CINCINNATI (CN) — Michigan residents with concealed handgun permits should not be required to submit to background checks under federal law when they buy guns, an advocacy group argued Tuesday before a federal appeals panel.
Gun Owners of America, which filed a federal lawsuit alongside Donald Roberts II in 2020, says the Bureau of Alcohol, Tobacco, Firearms and Explosives violated the Administrative Procedure Act when it abruptly changed its interpretation of federal law in 2019 to require Michigan residents to submit to background checks when they buy guns.
The ATF determined the Michigan statute regarding concealed pistol licenses, or CPLs, no longer qualified for an exemption under the Brady Handgun Violence Protection Act, even though the state law has not changed since its passage in 2005.
The decision came on the heels of an updated interpretation of the CPL law by the Michigan State Police, who determined in 2017 it was required only to "access" criminal background information, not make final determinations regarding a buyer's eligibility under federal law.
Gun Owners of America argued in federal court the ATF exceeded its statutory authority when it reinterpreted the law and issued a public safety advisory in March 2020 to advise Michigan residents they would be required to submit to background checks for gun purchases, regardless of their state license status.
But U.S. District Judge Thomas Ludington, an appointee of George W. Bush, found the ATF's interpretation of the statute was reasonable because it ensures a buyer is allowed to obtain a firearm under both state and federal laws. He also rejected the gun advocate group's claim that inconsistent advice from federal agencies led to the public safety advisory, and pointed out Michigan's change of position since 2005 resulted in the exemption being revoked.
"Indeed," Ludington said, "ATF records reflect that, prior to the issuance of the 2006 open letter, Michigan Attorney General Michael Cox informed ATF that under [Michigan law,] a CPL could be issued only after 'a full NICS check by an authorized Michigan government official' and 'a determination made by that official that the permit holder is not prohibited under federal or state law from possessing firearms.'"
Such a process disqualifies a Michigan CPL-holder from buying a guy without a background check, Ludington determined.
In its brief to the Sixth Circuit, Gun Owners of America said Ludington erred when he "sanctioned ATF's rewriting of the text to better serve its perception of congressional intent." It argued Michigan tailored its CPL law to align with the Brady Act, and that the district court did not need to go beyond the statutory text to decide the case.
"The court concluded that ATF has broad authority to take virtually any action to keep prohibited persons from obtaining firearms," the brief states, "rejecting even the agency's position that it is bound by the statutory text. This was clear error."
The government cited the 2007 case Morgan v. ATF, a previous Sixth Circuit decision, in its brief, arguing Ludington gave proper deference to the state's interpretation of its laws.
"This court has squarely recognized that it is 'entirely appropriate' for ATF to 'defer to' state officials' interpretation of state laws in applying federal firearm provisions that depend on state law," the brief states.
It adds, "It would be extraordinary for ATF to disregard [its] statutory responsibility and continue to recognize Michigan concealed pistol licenses as valid alternatives notwithstanding Michigan's interpretation of its own law, on the theory that ATF or a court interpreting Michigan law might disagree with Michigan's current interpretation."
Attorney Robert Olson argued Tuesday on behalf of Gun Owners of America, telling the panel Michigan State Police comply with state and federal laws when they complete a search of the National Instant Background Check System, or NICS, before they grant a CPL.
Chief U.S. Circuit Judge Jeffrey Sutton, an appointee of George W. Bush, asked Olson if state police are required to investigate out-of-state convictions or incidents that appear on the NICS search.
The attorney cited a 1998 ATF memo that only requires states to search the NICS database and "verify that the information is available."
U.S. Circuit Judge Joan Larsen, a Donald Trump appointee, asked about the plaintiffs' standing to bring their suit, and in particular how Roberts was injured.
Larsen likened the situation of the background check to an individual being able to walk through either Door A or Door B, with both doors having the same thing on the other side.
"What difference does it make to him?" she asked, referring to Roberts having to go through an ATF background check.
Olson cited "wrongful delays and wrongful denials," and told the panel there are often outages in the NICS system that can hold up a gun purchase.
Attorney Courtney Dixon argued on behalf of the government, and latched on to Larsen's question about standing at the outset of her argument.
"The court is left to speculate about why plaintiffs say they are injured by this law," Dixon said.
Sutton suggested because the government took away one avenue for an individual to obtain a permit to buy a gun, the plaintiffs have standing under the Administrative Procedure Act. The judge also pointed out the government did not raise a standing argument before the district court.
The arguments shifted to the merits of the case, with Sutton asking the government's attorney to clearly define how much research the state police must conduct before they grant a permit.
"This is excruciatingly difficult [for police]," he said. "I'm not sure where the line is."
Dixon emphasized ATF officials discussed federal requirements with the Michigan State Police after an audit, but that Michigan Attorney General Dana Nessel refused to meet to provide clarity on the process.
Sutton reiterated the "tricky" nature of the case when arguments concluded, saying "a call to the attorney general might be helpful."
Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, rounded out the panel. The judges did not set a timetable for their decision.
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