Fifth Circuit Strikes Down Federal Interstate Handgun Purchase Ban, Creating Split With Second Circuit
On September 18, 2026, a divided panel of the U.S. Court of Appeals for the Fifth Circuit held that federal statutes barring direct interstate sales of handguns violate the Second Amendment. In Elite Precision Customs L.L.C. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, No. 25-11206, Judges Jerry E. Smith and Kurt D. Engelhardt reversed a Northern District of Texas dismissal and rendered judgment for the plaintiffs. Judge Catharina Haynes dissented.
The decision is one of the most consequential post-Bruen rulings on commercial firearms regulation. It treats the long-standing Gun Control Act restrictions as a purchase ban rather than a modest commercial condition, rejects the government’s historical analogues, and expressly disagrees with a 2025 Second Circuit decision that upheld the same framework. The result is a clear circuit split that may draw Supreme Court attention.
Background of the Interstate Handgun Restrictions
The challenged provisions appear in the Gun Control Act of 1968, 18 U.S.C. § 922. Three subsections operate together as what the Fifth Circuit called the “Nonresident Handgun Purchase Ban.”
Section 922(a)(3) makes it unlawful for an unlicensed person to transport into or receive in the state of residence a firearm purchased outside that state. Section 922(a)(5) similarly restricts unlicensed transfers to persons the seller knows or has reason to believe reside in another state. Section 922(b)(3) forbids a federally licensed dealer from selling or delivering a firearm to a person the licensee knows or has reasonable cause to believe does not reside in the state where the dealer’s business is located. An implementing regulation, 27 C.F.R. § 478.99(a), tracks the statutory ban.
Congress drew a sharp distinction between handguns and long guns. A licensed dealer may sell a rifle or shotgun in person to an out-of-state resident if the sale complies with the laws of both the dealer’s state and the buyer’s state. No comparable exception exists for handguns. A buyer who wants a pistol from an out-of-state dealer must instead arrange a licensee-to-licensee transfer: the originating dealer ships the gun to a second licensed dealer in the buyer’s home state, who then completes the transfer after a background check. That extra step typically adds fees, delay, and dependence on a second dealer’s willingness to participate.
The stated congressional purposes were to prevent evasion of state handgun laws and to curb interstate trafficking. Those purposes have been litigated for decades.
The Parties and Procedural History
Plaintiffs were Elite Precision Customs L.L.C., a Texas manufacturer and dealer; two individual Firearms Policy Coalition members, Tim Herron of Arizona and Freddie Blish of New Mexico, who wanted to buy handguns directly from the Texas shop; and Firearms Policy Coalition itself. They sued the ATF and federal officials in the Northern District of Texas, Fort Worth Division, on January 20, 2025 (No. 4:25-cv-00044). They sought a permanent injunction against enforcement of the interstate handgun restrictions.
U.S. District Judge Mark T. Pittman granted the government’s motion to dismiss and denied the plaintiffs’ motion for summary judgment on September 30, 2025. The district court treated the statutes as presumptively lawful conditions on the commercial sale of arms and described any burden as modest because buyers could still obtain handguns through in-state dealers or the FFL-to-FFL workaround. Final judgment issued October 1, 2025. Plaintiffs noticed their appeal on October 28, 2025. Briefing continued into 2026; the Fifth Circuit heard argument and issued its published opinion on September 18, 2026.
The Fifth Circuit’s Holding
Writing for the majority, Judge Smith framed the question simply: whether the provisions are constitutional under New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), as refined by United States v. Rahimi, 602 U.S. 680 (2024), and later Supreme Court decisions. The court held they are not.
“The Ban sullies the plain text of the Second Amendment and is inconsistent with the nation’s tradition of firearms regulation,” the opinion states. The panel reversed the district court and rendered judgment for the plaintiffs, granting the requested permanent injunction.
The analysis followed Bruen’s two steps.
Bruen Step One: The Right to Keep Arms Includes the Right to Purchase Them
At step one a court asks whether the Second Amendment’s plain text covers the regulated conduct. If it does, the regulation is presumptively unconstitutional and the government must justify it at step two.
The Fifth Circuit held that the right to keep and bear arms “surely implies the right to purchase them,” quoting its own January 2025 decision in Reese v. ATF, which struck down the federal ban on licensed handgun sales to 18-to-20-year-olds. Because the statutes categorically forbid direct interstate handgun purchases, they implicate the text even if buyers retain other avenues of acquisition. The court rejected the government’s characterization of the law as a mere commercial-sale condition that falls outside the Amendment. Degree of burden is irrelevant at step one; the question is coverage, not severity.
The FFL-to-FFL workaround did not change the result. The extra transfer is not automatic, often costs $30–$40 or more, introduces delay, and gives a second licensed dealer an effective veto. The majority treated those extras as a cost attached to the exercise of a fundamental right and declined to treat them as constitutionally sufficient. Pre-Bruen Fifth Circuit language suggesting that modest costs are acceptable was treated as abrogated.
