Guns, Background Checks, Administrative Law, and the Sixth Circuit Michigan Case

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-regulat …

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