... 13

1

BRIEF FOR AMICUS CURIAE THE

NATIONAL SHOOTING SPORTS FOUNDATION,

INC. IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST OF

AMICUS CURIAE1

Amicus curiae, the National Shooting Sports Foun-

dation, Inc. (“NSSF”), is the trade association for the

firearms, ammunition, hunting, and shooting sports

industry. Formed in 1961, NSSF is a Connecticut

non-profit tax-exempt corporation with several thousand member-firearms manufacturers, distributors, and

retailers; sportsmen’s organizations; shooting ranges;

gun clubs, and publishers. NSSF’s mission is to

promote, protect and preserve hunting and shooting

sports. NSSF provides trusted leadership in addressing

industry challenges; advances participation in and

understanding of hunting and the shooting sports;

reaffirms and strengthens its members’ commitment to

the safe and responsible use of their products; and

promotes a political environment that is supportive of

America’s traditional hunting and shooting sports

heritage and firearms freedoms. As the guardian of

the industry that supports our nation’s rich hunting

and shooting traditions, NSSF believes that lawful

commerce in firearms and firearms-related products is

and must be protected—and that, in particular, no

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a

party wrote this brief in whole or in part, and no party, party’s

counsel or any person other than amicus made a monetary

contribution intended to fund the brief’s preparation or submission.

2

law or regulation should unreasonably limit the lawful

transfer of firearms to law-abiding adults who have a

constitutional right guaranteed by the Second Amendment to the United States Constitution to purchase,

own, possess and use such firearms.

NSSF’s interest in this action derives principally

from the fact that its firearms manufacturer, distributor, and retailer members provide for the lawful

commerce in firearms that makes the exercise of Second

Amendment rights possible, and include the Federal

Firearms Licensees (“FFLs” or “licensed retailers”) who

are currently prohibited by the challenged statutes and

regulations from selling handguns directly to qualified

citizens who reside outside the states where the

licensed retailers are located. Petitioners have ably

demonstrated in the Petition for Certiorari that consideration by this Court is warranted to resolve the

widespread confusion among the lower courts regarding the framework for analyzing Second Amendment

challenges and to reaffirm the message from the Court’s

precedent that has apparently been lost—that the rights

guaranteed by the Second Amendment are fundamental

and deserving of as much protection as any other constitutional rights routinely upheld by the lower courts.

NSSF submits this brief to emphasize the important shift to today’s understanding of the protections

guaranteed by the Second Amendment and how those

guarantees must extend to the lawful sale of protected

firearms. NSSF also seeks to expand upon the discussion of today’s FFL system and instant background

check, which address the concerns raised in 1968

about interstate handgun sales much more directly

without stepping on the constitutional rights of law-

3

abiding, qualified handgun buyers and the licensed

retailers who seek to sell handguns to them. Against

this backdrop, NSSF believes that Petitioners have

demonstrated that this case is an excellent vehicle

for the Court to address the confusion among lower

courts as to the proper analytical framework for reviewing regulations that burden the fundamental rights

guaranteed by the Second Amendment.

SUMMARY OF ARGUMENT

Until this Court’s decision in District of Columbia

v. Heller, 554 U.S. 570 (2008), Congress and the lower

courts in this country approached the Second Amendment’s right to keep and bear arms not as an individual right worthy of full constitutional protection, but

as a privilege to be dispensed by the government

under constraints designed to discourage rather than

enhance the exercise of those rights. In Heller, the

Court held that a ban on handguns could not be

squared with the constitutional protection accorded

an individual’s right to own, possess and use firearms,

including handguns, for self-defense. The Court later

characterized the right to keep and bear arms as

“among those fundamental rights necessary to our

system of ordered liberty.” McDonald v. City of Chicago,

561 U.S. 742, 778 (2010). Because the average citizen

cannot manufacture firearms, the full realization of

the rights guaranteed by the Second Amendment must

necessarily carry with it access to a market in which

a qualified purchaser can acquire such arms, including handguns.

