United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10837

____________

Ethan McRorey; Kaylee Flores; 

Gun Owners of America, Incorporated; 

Gun Owners Foundation, 

Plaintiffs—Appellants, 

versus

Merrick Garland, U.S. Attorney General; 

Federal Bureau of Investigation, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 7:23-CV-47

______________________________

Before Smith, Haynes, and Douglas, Circuit Judges.

Jerry E. Smith, Circuit Judge: 

Plaintiffs challenge provisions of the Bipartisan Safer Communities 

Act of 2022, contending that the government has failed to show an historical 

analogue for the Act’s expanded background checks for 18-to-20-year-olds. 

This case presents the latest rendition of the question we face during 

United States Court of Appeals

Fifth Circuit

FILED

April 26, 2024

Lyle W. Cayce

Clerk

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the Bruen-Rahimi1 interregnum: What part of Bruen controls our evaluation 

of a firearm regulation? Its imposition of an historical showing to be made by 

the government? Or its various assurances that it did not disturb commonplace regulations in shall-issue regimes?

In this case, it is the latter. Therefore, we affirm the denial of a preliminary injunction.

I.

Federal law limits to federally licensed entities the importing, manufacturing, and dealing of firearms. See 18 U.S.C. § 923. It also limits possession of firearms. Specifically, § 922 purports to bar, from possession of firearms, categories of persons including felons, fugitives, drug addicts, individuals with mental illness, illegal aliens, dishonorably discharged members of 

the armed forces, and domestic abusers. See id. § 922(g).2 Further, § 922(d) 

criminalizes the sale of a firearm to such a person.

In 1993, Congress instructed the Attorney General to create a system 

of national background checks.3 Under that law, the Attorney General established the National Instant Criminal Background Check System (“NICS”). 

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1 N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022); United States v. Rahimi, 

61 F.4th 443 (5th Cir.), cert. granted, 143 S. Ct. 2688 (2023).

2 In the wake of Bruen, we have held some of those provisions unenforceable (at 

least in part) and have suspended judgment on at least one more. See, e.g., United States v. 

Daniels, 77 F.4th 337, 354–55 (5th Cir. 2023) (reversing a conviction under § 922(g)(3));

Rahimi, 61 F.4th at 460–61 (reversing a conviction under § 922(g)(8)); see also, e.g., United 

States v. Reyna, No. 23-40134, 2024 U.S. App. LEXIS 3005, at *3-4 (5th Cir. Feb. 8, 2024)

(per curiam) (unpublished) (“This court consistently held § 922(g)(1) to be constitutional 

before Bruen, and we have not reconsidered the issue in a properly preserved challenge 

from a district court.”).

3 See Brady Handgun Violence Prevention Act (Brady Act), Pub. L. No. 103-159, 

§ 103, 107 Stat. 1536 (1993) (codified at 18 U.S.C. § 922(t)).

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See 28 C.F.R. § 25.1–11. NICS is administered by the FBI. See id. § 25.3.

Under that system, a federally licensed dealer must acquire identifying information from the purchaser and submit it to NICS before the dealer 

may sell the firearm. See 28 C.F.R. § 25.7(a); 27 C.F.R. § 478.124(c)(1). In 

turn, NICS queries three databases for matching records, 28 C.F.R. § 25.6

(c)(1), (f):

(1) National Crime Information Center (“NCIC”): “the nationwide 

computerized information system of criminal justice data established by the FBI as a service to local, state, and Federal criminal 

justice agencies,” 28 C.F.R. § 25.2;

(2) Interstate Identification Index: “the cooperative federal-state system for the exchange of criminal history records,” 28 C.F.R. 

§ 20.3(m); and

(3) NICS Index: “the database, to be managed by the FBI, containing 

information provided by Federal and state agencies about persons 

prohibited under Federal law from receiving or possessing a firearm,” 28 C.F.R. § 25.2.