Bruen Step Two: No Adequate Historical Tradition
At step two the government must show that the modern regulation is consistent with the nation’s historical tradition of firearm regulation, focusing on both the “how” and the “why.” Broad similarities are not enough; analogues must be examined at a relatively low level of generality.
The Department of Justice offered 18 colonial and early-republic laws dating from 1642 to 1821. The majority grouped them into three categories and found each inapposite.
The first group consisted of wartime and common-defense measures: Connecticut and Virginia restrictions on sales that might reach hostile Indians or rebels, South Carolina and Maryland export bans on government-issued arms, and similar Revolutionary-era gunpowder export limits. Those laws responded to military exigency, not peacetime commerce among sister states.
The second group regulated commerce with foreign sovereigns, including other colonies treated as foreign and Indian tribes treated as distinct nations under the Constitution’s Indian Commerce Clause. Interstate commerce among the states after ratification is a different constitutional category.
The third group comprised consumer-protection and quality-control measures: gunpowder inspection and marking statutes, musket-approval requirements, and manufacturing licenses. Those laws regulated product quality, not the identity or residence of the buyer.
A remaining Dutch-era New York restriction was dismissed as too uncertain and too far removed from the English common-law tradition that informed the Second Amendment. Because none of the analogues shared the Ban’s purpose (preventing evasion of sister-state handgun laws in peacetime) or its method (a categorical bar on direct interstate handgun sales by peaceable citizens), the government failed its burden.
The Circuit Split With the Second Circuit
The Fifth Circuit openly rejected the Second Circuit’s contrary holding in United States v. Vereen, 152 F.4th 89 (2d Cir. 2025), cert. denied, 146 S. Ct. 1519 (2026). In Vereen a Second Circuit panel, in an opinion by Judge Alison Nathan, upheld § 922(a)(3) against a criminal defendant’s Second Amendment challenge. That court concluded that colonial and founding-era laws regulating the movement of firearms and gunpowder across colonial borders supplied a sufficient historical analogue.
Judge Smith wrote that the Second Circuit’s approach “stretches the historical record far beyond what it can actually bear.” Broad similarities between colonial border controls and a modern nationwide ban on direct handgun sales do not satisfy Bruen’s demand for a nuanced comparison of purpose and method, the Fifth Circuit said, citing the Supreme Court’s 2026 decision in United States v. Hemani. The disagreement is explicit and goes to the heart of how courts should analogize founding-era commercial and militia regulations to contemporary interstate sales restrictions.
No other federal court of appeals has yet issued a published post-Bruen merits decision on the identical statutes. The Fifth Circuit’s ruling therefore creates a two-circuit split on a nationwide federal criminal prohibition.
Prior Fifth Circuit Precedent: Mance v. Sessions
The same statutes had been upheld by a Fifth Circuit panel in Mance v. Sessions, 896 F.3d 699 (5th Cir. 2018). That pre-Bruen decision assumed strict scrutiny applied and concluded the ban was narrowly tailored to the government’s interest in preventing circumvention of state handgun laws. The 2018 panel described the burden as modest because buyers still had ample access through in-state dealers.
The 2026 majority treated Mance as incompatible with Bruen. Means-end balancing is no longer the test. A restriction that covers conduct protected by the text is presumptively unconstitutional regardless of how “modest” a court finds the remaining options. The majority also noted that Mance itself had recognized the absence of a founding-era analogue for an interstate handgun purchase ban.
The Dissent
Judge Haynes dissented in a short opinion. She stated that she agreed with the district court’s decision upholding the statutes. The dissent did not elaborate at length in the published slip opinion, but it aligned with the government’s view that the provisions are conditions on commercial sale rather than a ban on keeping or bearing arms, and that any remaining historical analogues were sufficient. The 2–1 split inside the Fifth Circuit itself underscores that the issue remains contested even among judges who apply Bruen.
Implications
Within the Fifth Circuit—Texas, Louisiana, and Mississippi—the federal government may no longer enforce the direct interstate handgun purchase restrictions against the plaintiffs and those similarly situated, at least pending any further review. Licensed dealers in those states may sell handguns directly to out-of-state residents who can lawfully possess them, subject to remaining federal background-check and record-keeping requirements and to the buyer’s home-state law.
The government may seek rehearing en banc or petition for certiorari. Given the circuit split with the Second Circuit, the existence of a nationwide criminal statute, and the Fifth Circuit’s explicit rejection of another circuit’s historical analysis, the case is a plausible candidate for Supreme Court review. Until then, the same conduct is treated as constitutionally protected in one circuit and as a federal felony in another.
The ruling also continues a line of Fifth Circuit decisions that treat acquisition as part of the core Second Amendment right, following Reese and related cases. How other circuits will respond to similar challenges remains to be seen. For now, Elite Precision Customs stands as the leading appellate decision holding that the federal interstate handgun purchase ban cannot survive Bruen.