4

In this case, a licensed and law-abiding firearms

retailer in Texas was precluded from selling handguns to law-abiding citizens resident in the District

of Columbia by 18 U.S.C. §§ 922(a)(3), (a)(5) and (b)

(3), and 27 C.F.R. § 478.99(a) (together, the “interstate

handgun sales ban”). While the Fifth Circuit purported to apply the strict standard of scrutiny, App.10a, it

nonetheless proceeded to abandon any real requirement

that the interstate handgun sales ban be “narrowly

tailored” to further the government’s compelling interest. Instead, the court indulged the government’s speculation regarding the assumed inability of FFLs to

comply with the laws of multiple states related to handguns even in the face of the irrefutable fact that the

federal regulatory scheme assumes those very same

FFLs can lawfully maneuver multiple state laws with

respect to the sale of long guns. App.15a-19a.

The court’s conclusions ultimately reflect the

reality that the lower courts have lost their way in

dealing with the Second Amendment, reverting to a preHeller approach that does not give Second Amendment

rights full effect, especially when it comes to handguns.

Instead, courts across the country continue to limit

the ability to exercise this particular constitutional

right based on the courts’ policy decisions regarding

what they view as an unwise constitutional right.

That simply cannot be how our government—defined

and structured by the Constitution—must function.

And it stands in stark contrast to how courts routinely

approach other individual rights protected by the

Constitution.

The interstate handgun sales ban unquestionably

encroaches on the core right to keep and bear arms,

5

because it limits the ability of law-abiding citizens to

obtain, and licensed retailers to sell, the very firearms

that are the subject of the constitutional protection,

restricting individuals’ exercise of this fundamental

constitutional right to the state where they live. This

restriction is not narrowly tailored, and none of the

purported justifications for the interstate handgun

sales ban meet the strict standard of scrutiny purportedly applied by the Fifth Circuit. The Court should

accept the Petition for Certiorari in order to reaffirm

the principle that has been lost since Heller and

McDonald—that the Second Amendment’s protection

for individuals to keep and bear arms is a fundamental right due full respect and protection by the courts

of this country.

ARGUMENT

The action below challenged the interstate handgun sales ban, encompassed within 18 U.S.C. §§ 922

(a)(3), (a)(5) and (b)(3), and 27 C.F.R. § 478.99(a), which

prohibits licensed retailers from selling and transferring handguns to legally qualified buyers simply

because they do not reside in the same state as where

the FFL does business. The interstate handgun sales

ban unreasonably infringes upon the Second Amendment rights of individuals who are otherwise qualified

to purchase handguns and violates their Fifth Amendment right to equal protection under the law.

6

I.

THE SECOND AMENDMENT GUARANTEE OF THE

RIGHT OF LAW-ABIDING CITIZENS TO KEEP AND BEAR

HANDGUNS FOR SELF-DEFENSE MUST INCORPORATE

THE RIGHT OF QUALIFIED PURCHASERS TO ACQUIRE

THOSE HANDGUNS

The Second Amendment to the United States

Constitution preserves “the right of the people to

keep and bear Arms” and declares that this right

“shall not be infringed.” U.S. Const. amend. II. In District of Columbia v. Heller, 554 U.S. 570 (2008), this

Court made abundantly clear that a ban on the

possession of handguns—an “entire class of ‘arms’

that is overwhelmingly chosen by American society

for [the] lawful purpose [of self-defense]”—runs afoul

of this constitutional provision. 554 U.S. at 628. And

in extending the Second Amendment’s protection from

governmental infringement to the states under the

Fourteenth Amendment, the Court found it “clear that

the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among

those fundamental rights necessary to our system of

ordered liberty.” McDonald v. City of Chicago, 561 U.S.

742, 778 (2010).

“Constitutional rights are enshrined with the scope

they were understood to have when the people adopted

them, whether or not future legislatures or (yes) even

future judges think that scope too broad.” Heller, 554

U.S. at 634-35. Thus, some restrictions on the scope

consistent with how the right to keep and bear arms

was understood when adopted may still be constitutional, such as “longstanding prohibitions on the possession

of firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places

7

such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27. While restrictions with founding-era counterparts could be “presumptively lawful,” id. at 627 n.26, no such laws or

regulations imposing interstate restrictions have

been identified here. Indeed, the earliest law referenced by Respondents was from 1909, and even that

20th Century law was not a restriction on interstate

purchases, but rather a provision of West Virginia law

requiring a state license to possess firearms. See Mance

v. Holder, 74 F. Supp. 3d 795, 805 & n.5 (N.D. Tex.

