One of the Gun Control Act of 1968’s core restrictions just fell in federal court: the federal ban on Americans directly buying handguns across state lines.
In a 2–1 decision issued September 18, the Fifth Circuit held that the combined operation of three provisions of 18 U.S.C. § 922 violates the Second Amendment. It reversed the dismissal of Elite Precision Customs v. ATF and rendered judgment for Firearms Policy Coalition, Texas gun dealer Elite Precision Customs, and individual plaintiffs Tim Herron and Freddie Blish.
The conclusion of the 17-page opinion could hardly be clearer: “The Ban sullies the plain text of the Second Amendment and is inconsistent with the nation’s tradition of firearms regulation.”
This is a direct rejection of the federal government’s attempt to treat the lawful acquisition of a handgun as something outside the Second Amendment.
How the Federal Interstate Handgun Ban Works
The case challenged 18 U.S.C. §§ 922(a)(3), 922(a)(5), and 922(b)(3), along with an ATF regulation that tracks those restrictions.
Together, the provisions prohibit an FFL from directly transferring a handgun to a resident of another state and restrict unlicensed interstate transfers. Congress created an exception for qualifying rifle and shotgun sales, but no comparable exception for handguns.
A lawful buyer can purchase a handgun from an out-of-state dealer only by having it shipped to another FFL in the buyer’s home state. That second dealer must agree to participate, normally charges a transfer fee, and adds another delay before the buyer can take possession.
Elite Precision Customs said it would sell handguns directly to nonresidents if federal law allowed it. Blish, an Arizona resident, and Herron, a New Mexico resident, would buy from the Texas dealer. Herron said intermediary dealers typically charge him $30 to $40 and delay the transfer.
The Fifth Circuit recognized that system for what it is: a government-mandated workaround for a transaction the government has categorically forbidden.
The Right to Keep Arms Includes the Right to Buy Them
The majority opinion, written by Judge Jerry E. Smith and joined by Judge Kurt Engelhardt, relied on the Fifth Circuit’s earlier decision in Reese v. ATF. That case held that the right to keep and bear arms necessarily includes the right to purchase them.
That principle controls here. A person cannot keep a handgun the government forbids him from acquiring. Congress cannot evade the Second Amendment by criminalizing the seller or inserting a government-licensed intermediary.
The restriction does not escape constitutional scrutiny merely because the government leaves another, more expensive route open. It eliminates an entire class of otherwise lawful handgun purchases. It is a purchase ban—not an ordinary condition on commercial sales.
The holding reinforces AmmoLand’s recent coverage of the Justice Department’s conclusion that the federal under-21 handgun ban is unconstitutional. It also answers the dangerous reasoning adopted by the First Circuit in Beckwith v. Frey, which placed acquisition outside the Second Amendment.
Excluding acquisition from the Second Amendment turns the right into an empty promise.
Another Government History Lesson Falls Apart
Once the court determined that the Second Amendment covers handgun purchases, the burden shifted to the government to establish a representative historical tradition supporting its ban. It failed.
The government offered 18 colonial and early American laws. The majority sorted them into wartime measures, restrictions on trade with foreign sovereigns or Indian tribes, and early consumer-protection laws covering matters such as defective firearms and gunpowder quality.
None established a Founding-era tradition of prohibiting peaceable Americans from buying handguns across state lines within the same country.
The court also rejected reliance on a 1652 law from Dutch-controlled New Amsterdam. Its full text has been lost, its enforcement is unknown, and it arose outside the English legal tradition that produced the Bill of Rights.
The same problem confronts modern handgun-rationing schemes. As AmmoLand reported in the challenge to New Jersey’s one-handgun-a-month law, governments keep assembling unrelated gunpowder, licensing, and Native American trade laws and calling the pile a historical tradition.
The Government Cannot Charge a Toll for a Right
The opinion also questions the added fee imposed by the mandatory FFL-to-FFL process, comparing such costs with unconstitutional burdens imposed on voting, marriage, and the press.
That concern fits directly with AmmoLand’s recent coverage of taxes designed to make firearms and ammunition more expensive. The problem does not disappear because the government calls the burden a transfer fee, tax, or administrative charge. A government that cannot ban a right should not be allowed to place a tollbooth in front of it.
Fifth Circuit Rejects the Second Circuit
The decision creates a direct circuit split. In United States v. Vereen, the Second Circuit upheld the same federal ban by relying on historical restrictions involving the movement of firearms across colonial borders.
The Fifth Circuit said that approach stretched the historical record beyond what it could support. Colonial borders and trade with separate sovereigns are not interchangeable with commerce between American citizens.
Judge Catharina Haynes dissented in a single paragraph, saying she agreed with the district court that the challenged provisions were constitutional.
What the Decision Means for Gun Buyers
The Fifth Circuit reversed the lower court and rendered judgment for the plaintiffs, but the opinion does not provide immediate operating instructions for gun dealers. It should not be read as an invitation to walk into any gun store in another state and demand an over-the-counter handgun transfer while federal procedures remain unsettled.
The government may seek rehearing or Supreme Court review, and dealers will need clear guidance on how the judgment affects enforcement and their licensing obligations.
The constitutional holding, however, is unmistakable. State lines do not erase the right to keep and bear arms. The federal government cannot convert an unconstitutional handgun-purchase ban into a permissible regulation merely by forcing Americans to find another dealer, pay another fee, and wait longer to exercise a right the Constitution commands shall not be infringed.
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About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
