The Fifth Circuit just killed a federal ban on direct interstate handgun sales that Washington has enforced since 1968.
The case, Elite Precision Customs v. ATF, came out of Texas. Elite Precision Customs is a licensed firearms dealer there. Two of its would-be customers, Tim Herron and Freddie Blish, live in New Mexico and Arizona, respectively. Blish is a retired Marine who travels the country teaching safe firearms handling. They wanted to buy handguns directly from Elite Precision. Federal law said no.
Smith wrote the majority. Engelhardt joined. Haynes dissented.
“The Ban, true to its name, categorically bars an entire class of otherwise lawful firearms purchases. The Ban is not a mere stipulation upon an otherwise safeguarded right to purchase firearms in the course of ‘keeping’ them.”
Sections 922(a)(3), 922(a)(5), and 922(b)(3) are the provisions at issue. The long-gun exception in § 922(b)(3) permits some direct rifle and shotgun sales to nonresidents. Handguns get no such exception.
A buyer can still get one. It just takes another dealer.
Elite Precision, for example, can send the handgun to a licensed dealer back in Herron’s home state. Herron then gets it from that dealer. Nobody requires the second dealer to participate, though. Herron told the court he normally pays another $30 to $40 when one does. There is a delay too.
“Even to the extent that the Ban can be circumvented by the licensee-to-licensee transfer workaround … the Ban invariably calls for the payment of a fee over and above the cost of a handgun. We must pause before endorsing a cost attached to the exercise of a fundamental constitutional right.”
Reese v. ATF supplied the rule Smith used at the first step: the right to “keep and bear arms” “surely implies the right to purchase them.” The direct interstate sale never becomes lawful, so the panel treated the restriction as a purchase ban.
That moved the case to the history part of Bruen.
The government had plenty of old laws to cite. Eighteen of them, according to the opinion.
A Connecticut law from 1642. Another from 1650. Virginia laws. South Carolina. Maryland. New York. Massachusetts. Pennsylvania. New Jersey made the list too. The examples ranged across wartime defense, trade with Indian tribes, gunpowder rules, and firearm quality inspections, a wide spread of very different contexts.
Smith put them into three groups: common defense, foreign commerce, and consumer protection. None matched the 1968 handgun restriction.
War measures kept weapons available for local defense. The Indian-trade laws involved separate sovereigns. The inspection statutes dealt with the product being sold. None barred an ordinary handgun sale based on the buyer living in another state.
That put the Fifth Circuit in direct disagreement with the Second Circuit’s reasoning in United States v. Vereen. The Second Circuit upheld the restriction last year using colonial and founding-era laws as historical support.
A circuit split of this kind is a standard cert trigger. The Supreme Court may not be able to leave this one alone.
Smith was not impressed with that framing.
“We reject the Second Circuit’s approach. … Broad similarities between historical precedents and modern regulations are insufficient at Bruen Step 2.”
Haynes would have affirmed the district court. She wrote that the challenged provisions were “not unconstitutional under the Second Amendment.” In her view, the ban functioned as a reasonable commercial restriction on how handguns could be sold, not a prohibition on possessing them.
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