Posted on 11/24/2011 7:34:27 AM PST by marktwain
With the resolution of the Heller and McDonald cases the Second Amendment and the right to bear arms has been secured as a legal right for every citizen of the United States. Well, apparently not EVERY citizen. Stephen Dearth is a natural born citizen of the United States who chooses to make his primary residence in Canada, making him one of the millions of U.S. Citizens who do not have a permanent residence in the United States. That minor wrinkle means that under U.S. law he cannot purchase a firearm except for “sporting purposes” . . .
As the Heller and McDonald cases have explained, firearms ownership under the Second Amendment is not just for “sporting purposes,” and Mr. Dearth has brought a new case (with some help from our friends at the Second Amendment Foundation) to court to get Mr. Holder to fix the laws to comply with the recent decisions.
Mr. Dearth was visiting some friends in the United States when he decided he wanted to purchase a handgun for self defense. Mr. Dearth already possessed a Utah concealed handgun permit which would enable him to carry it in a number of other states, didn’t meet any of the major disqualifying criteria (felonies, restraining orders, mental health issues, etc), and he was planning on keeping his new purchase at a friend’s house in the States for safe keeping.
As he was filling out the Form 4473 at the gun store, he ran headlong into Question 13 which asked him about his state of residence and stopped him in much the same way a brick wall stops a flying water balloon. He didn’t have any, and according to Federal law if you don’t have a state of residence you don’t have the same Second Amendment rights as the rest of us.
The document filed with the court on November 14th explains the situation in more detail, so here is the “Statement of Facts” section:
1. Federal Restrictions on Expatriated Americans’ Ability to Acquire Firearms. Title 18 U.S.C. § 922(a)(9) provides: “It shall be 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.” violation of this section is punishable by fine and/or imprisonment of up to five years. 18 U.S.C. § 924(a)(1)(D). “No person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, who does not reside in any State shall receive any firearms unless such receipt is for lawful sporting purposes.” 27 C.F.R. § 478.29a. “An individual resides in a State if he or she is present in a State with the intention of making a home in that State.” 27 C.F.R. § 478.11.Title 18 U.S.C. § 922(b)(3), and 27 C.F.R. §§ 478.96, 478.99, bar a firearms dealer from selling firearms to individuals who do not reside within the state in which the dealer’s place of business is located. An exception to this prohibition allows a dealer to sell rifles and shotguns to residents of states where the dealer does not maintain a place of business, as long as the transaction would be legal “in both states,” that is, the purchaser’s state, and the dealer’s state. By operation of this section, otherwise qualified American citizens wishing to buy firearms cannot do so unless they maintain a residence within the United States. All firearms purchasers within the United States who do not possess a Federal Firearms License, meaning, virtually all ordinary civilian consumers of firearms, must complete “Form 4473, Firearms Transaction Record Part I – Over-The-Counter, OMB 1140-0020,” administered under Defendant’s authority, in order to purchase a firearm. 27 C.F.R. § 478.124. Question 13 on Form 4473 provides, “What is your State of residence (if any)? ____________” The failure to complete Form 4473, including Question 13, voids a firearms transaction.
2. The Challenged Laws’ Impact on Plaintiffs: Plaintiff Stephen Dearth is a natural born citizen of the United States and a resident of Canada. Separate Statement of Undisputed Material Facts (“SUF”) 1. He does not maintain a residence in the United States. SUF 2. Dearth is over the age of 21, is not under indictment, has never been convicted of a felony or misdemeanor crime of domestic violence, is not a fugitive from justice, is not an unlawful user of or addicted to any controlled substance, has not been adjudicated a mental defective or committed to a mental institution, has not been discharged from the Armed Forces under dishonorable conditions, has never renounced his citizenship, and has never been the subject of a restraining order relating to a child or an intimate partner. Dearth holds a valid Utah permit to publicly carry a handgun, which is recognized in numerous states.
Dearth has many friends and relatives in the United States whom he enjoys visiting, and whom he intends to continue visiting on a regular basis. Dearth also travels to the United States on business. SUF 5. Dearth intends to purchase firearms within the United States, which he would store securely at his relatives’ home in Mount Vernon, Ohio, and which he would access for lawful sporting purposes as well as for other purposes, including self-defense, while visiting the United States.
Unaware of the federal restrictions on firearms acquisition by expatriated Americans, Dearth attempted to buy a firearm within the United States on or about January 28, 2006. However, he could not provide a response to Question 13 on Form 4473, and advised the dealer that he does not reside in any state. On account of Dearth’s foreign residence and inability to answer Question 13, the transaction was terminated. Dearth subsequently spoke with an official at the Federal Bureau of Investigations, who confirmed that Dearth could not adequately complete Form 4473, and could not purchase a firearm on account of his lack of domestic residence. Dearth subsequently sought to purchase a firearm within the United States.
Dearth truthfully advised the seller that he did not reside in any state, and on account of that fact, the transaction could not proceed.
Dearth reasonably fears arrest, prosecution, incarceration and/or fine were he to provide false state residence information on a Form 4473 in order to purchase firearms, and cannot purchase firearms at retail if he truthfully declines to list a state of residence on Form 4473. The enforcement of the federal restrictions on firearms acquisition by expatriated Americans is presently interfering with Dearth’s efforts to acquire firearms for self-defense.
