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Stephen Dearth, et al v. Eric H. Holder

September 27, 2012

STEPHEN DEARTH, ET AL.,
PLAINTIFFS,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, IN HIS OFFICIAL CAPACITY, DEFENDANT.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

MEMORANDUM OPINION

Plaintiff Stephen Dearth, a U.S. citizen who currently resides in Canada, and the Second Amendment Foundation, Inc. ("SAF"), bring this action to challenge the constitutionality of two federal firearms laws, 18 U.S.C. §§ 922(a)(9) and 922(b)(3). *fn1 Dearth contends that the challenged laws and implementing regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) make it impossible for a U.S. citizen who resides outside of the United States to lawfully purchase a firearm in the United States. Dearth further contends that the challenged statutes and regulations impermissibly encroach upon his Second Amendment right to keep and bear arms and his Fifth Amendment rights to travel overseas and enjoy the equal protection of the law. Plaintiff SAF has joined in this lawsuit because it claims that its members and supporters are likewise impacted by the operation of these laws. The parties contend that no factual disputes exist and have filed cross-motions for summary judgment. For the reasons set forth below, the Court concludes that the challenged laws permissibly regulate the sale of firearms to non-residents within the bounds of the Second Amendment and the other constitutional provisions at issue. Accordingly, the Court denies Plaintiffs' motion for summary judgment and grants Defendant's cross-motion for summary judgment.

I.BACKGROUND

A.Statutory and Regulatory Background

Sections 922(a)(9) and (b)(3) are part of a comprehensive statutory framework Congress enacted to regulate commerce in firearms known as the Omnibus Crime Control and Safe Streets Act of 1968 ("Omnibus Crime Control Act"). Pub. L. No. 90-351, Title IV, § 901(a)(1), 82 Stat. 225.*fn2

The Omnibus Crime Control Act was enacted following a multi-year investigation of violent crime, which revealed "the serious problem of individuals going across State lines to procure firearms which they could not lawfully obtain or possess in their own State and without the knowledge of their local authorities." S. REP. NO. 89-1866, at 19 (1966). The investigation also revealed that "[n]ot only is mail order a means of circumventing State and local law, but the over-the-counter sale of firearms, primarily handguns, to persons who are not residents of the locale in which the dealer conducts his business, affords similar circumvention." S. REP. NO. 89- 1866, at 3. In subsequent amendments to the Omnibus Crime Control Act, Congress sought to "strengthen Federal controls over interstate and foreign commerce in firearms and to assist the States effectively to regulate firearms traffic within their borders." H.R. REP. NO. 90-1577, at 6 (1968). Moreover, Congress found that "concealable weapons" posed a particular challenge for state and local law enforcement authorities and that "the sale or other disposition of concealable weapons by importers, manufacturers, and dealers holding Federal licenses, to non-residents of the State in which the licensees' places of business are located, has tended to make ineffective the laws, regulations, and ordinances in the several States and local jurisdictions regarding such firearms." Pub. L. No. 90-351, Title IV, § 901(a)(5), 82 Stat. 225. Thus, Congress determined "that only through adequate federal control over interstate and foreign commerce in these weapons, and over all persons engaging in the business of importing, manufacturing, or dealing in them, can this grave problem be dealt with, and effective State and local regulation of this traffic be made possible." Id. at § 901(a)(3), 82 Stat. 225. It is against this backdrop that Congress enacted the laws Plaintiffs challenge here.

Section 922(a)(9) makes it unlawful "for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes." 18 U.S.C. § 922(a)(9) (emphasis added). The ATF's implementing regulation, with certain exceptions, prohibits a person from transporting into or receiving in the State where one resides any firearm that was purchased or obtained by that person outside his State of residence. 27 C.F.R. § 478.29.

Section 922(b)(3) prohibits the sale of a firearm by a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to "any person who the licensee knows or has reasonable cause to believe does not reside in . . . the State in which the licensee's place of business is located[.]" 18 U.S.C. § 922(b)(3). Under Section 922(b)(3), federal firearms licensees may, however, sell or deliver "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[.]" Id. § 922(b)(3)(A). Additionally, a licensee may provide "the loan or rental of a firearm to any person for temporary use for lawful sporting purposes." Id. § 922(b)(3)(B).