NICS may respond to a licensee with “Proceed”—greenlighting the sale, or 

“Denied”—indicating that the licensee must deny it. 28 C.F.R. § 25.6(c)-

(1)(iv)(A), (C). Alternatively, it can respond with “Delayed.” Id. § 25.6(c)-

(1)(iv)(B). “Delayed” tells the licensee that further investigation is needed, 

so he or she must wait for a follow-up, or for three business days to pass, 

whichever comes first. See id. Between November 30, 1998, and October 31, 

2023, this process resulted in over 2.2 million denied purchases.4

_____________________

4 See FBI, Federal Denials, https://perma.cc/B4BC-LBLG.

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As relevant here, the Act, as amended in 2022,5 bars the transfer of a 

firearm to a person below the age of 21 (this case involves those who are ages 

18–20) unless—in addition to the above―

(1) NICS has provided the licensed dealer with a unique identification 

number, and

(2) 3 business days have elapsed and NICS has not notified the licensee of cause for further investigation for disqualification of the

applicant, or,

(3) where there has been such a notification, 10 business days have 

passed, and NICS has not notified the licensee that transferring 

the firearm would be unlawful.6

In tandem with those provisions, the act also outlines NICS’s responsibilities for the transfer to an applicant who is 18–20 years old. Beyond the 

requirements above, NICS must immediately contact three additional 

entities:

(1) “the criminal history repository or juvenile justice information 

system, as appropriate, of the State in which the person resides,”

(2) “the appropriate State custodian of mental health adjudication 

records in the State in which the person resides,” and

(3) “a local law enforcement agency of the jurisdiction in which the 

person resides . . . .”7

NICS must then respond to the dealer “as soon as possible, but in no case 

_____________________

5 Pub. L. No. 117-159, 136 Stat. 1313 (2022).

6 See id. § 12001(a)(1)(B)(i)(III) (codified at 18 U.S.C. § 922(t)(1)(C)).

7 Id. § 12001(a)(2) (codified at 34 U.S.C. § 40901(l)(1)).

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more than 3 business days.”8 The expanded provisions have resulted in more 

than 200 denials.9

According to plaintiffs, there are several logistical problems with this 

system: State and local authorities are not required to respond to a NICS 

inquiry; transferring a firearm without an “approval” from NICS violates the 

policies of many federal firearms licenseessuch as Walmart; actual wait times 

have varied, often well in excess of even the 10-day maximum; and the ATF 

also considers NICS checks valid for only 30 calendar days from when NICS 

is contacted, 27 C.F.R. § 478.102(c), so any substantial delay would possibly 

cause the background-check process to restart.

On May 12, 2023, Ethan McRorey (then age twenty) and Kaylee 

Flores (then nineteen) attempted to purchase shotguns from federally licensed dealers in Texas. They were informed that their purchases were being 

delayed because of the NICS protocols. Instead of waiting up to 10 business 

days, McRorey and Flores—joined by Gun Owners of America, Inc., and 

Gun Owners Foundation—sued that same day, requesting a preliminary 

injunction.

McRorey’s purchase was approved five days later. Flores’s purchase 

was allowed to proceed by virtue of hitting the 10-business day cap on 

May 27. Two and a half months after both individual plaintiffs could have 

acquired their shotguns under the challenged law, the district court denied 

their requested preliminary relief. The court reasoned that, though 18-to-20-

year-old adults were protected by the Second Amendment, laws barring the 

mentally ill and felons from possessing firearms are constitutional, and re-

_____________________

8 Id. § 12001(a)(2) (codified at 34 U.S.C. § 40901(l)(2)).

9 See Dep’t of Just., Fact Sheet: Update on Justice Department’s Ongoing Efforts 

to Tackle Gun Violence (2023), https://perma.cc/W8H2-ZJLT.

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strictions to further those ends are presumptively lawful. Because this law 

falls into that category, plaintiffs lack a substantial likelihood of success on 

the merits and thus are not entitled to preliminary relief.

II.

