Interstate Handgun Purchase Bans Are Presumptively Unconstitutional Under Bruen and Fail Without Founding-Era Analogues

1. Introduction

In Elite Precision v. ATF (5th Cir. Sept. 18, 2026), the Fifth Circuit held unconstitutional several provisions of 18 U.S.C. § 922 that, in combination, prohibit direct handgun purchases and sales across state lines between nonresidents. The court treated these provisions together as a single regulatory scheme—the “Nonresident Handgun Purchase Ban” (the “Ban”).

The plaintiffs were (1) Elite Precision Customs L.L.C., a Texas federal firearms licensee (manufacturer/dealer) seeking to sell handguns directly to out-of-state residents; (2) Tim Herron (New Mexico) and Freddie Blish (Arizona), who wanted to buy handguns directly from Elite Precision; and (3) Firearms Policy Coalition, Incorporated, an advocacy organization with members including the other plaintiffs. The defendants were the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the U.S. Attorney General, and the ATF’s Acting Director.

Procedurally, the government moved to dismiss under Rule 12(b)(6), plaintiffs moved for summary judgment, the facts were undisputed, and the dispute reduced to one question: Are the Ban’s interstate handgun restrictions constitutional under the Second Amendment?

2. Summary of the Opinion

The Fifth Circuit reversed the district court and rendered judgment for plaintiffs, holding that the Ban violates the Second Amendment under the framework of N.Y. State Pistol & Rifle Ass'n v. Bruen, 597 U.S. 1 (2022).

  • Bruen Step 1 (plain text): The Ban burdens conduct covered by the Second Amendment because the right to “keep and bear arms” necessarily includes the right to purchase arms. The Ban is therefore presumptively unconstitutional.
  • Bruen Step 2 (history and tradition): The government failed to demonstrate a historical tradition supporting a peacetime, public-safety-based, state-comity-driven prohibition on interstate handgun sales. The proffered colonial and early statutes were not relevantly similar in their “why” or “how”.

Judge Haynes dissented in a brief statement, concluding the provisions are not unconstitutional and would have affirmed.

3. Analysis

A. Precedents Cited

1) The governing framework: N.Y. State Pistol & Rifle Ass'n v. Bruen (2022)

The court treated Bruen as controlling and exclusive, emphasizing its two-step inquiry and its rejection of means-end scrutiny. Under Bruen, once the Second Amendment’s plain text covers the conduct, the burden shifts to the government to justify the law by historical tradition.

2) Refining Step 2 similarity: United States v. Rahimi (2024)

Citing United States v. Rahimi, 602 U.S. 680, 692 (2024), the panel framed Step 2 as requiring attention to “[w]hy and how the regulation burdens the right”, allowing analogues that are not “historical twins” but disallowing laws that burden the right beyond founding-era practice.

3) Purchasing as protected conduct: Reese v. ATF (2025)

The lynchpin for Step 1 was Reese v. ATF, 127 F.4th 583, 590 (5th Cir. 2025): “the right to ‘keep and bear arms’ surely implies the right to purchase them.” The court also relied on Reese to reject the idea that a restriction must eliminate all acquisition channels to qualify as a “purchase ban”: even where other avenues remain, a categorical bar on a class of transactions still triggers Step 1.

4) Step 1’s low threshold and “no middle ground”: Wolford v. Lopez (2026)

The panel cited Wolford v. Lopez, 146 S. Ct. 2032 (2026), for the proposition that Step 1 is satisfied if the law restricts the “keeping” or “bearing” of “Arms” by “the people.” Once shown, the law is “presumptively unconstitutional”, with no Step-1 balancing over severity or “ample alternatives.”

5) Attempted government comparator: McRorey v. Garland (2024)

The government leaned on McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024), which upheld expanded background-check waiting periods for 18–20-year-olds. The panel distinguished it sharply:

  • McRorey involved a definite, time-limited delay (maximum “10 business days”), not a permanent categorical bar.
  • McRorey warned against regulations used “toward abusive ends” or that “shoehorn[] restrictions on purchase into functional prohibitions on keeping,” which the court suggested the Ban effectively does—especially given the fee-based, discretionary nature of the intermediary dealer transfer workaround.
  • McRorey assumed the presumptive constitutionality of background checks, rooted in Supreme Court language about “conditions and qualifications” on commercial sales; the panel refused to extend that presumption to a broad interstate handgun purchase prohibition.

6) The “conditions and qualifications” reference point: District of Columbia v. Heller (2008)

The government invoked District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008), which said it did not “cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.” The panel read Heller as not authorizing courts to re-label broad prohibitions as mere “conditions,” and hinted that Heller’s “longstanding prohibitions” language is better understood as pointing toward the history-focused analysis now required by Step 2.

