opinion
By Larry Keane
There is an interesting, if not tortuous, trend that emerges in some Second Amendment cases. The first step in the US Supreme Court's Bruen test is to ask whether the conduct in question is covered by the text of the Second Amendment, which protects a pre-existing “right to keep and bear arms.” Some lower courts seeking to apply the Bruen test uphold gun control laws by holding that you do not have a Second Amendment right to purchase a firearm.
This is intellectually dishonest, to say the least. The ability to freely approach a gun counter to legally purchase a firearm is paramount to exercising Second Amendment rights to keep and bear arms. There is no “custody” of firearms if there is no legal right to acquire those same firearms. The ramifications of this flawed legal reasoning are obvious. The government could simply ban the purchase (and sale) of firearms and thereby eviscerate the Second Amendment without infringing the right.
Right to buy
The most recent example comes from New Mexico, where there is a federal district court judge refused to pre-order the state's seven-day waiting period to purchase a firearm. There were several serious concerns with this decision, including the judge's determination that the long waiting period does not limit the rights to keep and bear arms. The judge stated that the waiting period only minimally encumbers the “auxiliary right to acquire firearms.”
This may be news to a person facing an imminent threat to their safety or even their life. A female victim of domestic violence considering purchasing a firearm to protect herself and her family could argue that the state's seven-day waiting period is a seven-day ban on her ability to to legally keep and bear arms when he knows there is a threat to his life.
That wasn't the worst of it. The same judge concluded that the waiting period law is presumptively constitutional, given that the first waiting period laws were enacted in the 1920s, long after the ratification of the US Constitution and the adoption of the 14th amendment. The judge even pointed to past discriminatory laws that restricted the sale of firearms to slaves, freedmen and Native Americans. It's amazing that a federal judge is relying on racist laws that have been repudiated by American courts and society to justify a gun control law.
However, this is not what the Supreme Court decided in the Bruen decision. That test, the Court said, is that gun control laws must have a “history and tradition” consistent with when the Second Amendment was signed into law in 1791 at the nation's founding.
Judicial concerns
It would be tempting to dismiss this judge's decision as a “single” aberration. Unfortunately, this is not the case. A 2024 decision by the U.S. District Court for the Southern District of New York explicitly stated that there is no Second Amendment right to purchase a second handgun within 90 days of purchasing a handgun. previous
“The question, then, is whether a waiting period before the purchase of a second gun is conduct covered by the text of the Second Amendment. It is not,” the court ruled in its opinion Knight v. City of New York.
What the court is saying is that the government can ration the exercise of a constitutionally protected right, in this case, only once every 90 days. This would be unthinkable if a court ruled that a law-abiding American could only exercise his rights to free speech or attend a church, mosque, synagogue of his choice every three months. The federal court here is relegating the Second Amendment to a second-class right, that Judge Clarence Thomas has warned.
This line of thinking was not limited to New York. The United States District Court for the District of Vermont upheld the state's waiting period law Vermont Federation of Sportsmen's Clubs v. Birmingham this year, by asserting that there is no Second Amendment right to legally purchase a firearm.
“The Court finds that the relevant conduct, the acquisition of a firearm through an on-demand commercial transaction, is not covered by the plain text of the Second Amendment.” he wrote Judge William Sessions III. He added quizzically: “Plaintiffs may keep and bear arms without immediately acquiring them.”
This defies logic. It is impossible to legally hold and support anything without the ability to legally purchase it first.
In 2023, the U.S. District Court for the District of Colorado ruled against Rocky Mountain gun owners who wanted to challenge a three-day waiting law signed by Gov. Jared Polis. In that decision, the federal court ruled that the Second Amendment says nothing explicitly about the lawful acquisition of a firearm.
“From this reading of the plain text, it is clear that the relevant conduct affected by the waiting period – the receipt without delay of a paid firearm – is not covered,” he added. says the decisionadding: “”To keep,” according to the definitions provided in Heller, meant to retain an object that one already had. It did not mean to receive an item recently paid for, and it certainly did not mean to receive that item without delay. Likewise, 'hav[ing] arms” indicates that the arms are already in one's possession, not that one is receiving them.”
The United States District Court for the Eastern District of Pennsylvania ruled in 2023 in US v. King that there is no right to buy and sell firearms. In fact, Judge Joseph Leeson Jr. He clearly states that this is a factor he did not consider, and would not consider, writing: “… the Court examines the plain text of the Second Amendment; it does not consider the 'implied' rights that may be lurking beneath the surface of the plain text.”
“Even if the Court were to assume that there is an implicit Second Amendment right to buy and sell firearms to keep and bear arms, that is not the same as a right to buy and sell firearms as a regular business or business with the primary purpose of subsistence and profit through the repetitive purchase and resale of firearms,” Judge Leeson said. he wrote. “In other words, the Second Amendment does not protect the commercial trade in firearms.” Of course, while Heller said that trade regulations could be presumptively valid, he never suggested that the purchase and sale of commonly used “weapons” could be banned.
The governors knew in 2020
Contrast that with governors who, just four years ago, quickly reversed their policies to order firearms retailers to close their doors during the 2020 COVID-19 pandemic. Phil Murphy, Governor of New Jersey reverse course of his initial order to close the weapons stores. He recognized that to deny law-abiding citizens the ability to legally obtain a firearm is to deny them the ability to exercise their Second Amendment rights. Tom Wolf, the former governor of Pennsylvania he did the sameeven after the Pennsylvania Supreme Court refused a challenge in order The quiet turnaround came in light of what could have become a US Supreme Court challenge.
A federal judge ordered former Massachusetts Gov. Charlie Baker to allow firearms retailers to reopen. the judge ordering the mandate he wrote“The demands surrounding this viral pandemic justify and require changes in the way people live their lives and conduct their daily business. However, this emergency – like any other emergency – has its constitutional limits. It would not justify a prior restriction of speech or a suspension of the right to vote. Likewise, it does not justify a ban on obtaining arms and ammunition.”
Divorcing the right to freely approach the gun counter of a firearms retailer and the right to keep and bear arms is a dangerous slope. Firearms are legal products available to anyone over the age of 18 for long guns or 21 for handguns, as long as the individual is purchasing the firearm for himself or herself and can pass the FBI's National Instant Criminal Background Check System (NICS). ). Conditioning this right – either with waiting periods, which are an attempt to delay the exercise of this right – or by removing the right to legally purchase a firearm is a violation of the rights that belong to people .
Imagine a court ruling that the First Amendment does not include the right to buy a book. Or a law that said you can only buy a newspaper after waiting seven days. Or a law that limits how many books you can buy in a month. Or a law where the government decides what books you can buy and read? Obviously, no one would tolerate such laws. So why is it acceptable for Second Amendment rights?
The answer, unfortunately, is that despite the Heller, McDonald, and Bruen decisions, some legislatures and judges treat the Second Amendment as a “second-class right.”
About the National Shooting Sports Foundation
NSSF is the trade association for the firearms industry. Its mission is to promote, protect and preserve the sports of hunting and shooting. Formed in 1961, NSSF has thousands of members from manufacturers, dealers, firearms retailers, shooting ranges, sportsmen's organizations and publishers across the country. For more information, visit nssf.org
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