Plaintiffs appeal under 28 U.S.C. § 1292(a)(1). We review for abuse 

of discretion. See Moore v. Brown, 868 F.3d 398, 402 (5th Cir. 2017) (per curiam).

In order to obtain a preliminary injunction, a movant must 

demonstrate (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction 

does not issue; (3) that the threatened injury outweighs any 

harm that will result if the injunction is granted; and (4) that 

the grant of an injunction is in the public interest. Factual findings are reviewed for clear error, while legal conclusions are 

reviewed de novo.

Id. (cleaned up). Because plaintiffs fail to demonstrate (1), we do not address 

(2)–(4).

III.

Bruen and Heller make clearthat background checks preceding firearm 

sales are presumptively constitutional.10 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.

A.

Plaintiffs cleave to the following language in Bruen:

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10 See Bruen, 597 U.S. at 38 n.9; District of Columbia v. Heller, 554 U.S. 570, 626–27

(2008).

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We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text 

covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the 

Nation’s historical tradition of firearm regulation. Only then 

may a court conclude that the individual’s conduct falls outside 

the Second Amendment’s “unqualified command.”

Bruen, 597 U.S. at 24 (citation omitted). Plaintiffs read that language to say 

that the government must show “a broad and enduring historical tradition” 

analogous to the challenged provisions in this case. In a vacuum, plaintiffs’ 

reading is tenable.

But we do not read that language in a vacuum. In Heller, the Court 

described “conditions and qualifications on the commercial sale of arms” as 

“presumptively lawful.” 554 U.S. at 626–27 & n.26. Bruen did nothing to 

disturb that part of Heller.

11 Instead, Bruen continued to distinguish the treatment of prohibitions on “keep[ing] and bear[ing]”—such as the law at issue 

in Bruen—and other ancillary firearm regulations such as background checks

preceding sale:

 To be clear, nothing in our analysis should be interpreted to 

suggest the unconstitutionality of the 43 States’ “shall-issue” 

licensing regimes, under which a general desire for self-defense 

is sufficient to obtain a permit. Because these licensing regimes 

do not require applicants to show an atypical need for armed 

self-defense, they do not necessarily prevent law-abiding, responsible citizens from exercising their Second Amendment 

right to public carry. Rather, it appears that these shall-issue 

regimes, which often require applicants to undergo a back-

_____________________

11 It is quite possible that Bruen disturbed no part of Heller. See, e.g., Bruen, 597 U.S. 

at 39 (purporting to apply “Heller’s text-and-history standard.”); id. at 72 (Alito, J., concurring) (“Nor have we disturbed anything that we said in Heller . . . .”).

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ground check or pass a firearms safety course, are designed to 

ensure only that those bearing arms in the jurisdiction are, in 

fact, law-abiding, responsible citizens. And they likewise appear to contain only narrow, objective, and definite standards 

guiding licensing officials, rather than requiring the appraisal of 

facts, the exercise of judgment, and the formation of an 

opinion—features that typify proper-cause standards like New 

York’s. That said, because any permitting scheme can be put 

toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait 

times in processing license applications or exorbitant fees deny 

ordinary citizens their right to public carry.

Bruen, 597 U.S. at 38 n.9 (alterations accepted and internal citations and quotation marks omitted). One of the concurrences was even more explicit:

“[S]hall-issue licensing regimes are constitutionally permissible, subject of 

course to an as-applied challenge if a shall-issue licensing regime does not 

operate in that manner in practice.” Bruen, 597 U.S. at 80 (Kavanaugh, J., 

concurring, joined by Roberts, C.J.) (citation omitted).12

Read against the background provided by Heller, Bruen’s footnote 9

plainly forecloses plaintiffs’ contention. Bruen “should [not] be interpreted 

to suggest the unconstitutionality of . . . regimes, which often require applicants to undergo a background check” because such checks “are designed to 

ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” Bruen, 597 U.S. at 38 n.9 (quoting Heller, 

554 U.S. at 635). Such regimes “contain only narrow, objective, and definite 

standards guiding licensing officials, rather than requiring the appraisal of 

_____________________

12 At least the Tenth Circuit, without any apparent controversy, has interpreted

this to mean that “Bruen apparently approved the constitutionality of regulations requiring 

criminal background checks before applicants could get gun permits.” Vincent v. Garland, 

80 F.4th 1197, 1201 (10th Cir. 2023).

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facts, the exercise of judgment, and the formation of an opinion.” Id.