It’s an interesting question. Does one have to have a permanent residence of the United States in order to enjoy all the freedoms associated with citizenship? Do you suddenly become a second-class citizen just because your house is located outside the 50 states?
The recent court rulings held that every citizen has a right to posses a firearm for self defense. But in order to exercise that right you need to be able to purchase a firearm (which Federal law prohibits in this case).
The court document provides some downright compelling arguments for changing the current laws due to their apparent unconstitutionality, drawing on not only court cases but quotations from the founding fathers to make the point. Needless to say we’ll be keeping an eye on this case.
Read the whole thing here.
I hate to be a pessimist, but since I am...the Heller and McDonald decisions were both 5-4. If Obama is reelected and gets to replace Scalia or Kennedy, or if the Republican candidate wins and he makes another poor pick like Souter or O’Connor, then these decisions will be overturned at the first opportunity.
And considering the long-term demographic trends in the country, it’s probably just a matter of time before the Democrats have a lock on the Presidency and then the Courts, so the correct individual-right interpretation of the Second Amendment probably won’t last. Then they’ll be able to use their majorities in Congress to do whatever they want.
Happy Thanksgiving everyone!
[ Do you suddenly become a second-class citizen just because your house is located outside the 50 states? ]
YES... if your primary residence is in another country your citizenship should be questioned..
Unless you are in the armed services.. or a very few in the Diplomatic Corp..
Or because your job requires it for a fixed amount of time.
There are many loyal citizens living abroad for varying reasons and should NOT become second class citizens for that.
[ Or because your job requires it for a fixed amount of time. ]
In that case where you live is not your primary residence..
It is if you are then without a residence in the US...
My point is that you shouldn’t generalize people working internationally or question their citizenship.
I tend to agree with you on that one. I’ve lived outside the U.S. myself in the past, and I adopted my “host” country’s customs to the extent possible. I still maintained my financial roots here in the U.S. for obvious reasons (I wasn’t relocating to another country permanently), but I had every expectation that in some matters I would be treated as a “second-class citizen” back in the U.S. That’s simply the reality you face when you establish a primary residence outside the U.S.
Look, I’m a big firearms-rights guy, but the only way we can have Americans with the same firearms rights they have in the states, in a foreign country, is if we invade and annex the country as another state of the union.
I should try reading the article from time to time. D’OH!
Not really a matter of citizenship. Many of us have had to reside in a foreign country for work and some retirees live overseas because their retirement dollars allow a better quality of life there. But one has to take the good with the bad and the US Constitution doesn’t apply in Canada anymore than theirs applies in the USA. And I doubt any of us what to open up claims that it does. When living in Belgium I was under Belgian law. If that was not tolerable I always had the right (and eventually did with a wide smile on my face when my job there ended) to move back home.
The only reason that the rest of the world pays even lip service to American laws and “rights” is because they don't wan a visit by the navy and a Marine Amphibious Group.
The proof of this statement lies 200 years ago in the Mediterranean. The Barbary Coast Pirates started recognizing American laws and rights right after the Navy and marines started sinking their ships and seizing their cities.
I wish we have become more civilized in the last 200 years. But, as a career military officer I know that his hope will not be fulfilled in my lifetime nor my grandchildren lives.
——YES... if your primary residence is in another country your citizenship should be questioned..——
Really ?
[ Really ? ]
Really !...
Uh, what makes ‘them’ think London or Tokyo should allow me to bear arms when New York, Washington DC, Chicago, Los Angeles etc won’t?
Wouldn’t we be better off getting ‘US’ straightened out before we ‘tackle’ the world?
What a wonderful argument for revoking the automatic Constitutional Rights that are bestowed on the illegals the second they step foot into the country.
Get a mailbox at a UPS store or Post Office.
LOL
I understand your point, but citizenship never had a “location” qualifier nor should it.......
You are a citizen or you are not....let’s keep it simple
Personally, I can’t think of a good reason to live outside the country except for work or marriage reasons .
The case is considering the rights of a U.S. citizen WHILE IN THE U.S.
Should there be some requirement that a person have a permanent residence in the U.S. in order to exercise fundamental rights while in any of the states?
It's only the federal government's attempt to control what I can do in states other than my state of residence, which permits Kalifornia to enforce their many infringements of the right to keep and bear arms.
If I am traveling in Nevada, for example, and have the need to purchase a firearm, the federal government mandates that I cannot do so. I can only have the firearm transferred to me using a Kalifornia FFL and I would have to appear in person in Kalifornia to do so.
If the FFL system were eliminated, then I could purchase a semi-automatic rifle with a pistol grip in any state which permits such a purchase. Then I could challenge the Kalifornia law which prohibits me from "importing" such a rifle into Kalifornia. Today, I don't have the right, under federal law, to purchase such a rifle ANYWHERE, despite that such a rifle may be perfectly legal in the state in which I am located.
The FFL system is basically barring me from getting "standing" to challenge some of Kalifornia's laws without breaking federal laws.
Where is Mr. Dearth registered to vote? As a general rule an American civilian living abroad would vote absentee from the last location they lived at before leaving the country.
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