Fifth Circuit Upholds ‘Enhanced’ Gun Background Checks for Young Adults

Placing additional background check requirements and delays on 18-20-year-old gun buyers does not run afoul of the Second Amendment, a federal appeals court ruled Friday.

A three-judge panel for the Fifth Circuit Court of Appeals unanimously ruled against challengers who took issue with the “enhanced” background check provisions of the 2022 Bipartisan Safer Communities Act (BSCA). The panel found that the plaintiffs failed to show a likelihood of succeeding on the merits of their constitutional claims and declined to issue an injunction against the law.

“The [Second Amendment’s] plain text covers plaintiffs’ right ‘to keep and bear arms,’” Judge Jerry E. Smith wrote in McRorey v. Garland. “And on its face ‘keep and bear’ does not include purchase—let alone without background check. That is so in either the contemporary or the Founding-era context.”

The decision brings positive news for the Biden administration and the staying power of its signature legislative gun-control achievement. It will allow the National Instant Criminal Background Check System (NICS) to continue conducting less-than-instant background checks, which can take several days to complete, for adults under 21. It also suggests gun-rights advocates could have a difficult time challenging various background check and waiting period measures moving forward.

Signed into law in June 2022, the BSCA became the first new federal gun control law in decades. While it consisted of a mixture of new restrictions and funding programs, one of its most substantive provisions overhauled how young adults can legally purchase firearms from licensed dealers.

Under the new process, the FBI still runs 18-to-20-year-olds through the same NICS database as other gun buyers. However, they now contact state juvenile justice, mental health, and local law enforcement agencies looking for disqualifying records that aren’t in the databases searched by the standard check. The law also gives NICS up to ten days to complete this process before a sale can go through, a week longer than for buyers over 21 under federal law.

Gun-rights advocates have criticized this provision as a de facto waiting period, which they argue is unconstitutional. Gun Owners of America (GOA) sued the Biden administration over the enhanced background checks on behalf of two prospective gun buyers last May. District Judge Reed O’Connor denied the group’s motion for preliminary injunction in August, and the group appealed that decision to the Fifth Circuit.

Erich Pratt, GOA’s Senior Vice President, called the panel’s decision “incredibly frustrating.”

“If there was a ten-day waiting period to publish an article or broadcast a news story, every judge in America would be enjoining the policy!” Pratt told The Reload. “This ruling confirms the incorrect view that many judges have on the Second Amendment, that the right to keep and bear arms is a second-class right.”

The Department of Justice declined to comment on the decision.

In reaching its decision, the panel found that background checks aren’t subject to the “text, history, and tradition” test established by the Supreme Court for most challenges to gun laws. That’s because the Court previously endorsed, at least in non-binding dicta, objective background check regimes in its major gun cases.

“Bruen and Heller make clear that background checks preceding firearm sales are presumptively constitutional,” Smith, a Ronald Reagan appointee, wrote. “Plaintiffs fail to rebut that presumption. Instead, by reading one passage of Bruen out of context, they ask us to invert it. We decline to do so because that is not a fair reading of Bruen— particularly in light of Heller.”

To change that analysis, the panel determined that plaintiffs would have to demonstrate that a background check regime is onerous enough to act as a de facto ban on gun possession rather than merely a several-day delay.

“There is some point at which a background check becomes so lengthy that it is ‘put towards abusive ends’ or subject to Bruen’s historical framework as a de facto prohibition on possession,” Smith wrote. “But a period of 10 days does not qualify.”

The FBI’s enhanced background check program for under-21 gun sales became fully operational at the beginning of 2023. The agency said it has processed 228,403 transactions for 18-20-year-olds under the enhanced screening process, resulting in 2,206 denials. It said it based 638 of the denials on information gleaned from the enhanced state agency outreach.