The Fifth Circuit struck down the federal ban on selling handguns across state lines on September 18, in a case brought by a licensed dealer in Texas who could not sell to the customers standing in front of him.
The panel ruled 2 to 1 in Elite Precision Customs L.L.C. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, No. 25-11206, filed September 18. Judge Jerry E. Smith wrote for himself and Judge Engelhardt. Judge Haynes dissented, writing that she agreed with the district court and would have upheld the provisions.
The provisions at issue are three subsections of 18 U.S.C. 922, which the court treated together and called the Nonresident Handgun Purchase Ban. Congress passed them in 1968. Under them, a federally licensed dealer may not sell or deliver a handgun to a buyer who lives in another state, and a buyer may not acquire one outside the state where he lives. Under those provisions, a Texan buying a handgun in Oklahoma has had to have it shipped to a dealer in Texas and pick it up there.
Elite Precision Customs is a federally licensed firearms manufacturer and dealer in Texas. Its co-plaintiffs were Tim Herron of New Mexico, Freddie Blish of Arizona and the Firearms Policy Coalition. They lost in the Northern District of Texas and appealed.
Smith’s opinion runs the two-step test the Supreme Court set out in Bruen. The court held that the conduct is covered by the Second Amendment’s plain text, writing that it is “well established in the American legal tradition that the right to keep firearms logically entails the right to purchase them as well.” It then held that the government failed to produce a historical tradition that would justify the rule, and that the founding-era laws it offered “are inapposite to modern-day prohibitions of interstate handgun sales and transfers.”
The panel also broke openly with another circuit. “We reject the Second Circuit’s approach,” Smith wrote. A split between circuits on a federal statute is the ordinary path to the Supreme Court, and the government may still seek rehearing before the full Fifth Circuit.
No Texas statute stopped that dealer from selling to the man from New Mexico. The Legislature never voted on it, no Texas agency wrote it, and no Texas court had the power to lift it. The rule came from Congress in 1968 and it governed a sale that happened on Texas ground between a Texas business and a customer, until a federal court of appeals said otherwise last week.
That is the arrangement, and it does not change with the holding. What a Texas business may sell, and to whom, was decided in Washington, tested in Washington’s courts, and may yet be decided again by nine judges in Washington. Texas won this round as a bystander to it.
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