7) Rejecting pre-Bruen reasoning: Mance v. Sessions (2018)

The court explicitly repudiated the relevance of the pre-Bruen assessment in Mance v. Sessions, 896 F.3d 699, 709 (5th Cir. 2018) (per curiam), which had emphasized “ample access” and minimized the burden. The panel treated that style of reasoning as inconsistent with Bruen/Wolford.

8) Fees and constitutional rights: Grosjean v. Am. Press Co., Harper v. Va. State Bd. of Elections, Boynton v. Kusper, Carey v. Population Servs., Int'l

Although not the formal basis of decision, the panel highlighted constitutional discomfort with conditioning a fundamental right on extra fees imposed by an intermediary workaround, citing: Grosjean v. Am. Press Co., 297 U.S. 233 (1936); Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966); Boynton v. Kusper, 494 N.E.2d 135 (Ill. 1986); and Carey v. Population Servs., Int'l, 431 U.S. 678 (1977). The opinion used these cases to underscore skepticism of government regimes that, in practice, attach nontrivial costs to exercising constitutional rights.

9) Step 2 generality limits: United States v. Hemani (2026)

The panel relied on United States v. Hemani, 146 S. Ct. 1677, 1687 (2026), to reject broad-brush analogizing. Hemani barred the use of “habitual drunkards” disarmament laws to justify disarming marijuana users because the historical laws targeted different people, for different purposes, and in different ways. Here, the court applied that methodological lesson to cross-border sales restrictions: historical regulations must align meaningfully in both purpose (“why”) and mechanism (“how”).

10) Sister-circuit conflict and the panel’s rejection: United States v. Vereen (2025)

The panel expressly rejected the Second Circuit’s approach in United States v. Vereen, 152 F.4th 89, 100 (2d Cir. 2025), cert. denied, 146 S. Ct. 1519 (2026), which had accepted colonial/founding-era border and gunpowder movement regulations as adequate analogues. The Fifth Circuit characterized that reasoning as operating at too high a level of generality and “stretch[ing] the historical record.”

11) Additional cited authorities shaping method and posture

  • United States v. Hembree, 165 F.4th 909 (5th Cir. 2026) and United States v. Morgan, 147 F.4th 522 (5th Cir. 2025): relied upon for the court’s discretion to reach Step 2 without remand because the record was sufficiently developed and review is de novo.
  • Nguyen v. Bonta, 140 F.4th 1237 (9th Cir. 2025): cited to discount reliance on a historical law whose “exact text … is unavailable.”
  • United States v. Williams, 113 F.4th 637 (6th Cir. 2024): referenced in discussing how Heller’s “conditions and qualifications” language can be understood through a history-anchored lens.
  • Bezet v. United States, 714 F. App’x 336 (5th Cir. 2017): cited as an example of pre-Bruen means-end scrutiny now regarded as incompatible with the current framework.
  • Andrews v. State, 50 Tenn. 165 (1871) and Luis v. United States, 578 U.S. 5 (2016) (Thomas, J., concurring): used to support the principle that constitutional rights protect closely related acts necessary to their exercise (here, purchase as necessary to keeping arms).

B. Legal Reasoning

1) Identifying the regulated conduct

The court first consolidated § 922(a)(3), § 922(a)(5), and § 922(b)(3) into a single operative reality: a categorical ban on direct interstate handgun purchases/sales, regardless of where parties are located when contracting. While a buyer can theoretically obtain an out-of-state handgun via a licensee-to-licensee transfer to an in-state intermediary, the court emphasized that this workaround is discretionary (no dealer must participate), typically costly, and time-delaying.

2) Step 1: “purchase” falls within the Second Amendment’s plain text as necessary to “keep” arms

Building on Reese, the panel held the Ban implicates the Second Amendment at Step 1 because the Amendment’s protection of keeping arms necessarily includes the ability to acquire them via purchase. The court rejected any Step-1 inquiry into degree of burden or “ample alternatives,” citing Wolford for Step 1’s low threshold and binary nature.

3) Why McRorey did not save the Ban

The court treated the Ban as different in kind from the time-limited background-check delay in McRorey. A waiting period expires “by operation of law”; the Ban never does. The panel also resisted the government’s attempt to place the Ban under Heller’s umbrella of “conditions and qualifications,” warning that doing so could turn genuine prohibitions into presumed-constitutional “conditions” by mere relabeling.

