Does the Second Amendment Protect Firearms Commerce?Posted: April 15, 2014
Defending the right to sell and trade arms
David B. Kopel writes: The First Amendment protects both book buyers and booksellers. Does the Second Amendment protect only people who buy guns, or does it also protect people who sell guns? Though this question has divided the federal courts, the answer is quite clear: operating a business that provides Second Amendment services is protected by the Second Amendment. District of Columbia v. Heller1 teaches that regulation of how firearms are commercially sold enjoys a presumption of constitutionality, which does not extend to prohibitions of firearms sales.
[Related: Find John Lott’s essential book: More Guns, Less Crime: Understanding Crime and Gun Control Laws, Third Edition (Studies in Law and Economics) at Amazon]
In the lower federal courts, there is a developing split about whether firearms sellers have Second Amendment rights which the courts are bound to respect. Seventh Circuit courts view firearms sellers like booksellers — as holders of constitutional rights. While gun sellers are subject to much stricter regulation than are booksellers, they are both protected by the Bill of Rights. Conversely, in the courts of the Fourth Circuit, gun sellers have no Second Amendment rights.
Brown v. Board of Education was not exactly a popular decision among some state and local governments, and among some lower court judges. The same is true of Heller. One form of resistance to Heller has been to read the opinion in the narrowest possible way, excluding from Second Amendment protection many normal activities involving firearms. One such form of resistance is the claim that the Second Amendment does not apply to gun sales.
By this theory, because the Second Amendment is an individual right to have arms for self-defense, the Second Amendment does not apply to corporations that provide services to gun owners, such as selling them guns. Likewise, since the Second Amendment is a right to have a gun for self-defense, the Second Amendment has nothing to do with anyone who sells or gives away a firearm.
The leading exponent of this theory was the Fourth Circuit panel in United States v. Chafin,3 which stated there is nothing “that remotely suggests that, at the time of its ratification, the Second Amendment was understood to protect an individual’s right to sell a firearm.”4 The Chafin holding is not binding precedent, since the decision was unpublished. Nevertheless, a federal district court in West Virginia adopted and followed Chafin’s rule.5
Likewise, in Montana Shooting Sports Association v. Holder,6 a federal district court stated (albeit in dicta), “Heller said nothing about extending Second Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that firearms manufacturers and dealers are properly subject to regulation . . . .”7
The Northern District of Illinois took the contrary position in earlier this year inIllinois Association of Firearms Retailers v. City of Chicago.8 In 2010, a few days after the Supreme Court ruled in McDonald v. City of Chicago9 that Chicago could not ban handguns,10 the Chicago City Council repealed the handgun ban and enacted a replacement ordinance that, inter alia, outlawed all gun stores within the city.
The district court ruled that the gun store ban violated the Second Amendment.11 The court explained that the plaintiff association of firearms retailers had standing (derivative of the standing that a member firearms retailer would have) to raise Second Amendment claims.12 The court determined that Chicago’s ordinance went “too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms,”13 and the court struck down the ban on all firearms transfers in the city. Mayor Emanuel chose not to appeal.
Two other cases within the Seventh Circuit also have addressed the question of whether firearms corporations have Second Amendment rights. One of these cases challenged another feature of Chicago’s post-McDonald ordinance, the prohibition of all firing ranges within city limits. (The ordinance also required that anyone who wanted a gun permit had to receive live fire instruction at a firing range.) The other addressed a Chicago suburb’s ordinance that required a license to sell firearms….(read more)
- The Second Amendment right to firearms commerce (washingtonpost.com)
- U.S. District Court Strikes Down Chicago’s Unconstitutional Ban on Firearms Sales (nraila.org)
- Wayne LaPierre: Purchase + Possession = Liberty Restored (dailycaller.com)
- Federal Court upholds San Fran’s tough ammo ban, gun laws (patriotnetdaily.com)
- A Quick Summary of Today’s Second Amendment Ruling (nationalreview.com)
- No, We Don’t Need to ‘Fix’ the Second Amendment (reason.com)
- Virginia: Governor Returns NRA-Opposed Amendment on Firearm Records Legislation (nraila.org)
- A look at Friday’s three gun cases in front of the Supreme Court (constitutioncenter.org)
- Judge rules Chicago gun ban is unconstitutional (blacklistednews.com)
- “When Serving In The Militia”: Justice Stevens, The Five Extra Words That Can Fix The Second Amendment (mykeystrokes.com)