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Rule of Law

Monthly Archives: January 2013

The United States Court of Appeals for the Fourth Circuit yesterday decided Lane v. Holder, a Second Amendment case.  The opinion is here.  Michelle Lane and the Second Amendment Foundation, represented by Second Amendment expert Alan Gura, challenged a federal law which prohibits private citizens from selling their handguns to other private citizens, and a Virginia law which restricted the exercise of the Second Amendment right to purchase a handgun to only Virginia residents.  (18 U.S.C. § 922(b)(3) and Virginia Code 18.2-308.2:2, respectively). 

The Virginia Attorney General as well as Eric Holder aggressively defended these laws, and the Fourth Circuit upheld them yesterday.

The Gun Control Act of 1968 prohibited the interstate sale of firearms between private citizens except through a licensed federal firearms dealer.   From the opinion:

Lane and the Wellings are residents of Washington, D.C.  who wish to acquire handguns from other states. Lane ordered two handguns from a FFL in Virginia. She was originally unable to take possession of the handguns, as Washington, D.C.’s sole FFL, Charles Sykes, had lost his lease and was no longer in business. She contends that but for the interstate handgun transfer prohibitions, she would have taken possession of the handguns directly in the Virginia store.

The Virginia Attorney General and Eric Holder argued that the plaintiffs didn’t even have the right to go to court (known as standing) to bring a challenge, and the courts agreed. 

Because the challenged laws do not burden the plaintiffs directly, and because the plaintiffs are not prevented from acquiring the handguns they desire, they do not allege an injury in fact.

An attorney general has the broad obligation to defend state or federal laws against challenge.  Eric Holder has made exceptions to this obligation, including the obligation to defend the Defense of Marriage Act.  In that case, Holder concluded that the law was unconstitutional and therefore he refused to defend it.   The Virginia Attorney General either believes a law prohibiting the sale of handguns between private parties from different states is constitutional, or, believes that the government should aggressively defend all state laws, regardless of whether they are constitutional.  And thus Eric Holder and Ken Cuccinelli have made strange gun control bedfellows.