2015), rev’d and vacated sub nom. Mance v. Sessions,

880 F.3d 183 (5th Cir. 2018), withdrawn and superseded on denial of reh’g en banc, 896 F.3d 699 (5th

Cir. 2018), and rev’d and vacated sub nom. Mance v.

Sessions, 896 F.3d 699 (5th Cir. 2018). Based on this,

the Fifth Circuit assumed without deciding that the

interstate handgun sales ban was not comprised of

“longstanding regulatory measures” that might have

been presumptively valid under Heller. App.10a.

“Both Heller and McDonald suggest that broadly

prohibitory laws restricting the core Second Amendment right—like the handgun bans at issue in those

cases, which prohibited handgun possession even in

the home—are categorically unconstitutional.” Ezell

v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)

(“Ezell I ” ). Moreover, laws representing “‘serious

encroachments’ on ‘important corollar[ies] to the meaningful exercise of the core right to possess firearms

for self-defense’ are substantial burdens that deserve

more stringent scrutiny than intermediate scrutiny.”

Ill. Ass’n of Firearms Retailers v. City of Chicago,

961 F. Supp. 2d 928, 938 (N.D. Ill. 2014) (“IAFR ”)

8

(quoting Ezell I, 651 F.3d at 708). The Seventh Circuit

characterized this showing as “a strong form of intermediate scrutiny” requiring “a close fit” between the

restriction and the public interests it purportedly

serves, and that the public interests “are strong

enough to justify so substantial an encumbrance on

individual Second Amendment rights.” Ezell v. City

of Chicago, 846 F.3d 888, 893 (7th Cir. 2017) (quoting

Ezell I, 651 F.3d at 708-09).

Of particular importance to NSSF’s constituents—

in particular the licensed retailers across the country

whose business is the lawful commerce in firearms

and ammunition—is the basic principle that the constitutionally protected right to possess and use a

handgun is meaningless absent the right to purchase

or otherwise acquire a handgun. The Seventh Circuit

recognized a similar link with respect to range training,

holding that “[t]he right to possess firearms for protection implies a corresponding right to acquire and

maintain proficiency in their use; the core right

wouldn’t mean much without the training and practice

that make it effective.” Ezell I, 651 F.3d at 704; see

also Jackson v. City & Cnty. of San Francisco, 746

F.3d 953, 967 (9th Cir. 2014) (finding right to possess

firearms for protection includes right “to obtain the

bullets necessary to use them”); United States v. Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010) (recognizing

that a law “prohibiting the commercial sale of firearms” is “a result [that] would be untenable under

Heller”).

Consistent with the recognition of the inherent

link between the right to keep and bear arms and the

right to acquire those arms, a district court struck

9

down the City of Chicago’s municipal ordinance,

adopted following this Court’s decision in McDonald,

banning the sale of firearms within the city. IAFR,

961 F. Supp. 2d at 946. In so ruling, the court found

that the ban interfered with what the court characterized as “the most fundamental prerequisite of legal gun

ownership—that of simple acquisition.” Id. at 938

(emphasis in original).

There can be no serious argument that banning

the purchase of items whose possession and use is

constitutionally protected interferes with the exercise

of the constitutional right. For example, the Court

has recognized that “[r]estrictions on the distribution

of contraceptives clearly burden the freedom to make

[constitutionally protected decisions in matters of

childbearing].” Carey v. Population Servs. Int’l, 431

U.S. 678, 687 (1977). Thus, “[l]imiting the distribution

of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right

of the individuals to use contraceptives if they choose

to do so.” Id. at 689. This approach is consistent with

the Court’s prior ruling in Griswold v. Connecticut,

381 U.S. 479 (1965), where the Court recognized that

“specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees

that help give them life and substance.” Id. at 484.

“The right of freedom of speech and press includes not

only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . .”

Id. at 482. As the Court stated, “[w]ithout those peripheral rights the specific rights would be less secure.”

Id. at 482-83.

