The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Sixth Circuit is considering a very interesting gun case; unfortunately, I haven't been following it closely, largely because it's a technical statutory and regulatory case rather than a Second Amendment case—but Prof. Robert Leider (George Mason), who guest-blogged here on a different subject a few months ago, has been, and kindly offered this analysis:
In gun control debates, the Second Amendment usually takes center stage. But more mundane questions of statutory interpretation and administrative law can have more impact on gun owners.
On Tuesday, the U.S. Court of Appeals for the Sixth Circuit heard oral argument in one such case, Gun Owners of America, Inc. v. Department of Justice. The appeal relates to a March 3, 2020 declaration by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that Michigan's concealed pistol license holders are no longer exempt from the national instant background check before the sale of a firearm because the Michigan State Police do not adequately research previous criminal convictions to determine whether a license applicant is prohibited from possessing a firearm. (ATF also undertook a similar action against Alabama pistol permit holders.)
Under the Brady Handgun Violence Protection Act, a federal firearms licensee (e.g., a gun store) must initiate a background check through the National Instant Check System before transferring a firearm. The law contains some exceptions, the most important of which is that a licensee may transfer a firearm to a person who has a permit that "was issued not more than 5 years earlier by the State in which the transfer is to take place" if that permit "allows such other person to possess or acquire a firearm" and "the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law."
Traditionally, ATF has declared whether state permits qualify as instant check alternatives by publishing a "Permanent Brady Permit Chart" online and in a "Public Safety Advisory" to a state's federal firearm licensees. In regulating through these informal mechanisms, ATF is doing one of two things, and both are procedurally problematic under the Administrative Procedure Act.
The first possibility is that despite ATF's portrayal of the letters and permit charts as binding, they actually constitute non-binding sub-regulatory guidance from ATF to Federal Firearm Licensees. If that is the case, Michigan gun stores could just ignore ATF's letter and continue accepting Michigan concealed pistol licensees as alternatives if they were certain that the licenses met the requirements of the Brady Act.
The second possibility—what ATF is likely doing—is issuing binding rules (or conducting binding adjudication) without public notice and comment and without the opportunity of affected stakeholders to participate. ATF's letter, which announces "an important change to the procedure [federal firearms licensees] must follow to comply with the Brady [law]," suggests that when ATF determines that a permit does not qualify, ATF considers its determination as legally binding. If so, ATF's determination is "one by which rights or obligations have been determined, or from which legal consequences will flow."
Yet, before making changes to the Brady Permit Chart, ATF does not engage in notice and comment, nor does it engage in adjudication in which federal firearms licensees and permit holders—the affected stakeholders—may participate. Regardless of the merits of ATF's actions, ATF is flouting the Administrative Procedure Act, and I was surprised that the Sixth Circuit panel did not press the government on this issue.
Two other major issues came up during oral argument that deserve further comment.
Standing: Why ATF's Actions Have Significant Real-World Impact
The Sixth Circuit is apparently struggling with whether the plaintiffs have standing under Article III. Although the federal government has revoked the federal legal effect of their state-issued firearm licenses, the plaintiffs have another ready alternative to purchase firearms by submitting to the federal instant check system. The government contends that submission to the instant check does not create sufficient real-world injury to constitute injury-in-fact.
Here, the plaintiffs have unnecessarily convoluted the standing question by not articulating to the court the practical significance of ATF's revocation. The use of a license as a substitute for the instant background check confers two important benefits upon license holders. First, it prevents the possibility that a gun purchaser will face significant delays in acquiring a firearm. About 10% of "instant" checks are not actually instant, and just under 1% take longer than three business days to resolve. Once a check is initiated, federal law permits the firearm to be transferred after three business days have elapsed. But that means individuals could still face delays of up to five days before they can take possession of their firearm. Those delays may not be a significant burden if the gun store is local. But if a person is traveling a substantial distance to a gun store or gun show, that delay could require a second, long trip to retrieve the firearm. When individuals seek to purchase a firearm, having a permit removes all uncertainty about the transaction being delayed.
Second, the permit allows individuals to engage in intrastate mail-order firearm sales. In response to the assassinations of John F. Kennedy and Martin Luther King, Jr., Congress banned the interstate mail-order sale of firearms in 1968. But Congress allowed intrastate mail-order sales to continue if allowed by state law, and there has been renewed interest in intrastate mail-order sales because the coronavirus pandemic has limited access to gun stores.
In 1993, the Brady Act effectively stopped most intrastate mail-order sales because the Act required individuals to present photo identification before the gun store may initiate the instant check. When an individual has a permit exempting the person from the Brady Act's instant check requirement, however, then the Brady Act's requirement to provide photo identification at the gun store also does not apply. Instead, the purchaser may submit a Firearm Transaction Record (Form 4473) by mail along with a copy of their permit. The gun store may then transfer the firearm by mail after contacting the purchaser's local law enforcement agency and observing a lengthy waiting period. When ATF determines that a state's permit does not exempt the permit holder from the Brady law, ATF also cuts off the ability to use that permit to facilitate a mail-order sale.
Should the Court Defer to the Michigan Attorney General's Understanding of State Law?
Michigan law (§ 28.425b(6)) provides that the "department of state police shall verify" whether a person is qualified under law to receive the license by using information accessible "through the law enforcement information network and the national instant criminal background check system." When the Michigan State Police receives ambiguous criminal history records, they have refused to conduct exhaustive investigations into whether the applicant is prohibited from having a license. The refusal to conduct such investigations prompted ATF's withdrawal of concealed pistol licenses as an alternative to the instant check system. During oral argument, the panel (particularly Judge Sutton) seemed troubled that ATF was deferring to some unnamed person in the state police to authoritatively determine what Michigan law requires the state police to do when conducting a background check. He suggested asking the Michigan Attorney General for her views. In this case, however, deferring to the Attorney General's understanding of the law would be a mistake.
The Michigan Attorney General should not be viewed as a neutral, authoritative source to determine the meaning of Michigan law. The Michigan Attorney General is a strong proponent of gun control. Gun control groups seek to narrow the exceptions of the federal instant check system because of the possibility that information could grow stale between the time that the permit was issued and when a person seeks to buy a gun. In this case, the Michigan Attorney General is incentivized to opine that Michigan law does not require the state police to conduct exhaustive background checks to prevent concealed pistol licenses from being acceptable alternatives to the federal background check.
Federal courts sometimes face difficult state-law interpretive questions. But no less than in federal-law cases, a federal court's job is to interpret state law, not to try to delegate its task to a state executive official. That is particularly true in this case, in which the Attorney General would not be a neutral arbiter of state law. If the panel insists on having the state interpret its own laws, the more appropriate course of action would be to certify the question to the Michigan Supreme Court.
More broadly, this case raises difficult questions concerning what properly constitutes "the law of the State." The federal Gun Control Act exempts state permits if "the law of the State" requires an adequate background check. What is the "law of the State"? The statute? The statute as implemented by binding executive regulations? Or does the real-world practice of state officials constitute "the law of the State," even if that practice violates state statutes?
Here, I think the statutes should have primacy over executive practice. The plain statutory text of Michigan law indicates its concealed pistol licenses should qualify as alternatives to the national instant check system. Although executive agencies may engage in unlawful behavior when they implement the law, neither they, nor the Attorney General, has the power to rewrite the law passed by the legislature. And the Brady Act contains no language disqualifying all state permits just because some licensing official implements the law in a faulty manner.