4) Step 2: the government’s historical analogues did not match the Ban’s “why” and “how”

The government supplied an extensive set of colonial and early American statutes regulating arms/gunpowder movement, exports, inspections, wartime controls, and trade with Indians. The panel grouped them into three categories and held none fit:

  • Common defense / wartime exigency laws (e.g., Revolutionary War-related export restrictions; restrictions on government-issued arms) did not resemble a peacetime interstate purchase prohibition aimed at ordinary citizens’ commercial transactions.
  • Foreign-sovereign commerce controls (including trade restrictions between separate colonies, and arms restrictions involving Indian tribes as distinct sovereigns) were not meaningful analogues to regulation among states within a single federal polity. The opinion stressed the constitutional distinction in Article I between commerce “among the several States” and “with the Indian Tribes.”
  • Consumer-protection/quality-control regimes (inspection, marking, licensing for manufacture of gunpowder, recordkeeping) regulated product safety/quality and public stores, not who may buy based on residency.

The court further discounted an early Dutch-era New Amsterdam law because it was not within the English common-law lineage of the Second Amendment and its text was lost, making it unreliable as an analogue (citing Nguyen v. Bonta).

5) Methodological constraint: no “high-level generality” analogizing

Central to the court’s Step-2 analysis was its insistence—reinforced by Hemani—that historical similarity cannot be assessed at a broad, abstract level (e.g., “governments regulated arms movement”). Rather, the analogue must be similar in its justification and mechanics. On that basis, the Fifth Circuit rejected the approach taken in United States v. Vereen.

6) Remedy and posture

Because the district court stopped at Step 1, the Fifth Circuit considered remand but declined, citing United States v. Hembree and United States v. Morgan for discretion to decide Step 2 where the record is sufficient and review is de novo. It then reversed and rendered judgment for plaintiffs.

C. Impact

  • Direct constitutional vulnerability for the federal interstate handgun purchase regime: Within the Fifth Circuit, the decision squarely holds that the combined effect of § 922(a)(3), § 922(a)(5), and § 922(b)(3) is unconstitutional as applied to direct interstate handgun transactions by law-abiding adults.
  • Sharper Step-1/Step-2 boundaries: The opinion reinforces that Step 1 is not a place for “severity” arguments (“ample access,” partial workarounds), narrowing the ability of governments to defend restrictions by emphasizing alternative channels.
  • Constraining “conditions and qualifications” as a litigation shortcut: By warning that bans can be relabeled as conditions (and vice versa), the panel pressures courts to do the actual Step-2 historical work rather than rely on generalized dicta.
  • Deepening circuit tension: The explicit rejection of United States v. Vereen creates a sharpened interpretive split on how much weight to give colonial export/gunpowder laws as analogues for modern interstate restrictions—an issue that may attract Supreme Court review given the national significance.
  • Fee-based workaround skepticism: Though not the holding, the opinion’s discussion of costs and discretionary intermediary participation signals heightened scrutiny for regimes that functionally condition gun acquisition on paying extra fees or navigating third-party gatekeepers.

4. Complex Concepts Simplified

  • “Bruen Step 1”: A threshold question—does the Second Amendment’s text cover the conduct? Here, the court said purchasing is covered because it is necessary to keeping arms.
  • “Presumptively unconstitutional”: Once Step 1 is met, the burden shifts to the government. The law is not automatically struck, but it starts out disfavored unless justified historically.
  • “Bruen Step 2”: The government must show the challenged law fits the nation’s historical tradition of firearm regulation—typically through “analogues” from around the founding era that are similar in purpose and method.
  • “Historical analogue”: A past law that is relevantly similar. The court emphasized similarity in why (the problem addressed) and how (the mechanism and degree of burden), not merely a general resemblance.
  • “Conditions and qualifications on the commercial sale of arms”: Language from Heller often invoked to uphold regulations like background checks. This opinion cautions that broad purchase bans cannot be insulated by calling them “conditions.”
  • “Reverse and render”: The appellate court not only reversed the lower court but entered the judgment itself, rather than sending the case back for further proceedings.

5. Conclusion

Elite Precision v. ATF establishes (at least within the Fifth Circuit) that a categorical ban on direct interstate handgun purchases and sales implicates the Second Amendment at Step 1 because purchasing is integral to keeping arms, and that the government cannot justify such a ban at Step 2 with historical laws that address wartime defense, foreign/sovereign commerce, or product-quality regulation rather than a peacetime, public-safety-based, interstate-comity rationale.

Methodologically, the decision underscores a strict approach to Bruen’s historical-analogue requirement, rejecting high-level generalities and intensifying pressure on governments to identify close historical fits in both purpose and operation—an approach that may reshape Second Amendment litigation over commerce-related gun restrictions.