Article by: Corey A. Ciocchetti

46 PEPP. L. REV. 1 (2018)

Does the Second Amendment protect commerce in firearms? The simple answer is: yes, to an extent. An individual’s right to possess and use a gun for self-defense in the home is black-letter law after District of Columbia v. Heller. The right to possess and use a gun requires the ability to obtain a gun, ammunition, and firearms training. Therefore, gun dealers, servicers, and training providers receive some constitutional protection as facilitators of their customers’ Second Amendment rights. Whether these constitutional rights belong to firearms-related businesses independently of their customers is unclear. The scope of the Second Amendment matters as recent, horrific gun violence has launched serious regulation of firearms commerce back into the spotlight. These regulations are constantly challenged and must be adjudicated using the precious little guidance the Supreme Court has provided.

Federal circuits have coalesced around a two-part Firearms Commerce Test to evaluate laws regulating firearms businesses. First, courts determine if the challenged law burdens conduct protected by the Second Amendment. Second, courts apply some level of heightened scrutiny. The Firearms Commerce Test is widely accepted. It is simple to understand and execute. The results it produces are consistent, fair, and useful. In fact, chances are good that the Supreme Court adopts the test as a national standard when it hears its first firearms commerce case. Even with these positive attributes, the test could and should function more optimally. This article argues that the test could be more efficient, effective, and faithful to Heller with two substantive modifications. First, courts should assume at step one that the Second Amendment is implicated. This approach is much better than the scavenger hunt through history courts now employ to answer this question. Second, judges should uniformly apply a tougher form of intermediate scrutiny at step two that requires the government to provide evidence that the law is effective (i.e., substantially related to an important government interest).

This stricter level of review would ferret out the effective gun regulations from the rest and protect this often-unpopular constitutional right. This article argues that the vast majority of gun regulations will and should still be upheld because the government always has a compelling interest in reducing crime and protecting the public. With that huge advantage, however, officials must demonstrate that their law actually promotes these noble goals.

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