10

Based on these decisions, the Fifth Circuit has

likewise recognized that restrictions on commercial

transactions necessary for the exercise of constitutionally protected rights are burdens on the exercise

of those rights:

[W]e hold that the Texas law burdens this

constitutional right [to engage in private

intimate conduct of his or her choosing]. An

individual who wants to legally use a safe

sexual device during private intimate moments alone or with another is unable to

legally purchase a device in Texas, which

heavily burdens a constitutional right.

Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 744

(5th Cir. 2008). The court recognized that “restricting

commercial transactions” can—and in that case did—

impose unconstitutional burdens on the exercise of fundamental constitutional rights. Id.

Respect for the individual rights guaranteed by

the Second Amendment demands that the same

approach apply here, and that the commercial transactions in which NSSF’s members engage are entitled

to constitutional protection under the Second Amendment.

II.

THE INTERSTATE HANDGUN SALES BAN IS AN

UNCONSTITUTIONAL INTERFERENCE WITH THE

RIGHTS GUARANTEED BY THE SECOND AMENDMENT

While the Court of Appeals cloaked its discussion

in the cover of the strict scrutiny standard, its analysis reflects “a distressing trend: the treatment of the

Second Amendment as a disfavored right.” Peruta v.

Cal., 137 S.Ct. 1995, 1999, 198 L.Ed.2d 746 (2017)

11

(Thomas, J., dissenting from denial of certiorari).

Indeed, beyond just this case, the lower courts since

2010 have almost uniformly sought to relegate the

Second Amendment to a “second-class right, subject

to an entirely different body of rules than the other

Bill of Rights guarantees,” McDonald, 561 U.S. at 780,

despite this Court’s direction that the Second Amendment protects a fundamental right that may not be

“singled out for special—and specially unfavorable—

treatment,” id. at 778-79. See also Peruta, 137 S.Ct. at

1999 (Thomas, J., dissenting from denial of certiorari)

(“The Constitution does not rank certain rights above

others, and I do not think this Court should impose

such a hierarchy by selectively enforcing its preferred

rights.”).

The “strict scrutiny” approach used by the Fifth

Circuit with respect to the Second Amendment stands

in sharp contrast to how that standard is applied

when invoked with respect to other fundamental constitutional rights, such as the freedom of speech. For

example, earlier this year, the Court reviewed a content-based requirement in California for notice to be

given by licensed family planning facilities. The

Court noted that “[a]s a general matter, such laws

‘are presumptively unconstitutional and may be justified only if the government proves that they are

narrowly tailored to serve compelling state interests.’”

Nat’l Inst. of Family & Life Advocates v. Becerra, 138

S.Ct. 2361, 2371, 201 L.Ed.2d 835 (2018) (quoting

Reed v. Town of Gilbert, 576 U.S. ___, ___, 135 S.Ct.

2218, 2226, 192 L.Ed.2d 236 (2015)). In reviewing

whether the regulation at issue was justified by the

state’s interest in providing women information about

state-sponsored services, the Court concluded it could

12

not even pass intermediate scrutiny, in part because

it was “wildly underinclusive,” excluding a wide range

of clinics from the notice requirement. Id., 138 S.Ct.

at 2375-76. The Court also found that the state could

inform low-income women without burdening clinics

with unwanted speech. Id. at 2376. And in response

to the state’s argument that the other efforts had not

been effective, the Court stated “the First Amendment does not permit the State to sacrifice speech for

efficiency.” Id. (quoting Riley v. Nat’l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667,

101 L.Ed.2d 669 (1988)).

By contrast, the Fifth Circuit’s approach to analyzing the interstate handgun sales ban reflects a

result-oriented review that seeks to uphold the

restriction on Second Amendment rights absent a

strong showing that the burdens on the fundamental

right are excessive. That is not “strict scrutiny” and

does not afford the Second Amendment its due. Instead

the court’s approach reflects the era when the interstate handgun sales ban was adopted and the Second

Amendment was believed by many—incorrectly—

to pose no significant hurdle to prohibitions and

significant restrictions on law-abiding individuals

acquiring or keeping firearms, especially handguns.

See Omnibus Crime Control and Safe Streets Act of

1968, Pub. L. No. 90-351, 82 Stat. 197; Gun Control

Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213; see

also, e.g., Lewis v. United States, 445 U.S. 55, 65 n.8

(1980) (citing United States v. Miller, 307 U.S. 174

(1939), as having held that “the Second Amendment

guarantees no right to keep and bear a firearm that

does not have ‘some reasonable relationship to the

preservation or efficiency of a well regulated militia’”).

