Posts tagged ‘alcohol’

11/04/2014

Why I voted for Arkansas’s* constitutional amendment legalizing statewide alcohol sales (Issue 4)

by wfgodbold

It’s a practical matter.

Sheldon Richman’s piece at Reason goes more into the policy and history of the wet-dry county divide than I care to.

The problem with the “local control” side of the debate is that the odds are stacked overwhelmingly in favor of the status quo.

If a county wishes to vote on whether to change from dry to wet (or vice versa), Ark. Code Ann. § 3-8-205 (a)(1) requires that a petition be submitted by 38% of the registered voters in the county. If a county wishes to change from dry to damp,** however, the petition need only be signed by enough registered voters to equal 15% of the votes cast in that county in the previous gubernatorial election.***

Essentially, the state legislature has made it incredibly easy for voters to decide to go from dry to damp, but incredibly difficult to go from dry to wet. Thirty-eight per cent of the registered voters in the county is essentially the signature of every voter who plans to vote in favor of the change.

And, of course, opponents of the statewide preemption (and Saline County’s petition to go from dry to wet) are rent-seeking county line liquor stores whose business will suffer when their neighboring counties are no longer dry.

It’s Baptists and Bootleggers all over again.

*Yes, it looks odd, but “Arkansas’s” is the correct possessive form.

**”Damp” counties forbid the sale of alcohol over the counter, but allow the sale in “clubs” for on-premises consumption.

***Ark. Code Ann. § 3-9-206 (a)(2).

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10/25/2012

[Ir]Rational Basis

by wfgodbold

Via Sebastian and Prof. Volokh, we learn that the Fifth Circuit held in NRA v. BATF that the federal statute forbidding FFL sales of handguns to 18-20 year olds is constitutional.*0

I’m not going to delve into the analysis here,*1 but the Court eventually decides that,

In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny—i.e., a level that is proportionate to the severity of the burden that the law imposes on the right.*2

The Court applies intermediate scrutiny, and ultimately holds that the prohibition on FFL sales of handguns to 18-20 year olds is constitutional (there is a “reasonable fit between the law and an important government objective”*3). Congress determined that the purchase of handguns by minors*4 is a safety problem (in that it exacerbates their impulsive, violent tendencies, or something), and that prohibiting such purposes is the best way to address that problem is to prevent FFLs from selling handguns to minors.*5 The Court lays out this determination and Congress’s narrow response to it succinctly:

Overall, the government has marshaled evidence showing that Congress was focused on a particular problem: young persons under 21, who are immature and prone to violence, easily accessing handguns, which facilitate violent crime, primarily by way of FFLs. Accordingly, Congress restricted the ability of young persons under 21 to purchase handguns from FFLs. [emphasis in original]*6

The Court defers to Congress’s determination, and upholds 18 U.S.C. § 922 (b)(1)’s prohibition on FFL sales of handguns to those under 21. The government interest is sufficiently narrow, and the means are reasonably adapted to that interest, so intermediate scrutiny is no bar.

The Court then looks at the NRA’s claim as an equal protection matter, and that claim fails under rational basis review (because, unlike race or sex, age is not a suspect classification*7).*8

However, possession/ownership of handguns by those aged 18-20 is (in most states, and under federal law) not illegal. Congress only prohibited (and only intended to prohibit) those persons from buying their handguns through FFLs. If you’re 18 and you receive a handgun as a gift, you’re fine.*9 If you’re 19 and you buy a handgun from a private person, you’re still fine.*10

Hell, you can even tell someone 21 or older to buy the handgun and then pay them for it!*11

Well, two out of three ain’t bad, I guess.*12

So it’s legal for 18-20 year olds to possess handguns, but it’s illegal for them to actually try to buy them from an FFL, or to get someone else to buy them from an FFL.

If you’re 18-20, I hope you know someone who’s generous or looking to sell a handgun they already have – if not, there’s not really any other way for you to legally acquire one.*13

Ladies and Gentlemen, I give you “irrational basis.”*14

*0 Just for the record, I’m still a law student. None of this is legal advice. If you take any of this as legal advice, then on your own head be it.

*1 For reasons I am not currently willing to go into, but will eventually explain. In mid-March/April of 2013, I think.

*2 N.R.A. v. B.A.T.F., No. 11-10959, slip op. at 18 (5th Cir. 2012).

*3 Id. at 33.

*4 The Court in N.R.A. looks at age of majority throughout common law history and determines that it has traditionally and historically began at 21.

*5 And lo, the 1968 GCA and its prohibition on FFL handgun sales to minors heralded the end of youthful violence, and an era of peace and goodwill towards all descended upon the land. Truly, we live in an enlightened age.

*6 Id. at 35.

*7 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000).

*8 N.R.A. at 40.

*9  So long as you’re not a prohibited person and it’s legal in your jurisdiction, of course.

*10 Same disclaimer as before, but with an added disclaimer about the legality of private sales in your jurisdiction.

*11 DO NOT DO THIS. This is a felony straw purchase, and both you (the actual buyer) and the person you get to buy it for you (the straw buyer) will be awarded an all-expenses paid trip to federal prison. Again, DO NOT DO THIS.

*12 Now, aren’t you glad I didn’t link to a Meat Loaf song?

*13 It’s like if  18-20 year olds could possess/drink booze, but were prohibited from buying it or getting others to buy it for them. Sure, it’s technically legal, but it’s a major PITA to actually do what you’re legally entitled to do.

*14 It’s the Chewbacca defense of standards of scrutiny!

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