Fifth Circuit Strikes Down Federal Ban on Interstate Handgun Sales

On September 18, 2026, a divided Fifth Circuit panel struck down provisions in 18 U.S.C. § 922 collectively barring the buying and selling of handguns across state lines. Writing for the 2-1 majority in Elite Precision Customs, L.L.C. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, Judge Smith held that § 922(a)(3), (a)(5), and (b)(3) violated plaintiffs’ Second Amendment rights. Judge Haynes dissented.

The decision creates a direct and acknowledged circuit split with the Second Circuit, which rejected a Second Amendment challenge to one of the three provisions at issue here in United States v. Vereen (2d Cir. 2025). Given the Trump administration’s position in other Second Amendment cases, however, it remains unclear whether the government will seek further review.

The Statutory Framework

The challenge targeted three interlocking provisions of § 922 that govern the transfer and receipt of firearms across state lines:

Importantly, the last of the three provisions—§ 922(b)(3)—contains a workaround (the “licensee-to-licensee exception”). A buyer may lawfully acquire a handgun from an out-of-state dealer if the transfer goes through a licensed dealer in the buyer’s home state. To put it visually:

The court observed, however, that these intermediary dealers often charge fees for their participation and that the transfer process itself invites delays.

Parties

Four plaintiffs brought suit against the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), seeking a permanent injunction against enforcement of the § 922 provisions on the grounds that they violate the Second Amendment:

• Elite Precision Customs, a Texas-based federally licensed firearms manufacturer and dealer that, absent the ban, would sell handguns directly to out-of-state residents
• Freddie Blish, an Arizona resident who would buy directly from Elite Precision
• Tim Herron, a New Mexico resident who would also buy directly from Elite Precision; Herron has used intermediary dealers in the past, reporting premiums of $30 to $40 and delayed delivery
• The Firearms Policy Coalition, a nonprofit Second Amendment organization to which the other three plaintiffs belong.

In proceedings before the U.S. District Court for the Northern District of Texas, the government moved to dismiss, and the plaintiffs moved for summary judgment. Judge Pittman characterized the restrictions as reasonable commercial regulations that fall outside the Second Amendment’s plain text, so the plaintiffs’ challenge failed at the first step of the Bruen inquiry. Accordingly, the court granted the government’s motion to dismiss and denied the plaintiffs’ motion for summary judgment. The plaintiffs appealed. 

The Holding

The panel applied the Supreme Court’s framework outlined in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

Bruen Step One: Purchasing Is Protected Conduct

Step one of Bruen asks whether the plain text of the Second Amendment covers a challenger’s conduct. Drawing on “the American legal tradition,” the Fifth Circuit reasoned that “the right to keep firearms logically entails the right to purchase them as well.” Because the ban restricts handgun purchases, the plaintiffs satisfied step one.

The government argued that the licensee-to-licensee exception undermines that conclusion: because the statute permits interstate transfers that go through an intermediary, it does not completely restrict the right to purchase. The panel rejected that argument on two grounds. First, it relied on its own precedent in Reese v. ATF (5th Cir. 2025), which struck down a statute prohibiting federal firearms licensees from selling handguns to individuals aged 18 to 20 despite the existence of other legal avenues to acquire the same and similar weapons. As the panel put it, a purchase restriction “need not be fully comprehensive” to qualify as a purchase ban. Second, the court invoked the Supreme Court’s recent decision in Wolford v. Lopez, 609 U.S. ___ (2026), which suggested that step one focuses on the “literal text” of the Second Amendment. 

The panel also distinguished McRorey v. Garland (5th Cir. 2024), in which the Fifth Circuit upheld enhanced background checks for purchasers aged 18 to 20. The panel explained that those background checks (1) carried a statutory maximum waiting period of ten days and (2) had a “positive jurisprudential pedigree” in District of Columbia v. Heller, 554 U.S. 570 (2008), and Bruen, which reiterated the constitutionality of objective and minimally burdensome background checks. Here, by contrast, the interstate handgun provisions collectively ban direct purchases outright, so no amount of waiting makes them lawful. The panel also rejected the government’s argument that the ban merely sets conditions on purchasers akin to a background check, underscoring that “[a]lmost any ban on purchasing firearms under certain circumstances can be recharacterized” that way. Finally, the court noted that the licensee-to-licensee exception invariably requires a fee on top of the handgun’s price, which runs afoul of McRorey’s warning against using regulations to shoehorn “restrictions on purchase into functional prohibitions on keeping.”

Although the district court resolved the case at step one, the panel declined to remand. Because “[b]oth sides fully briefed their historical argument,” “renewed those contentions on appeal,” and the issue was a pure question of law, the court proceeded to step two.

Bruen Step Two: No Adequate Historical Tradition

At Bruen’s second step, the government bears the burden of showing that the challenged laws—here, the three § 922 provisions—are consistent with the Nation’s historical tradition of firearms regulation. The panel held that the government failed to carry that burden.

The government relied on eighteen colonial through early-nineteenth century enactments that, in its view, reflected a “Founding-era historical tradition of restricting arms transactions across borders.” These analogues included laws prohibiting sales of firearms to persons outside the jurisdiction, restricting firearms exports, barring sales of firearms to Indian tribes, and imposing licensing and inspection requirements on firearms and gunpowder. As to the “why,” the government argued that these laws, like the challenged § 922 provisions, regulated the commercial arms trade to keep weapons from those whom lawmakers deemed dangerous. As to the “how,” it maintained that the historical laws were far more burdensome because many banned nonresident sales outright, whereas § 922, through the licensee-to-licensee exception, still permits interstate handgun purchases that go through a licensed dealer in the buyer’s home state.