13

While many lower courts and Respondents might prefer

a return to that era, after Heller, it should have been

clear that burdens on Second Amendment rights

must be justified as narrowly tailored to a compelling

interest. Yet the jurisprudence over the past eight

years reflects a continued insistence that citizens

justify their desire to exercise their Second Amendment rights in the face of what is presumed to be a legitimate government interest in restricting those rights.

See Allen Rostron, Justice Breyer’s Triumph in the

Third Battle over the Second Amendment, 80 Geo.

Wash. L. Rev. 703, 752 (2012) (“An intermediate scrutiny analysis applied in a way that is very deferential

to legislative determinations and requires merely

some logical and plausible showing of the basis for the

law’s reasonably expected benefits, is the heart of the

emerging standard approach.”).

In Ezell I, the Seventh Circuit found that a high

level of scrutiny was appropriate for review of the

ban on firing ranges within Chicago:

[T]he plaintiffs are the “law-abiding, responsible citizens” whose Second Amendment

rights are entitled to full solicitude under

Heller, and their claim comes much closer to

implicating the core of the Second Amendment right. The City’s firing-range ban is

not merely regulatory; it prohibits the “lawabiding, responsible citizens” of Chicago from

engaging in target practice in the controlled

environment of a firing range. This is a

serious encroachment on the right to maintain proficiency in firearm use, an important

14

corollary to the meaningful exercise of the

core right to possess firearms for self-defense.

651 F.3d at 708 (emphasis in original). Here, too, Petitioners are “law-abiding, responsible citizens” who are

qualified to purchase and licensed to sell a handgun,

but who are simultaneously prohibited from doing so

by the interstate handgun sales ban. Thus, the prohibition on their right to make interstate purchases or

sales of handguns should be subject to strict review

in practice and not just in name.

The court below identified the compelling interest

as preventing the circumvention of handgun laws, and

it concluded that the “restrictions applicable to interstate transfers of handguns are the least restrictive

means of insuring that the handgun laws of states

are not circumvented.” App.20a. This conclusion simply

cannot be reconciled with the evidence before the district court and the analysis the Court of Appeals was

required to make.

A. Speculation That Interstate Handgun Sales

Undermine Enforcement of State Firearms

Laws Does Not Justify the Ban

The Court of Appeals looked to the Congressional

findings that were part of the basis for the passage of

the Omnibus Crime Control and Safe Streets Act of

1968 and the Gun Control Act of 1968, which identified “a ‘serious problem of individuals going across

State lines to procure firearms which they could not

lawfully obtain or possess in their own State,’” done

“‘without the knowledge of . . . local authorities.’” App.

12a (quoting S. Rep. No. 89-1866, at 19 (1966); see

also App.12a (citing S. Rep. No. 90-1097, at 80 (1968))

15

(criminals and juveniles crossing State lines to purchase

firearms in order to circumvent the laws of their

State of residence). Yet the court recognized that

“current burdens on constitutional rights ‘must be

justified by current needs.’” App.13a (quoting Shelby

Cty. v. Holder, 570 U.S. 529, 536 (2013)). Rather than

turn to current needs, however, the court reviewed

the same needs proffered in 1968 and whether subsequent changes in firearm laws and regulations

undercut the need identified in 1968 for the interstate

handgun sales ban. Despite the court’s failure to require a showing of current needs, the plain fact is

that other provisions of the 1968 laws and the subsequently enacted Brady Handgun Violence Prevention

Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993) (the

“Brady Act”), undermine the stated 1968 rationale for

the ban.

