Do you have a 2A right to sell firearms?

[ELB]

Apparently not to the US Department of Justice...

Clayton Cramer is working on a project to prove that guns were sold in early America, triggered by this case: US v. Hosford

Samuel Hosford was indicted for allegedly conspiring to sell firearms without a license. I have no clue as to the merit of this, whether he was some underground gun runner or just a guy cleaning out his closet. He moved to get the indictment thrown out on constitutional grounds, specifically that the laws he is indicted under are in violation of the 2A.

In opposing this, the government argues (among other things) that the Second Amendment DOES NOT protect the right to sell firearms because it doesn't say "sell" in the text:

(paragraphs added to make it clearer to read:)

Defendant argues that the conduct implicated in this case falls within the scope of the Second Amendment because there must be some method for purchasing and selling firearms in order to preserve the right to possess them for self-defense within the home.

The Government, for its part, argues that the conduct is outside the scope of the Second Amendment based on the plain text that does not refer to the sale of arms and the Fourth Circuit's unpublished decision in United States v. Chafin, 423 F.App'x 342, 344 (4th Cir. 2011), in which it stated that it is aware of no authority "that remotely suggests that, at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." (emphasis in original).

Defendant criticizes the statement in Chafin as incorrect and cites to a law review article, David B. Kopel, Does the Second Amendment Protect Firearms Commerce?, 127 Harv. L. Rev. F. 230 (Apr. 11, 2014). Neither party has attempted to provide comprehensive evidence of the state of the law at the time of ratification concerning the commercial sale of firearms.

Whoa.

Mr. Cramer is apparently working on that last statement there, about "comprehensive evidence...concerning the commercial sale of firearms."

Apparently someone thinks early settlers in America got their guns from the Easter Bunny or something.

Mr. Cramer does good work. He seldom gets credit for it outside of gun circles, but he was one of the first, if not THE first, to call out Professor Bellesiles on his Bancroft Prize-winning book that claimed gun ownership was rare in early America. The academic profession only investigated a part of his poor scholarship, but even that was enough to reveal massive academic fraud and cause the Bancroft Prize to be revoked (for the first time, I believe).

[Beiruty]

What is next, you can buy a firearm but can't sell it? Then, next it would be a property of who? As long as it is legal property, and under the freedom laws of this country, you are free to trade it in any way you like as long it is lawful. Otherwise how many crimes are we committing each day?
In a sense, they Federal or state law cannot ban selling firearms, however, it may deny selling to prohibited persons.

[rbwhatever1]

I've never liked the statement "self defense within the home" mixed in with the 2nd Amendment. That's not really bearing arms.
If you have the right to bear arms someone must have the right to sell arms unless we are all suppose to make our own or steel them.

[srothstein]

One of the problems with this argument is that there is clear constitutional authority for the government to regulate commerce that crosses state lines. The current interpretation of that (and I see no chance of it changing soon) is that this allows the regulation of anything that MIGHT affect interstate commerce. Since there is clear and overwhelming evidence that there is interstate commerce in firearms, even the sale of intrastate firearms may be regulated. Requiring a license to sell firearms is within the power of regulating firearms commerce.

The right to keep and bear firearms would, IMO, prohibit the government from banning the sale of firearms. It would not affect the regulation and licensing authority unless they made it a de facto ban by refusing to issue licenses.

I just read http://scholar.google.com/scholar_case? ... sdt=200003. I think there might be a valid constitutional argument in the vagueness of what constitutes being engaged in the business of selling firearms. I also agree with his arguments about the sale affecting interstate commerce though I know he is fighting decades of court rulings against that argument.

[jmra]

Sounds like this might be a case of someone who is in fact operating a firearms business without a license. Can you sell a firearm legally? Of course. But it doesn't sound to me like this guy was just selling a few firearms out of his safe.
I can sell my used car. But if I go out and buy a used car every week and sell it the next week then at some point I'm running a used car lot for which I need to be licensed. I don't know what this guy did or didn't do, but if he is using a third party to move firearms that he purchased for the sole purpose of selling...well, that sure sounds like his running a firearm business.

[Rex B]

Except that possession of cars is not protected by the BOR.
Does our definition of infringement include regulation of the right to privately sell or buy personal property that is protected by an amendment to the constitution? Were I an attorney, I think I could make a pretty good argument that regulation=infringement.

[ELB]

Sounds like this might be a case of someone who is in fact operating a firearms business without a license. Can you sell a firearm legally? Of course. But it doesn't sound to me like this guy was just selling a few firearms out of his safe.
I can sell my used car. But if I go out and buy a used car every week and sell it the next week then at some point I'm running a used car lot for which I need to be licensed. I don't know what this guy did or didn't do, but if he is using a third party to move firearms that he purchased for the sole purpose of selling...well, that sure sounds like his running a firearm business.