The panel, by contrast, identified the “why” of the § 922 provisions as protecting the public from private criminals in peacetime and their “how” as maintaining comity among jurisdictions within a single sovereign. Measuring the government’s historical analogues against these benchmarks, the court found each insufficient. It grouped seventeen analogues into three categories and addressed the remaining analogue separately.

• Wartime Exigencies and Common-Defense Measures. The court rejected five analogues as products of wartime exigency and common-defense needs. Given its emphasis on loyalty, a 1676 Virginia enactment permitting the sale of “arms and ammunition to . . . loyal subjects inhabiting this colony” aimed to prevent future uprisings, not to insulate other colonies from Virginia’s arms trade. A 1720 Virginia statute (barring residents of certain counties from removing government-provided firearms from their homes) and a 1719 South Carolina law (prohibiting exports of government-provided firearms) reached only weapons that colonial officials furnished and did not regulate the private arms trade. Finally, as their dates suggest, a 1776 Maryland measure prohibiting firearms exports by anyone not permanently relocating, and a 1775 Connecticut statute proscribing the unlicensed export of gunpowder, served to support the Revolutionary War.  

• Commerce with Foreign Sovereigns: The court rejected five analogues because they regulated commerce with other colonies and Indian tribes, both of which contemporaries treated as foreign sovereigns. These included Connecticut laws from 1642 and 1650 that barred residents from selling firearms to anyone outside of the colony. The court also questioned the Connecticut laws’ relevance because they predated the Second Amendment’s ratification by well over a century. The category also included a 1763 Pennsylvania statute, an 1802 Mississippi law, and an 1815 Illinois law, each prohibiting the sale of firearms to Indians. 

• Consumer Protection: The court rejected seven analogues as early consumer protection laws that addressed the nature and quality of the product offered rather than who could buy it. These consisted of a 1631 Virginia law requiring documentation of newcomers’ arms and ammunition; a 1651 Massachusetts law prohibiting the unlicensed export of gunpowder; a 1795 Pennsylvania enactment requiring the proving and marking of publicly stored gunpowder; an 1814 Massachusetts law and an 1821 Maine enactment, each prohibiting the sale of muskets lacking an official mark of approval; an 1820 New Hampshire law creating a state gunpowder inspection regime; and an 1811 New Jersey law requiring gunpowder manufacturers to obtain licenses.

• The 1652 New York Law: The court found that the government’s remaining analogue, a 1652 New York law banning all sales of arms and ammunition even within the colony, lacked probative value. New York was still a Dutch colony when it adopted the law, which placed the law outside the “English common law tradition that ultimately gave rise to the . . . Second Amendment.” The court also noted that the law’s full text is “lost to history.”

The panel concluded its analysis by addressing the Second Circuit’s contrary conclusion in United States v. Vereen (2d Cir. 2025). In Vereen, the Second Circuit rejected facial and as-applied challenges to § 922(a)(3)—one of the three provisions considered here—which bars unlicensed persons from bringing into or receiving in their home state any firearm acquired elsewhere. The Second Circuit found the government’s analogues of “colonial and founding-era state laws regulating the movement of firearms and gunpowder between colonies and across borders” sufficient to carry its burden at step two.

In the Fifth Circuit’s view, Vereen read these analogues “at an extremely high level of generality,” ignoring nuances regarding how colonies viewed other colonies and Indian tribes as foreign sovereigns. The panel further stated that it could not reconcile this approach with the Supreme Court’s decision in United States v. Hemani, which rejected analogues between founding-era laws addressing habitual drunkards and the regulation of present-day marijuana users. Thus, according to the Fifth Circuit, “[a] more nuanced approach at a lower level of generality is required” at step two.

Having found that the government failed to satisfy its burden at step two, the panel reversed the district court and rendered judgment for the plaintiffs. In a brief dissent, Judge Haynes stated that she would have affirmed the district court’s decision.

What’s Next?

The Fifth Circuit panel’s ruling will not take effect until the court issues its mandate. When that happens depends on what the government does next:

• If the government petitions for rehearing, whether by the panel or en banc, it has until November 2, 2026, to file (45 days after judgment).

• If the government does not seek rehearing, the court will issue the mandate on November 9, 2026 (seven days after the petition deadline).

Given the Trump administration’s posture on related Second Amendment issues, however, the government may not seek further review at all.

September 17 Opinion. On September 17, 2026, the day before the Fifth Circuit decided this case, the Department of Justice issued an opinion concluding that § 922(b)(1) and (c)(1)—which bar federally licensed dealers from selling handguns to 18- to 20-year-olds—are unconstitutional. The opinion further directs ATF to immediately stop criminally enforcing these age restrictions.

USPS Proposed Rule. Earlier this year, the U.S. Postal Service issued a proposed rule permitting the interstate mailing of handguns, as my classmate Neharika Salhotra discussed.

October 9 NFA Guidance. On August 5, 2025, in Silencer Shop Foundation v. ATF (N.D. Tex. 2026), a federal district court in Texas held that the National Firearms Act’s registration and application requirements exceeded Congress’s enumerated powers as applied to weapons whose taxes Congress reduced to zero in its 2025 reconciliation bill. On October 9, 2026, ATF issued guidance stating that it would not enforce these requirements for the zeroed-out weapons.