(internal quotation marks and citations omitted). Even so, such regimes 

might be unconstitutional where it is “put toward abusive ends,” e.g., by 

imposing “lengthy wait times.” Id. But, without such a showing here, plaintiffs struggle to get around that language.

Even so, plaintiffs make a valiant effort. They characterize passages

such as footnote 9 as dicta. We, however, “are generally bound by Supreme 

Court dicta, especially when it is recent and detailed.” Hollis v. Lynch, 

827 F.3d 436, 448 (5th Cir. 2016) (internal quotation marks and citation omitted). And it doesn’t get more recent or detailed than Bruen. 

Perhaps recognizing this, plaintiffs characterize those “dicta” as conflicting with express holdings and assert that “[d]icta cannot supplant express holdings.” That is true.

But, in rejecting plaintiffs proposed approach, we do not supplant any 

holding. Bruen requires an historical showing by the government “[w]hen 

the Second Amendment’s plain text covers an individual’s conduct.” 

597 U.S. at 24 (emphasis added). The plain text covers plaintiffs’ right “to 

keep and bear arms.” U.S. Const. amend. II. And on its face “keep and 

bear” does not include purchase—let alone without background check.13 

That is so in either the contemporary14 or the Founding-era context.15

_____________________

13 On the other hand, the government’s argument that 18-to-20-year-olds are 

excluded from the Second Amendment’s ambit is properly evaluated only under Bruen’s 

historical approach. We leave the merits of that contention for another day.

14 See, e.g., Keep, Oxford Dictionaries, https://tinyurl.com/2s46df8s (last 

visited April 8, 2024) (“Have or retain possession of[.]”); Bear, Oxford Dictionaries, https://tinyurl.com/5bfmcjre (last visited April 8, 2024) (“(Of a person) carry 

(someone or something)[.]”).

15 See generally Heller, 554 U.S. 570 (failing to suggest a connection between “purCase: 23-10837 Document: 59-1 Page: 9 Date Filed: 04/26/2024
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Plaintiffs’ best response is that the Court applied the historical test to 

“sensitive place” restrictions when it noted that “there is no historical basis 

for New York to effectively declare the island of Manhattan a ‘sensitive 

place.’” Bruen, 597 U.S. at 31 (cleaned up). But we distinguish that apparent

tension with Heller’s language about presumptive lawfulness in three ways.

First, sensitive-place laws are likely captured by the plain text of the 

Second Amendment—they directly impact the right to bear. Therefore, they 

are likely subject to Bruen’s historical analysis. Second, though Heller notes 

sensitive-place laws are presumptively lawful, Bruen’s footnote 9 omits 

them.

16 Third, even if sensitive-place laws are presumptively lawful, declaring all of Manhattan as a “sensitive place,” seems like the quintessential 

example of putting a presumptively constitutional regulation “toward abusive ends.” Bruen, 597 U.S. at 38 n.9.

The right to “keep and bear” can implicate the right to purchase. 

That is why the Court prohibits shoehorning restrictions on purchase into 

functional prohibitions on keeping. See id. But such an implication is not the 

same thing as being covered by the plain text of the amendment. 

The law at issue in Bruen underscores this distinction. That statute

prohibited public carry—conduct readily within the plain meaning of “keep 

and bear”—without demonstrated cause.17 The challenged regulation here 

_____________________

chase” or related concepts and “keep and bear” despite extensive historical linguistic 

analyses by Justices Scalia and Stevens from radically different viewpoints).