Whether he was running a business or not is not the point, at least not the scary point. The scary point is that the Federal Government is asserting that the 2A protection for keeping and bearing arms does NOT extend to selling them, because the 2A doesn't say "sell" in its text. And scarier still, apparently the Fourth Circuit agrees with that. That means the sale and purchase, and manufacturing, and repair of firearms could be subjected to levels of regulation that would make Bloomberg squeal with delight, because the court thinks they are not constitutionally protected rights.

[jmra]

Except that possession of cars is not protected by the BOR.
Does our definition of infringement include regulation of the right to privately sell or buy personal property that is protected by an amendment to the constitution? Were I an attorney, I think I could make a pretty good argument that regulation=infringement.

You could but the highest court in the land has already ruled that government can regulate firearms otherwise we would all have "constitutional carry".

[Dave2]

One of the problems with this argument is that there is clear constitutional authority for the government to regulate commerce that crosses state lines.

No, there's just clear precident for that. The constitution only says "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;". If you're not a foreign nation, state, or Indian tribe, a straight reading of the constitution doesn't give them the authority to "regulate" your commerce. (Which of course doesn't stop them from doing it anyway.)

[jmra]

One of the problems with this argument is that there is clear constitutional authority for the government to regulate commerce that crosses state lines.

No, there's just clear precident for that. The constitution only says "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;". If you're not a foreign nation, state, or Indian tribe, a straight reading of the constitution doesn't give them the authority to "regulate" your commerce. (Which of course doesn't stop them from doing it anyway.)

Unfortunately the constitution "says" what the majority of the US Supreme Court says it "says". Their interpretation of what it "says" is much different than yours. I'm not saying your interpretation is wrong, just dealing with the reality of where we are today and what the courts have ruled to be the law of the land.

[b322da]

One of the problems with this argument is that there is clear constitutional authority for the government to regulate commerce that crosses state lines.

No, there's just clear precident for that. The constitution only says "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;". If you're not a foreign nation, state, or Indian tribe, a straight reading of the constitution doesn't give them the authority to "regulate" your commerce. (Which of course doesn't stop them from doing it anyway.)

If one reads this as it is written, without rewriting it, it says:

With foreign nations,

With the indian tribes,

and,

Among the several states.

It does not say, with the several states.

Jim

[treadlightly]

If we really have to defend the right to sell what we've got a right to keep, we're sunk.

To belabor the obvious, Merriam-Webster includes a merchant's definition of "keep" as maintaining in inventory for sale. The 1700's meaning of the word may have been different. "Regulated," for example, meant different things, although modern English uses that sort of word in ways most folks don't think of. When a printer registers the colors in a three-color print he doesn't fill out government forms. He makes sure the ink is properly aligned.

But "keep" can clearly mean for sale.

"Hi, Mr. Shopkeeper, I'm trying to lead a particularly benighted gun-grabber to enlightenment."

"We keep a complete selection of American history texts, if your gun-grabber will read them and not just chew the covers off."

Regarding the sale of firearms in olden days, we have the phrase "lock, stock, and barrel." If a gun maker could supply a ready to fire weapon, it was said he could supply the lock, what we might call the receiver or trigger group, the stock which might otherwise come from a cabinet maker, and the gun's barrel. Wikipedia notes the first written reference:

The term was first recorded in the letters of Sir Walter Scott in 1817, in the line "Like the High-landman's gun, she wants stock, lock, and barrel, to put her into repair." It is, however, thought that this term evolved into a popular saying some years before in England.

In other news, the nose on your face is plain. Bozo the Clown's nose is fancy, being a striking, iridescent red.

[srothstein]

One of the problems with this argument is that there is clear constitutional authority for the government to regulate commerce that crosses state lines.

No, there's just clear precident for that. The constitution only says "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;". If you're not a foreign nation, state, or Indian tribe, a straight reading of the constitution doesn't give them the authority to "regulate" your commerce. (Which of course doesn't stop them from doing it anyway.)

I am not enough of a scholar to dispute your interpretation, and I can definitely see an argument for it. I interpreted "among the states" as any commerce which is actually crossing state lines. I can see how it could be taken as only the commerce where State A actually buys something from State B and not if the citizens of the two states do so (which is what I think you are saying).

But even if you are correct that it is just the precedent that has been established and not the clear wording of the Constitution, it is going to be one hard argument to make in court.