1. Criminals and Juveniles Crossing State

Lines

The stated concern that criminals and juveniles

can escape restrictions on their ability to purchase

firearms by crossing state lines is met in at least two

ways that do not require the infringement of the

Second Amendment rights of law-abiding, responsible citizens. First, the Gun Control Act of 1968 expanded the categories of prohibited persons who are

not qualified to purchase firearms anywhere in the

United States. Thus, it became illegal for licensed

retailers to sell or transfer firearms to anyone the

FFL knows or has reasonable cause to believe is a

person who (i) has been convicted in any court of a

crime punishable by imprisonment for a term exceeding one year; (ii) is a fugitive from justice; (iii) is

16

an unlawful user of or addicted to any controlled substance; (iv) has been adjudicated as a mental defective

or committed to a mental institution; (v) is an alien

illegally or unlawfully in the United States; (vi) has

been discharged from the Armed forces under dishonorable conditions; (vii) having been a citizen of

the United States, has renounced U.S. citizenship;

(viii) is subject to a court order that restrains the person from harassing, stalking, or threatening an

intimate partner or child of such intimate partner; or

(ix) has been convicted in any court of a misdemeanor

crime of domestic violence. 18 U.S.C. § 922(d). It is

also illegal for persons in any of those categories to

ship, possess or receive firearms. 18 U.S.C. § 922(g).

Second, the Brady Act requires licensed retailers

to perform background checks on individuals before a

firearm can be purchased, unless a valid exception

applies, e.g., a state permit to purchase firearms. In

the immediate aftermath of the enactment of the Brady

Act, the FFL was required, among other things, to

provide notice to the law enforcement officer of the

place of residence of the buyer and wait up to five

days for a response from the chief law enforcement

officer regarding whether the transfer to the potential

buyer would violate federal, state or local law. 18

U.S.C. § 922(s). Thereafter, the federal government

put in place the National Instant Criminal Background

Check System (“NICS”). 18 U.S.C. § 922(t); 27 C.F.R.

§ 478.124. Under NICS, a licensed retailer is required

to wait up to three business days for the system to

respond, and unless notified that the transfer would

17

violate federal law or state law, the sale may take

place.2 18 U.S.C. § 922(t)(1), (2).

Consistent with the overall statutory framework,

licensed retailers are required to fill out a Firearms

Transaction Record—ATF Form 4473—for every transaction. This form requires a name, address, date of

birth, government-issued photo identification, NICS

transaction number (received after completion of the

background check signifying that the transaction will

not violate federal or state law), and an affidavit

stating that the purchaser is eligible to purchase a

firearm under federal law.3 The FFL who verifies the

identity of the buyer must also sign and keep a copy

of the form for at least 20 years after the date of the

sale or disposition.4 See 27 C.F.R. § 478.129(b). Further, FFLs must keep a permanent registry of all

firearms sales in an ATF-approved “bound book”5 or

2 While the FFL may make the transfer after three business

days without notice that the sale is prohibited, as a matter of

business policy, the licensed retailer may also choose to wait

until notified that the individual has affirmatively been cleared

to purchase the firearm.

3 Form 4473 is available at http://www.atf.gov/forms/download/

atf-f-4473-1.pdf. After completing the required ATF Form 4473,

FFLs contact NICS—maintained by the FBI—to request a

background check with the Form 4473’s descriptive information.

4 When retiring or otherwise discontinuing its business, an FFL

is required by law to send its records to the ATF’s Out-of-Business Records Center. 18 U.S.C. § 923(g)(4); 27 C.F.R. §§ 478.57

and 478.127.

5 A “bound book” is a permanently bound or orderly arrangement

of pages that must be maintained on the business premises. The

format must follow that prescribed in the regulations and the

18

computerized equivalent. 27 C.F.R. §§ 478.22, 478.121,

478.125. The ATF is allowed to inspect these records

as part of a criminal investigation or upon a trace

request. 18 U.S.C. § 923(g)(7); 27 C.F.R. § 478.25a. In

addition, licensed retailers must report the sale of

multiple handguns within five consecutive business

days to the ATF and the state police or local law

enforcement agency where the sale occurred. ATF

Form 3310.4.6

The court noted that for various reasons, the

information in the NICS database may not be complete,

potentially limiting the effectiveness of the background

check. In response to the proposition that states

could be compelled to provide complete information

as a more narrowly tailored response, the court

answered, without explanation, that “[w]e conclude

that the Government has demonstrated that the instate sales requirement is narrowly tailored, notwithstanding the information that is available to all FFLs

under federal laws and regulations.” App.15a. Like so

many lower courts since 2010, the court reverted to the

same pre-Heller thinking used to justify the interstate handgun sales ban in the first place, concluding

that the Second Amendment must yield. But surely a

right cannot so easily be cast aside when it is fundamental in character, making it “deeply rooted in this

Nation’s history and tradition” and one “implicit in the

concept of ordered liberty, such that neither liberty

nor justice would exist if [it] were sacrificed.” Wash. v.

pages must be numbered consecutively. 27 C.F.R. §§ 478.121 and

478.125.

