The U.S. Supreme Court’s Bruen (2022) decision—this, of course, was a lawsuit that NRA members’ dues largely funded—has readied the legal ground for the challenge of another infringement on citizens’ Second Amendment rights: The U.S. Department of Justice (DOJ) just published an opinion arguing that the ban on the mailing of concealable firearms, via the U.S. Postal Service, is unconstitutional.
This ban has been in place for nearly a century.
“Section 1715 makes it difficult to travel with arms for lawful purposes, including self-defense, target shooting, and hunting,” wrote T. Elliot Gaiser, the assistant attorney general for the Office of Legal Counsel. “The statute also imposes significant barriers to shipping constitutionally protected firearms as articles of commerce, which interferes with citizens’ incidental rights to acquire and maintain arms,” continued the opinion.
This is a direct challenge to current Postal Service policy, which mandates that nonmailable firearms found in the mail “must be immediately reported to the United States Postal Inspection Service,” and investigations are then referred to the relevant U.S. attorney’s office for prosecution.
The DOJ opinion explains that in “1927, Congress declared ‘pistols, revolvers, and other firearms capable of being concealed on the person’ to be nonmailable. With some exceptions not relevant here, those who deposit any such firearm in, or cause any such firearm to be delivered by, the mail face criminal sanction. Although this statute does not prohibit the shipment of concealable firearms by private companies, major express services currently forbid all persons from shipping firearms, except for some federal firearms licensees that have private shipping agreements. Thus, unlicensed private citizens face a complete ban on shipping concealable firearms, even though handguns are among the core ‘arms’ protected by the Second Amendment.”
The DOJ opinion next clearly shows why this statute has long been an unconstitutional infringement.
“We conclude that the restriction imposed by section 1715 violates the Second Amendment. Section 1715 makes it difficult to travel with arms for lawful purposes, including self-defense, target shooting, and hunting. The statute also imposes significant barriers to shipping constitutionally protected firearms as articles of commerce, which interferes with citizens’ incidental rights to acquire and maintain arms. Indeed, the statute ultimately aims to suppress traffic in constitutionally protected articles thus rendering the law per se unconstitutional as to those articles, and we are aware of no historical analogues that would satisfy the government’s burden of showing that this unprecedented restriction ‘is consistent with the Nation’s historical tradition of firearm regulation,’” determined the DOJ.
This reference cites the high-court’s Bruen decision, as this ban “substantially burdens the right to bear arms protected by the Second Amendment. An individual cannot mail himself a handgun for core constitutionally protected activity, such as self-defense, target shooting, or hunting ... . [As a result of this ban] traveling with a firearm can be difficult, if not impossible, rendering the mail the most effective way to transport an individual’s firearm to his destination.”
This opinion next lists examples showing how this ban has long impacted this constitutionally protected right. Indeed, Bruen determined that, to burden this right, the government must demonstrate that the infringing regulation “is consistent with the Nation’s historical tradition of firearm regulation.” This infringement does not pass that test.
With the Supreme Court poised to hear Wolford v. Lopez on January 20, in which the high court may answer whether “Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier,” this DOJ opinion again makes it clear that the burden is on the government to prove an infringement is constitutional.
