Buckeye Reporter

There is an emerging trend in Second Amendment cases where some lower courts are upholding gun control laws by asserting that the right to buy a firearm is not protected under the Second Amendment. This interpretation stems from the U.S. Supreme Court’s Bruen test, which examines whether the conduct in question falls under the text of the Second Amendment, protecting a pre-existing “right to keep and bear arms.”

Critics argue that this approach undermines fundamental rights. Larry Keane states, "The ability to freely approach the gun counter to legally purchase a firearm is paramount to exercising the Second Amendment rights to keep and bear arms." He emphasizes that without a legal right to acquire firearms, individuals cannot exercise their right to keep them.

A recent case in New Mexico illustrates this issue. A federal district court judge refused to preliminarily enjoin the state’s seven-day waiting period for purchasing a firearm. The judge argued that this waiting period only minimally burdens the "ancillary right to acquire firearms," despite concerns about its impact on individuals facing imminent threats.

In another instance, a 2024 decision by the U.S. District Court for the Southern District of New York stated there is no Second Amendment right to purchase a second handgun within 90 days of buying a previous one. The court ruled in Knight v. City of New York that such restrictions do not violate constitutional rights.

This perspective has also been adopted by other courts. For example, Judge William Sessions III of Vermont upheld a waiting-period law by stating that acquiring firearms through commercial transactions on-demand is not covered by the Second Amendment's plain text.

Similarly, in Colorado, a federal court ruled against Rocky Mountain Gun Owners regarding a three-day waiting period law, arguing that "the receipt of a paid-for firearm without delay" is not protected under the Second Amendment.

The U.S. District Court for the Eastern District of Pennsylvania further reinforced this stance in U.S. v. King by ruling there is no explicit right to buy and sell firearms under the Second Amendment.

Contrastingly, during the COVID-19 pandemic in 2020, governors like Phil Murphy of New Jersey and Tom Wolf of Pennsylvania reversed orders closing gun stores after recognizing it infringed upon citizens' ability to exercise their Second Amendment rights.

Keane warns against separating the right to purchase firearms from other constitutional protections: "Imagine a court ruling that the First Amendment doesn’t include the right to buy a book... So why is it acceptable for Second Amendment rights?" He concludes that treating these rights as secondary undermines their significance despite landmark decisions like Heller, McDonald, and Bruen.

Republished with permission from NSSF.

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