6 Available at http://www.atf.gov/forms/download/atf-f-3310-4.pdf.

19

Glucksberg, 521 U.S. 702, 721 (1997) (describing con-

cept of fundamental rights with respect to substantive

due process) (internal quotation marks omitted). The

Court has made clear that the rights guaranteed by

the Second Amendment are precisely such fundamental rights. See McDonald, 561 U.S. at 778.

Even assuming that states elect not to make the

NICS background check system as complete as it could

be, that choice and the resulting inefficiency cannot

be used as a rationale for limiting the Second Amendment rights of law-abiding citizens who are qualified

to purchase firearms but who are prevented from doing

so simply because they want to exercise their rights

in the national marketplace and outside their state of

residence. See Carey, 431 U.S. at 690-91 (rejecting

argument that the challenged statute should stand

because it “facilitates enforcement of the other provisions of the statute,” finding “the prospect of additional

administrative inconvenience has not been thought to

justify invasion of fundamental constitutional rights”).

As the district court concluded here, while the government arguably presented evidence that criminal

acquisition of handguns remains a problem today, it

failed to show that in the era of federal background

checks the interstate handgun sales ban served any

meaningful purpose in the prevention of crime, especially when measured against the restriction on the

exercise of recognized constitutional rights by lawabiding citizens. See Mance, 74 F. Supp. 3d at 810-11;

see also Heller, 554 U.S. at 636 (acknowledging the

problem of handgun violence but refusing “to pronounce

the Second Amendment extinct” and recognizing that

“the enshrinement of constitutional rights necessarily

takes certain policy choices off the table,” including the

20

prohibition on the possession of handguns for selfdefense).

2. Licensed Retailers’ Assumed Inability to

Comply with Other States’ Law

The court also accepted the government’s contention that “[i]t is unrealistic to expect that each [FFL]

can become, and remain, knowledgeable about the

handgun laws of the 50 states and the District of

Columbia, and the local laws within the 50 states

and the District.” App.15a. But why is this unrealistic,

and how can such an assumption about the FFLs’

ability to comply with the law form the basis for

eviscerating constitutional rights?

Certainly Congress did not believe that such an

assumption was valid. While Congress prohibited handgun sales by a licensed retailer to a resident of another

state, it enacted a different rule as to rifles and shotguns. For those firearms, the licensed retailer may

transfer the rifle or shotgun to a resident of another

state if (1) they meet in person and (2) “the sale,

delivery, and receipt fully comply with the legal conditions of sale in both such States . . . .” 18 U.S.C.

§ 922(b)(3). Moreover, Congress specifically made it

the law that “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.” Id. If an FFL is

not certain that a sale would be legal in the buyer’s

home state, it is not obligated to make the sale, and

the government points to no evidence that such a

system has led to widespread illegal sales or trafficking

21

of long guns, nor do they provide evidence that the

same system cannot work for handguns.

The court notes that “at least some states have

regulated the sale of handguns more extensively than

they have regulated the sale of long guns,” App.18a,

but some state laws regarding long guns, particularly

those commonly known as “assault weapons,” are

particularly complex. See, e.g., Springfield Armory, Inc.

v. City of Columbus, 29 F.3d 250, 252 (6th Cir. 1994)

(finding rifle ordinance “impossible to apply consistently

by the buying public, the sportsman, the law enforcement officer, the prosecutor or the judge”). The court’s

broad generalization is the opposite of requiring a

regulation be narrowly tailored as strict scrutiny

requires. The court’s misplaced reliance on the principle

of “underinclusivity” also does not justify its approval

of the interstate handgun sales ban. App.19a. As

Petitioners note, the issue here is not whether Congress

could adopt additional interstate regulations that

improperly infringe on the Second Amendment, but

whether the one they have in place now can be justified. It cannot. There is no legitimate basis for a distinction between the requirement that FFLs comply

with laws of all states for long guns and the assumption that they cannot do so with respect to handguns,

other than the government’s modern disdain for handguns. But this Court precluded such discrimination

against handguns, recognizing that they are the overwhelming weapon of choice for law-abiding citizens and

deserving of full constitutional protection under the

Second Amendment. Heller, 554 U.S. at 629.

