Second Amendment Blog Essay

How States Can Limit Gun Violence

In May 2022, a teenage shooter armed with an AR-15 style semiautomatic rifle entered a Tops Supermarket in Buffalo, New York, and methodically killed ten people, almost all of whom were Black, in a racially motivated mass shooting. The shooter purchased the weapon from Vintage Firearms, an LLC registered in New York State, and the weapon included a magazine lock sold by a Georgia-based company, Mean LLC (“Mean Arms”). The magazine lock was necessary to comply with New York law, which bans the possession of assault weapons that hold more than ten rounds of ammunition. However, the lock can also be disabled, allowing assault weapons to illegally hold magazines with far more ammunition. In fact, Mean Arms even includes step-by-step instructions on the back of its product packaging showing gun owners how to remove the lock. The shooter followed those instructions, easily removed the lock, and used 30-round detachable magazines during the shooting, which added to the deadliness of the attack by enabling him to shoot and kill more quickly.

Nearly a year later, New York State Attorney General Letitia James filed a lawsuit against Mean Arms that sought to prohibit the entity from doing business in New York because the company aided and abetted the illegal possession of assault weapons. But the Attorney General’s lawsuit in no way impacts the ability of Vintage Firearms to continue selling firearms in New York. The lawsuit targets the gun accessory manufacturer in Georgia, not the gun seller in New York. And the suit begs a basic, more fundamental question: why should state-registered business entities be allowed to sell guns in the first place?

Voters dissatisfied with the status quo on gun violence should make a simple demand of their state governments: prohibit corporations (and other state-registered business entities like LLCs) from selling guns in their state. If a corporation wants to incorporate in one of these states, or do business there, it must agree to not sell firearms. The benefits of incorporation, such as personal liability protection, tax advantages, perpetual life, and easy transferability of ownership should be conditioned on not selling guns that collectively kill more than 48,000 people per year and reduce overall life expectancy in the United States by nearly 2.5 years. Corporations unwilling to agree to these terms should be subject to judicial dissolution if incorporated in one of these states or excluded from doing business there if incorporated elsewhere.

This simple change would significantly reduce the ease with which one can purchase a gun in these states, because most people obtain guns from stores, many of which are corporations or registered business entities. Further, given that Democrats have unified control of seventeen state governments (including in New York) representing around 140 million people, and Democratic voters consider gun reform a top priority, this prohibition has the potential to significantly reduce the ease with which one can purchase a gun in large segments of the country.

To be clear, this proposal would not categorically prohibit gun sales in any state. Rather, it would make it significantly harder for residents in these states to purchase guns. No longer could a state resident drive up to a corporate store, buy a gun, and use that gun to harm themselves or others. Instead, that resident might have to find an individual willing to sell a gun, and that individual would not be shielded from personal liability related to that gun sale in the same manner as a corporate shareholder or owner would be. If the gun leads to harm, that individual may be sued in their personal capacity — a prospect that may lead many to conclude that it is not worth the risk of selling a gun in the first place.

Can states do this? While these changes would almost certainly be subject to challenge in federal courts, states would be on firm ground. The Supreme Court has explained that it “is an accepted part of the business landscape in this country for States to create corporations, to prescribe their powers, and to define the rights that are acquired by purchasing their shares” and that “[n]o principle of corporation law and practice is more firmly established than a State’s authority to regulate domestic corporations[.]” Further, for more than a century, the Court has also squarely held that states have “the plenary power to exclude a foreign business from doing business within its borders[.]” Today, states routinely exercise their authority to determine what sort of commercial activity is permissible within their borders — for example, state policies vary on whether to permit marijuana sales, gambling, and menthol cigarettes and flavored e-cigarettes. States can generally regulate corporations by using their “lawful police authority” to serve the “public welfare” as long as they do not run afoul of a federal requirement.

