Today, a panel of three judges from the Fifth Circuit Court of Appeals heard oral arguments in a case challenging enhanced background checks for gun buyers under the age of 21.
The case was brought by Texas residents Ethan McRorey and Kailey Flores, who wanted to buy long guns but were repeatedly being delayed. Gun Owners of America (GOA) and Gun Owners Foundation (GOF) took up the young adult’s legal case and helped them sue Attorney General Merrick Garland in McRorey v. Garland.
The enhanced background checks were part of the Bi-partisan Safer Communities Act (BSCA) gun control legislation that saw some Republicans led by John Cornyn cross the aisle to vote to restrict the rights of Americans. The BSCA enacted a three to ten-business-day waiting period for firearms purchases by those gun buyers between 18 and 20. This added time is supposed to give the state time to run additional checks on these young adults.
The plaintiffs sought a preliminary injunction against the federally mandated waiting period in a Texas Federal District Court but were unsuccessful in securing an injunction. The denial of the preliminary injunction led the plaintiffs to an appeal to the Fifth Circuit Court of Appeals in New Orleans. The group asked the three-judge panel, which was made up of a Bush, Reagan, and Biden appointee, to block the enforcement of the law.
BREAKING
GOF and @GunOwners‘ legal team was in New Orleans today at the 5th Circuit Court of Appeals.@Stambo2A presented our arguments in McRorey v. Garland, our challenge of the 18-20 year old limitations implemented by the so-called Bipartisan Safer Communities Act. pic.twitter.com/kZYNVJionj
— Gun Owners Foundation (@GunFoundation) April 3, 2024
The plaintiffs argue that 18 to 20-year-olds are part of “the people” and should be treated no differently from other Americans trying to use their rights. They claimed that the law runs afoul of the Supreme Court’s Bruen decision, which required that any gun law be consistent with the text, tradition, and history of the Second Amendment. According to the plaintiff’s attorney, Stephen Stamboulieh, the Government could not cite any historical law from the founding era that showed young adults being delayed from buying guns.
Judge Catharina Haynes, who is believed to be the swing vote, asked if, since young adults could buy firearms in the secondary market does that mean their rights are not violated because they have a means of acquiring guns. Mr. Stamboulieh explained to the judge that certain guns are rare on the secondary market, so sometimes, young adults do not have another means to get some guns. He also pointed out that firearms bought on sites like GunBroker still require the firearms to be shipped to a federal firearms licensee (FFL) and the only way it can be transferred from an FFL is by running a background check. Also, excluding a means of acquiring firearms that is open to others violates these young adult’s rights.
The attorney for the Federal Government didn’t respond directly to the accusations that the plaintiff’s attorney made. She gave what amounted to an opening statement. Judge Haynes asked her if she planned to respond to any of the plaintiff’s arguments. She touched briefly on background checks being allowed by Bruen but didn’t respond to the lack of historical analogs.
In Mr. Stamboulieh’s rebuttal, he highlighted that the footnote in Associate Justice Kavanaugh’s concurring opinion in Bruen was referring to concealed carry permits and not to federally mandated background checks to buy firearms. The rebuttal was short because the attorney for the defendant didn’t challenge any of the charges made by the plaintiffs.
If the plaintiffs win the case, the Government is expected to file a writ of certiorari with the United States Supreme Court and ask for a stay until the court can decide whether to hear the case. The makeup of the full Fifth Circuit bench makes it unlikely that the Government would win if it asked for an en banc hearing. If the plaintiffs lose, it is almost a given they will ask for an en banc hearing where they will have a good chance of obtaining an injunction.
About John Crump
John is a NRA instructor and a constitutional activist. Mr. Crump has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
If GOA/McRorey win at this level, it will be telling to see what SCOTUS does if DoJ seeks a stay directly from them before requesting an en banc hearing. So far SCOTUS has denied such interlocutory requests in pro-2A cases.
The worldwide popularity of the AR’s and AR off-shoot rifles can’t be denied. The AR’s are the gun world’s rock stars! No single weapon has fathered so many others. But serious shooters beware! Don’t forget these are low caliber systems. And for shooting paperwork at the rifle range they conquered the world! But for aggressive targets you’ll want more punch. The North Vietnamese were small frame people 95-115 lbs. was average. And after direct torso hits these petite skinny people often remained in the fight. Those killed at once were usually shot with bursts.
Enhanced? Are they suggesting the new “extended” background check is a stiff?
And as every time there is news on this front, I must express dismay with gun groups making filings that imply it is lawful to bar ~25% of the population from their natural rights. The father of the Bill of Rights was quite clear in his approval of a 15 year old carrying a pistol with him constantly and to claim that same 15 year old can lawfully be trampled upon is both ludicrous and damaging to recognition of natural rights.