dissenting:
With regret I feel compelled to dissent, only because I am obliged to yield to the Congress even though I may personally feel to the contrary.
Section 925(d)(3) of the Gun Control Act, 18 U.S.C. § 925, prior to the amendment of 1986, provided that “the Secretary may authorize a firearm or ammunition to be imported or brought into the United States or any possession thereof if the person importing or bringing in the firearm or ammunition establishes to the satisfaction of the Secretary that the firearm or ammunition ... (3) is of a type that ... is generally recognized as particularly suitable for or readily adaptable to sporting purposes. ...” The permits approved for the guns in controversy were dated October 4, 1988 and February 21, 1989. The life of each import permit is six months; one having expired on April 4, 1989; the other due to expire the latter part of August, 1989.
On May 19, 1986, the Congress enacted P.L. 99-308, the Firearms Owners’ Protection Act of 1986. This Act amended § 925(d)(3) of the Gun Control Act by substituting the word “shall” for “may,” and removing from importers the burden of proving that firearms are suitable for sporting purposes. Indeed, if the Secretary has any question as to whether the firearm may be imported into the United States, 18 U.S.C. § 925(d) further provides:
The Secretary shall permit the conditional importation or bringing in of a firearm or ammunition for examination and testing in connection with the making of a determination as to whether the importation or bringing in of such firearm or ammunition will be allowed under this subsection.
Thus, before approving a permit Congress has said that the Secretary may conditionally import a firearm to conduct the appropriate testing, etc. More importantly, however, Congress has made it mandatory for the Secretary to authorize firearms to be imported when the permits are approved. In this case, all parties are in *870agreement that the permits were regularly and properly approved prior to the announcement of the ban on March 13, 1989. The issue in my mind is whether the Secretary, as the head of an agency, may take steps by way of a temporary suspension of permits, already approved, which action, if successful, will render nugatory the express intention of the Congress to authorize the importation. While I hold no brief for some legislation enacted by the Congress, and am fully aware of the special interest pressure which obviously existed when the 1986 amendment was enacted, I have always felt that it was my duty to adhere to the will of Congress wherever the Congress clearly had the jurisdiction and power to act, as it did in this situation.
The majority expresses the view that, despite the 1986 amendment, a temporary suspension for the purpose of reassessing whether the firearms have a sporting purpose is not prohibited. The legislative history does not, in my opinion, justify the foregoing conclusion even though the majority cites a Senate Report, S.Rep. No. 98-583, 98th Cong., 1st Sess. 27 (1984), stating that in the vast majority of cases the use of the mandatory word “shall” will not result in a change of practice. That statement of the majority is correct until we meet, as we now do, a conflict with the circumvention by an agency of what Congress has heretofore provided. A Senate Judiciary Committee reported, 98th Cong., 2d Sess., at 27 (1984), that
[t]he Committee amendment requires the Secretary to authorize the importation of firearms in the listed categories.
Speaking to the same subject, the House Judiciary Committee, House Rec. No. 495, 99th Cong., 2d Sess., at 14 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 1327, 1340, recognized the “problem” and said that the liberalization of the importation of firearms:
Opens up the importation of firearms by mandating the Secretary to authorize importation of a firearm if there is a sport-. ing purpose and eliminating the requirement that the importer has the burden of satisfying the Secretary of the sporting purpose....
When the later permit expires in the latter part of August, the Secretary would have essentially accomplished what he contemplated doing when he issued the ban on March 13, 1989. True, there may have been a taking — an issue not now decided— but the firearms need no longer be received for importation. I do not disagree with the majority in their expression of the strong public interest in immediate action, but this action is not limited to the firearms purchased under two permits regularly issued and approved, but not yet delivered to the owner because of the temporary suspension, said to be 90 days but vague as to its commencement date and with no assurance that anything will be done at any definite time.
Believing that the statutory authority was exceeded in this case, I would affirm the district court.