But how about that federal requirement known as the Second Amendment? There is good reason to believe there is no Second Amendment issue at all, at least directly with respect to corporations, because the Second Amendment addresses keeping and bearing arms, not selling them. It states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” (emphasis added). In fact, in Teixeira v. County of Alameda, the Ninth Circuit Court of Appeals sitting en banc concluded that a zoning ordinance prohibiting a gun store from being within 500 feet of certain establishments, like residences and schools, was valid because “the Second Amendment does not independently protect a proprietor’s right to sell firearms.” The court further noted that its conclusion was “fully consistent” with District of Columbia v. Heller, the landmark 2008 Supreme Court decision holding that the Second Amendment confers an individual right to keep and bear arms unconnected to service in a militia. As the Ninth Circuit noted, Heller explicitly stated that “nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.”

Teixeira is no outlier. Since Heller, the Fourth Circuit Court of Appeals, and federal district courts in Montana, Texas, West Virginia, Maryland, and New York, have likewise concluded that there is no constitutional right to sell firearms. Prior to Heller, multiple district courts and the Fifth Circuit Court of Appeals had also concluded that there was no Second Amendment right to manufacture or sell firearms.

Dissenting in Teixeira, Judge Bea noted that “[t]he Second Amendment right to ‘keep and bear arms’ would not mean much unless one could lawfully purchase and use arms.” The majority agreed on this general principle, stating “the core Second Amendment right to keep and bear arms for self-defense ‘wouldn’t mean much’ without the ability to acquire arms.” This was consistent with the Third Circuit Court of Appeals, which previously stated in a footnote that “[i]f there were somehow a categorical exception for these restrictions [on the commercial sale of firearms], it would follow that there would be no constitutional defect in prohibiting the commercial sale of firearms. Such a result would be untenable under Heller.”

Indeed, this is the real challenge to a state law banning corporate gun sales. Corporations themselves may have no Second Amendment right to sell arms, but the individual right to keep and bear arms that Heller recognized might be meaningless if people could not purchase guns. Teixeiraacknowledged that “gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained.” The Ninth Circuit also agreed with the Third Circuit that a “total prohibition” on gun sales is impermissible.

However, a state law banning corporate gun sales would neither “meaningfully constrain” access nor amount to a “total prohibition.” First, many people obtain guns from family members and friends, not just corporate stores. Further, a state law banning corporate gun sales would not impact the private sale of guns between unrelated individuals, which is significant in a country with nearly 400 million guns and approximately 75 million gun owners. Finally, a state law ban on corporate gun sales would not affect a resident’s ability to purchase guns from a store in another state with no such law.

Separately, prohibiting corporations from selling guns in a particular state is not inconsistent with how the Second Amendment was understood when it was enacted, which is significant given Heller’s originalist analysis. Originalism holds that the Constitution should be interpreted with the original public meaning that it would have had at the time it was enacted. People did not purchase guns from corporations in 1789, when the Constitution was enacted, or 1791, when the Second Amendment was ratified, because corporations largely did not exist in the United States at the time. Between 1776 and 1789, only twenty-one corporations were chartered in the United States. None of these twenty-one corporations were involved in selling guns: twelve were related to canals, while the rest were involved in miscellaneous industries such as banking, bridges, fire insurance, manufacturing, and mining. Similarly, in 1791, nine corporations were chartered, most of which were related to banking and canals. Several states did not charter a single corporation prior to 1791. It was not until “after ratification of the Constitution” that “U.S. corporations rapidly grew in number.” Therefore, even originalists could not conclude that an individual right to keep and bear arms necessarily relies upon an unencumbered right for corporations to sell guns in every state.

The Supreme Court has undoubtedly expanded gun rights in the last fifteen years by invalidating laws that regulated where and how individuals could keep and bear arms. Heller struck down a handgun ban in Washington, D.C. McDonald v. City of Chicago held that states and cities could not enforce similar bans. New York State Rifle & Pistol Association, Inc. v. Bruen invalidated state concealed carry requirements. As the Court has broadened the scope of the right protected by the Second Amendment, gun deaths have skyrocketed, and Congress has largely abstained from taking any meaningful action on gun violence. States with the political will to reduce gun violence should turn their focus to the sale of guns, using their extensive authority to regulate corporations in a manner that ultimately serves the public welfare.