On September 18, 2026, a divided panel of the U.S. Court of Appeals for the Fifth Circuit decided Elite Precision Customs, L.L.C. v. ATF, No. 25-11206, and struck down the federal law that has, since 1968, told American gun buyers they cannot take possession of a handgun from a federally licensed dealer unless that dealer sits in their home state. Judge Jerry E. Smith wrote the majority opinion, joined by Judge Kurt D. Engelhardt, with Judge Catharina Haynes dissenting. The panel reversed the Northern District of Texas and rendered judgment for the plaintiffs. The right to keep and bear arms, the court held, includes the right to acquire one, and the government could not justify this restriction against the nation’s history.
The Ban the Fifth Circuit Struck Down
The provisions at issue, 18 U.S.C. §§ 922(a)(3), (a)(5), and (b)(3), are what the court itself calls the Nonresident Handgun Purchase Ban, part of the Omnibus Crime Control and Safe Streets Act and Gun Control Act of 1968. To see how it operates, consider a hypothetical I have used for years: a federally licensed dealer in Vermont is willing to sell a handgun to a customer who lives in South Carolina. Even though the sale is otherwise lawful, that customer cannot walk out of the Vermont store with the gun. The dealer must ship it to a licensed dealer in South Carolina, who runs a second Form 4473 background check before the buyer may finally take possession, back home. The actual plaintiffs were Elite Precision Customs, a Texas-licensed dealer, joined by would-be buyers who live in Arizona and New Mexico, along with Firearms Policy Coalition, Incorporated.
The Right to Acquire
The panel’s reasoning starts from first principles. Quoting its own precedent in Reese v. ATF, 127 F.4th 583, 590 (5th Cir. 2025), the court wrote that “the right to ‘keep and bear arms’ surely implies the right to purchase them,” adding that “the Ban, true to its name, categorically bars an entire class of otherwise lawful firearms purchases.” I have made this argument for years: you cannot keep an arm you were never permitted to acquire. The court also rejected the government’s fallback argument that a theoretical dealer-to-dealer transfer cures the problem. As the panel put it, “[i]t is irrelevant that the Ban does not cover all types of firearms or fails entirely to foreclose all avenues of interstate firearm transfers. The Ban remains a purchase ban even subject to these caveats and thus is fully subject to the Second Amendment. Therefore, the challenge to the Ban survives Bruen Step 1, and the district court erred when it held otherwise.” Once the Ban implicates the plain text, the burden shifts to the government to prove a comparable historical tradition, and that is where the case was won.
Where the Government’s History Failed
The government offered three categories of historical analogues, and the panel rejected all three. Restrictions on trade between colonial Americans and tribal nations failed because, as the court explained, “commerce between American citizens and tribal members was approached quite differently from how the concept of interstate commerce was understood in and around 1791.” That sentence carries footnote 10, which cites my own article, Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868, published in the Harvard Journal of Law & Public Policy in December 2022. I have argued for years that 1791, the year of ratification, is the correct benchmark for the right the Second Amendment codified, not 1868, and the Fifth Circuit used my scholarship to fix that date. Wartime restrictions on arming potential enemies fared no better, since Americans buying handguns from American dealers in peacetime are not combatants. Nor did old consumer-protection statutes, which addressed whether a gun functioned safely, not whether the buyer lived in the right state. As the panel summarized, the government’s actual interest was “peacetime protection of the public from violent criminals,” pursued through comity among the states of a single sovereign, and on that record “the government’s proffer, though reflecting impressive historical research, falls well short of the mark.”
A Circuit Split Worth Watching
This decision does not stand alone. The Fifth Circuit expressly parted ways with the Second Circuit’s United States v. Vereen, 152 F.4th 89 (2d Cir. 2025), which upheld this same Ban against an identical challenge. A circuit split on a federal statute governing every FFL transaction in the country is exactly the kind of conflict the Supreme Court exists to resolve, and I expect the government to weigh its options for further review rather than let a nationwide split stand unaddressed. Judge Haynes dissented in a single paragraph, stating only that she agreed with the district court and would have affirmed; she offered no separate historical analysis of her own. The majority’s closing words are worth repeating: “The Ban sullies the plain text of the Second Amendment and is inconsistent with the nation’s tradition of firearms regulation, dating back to the founding era, under that Amendment.” Seventeen pages, a sixteen-page majority and one dissenting paragraph, and a fifty-eight-year-old federal law is gone in the Fifth Circuit. That is how the history-and-tradition test is supposed to work, and it is why this case will not be the last word.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.