DOJ Says Non-Resident Handgun Ban Passes Constitutional Test

Attorney Mark W. Smith, host of The Four Boxes Diner, reports that the U.S. Department of Justice has filed a major legal brief defending the federal law that bans non-residents from taking possession of a handgun in a state where they do not live. The case, Elite Precision Customs LLC v. ATF, is playing out in a Texas federal court and was brought by the Firearms Policy Coalition and other plaintiffs. According to Smith, the DOJ is arguing that the decades-old restriction is constitutional under the Second Amendment.

The Law in Question

The challenged provision stems from the Gun Control Act of 1968, which originally prohibited interstate transfers of both long guns and handguns. As Smith notes, Congress rolled back the long gun ban in 1986, but the handgun restriction remains. Under current law, you can buy a handgun from an out-of-state dealer, but the dealer must ship it to an FFL in your home state for the transfer – meaning you can’t walk out of the store with it if you’re not a resident.

Plaintiffs’ Second Amendment Argument

Smith explains that the plaintiffs argue this is a clear burden on the right to keep and bear arms. Their position is straightforward: if you’re a law-abiding American eligible to own a gun, you should be able to buy a handgun in any state and take possession of it there. Preventing that, they claim, is an infringement, because you can’t keep or bear arms until you’ve acquired them in the first place.

DOJ’s Response: No Infringement at All

The DOJ’s main counter, according to Smith, is that the restriction doesn’t amount to an “infringement” in the constitutional sense. They argue that the Second Amendment only covers substantial burdens, and this rule is merely a commercial regulation. In their view, because buyers can still complete the purchase via shipment to their home state, the law doesn’t block access – it just dictates the process.

Smith’s Critique of the DOJ’s Textual Reading

Smith strongly disagrees with that view. Citing the same dictionary sources the Supreme Court used in Heller, he notes that “infringe” at the founding meant “to hinder.” By that definition, forcing a law-abiding citizen to reroute a lawful purchase is indeed a hindrance and therefore implicates the Second Amendment’s text. In his view, the DOJ’s attempt to avoid even triggering a historical analysis under the Bruen framework is unlikely to succeed.

Historical Analogues – or Lack Thereof

When it comes to historical precedent, Smith says the DOJ leans on laws from the founding era that barred sales to Native American tribes viewed as foreign enemies. The government argues this proves a tradition of restricting firearm sales across certain lines. Smith rejects the analogy, pointing out that these historical laws dealt with sales to foreign powers, not peaceable American citizens from another state. The principle simply doesn’t translate to modern interstate handgun sales.

The “Commercial Regulation” Argument

Another DOJ angle, Smith reports, is that this rule should be seen as a permissible regulation of the firearms business, similar to quality control or safety laws. But Smith says those founding-era laws were about preventing fraud or ensuring safety, like proofing barrels to avoid dangerous malfunctions, not about restricting access to law-abiding buyers. The modern law, he argues, is rooted in gun control objectives, not consumer protection.

Smith’s Prediction: Plaintiffs Likely to Prevail

Based on the history and the Bruen methodology, Smith believes the plaintiffs have the stronger case. The government, he says, can’t point to any analogous founding-era laws that targeted peaceful citizens in this way. Since the purpose behind the 1968 restriction was to help states enforce their own gun control laws, its “why” doesn’t align with any legitimate historical justification from the Second Amendment’s original public meaning.

Associational Standing Becomes a Side Battle

Smith warns that the DOJ has also taken aim at “associational standing” – the ability of an organization to sue on behalf of its members. In this case, that would mean a win for the Firearms Policy Coalition might only apply to the specific plaintiffs named, not to all FPC members. Smith points out that longstanding Supreme Court precedent allows associations to represent their members, citing civil rights victories where NAACP members benefited from the organization’s lawsuits.

Why It Matters Beyond This Case

Smith cautions that this standing issue may be tied to unrelated political fights. He suspects the Trump DOJ is pushing this argument to limit the reach of lawsuits brought by large associations – often in other policy areas – against the administration. But if that narrower standing rule takes hold, it could hurt Second Amendment litigation by preventing nationwide relief for members of pro-gun groups.

A Law Frozen in Time

From my perspective, the non-resident handgun ban is a relic of a very different political climate. It reflects 1960s gun control thinking, where interstate firearm transactions were viewed with deep suspicion. In an age where background checks are instant and federal databases are nationwide, forcing buyers through this extra step seems more about inconvenience than safety. If the plaintiffs win, it could mark another rollback of mid-20th-century restrictions that don’t fit the modern legal landscape.

The Larger Second Amendment Chessboard

Smith’s analysis also reminds us that big constitutional battles aren’t fought in isolation. Issues like standing, burden-shifting, and historical analogues are strategic levers that can shape the outcome of not just one case, but the entire body of Second Amendment law. The DOJ’s filing is as much about drawing those battle lines as it is about defending one statute.