The ATF's implementing regulations, 27 C.F.R. §§ 478.96, 478.99, track closely to the federal statute and place similar prohibitions on the sale of firearms to purchasers who do not reside in the State in which the licensee's place of business is located. To ensure compliance with the regulations, the ATF requires federal firearms licensees to record firearms transactions on a firearms transaction record, Form 4473. 27 C.F.R. § 478.124(a). Prior to making a transfer of a firearm, the licensee is required to establish both the transferee's identity and his or her eligibility to possess a firearm by documenting on Form 4473, inter alia, the "transferee's name, sex, residence address," "date and place of birth," "height, weight and race," "country of citizenship," and the transferee's "State of residence." 27 C.F.R. § 478.124(c)(1) (emphasis added).

Thus, Section 922(a)(9) prohibits one who does not reside in any State to receive any firearms unless such receipt is for "lawful sporting purposes." Section 922(b)(3) prohibits the sale of any firearm to one who does not reside in any State. Therefore, by operation of both statutes and their implementing regulations, a non-U.S. resident, such as Dearth, may not lawfully purchase any firearm in the United States, and he may only obtain a firearm in the United States if it is loaned or rented to him, and then only if such receipt is for "lawful sporting purposes."

B.Factual Background

Plaintiff Stephen Dearth ("Dearth") is an American citizen who resides in Canada and does not maintain a residence in the United States. (Compl. ¶ 2). Dearth attempted to purchase firearms in 2006 and 2007 in the United States, but was denied both times since he could not provide a response to Question 13 of Form 4473, which asks for the purchaser's State of residence, because he does not reside within a "State" in the United States. (Id. at ¶¶ 22-23). Both transactions were terminated. (Id.) Dearth is over the age of 21 and has a clear criminal record and a valid Utah permit to publicly carry a handgun. (See Id. ¶ 12). Dearth alleges that he intends to lawfully purchase firearms in the United States for sporting and self-defense purposes and store them securely with his relatives in Ohio. (Id. ¶ 11).

Plaintiff Second Amendment Foundation, Inc. ("SAF") is a non-profit membership organization that focuses on education, research, publication, and legal actions regarding the Second Amendment's right to bear arms. According to Defendant, SAF's claims were dismissed for lack of organizational standing, and SAF is barred by collateral estoppel from raising the jurisdictional issue of organizational standing. See Hodgkins v. Holder, 677 F. Supp. 2d 202, 206 (D.D.C. 2010); Dearth v. Holder, 641 F.3d 499, 503 n.* (D.C. Cir. 2011).

C.Procedural History

On March 27, 2009, Plaintiffs Maxwell Hodgkins*fn3 , Stephen Dearth, and SAF, a nonprofit membership organization that focuses on education, research, publication, and legal actions regarding the Second Amendment's right to bear arms, filed a complaint seeking declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C.§§ 2201, 2202. (Compl. ¶¶ 25-37). This Court granted the Government's motion to dismiss for lack of standing. Plaintiffs appealed the Court's decision and the District of Columbia Circuit reversed the district court's dismissal and remanded the case for further proceedings.*fn4 Plaintiffs have filed a motion seeking summary judgment on all counts in their complaint. Defendant has filed a Motion for Judgment on the Pleadings or, in the alternative, for Summary Judgment.

Plaintiffs have characterized their claims as making a facial challenge to Section 922(a)(9) and an as-applied challenge to Section 922(b)(3). Plaintiffs confirmed this position during oral argument. However, the allegations in the Complaint do not support this position. The Complaint limits the Second Amendment challenge to § 922(a)(9) in Count 1 to "the receipt and use of firearms by otherwise qualified American citizens solely on account of their residence status outside the United States. . . ." (Compl. ¶ 26). Similarly, the Second Amendment challenge to § 922(b)(3) in Count 2 is limited "to the extent these are applied in such a manner as to forbid American citizens who do not reside in any state from purchasing firearms." (Compl. ¶ 28). These are as-applied challenges-the claims do not allege that the laws ...


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