16 Thus, if anything, Bruen displaced Heller’s statement about the presumptive 

lawfulness of sensitive-place restrictions but not its statement about background checks. 

We make no holding in this regard.

17 Bruen, 597 U.S. at 11 (“Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude 

that the State’s licensing regime violates the Constitution.”).

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is entirely dissimilar.18 Background checks such as those in the challenged 

provisions are presumptively lawful.

IV.

We turn to whether plaintiffs have shown that these presumptively 

lawful regulations have been “put toward[s] abusive ends” or have otherwise 

rebutted that presumption. Id.

The government correctly points out that “[t]he background-check 

provisions that plaintiffs challenge here fit comfortably within the regulatory 

measures the Supreme Court has approved.” Indeed, background checks, 

especially when not at all lengthy, are perhaps the most frequently mentioned 

regulation characterized approvingly by the Supreme Court as something between “presumptively lawful,” Heller, 554 U.S. at 627 n.26, and “constitutionally permissible,” Bruen, 597 U.S. at 80 (Kavanaugh, J., concurring).

Even on the weaker end of that spectrum, plaintiffs have not rebutted 

the presumption of lawfulness. But that is their burden at this early stage of

the litigation.19 

There is little risk of the one express concern the Court has voiced 

with respect to background checks—lengthiness. See id. at 38 n.9. The 

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18 We have previously stated that “acquiring firearms to protect one’s hearth and 

home” is a “core Second Amendment guarantee.” Bezet v. United States, 714 F. App’x 

336, 341 (5th Cir. 2017). Our ruling today does not undermine that statement. Even under 

our reading of Bruen, the Second Amendment extends protection to acquisition. There is 

no question that regulations on purchase so burdensome that they act as de facto prohibitions on acquisition would be subject to constitutional challenge under Bruen’s rigorous 

historical requirement. See Bruen, 597 U.S. at 38 n.9 (discussing when permitting schemes 

are “put toward abusive ends.”). But that is not this case.

19 All we now decide is that plaintiffs have not met the burden for a preliminary 

injunction. Through further development of the record, they might end up showing that 

the challenged provisions have been put toward abusive ends.

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government is right that, “by operation of law, the maximum duration a 

dealer must wait under the Act while a background check remains pending is 

. . . 10 business days.” But plaintiffs contend that this restriction is de facto

indefinite. They point to data in support of that proposition, including that, 

like Flores’s, many waits extend much longer than 10 business days. 

The problem with plaintiffs’ use of this phenomenon is that it is not a

requirement of the challenged law. Plaintiffs have not pointed to any provision of the law that requires dealers to wait more than 10 business days. That 

dealers choose to do so is a result of their own policy, as plaintiffs readily

admit. But “a third party’s ‘legitimate discretion’ breaks the chain of constitutional causation.” Turaani v. Wray, 988 F.3d 313, 317 (6th Cir. 2021)

(citation omitted).

Plaintiffs also aver that a 10-business-day wait is “abusive” and that,

after all, it is not as though “the Constitution does not apply on holidays and 

weekends.” In their words,

It seems highly unlikely that the colonists would have permitted a system where a rider on a galloping horse yells “the British are coming!” and the local gunsmith demurs “you know 

there’s a 10-business-day waiting period for this musket, 

right?”

Appellants’ Reply Br. at 10. Though plaintiffs assert that the view we adopt 

today “contains no limiting principle,” the problem of the limiting principle 

lies with the plaintiffs. Our law is plain as can be that some amount of time 

for background checks is permissible. But plaintiffs’ reasoning requires that 

the checks be instant, and they do not shy away from that. See Appellants’

Reply Br. at 11 (“Times may have changed since the Revolutionary War, but 

the need for immediate access to firearms has not.” (Emphasis added)). That 

is not our law.

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In short, 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. But a period of 10 days 

does not qualify. 

AFFIRMED.

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