Fifth Circuit Kills Interstate Handgun Ban

A federal appeals court just told Congress that state lines don't get to erase your Second Amendment rights.

The Fifth Circuit ruled 2-1 on September 18 that the federal ban on directly buying a handgun from an out-of-state dealer is unconstitutional. The case, Elite Precision Customs v. ATF, reverses a lower court dismissal and hands a win to Firearms Policy Coalition, a Texas gun dealer, and two individual plaintiffs who just wanted to buy handguns without the middleman shuffle.

The law in question: Three provisions of 18 U.S.C. § 922, plus the ATF regulation built on top of them, together block an FFL from selling a handgun straight to an out-of-state resident. Congress carved out an exception for rifles and shotguns decades ago. Handguns got no such break.

Here's what that means in practice. A Texas dealer can't sell a handgun directly to a buyer in Arizona or New Mexico. Instead, the gun has to ship to a second FFL in the buyer's home state, who charges a transfer fee — plaintiff Tim Herron said his usual cost was $30 to $40 — and adds delay before he can walk out with a gun he already paid for.

The legal question: Does the right to keep a handgun include the right to actually buy one? Judge Jerry Smith's majority opinion says yes, leaning on the circuit's earlier Reese v. ATF decision. You can't keep something the government won't let you acquire. Congress can't dodge the Second Amendment by criminalizing the seller instead of the buyer, or by forcing a licensed middleman into every transaction.

"The Ban sullies the plain text of the Second Amendment and is inconsistent with the nation's tradition of firearms regulation."

The government's history problem: Once the court found the Second Amendment covers the purchase, prosecutors had to show a historical tradition of banning interstate handgun sales among American citizens. They offered 18 old laws — wartime restrictions, trade rules with foreign nations and tribes, and gunpowder-quality regulations. The court sorted through all of it and found nothing resembling a ban on peaceable Americans buying handguns across state lines. A 1652 Dutch colonial law from New Amsterdam got tossed too — its full text is lost, nobody knows how it was enforced, and it predates the English legal tradition that produced the Bill of Rights.

Yes, but: This isn't a green light to walk into any out-of-state gun store and demand a handgun over the counter tomorrow. The opinion doesn't spell out enforcement mechanics, the government can seek rehearing or ask the Supreme Court to step in, and dealers still need clarity on their licensing obligations before anything changes at the counter.

The circuit split: This ruling puts the Fifth Circuit directly at odds with the Second Circuit, which upheld the same ban in United States v. Vereen by leaning on colonial-era border restrictions. The Fifth Circuit said that comparison doesn't hold up — trade between separate sovereigns isn't the same as commerce between American citizens today. Judge Catharina Haynes dissented in a single paragraph, siding with the district court.

What to watch: A circuit split on a core Gun Control Act provision is exactly the kind of conflict that draws Supreme Court attention. Whether the DOJ appeals, and whether SCOTUS takes it, will determine if this holding spreads beyond Texas, Louisiana, and Mississippi — or gets reversed entirely.

The bottom line: three federal judges just said the government can't turn a constitutional right into a $40 toll and a longer wait. Whether that principle survives further review is the next fight.