When looking for a federal circuit that’s friendly to gun owners and federally licensed firearms dealers, it’s hard to imagine a better venue to the gun lobby than the 5th U.S. Circuit Court of Appeals. After all, they are responsible for the 2001 decision in United States v. Emerson, one of the first decisions affirming an individual’s right to bear arms under the Second Amendment. Yet a July 11, 2013 decision in 10 Ring Precision et al. v. B. Todd Jones, shows that gun dealers don’t always get their way.
In 10 Ring, federal firearms licensees challenged the 2011 demand letters sent to each fire arm dealer or broker in Arizona, California, New Mexico and Texas, according to the opinion. Those letters require the gun dealers to report to the Bureau of Alcohol, Tobacco, Firearms and Explosives [ATF] any time they sell two or more semi-automatic rifles capable of accepting a detachable magazine with a caliber greater than .22, according to the opinion. The reason for the demand letters was to help the ATF investigate the illegal flow of guns from the United States to Mexico, noting that assault rifles are the choice weapon of Mexican drug cartels.
The opinon notes that of the firearms seized in Mexico, 70 percent of them came from Texas, California and Arizona. The fire arm dealers in 10 Ring alleged that the ATF lacked the statutory authority to issue the demand letters and that the letters were “capricious and arbitrary,” but the 5th Circuit disagreed.
Citing extensive data about American sold guns recovered in Mexico, the 5th Circuit concluded that the gun dealers argument “fails because, given the data that ATF identified as supporting its decision, Appellants cannot convincingly argue that there is ‘no rational connection’ between the facts in the administrative record and the FFLs [federal firearm licensees] targeted by the June 2011 demand letter,” according to an opinion by Senior Judge Patrick Higginbotham who was joined by Judges Carolyn Dineen King and Edith Brown Clement.
Steve Holbrook, a Fairfax VA solo who represents 10 Ring disagrees with the decision.
“What gets me about the government’s case is its full of policy arguments but there’s little statutory argument about the justification of these demand letters,” Holbrook says. “It bears out in the courts decision. You’ve got reams of words about Mexican violence and little attention about whether these demand letters are authorized.”
Michael Raab, a U.S. Department of Justice attorney who represents the ATF in the case, did not return a call for comment.
--- John Council