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Gun-sales restriction survives constitutional challenge from Md. man

4th Circuit deems limit valid under Second Amendment, Commerce Clause

A federal law banning the unlicensed intrastate sale of guns neither violates the constitutional right to keep and bear arms nor exceeds Congress’s authority to regulate interstate commerce, a U.S. appeals court ruled this week in affirming the conviction of a Montgomery County man.

In its 3-0 decision, the 4th U.S. Circuit Court of Appeals upheld Samuel Hosford’s plea of guilty to having violated the Gun Control Act in selling eight guns over a 10-week period to a person he met five times in a parking lot. That person turned out to be an undercover police officer.

Hosford, who preserved his right to appeal in the plea agreement, was sentenced in May 2015 to two years’ probation, 160 hours of community service and fined $2,400.

In considering Hosford’s constitutional challenge, the 4th Circuit cited the Supreme Court’s 2008 decision in District of Columbia v. Heller that the Second Amendment right to bear arms does not include “presumptively lawful regulatory measures” such as “longstanding … conditions and qualifications on the commercial sale of arms.” In Heller, the Supreme Court struck down the district’s ban on possessing handguns in the home, citing the self-defense privilege at the heart of the Second Amendment.

“(T)he prohibition against unlicensed firearm dealing is a longstanding condition or qualification on the commercial sale of arms and is thus facially constitutional,” Chief Judge Roger L. Gregory wrote in the 4th Circuit’s published opinion Tuesday. “Here, even assuming that the prohibition implicates conduct protected by the Second Amendment, the prohibition does not touch on the Second Amendment’s core protections.

“Individuals remain free to purchase or sell firearms for self-defense,” Gregory added. “The law merely imposes a licensing requirement on those who wish to profit by regularly selling firearms outside of their personal collection; it serves, not as a prohibition, but as a condition or qualification. The law, therefore, regulates rather than restricts, addresses only conduct occurring outside the home, and does not touch on self-defense concerns.”

The 4th Circuit, citing the national scourge of gun violence, also rejected Hosford’s argument that Congress’s constitutional authority to regulate interstate commerce does not extend to a purely intrastate sale of a firearm.

The court likened gun sales to the federal government’s war on drugs and noted that the Supreme Court’s 2005 decision in Gonzales v. Raich upheld Congress’s authority to outlaw the growing of marijuana even if intended solely for personal use within a single state.

“More so than the (marijuana growers) in Gonzales, Hosford – just like similar individuals who would be indicted under this law – engaged in commercial, inter-personal conduct,” Gregory wrote. “He purchased and resold firearms, a fungible commodity for which there is an established interstate market, to unknown individuals. And like the market for marijuana, Congress has a rational basis to believe that leaving intrastate firearm markets unregulated would affect the interstate market or draw firearms purchased intrastate into the interstate market.”

Maryland U.S. Attorney Rod J. Rosenstein praised the 4th Circuit’s “fairly straightforward ruling” as “consistent with existent precedent.”

Assistant Federal Public Defender Julie Stelzig, Hosford’s attorney, did not return a telephone message seeking comment Thursday.

Judges J. Harvie Wilkinson III and Albert Diaz joined Gregory’s decision in United States v. Samuel Robert Hosford, No. 15-4284.


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