22

B. Law Abiding Citizens Cannot Be Barred from

Exercising Their Constitutional Rights in

Forty-Nine States

In the end, the court finds that the burden imposed

by the interstate handgun sales ban does little harm

because the restrictions “allow ample access” to handguns, and any delay is “de minimis.” App.20a. But

the fact that qualified buyers may be able to buy

handguns from licensed retailers in their home states

(and licensed retailers can sell directly to in-state

buyers) is irrelevant to the question of whether lawabiding, qualified buyers can be prohibited from

acquiring handguns from licensed retailers in the

other 49 States and the District of Columbia (and

licensed retailers from selling directly to qualified outof-state buyers). Fundamental constitutional rights are

ones that individuals carry with them wherever they

go. These rights are not checked at the state border

to be reacquired once the individual returns home.

Indeed, no serious argument could be made that

courts would permit regulations that limited a citizen’s

right to assembly to his state of residence but prohibited

him from assembling in any other state. Restrictions

on the press limiting their ability to publish to the

state where the papers are printed or limiting a citizen’s

right to purchase a newspaper to her own state of

residence would be unthinkable. While those freedoms

have always been revered and respected, however, they

are no more fundamental in the Constitution than the

Second Amendment. As with all other constitutional

rights, the Second Amendment is not and cannot be

geographically limited, so this argument too must fail.

23

In Ezell I, the Seventh Circuit addressed those

aspects of the City ordinance that required training

at a firing range but prohibited operation of any

firing ranges within the Chicago city limits. The

district court had ruled that “for at least some—perhaps

many—Chicago residents, complying with the rangetraining requirement did not appear to pose much of

a hardship at all,” but indeed “might actually be

easier for some . . . .” Ezell I, 651 F.3d at 697. The

Seventh Circuit rejected this sort of approach:

This reasoning assumes that the harm to a

constitutional right is measured by the extent to which it can be exercised in another

jurisdiction. That’s a profoundly mistaken

assumption. . . . It’s hard to imagine anyone

suggesting that Chicago may prohibit the

exercise of a free-speech or religious-liberty

right within its borders on the rationale that

those rights may be freely enjoyed in the

suburbs. That sort of argument should be no

less unimaginable in the Second Amendment

context.

Ezell I, 651 F.3d at 697; see also IAFR, 961 F. Supp.

2d at 939 (“the fact that Chicagoans may travel outside

the City to acquire a firearm does not bear on the

validity of the ordinance inside the City”) (emphasis

in original); cf. Schad v. Borough of Mt. Ephraim, 452

U.S. 61, 76-77 (1981) (with respect to the First Amendment, “one is not to have the exercise of his liberty of

expression in appropriate places abridged on the plea

that it may be exercised in some other place”) (internal

quotation marks omitted).

24

In this case, because the interstate handgun sales

ban is not restricted to isolated groups who may be

thought to present a particular risk of using handguns

in an illegal manner, but instead is imposed indiscriminately to prohibit every legal handgun purchaser and

licensed retailer across the country from participating

in a national handgun market, the ban is not narrowly

tailored to a compelling state interest, and as a result,

the ban violates the rights protected by the Second

Amendment, as well as the Due Process Clause of the

Fifth Amendment.

25

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

MICHAEL L. RICE

COUNSEL OF RECORD

HARRISON LAW LLC

1 N. LASALLE STREET

SUITE 2001

CHICAGO, IL 60602

(312) 638-8776

MIKERICE@HLAWLLC.COM

LAWRENCE G. KEANE

OF COUNSEL

THE NATIONAL SHOOTING

SPORTS FOUNDATION, INC.

FLINTLOCK RIDGE OFFICE CENTER

11 MILE HILL ROAD

NEWTOWN, CT 06470

(203) 426-1320

COUNSEL FOR AMICUS CURIAE

DECEMBER 21, 2018